Complainant

Respondent

Parties

Amit  Chawla

FREENOW IRELAND LIMITED.

Representatives

  Self –represented.

Mr. Jason Murray, B.L., instructed by RDJ LLP.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00062707-001

10/04/2024

The complainant has submitted a complaint that the respondent discriminated against him,  harassed and victimized him contrary to the race, gender, age disability and sexual orientation grounds, as set out in section 5 of the Equal Status Act, 2000, when he was denied access to a taxi.

The last act of discrimination occurred on 2/4/2024.

He submitted his complaint to the WRC on 10/4/2024.

Incorrectly named respondent.

The respondent submits that the complainant has named the incorrect respondent.

 The respondent named by the complainant is a limited liability company, operating  a technology platform that brings independent taxi service providers in contact with mobile customers. The respondent’s role in the taxi booking process is limited to providing a booking platform and an online payment platform. The respondent provides a booking service pursuant to the provisions of the Taxi Regulation Act 2013 (as amended). The Taxi Regulation Act 2013 (as amended),defines  the respondent as a “dispatch operator”. The respondent holds the relevant licence for same. Section 2 of the Taxi Regulation Act 2013  states that;

“ a dispatch operator” means a person who provides for reward—

(a) a booking service for an intending passenger to contact him or her to arrange for  the hire of, and carriage of the intending passenger in, a small public service  vehicle operated or driven by another person (other than an employee of the first mentioned person), or

(b) a service allowing an intending passenger to arrange the hire of a small public service vehicle, but does not include a person employed by the first-mentioned person to take or manage the taking of bookings in the course of that service or a person marshalling in a public place (within the meaning of the Act of 1961) the services of small public service vehicles”;

The respondent ,the dispatch operator is “a person” that arranges for the hire of, and carriage of an intended passenger in a vehicle being operated by “another person”. The respondent advised that  the taxi must be

“… operated or driven by another person (other than an employee of [the dispatch operator])”.

Therefore, the Taxi Regulation Act 2013 (as amended) clarifies that a taxi operator is not, and cannot, be an employee of the respondent. Taxi operators are self-employed persons who provide a service to the general public.

The complainant was a service user of the respondent. He has not made any complaint and/or allegation in relation to the booking service provided by the respondent. That service  is not the subject of any complaint by the complainant pursuant to the Equal Status Act 2000 (as amended), or at all. Therefore, it is the respondent’s position that the complainant’s complaint against the respondent is fundamentally flawed, misconceived and bound to fail.

The complainant’s ES1 Form and his written submission entirely relate to the service offered by an independent taxi driver, Mr SA . The respondent holds no liability for any act(s) or omission(s) on the part of a separate legal entity, (Mr SA),who is not a servant or agent of the respondent.

The complainant notified the respondent of the nature of the complaint he had against Mr SA. The Respondent replied to the Complainant by way of email dated 3 April 2024, notifying the complainant that taxi drivers who sign up to use FREE NOW’s services are neither employees nor agents of this company.

 The Complainant signed up and consented to the terms and conditions of the service in place at the time. These terms stated:

“ FREENOW provides you with access to the app….. FREENOW does not directly provide any transportation services nor does our service encompass the provision of such service……..

FREENOW is neither responsible or liable for the actual  transportation service provided by the driver, including but not limited to the availability of Transportation Services.”

The agreement between FREENOW and the complainant finally clarifies that the user must bring any claims relating to the taxi transportation  service against the respective driver to the Taxi Authority/National Transport Authority.

 When the complainant agreed to the terms and conditions of the service in place at the time, he was  notified of the fact that:

“drivers who sign up to use FREE NOW’s services are neither employees nor agents of this company.

The User agrees that FREENOW shall have no liability in respect of SPSV transportation services”

FREE NOW operates a technology platform that brings independent service providers in contact with mobile customers.

FREE NOW is not responsible for the actions or inactions of the drivers of SPSV licensed vehicles which are used by users of the FREE NOW platform.

Legal Arguments.

The complainant’s case cannot succeed against the respondent as no service was denied to him by the respondent. Nor did the respondent victimise him or harass him on the grounds of race, age, disability or sexual orientation. He therefore cannot raise a prima facie case.

The respondent relies on Kelly v Panorama Holiday Group Ltd, DEC-S2008-007 where the airline and not the holiday agent refused the complainant permission to fly due to her pregnancy. It was the airline and not the named respondent, who had authority to admit persons onto the flight. The equality officer noted that

        “the air line at all times retains the right to make decisions as to the carriage of  passenger    aboard its aircraft and in such matters is not acting as an agent.”

The respondent argues that this mirrors the instant situation where it was the taxi driver alone, and in accordance with the NTA regulations, who chose not to take the complainant.  The respondent cannot order a driver to take a passenger. As such it cannot be maintained that the taxi driver was acting as an agent of the respondent.

Vicarious liability of the respondent.

The respondent maintains that the respondent cannot be held liable for the actions of the taxi driver. Firstly, as the actions attributed to the taxi driver are clearly outside of the field of activities  that would be expected from a taxi driver, the respondent cannot be held liable for the egregious acts alleged .

The respondent refers to Moynihan v Moynihan (1975) IR 192 where the Supreme Court held that in order to establish vicarious liability, it must be shown that not only did an employment relationship exist but that that the wrongdoer must be acting within the scope of his employment.

The respondent also relies on the Supreme Court judgement of Morrissey v HSE and ORRS where Clarke J held that vicarious liability can arise in an employer- employee or principal and agent relationship, liability being placed on a person who was not themselves directly responsible for the  relevant wrongdoing. The actions complained of must have a connection with the employment of the taxi driver. This was not the case win the instant case.

The respondent submits that the WRC does not have jurisdiction to hear this complaint.

Summary of Complainant’s Case:

The complainant is an Irish-born Irish citizen of Indian origin. He uses a walking stick.

On Sunday 17 March 2024, he telephoned for a taxi with FREENOW Ireland ltd., with whom he is a registered customer, to be picked up at Connolly station for drop off to his home address. The FREENOW representative, the taxi driver, Mr SA, accepted, confirmed the booking and arrived at the pick-up location. On arrival at the pick-up location at about 9.25 pm., Mr A called the complainant via the FREENOW App and attempted to identify the complainant initially by his disability stating ,- ‘’you have a walking stick’’! The complainant confirmed that he had in a bid to identify himself to the driver who was on the opposite side of the road. The FREENOW service provider then began to make remarks related to the complainant's race (skin colour & ethnicity). He asked the complainant, ‘’ you Indian?’’. These remarks focussed on the complainant's race, ethnicity and skin colour. He also made assertions about the complainant’s sexual orientation over the call and finally shouted, ‘’no, no, not you - not taking short trip !’’ He then hung up on the call. The driver refused to accept the transaction to which he had committed which was to deliver the complainant to his home.

The complainant states that It is important to point out that the FREENOW Service provider was fully aware of the pick-up and drop off locations on accepting the booking and confirming the service before ever arriving at the pick-up location. However, refusal of the service in itself is sufficient to warrant a penalty under the Taxi Regulations Act, 2013.

The FREENOW representative’s actions towards him amounted to discrimination on grounds of race (colour & ethnicity), disability, and sexual orientation based on other remarks made by the taxi driver.

The FREENOW representative abruptly refused the service. Following this refusal and cancellation on the grounds of discrimination, the FREENOW representative continued to shout remarks at the complainant from his vehicle about the complainant’s race, disability, and assumptions related to sexual orientation. The FREENOW representative spat at the complainant.

The complainant maintains that the named respondent is the correct respondent because  taxi drivers using their platform must register with the respondent in order to acquire customers. Likewise, the passenger must register with Free now to gain access to its services. The taxi driver uses its services. The FREENOW sign is on the taxi. He maintains that the driver is representing FREENOW. He booked the taxi on the FREENOW app. His booking was accepted on the FREENOW app. The driver connected with the  FREENOW app to secure his custom.

The respondent’s email of 20/3/2024, expressing regret for any unpleasantness on the part of the taxi driver  is an admission of  responsibility on their part, and an acknowledgement that the incident occurred; they admitted a wrongdoing.

He requests that the adjudicator find that the named respondent is the correct respondent.

The complainant seeks a finding that FREENOW are responsible for the taxi driver’s refusal  to accept him as a passenger, an act  that  amounts to discrimination and harassment contrary to the race, age, disability and sexual orientation grounds of the Equal Status Act, 2000.

The respondent raised the preliminary issue of the incorrect respondent being named in the complaint submitted to the WRC.

I offered the complainant the opportunity to make legal submission as to whether he had named the correct respondent in the herein complaint. I offered the respondent an opportunity to respond to the complainant’s supplemental submissions. Both made supplemental submission on the named respondent. Final submissions were received on the 26/11/24.

The matter of a preliminary issue being determined in advance of determining the substantive issue has been addressed  in Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114 which held that for the Court to consider the substantive matter before issuing a decision on a preliminary objection that pertained to jurisdiction

“is akin to asking the Court to exercise its jurisdiction before it determines whether or not it has jurisdiction, in the first instance.”

So also in Stapleton v. Achushla Ltd & Ors, ADJ-00037399, the Adjudication Officer held that, in the circumstances of that case, it would not be appropriate to proceed to hear substantive allegations before deciding a preliminary issue of jurisdiction.

In  a Senior Waiter v a Restaurant, ADJ-00021634, the adjudicator was faced with a complaint lodged against an incorrectly named respondent. She concluded that prior to adjudicating upon the substantive issue, she

   “ must first decide whether or not the complainant has named the correct

      respondent for the purpose of the herein complaints”.

The Labour Court in Moanne Chow T/A Orchid Restaurant v Stephen NG, UDD2121 upheld her decision  that an incorrectly named respondent deprived that complainant of jurisdiction to have his complaint heard.

I decide that I must determine the preliminary issued of the incorrectly named  respondent in the first instance.

Incorrectly named respondent.?

The Equal Status Act,2000 permits a service user to bring a complaint against a service provider.

The correct respondent is therefore a person who provides a service to the public. It is accepted that the named respondent provides a service to the public. But the service of the named respondent is not the basis of this complaint. The service denied to the complainant was not access to the respondent’s site to secure a  taxi service. This complaint is about another provider, a taxi driver, who refused, on sighting the complainant, to provide  transport services to the complainant on the reported grounds of disability, race , age and allegations of harassment on the grounds of sexual orientation.

The complainant maintains that the named respondent is the correct respondent because  taxi drivers using their platform must register with the respondent in order to acquire customers. Likewise, the passenger must register with Free now to gain access to its services The taxi driver uses its services. The Free Now sign is on the taxi. He maintains that the driver is representing Free now. He booked the taxi on the FREENOW Free Now app. His booking was accepted on the free Now app. The driver connected with the FREENOW Free Now app to secure his custom.

The complainant’s supplemental submission furnished to the WRC on 22/10/24 did not address the legal arguments concerning the correctly named respondent but dealt with matters extraneous to this issue such as the respondent not meeting the deadlines set out in the WRC guidelines.

The supplemental  submission furnished by the respondent reiterated the arguments made in their original submission and refuted the criticisms levelled at them by the complainant.

The only point of engagement between the named respondent and the taxi driver is to offer a channel for taxi drivers to secure customers and for the complainant  to secure a  service from an independent taxi driver .

The evidence demonstrates that the named respondent  exercises no control over the taxi driver , does not require the taxi drivers to be in any way accountable for their choices in accepting or rejecting a particular passenger and point to the National Transport Authority as the body to whom a complaint about a refusal of service should be submitted.

I can find no basis for assuming that the taxi driver is an employee or  representative of the respondent on the mere basis that there is a Free Now sign on the taxi.

I find on the basis of the evidence submitted that the taxi driver is an independent contractor. The taxi driver provides the vehicle not FREENOW, determines the rate, not FREENOW. The taxi driver is paid by the passenger, not by FREENOW. No evidence e was submitted to demonstrate that the named respondent controls how the taxi driver, Mr A ,performs the job.

Is the respondent vicariously liable for the actions of the taxi driver?

The matter of  vicarious liability arising as a result of  the actions of an independent contractor was examined in the Supreme Court decision of  Morrissey & Anor v HSE, (2020) IESC 6. This concerned  the liability of the HSE for the consequences to patients of the delayed diagnosis of cervical cancer  as a result of defective screening processes employed by those  testing laboratories contracted by the HSE.  The Court in examining contracts between contracting parties held at para 12.19 as follows:

“Such contracts, for example, frequently specify that work is to be carried out in accordance with a particular recognised standard, even if that standard is not legally binding. It can hardly be said that a clause of that type implies that one contracting party is taking control over how the other is to do their work. The manner in which the second party is to ensure compliance with the quality control terms of the contract is left up to themselves”.

At para 12.20 the Supreme Court stated:

“Taking a broad view of the relations between the HSE and the laboratories, it seems to me that both the relationship between those parties (which is clearly that of independent contractors) but also the level of control exercised by the HSE is such that it cannot give rise to vicarious liability. I would, therefore, hold that the HSE was not vicariously liable for any negligence established against the laboratories”

Applying Moynihan to the instant complaint, the Court held that vicarious liability to arise, not only must an employment relationship exist but that that the wrongdoer must be acting within the scope of his employment. It cannot be said to be part of a taxi driver’s duties to discriminate, harass or victimise a passenger.

I have considered and evaluated all the evidence adduced in this case. I am satisfied that the named respondent was not the service provider in the context of the complaints lodged including denial of transport and harassment of the complainant. The service provider was the taxi driver. I find that no employment relationship existed between the named respondent and the taxi driver. I am satisfied that the taxi driver was not acting as an agent of the named respondent. The  evidence and authorities fail to demonstrate that the respondent is vicariously liable for the actions of the taxi driver.

I find, therefore, that I do not have jurisdiction to hear this complaint .

I decide that I do not have jurisdiction to hear this complaint.

Incorrect respondent