Complainant

Respondent

Anonymised Parties

A Passenger

An Airline

Representatives

 Arthur Cox LLp

Act

Complaint Reference No.

Date of Receipt

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

CA-00063430-001

13/05/2024

The complaint is made following seating restrictions imposed on an airline passenger who registered as ‘Special Category.

Having regard to the detail of the complainant’s medical issues I have decided to anonymise the parties in the matter.

The complainant gave his evidence on affirmation.

The complainant submitted a notification letter to the airline requesting special assistance on his flight.  He  is autistic and also uses a sleep apnea machine.  He  was flying from Dublin to London return and all went well on the first leg of the trip. He was given the seat he had booked with extra leg room, as he had specified.

On the return journey and on arrival at the airport to check in his baggage he was informed that his seat had been changed. He had booked an extended legroom seat at the emergency exit.

When he asked why it was changed, he was told it was due to his disability.

He produced his medical certification in relation to the accommodation he required and confirmed he had a medical device.  He was told to speak to the cabin crew. He asked if she could have it resolved quickly and discretely so that he would not have to keep explaining his disability in the presence of other passengers.

After speaking with someone on the phone, the cabin crew member informed him that she could “soft book” that emergency exit seat he had already booked and that it was not a problem and just to speak with the cabin crew.

He  asked how he could avoid the queue at security (one of his required accommodations),  but he was required to get in a long queue, and it took some time to get through.

He  went to the gate early and was the first person there but soon followed by other passengers.

He first spoke with a woman who did not understand his difficulty.

A large crowd gathered to go through the gate to check in. She then called a colleague to confer with and at this point he turned around and the gate was full for the flight and all the people were queuing behind him.  He  again told the entire story to the airline staff member at the gate and showed his accommodation letter.

She explained that as a result of being autistic they would not let him sit at the emergency exit. He  explained that he is employed in a demanding career and would have no problem assisting people off the plane in an emergency. She told him to speak to the cabin crew.

He  again stated that he found it humiliating and degrading having to discuss his diagnosis in front of a large crowd of onlookers about to board and just behind him.  They all could hear what was happening.

He  again asked the gate checker if she could let the cabin crew know the position so that he did not have to reiterate it. He was told to wait until the gate supervisor completed his tasks. All the other passengers could see and hear the  conversations.

He was told that he could not sit in the emergency exit row, despite his having already booked it. He  explained that his disability was unrelated to opening or assisting people off the flight and he had no cognitive or physical impairment that would affect his ability to assist.

He again explained that he needed this seat to be able to move his legs and highlighted that any move from his prebooked seats would also have to have additional legroom.

The gate supervisor explained that there might be other seats with extended leg room free and said that there were actually at least three seats with extended leg room free that were not at an emergency exit but was eventually told that he could not sit there either on account of his disability.

He was offered a row of three seats but explained it was the extended leg room that was needed.

On boarding he asked to speak to a cabin crew member but was moved to his seat and they would be with him shortly. He  sat in row 2 with his legs pinned up against the seats in front of him. Unable to move them. he again requested to speak with a member of cabin crew as people were boarding. They said they would come to him shortly.

He noticed that immediately a number of options with extended leg room. None of those seats were at an emergency exit.

He  spoke to a cabin crew member who explained he could not be seated at the emergency exit because of his disability, and he again explained that he would have no difficulty with doing anything required to sit at an emergency exit, but to no avail.

He  explained how distressing all of this was and said it was not suitable. He  sat in that seat for the remainder of his flight. It was a distressing, humiliating,  and degradingexperience.

He had sent the ES1 form to the airline via registered post on April 15th,  2024. It was delivered on the following day (signed on delivery). The  airline did not respond and did not provide any of the requested information.

In a later submission, in response to one from the respondent’s the complainant confirms that the claim for harassment related to the repeated requirement to refer publicly  to his diagnosis in public due to the persistent questions from the respondent’s employees.

He says that the respondent failed to provide him with alternative accommodation and that it failed to reply to his ES1 form

He also says that the respondent failed entirely to refer to the complaint of victimisation. He was re-seated having made a formal complaint of discrimination.

He also says that even where an airline gets notice that is less that than specified it is required to make efforts to provide reasonable accommodation, and relies on a European Civil Aviation Conference  (ECAC) document in that regard which states specifically that

 ‘All carriers should take all reasonable efforts to accommodate persons with disabilities and persons with reduced mobility, even if there is no advance notification of their travel’

The complainant challenges the ‘blanket rule’ approach on the basis that there must be a genuine safety reason specific to the passenger’s capacity. A blanket ban on all autistic passengers in exit rows fails to meet this standard.

ECAC Doc 30 Policy from the European Civil Aviation Conference

Outlined in Commission regulation (EU) no 965/2012 (The “Air Operations Regulation”), Cat.op.mpa.155 “Carriage of special categories of passengers (SCPs)” define SCPs as follows (page 75).

“(a) Persons requiring special conditions, assistance and/or devices when carried on a flight shall be considered as SCPs including at least:

(1) persons with reduced mobility (PRMs) who, without prejudice to Regulation (EC) No 1107/2006, are understood to be any person whose mobility is reduced due to any physical disability, sensory or locomotory, permanent or temporary, intellectual disability or impairment, any other cause of disability, or age;”

As also outlined in Commission regulation (EU) no 965/2012 (The “Air Operations Regulation”), Cat.op.mpa.155 (emphasis added) Page 75.

“(c) SCPs shall not be allocated, nor occupy, seats that permit direct access to emergency exits or where their presence could:

impede crew members in their duties.

obstruct access to emergency equipment; or

impede the emergency evacuation of the aircraft.”

“Could impede” is conditional, it does not mandate an automatic ban of all passengers with autism or any other disability from an exit row seat. The airline must determine whether an individual with or without a particular disability actually poses a risk in the exit row.

Outlined in ECAC Doc 30 Policy statement from the European Civil Aviation Conference). This is not EU legislation but is often used for guidance by airlines, such as with “persons with reduced mobility (PRMs)” Emphasis added.

“PRMs should not be allocated seats in the exit row if their presence would hinder or impede an emergency evacuation or obstruct the crew in carrying out their duties”.

The ECAC Doc 30 again describes a functional check, not a blanket ban on all those under the label of a disability. It is about preventing a PRM whose disability genuinely impairs them from responding in an emergency. The ECAC Doc 30 Policy goes onto say (emphasis added) (pages 157.

“Air carriers should enable persons with disabilities and PRMs and other passengers who need assistance – for example to fasten/unfasten a seat belt or grab an oxygen mask - to choose seating which minimises inconvenience to them and maximises the scope for cabin crew assistance providing that such seating does not impede the crew in their safety duties, does not obstruct access to emergency equipment and does not impede the emergency evacuation of the aeroplane. They should never be allocated seats in the exit row.”

The line “they should never be allocated seats in the exit row” could easily be taken out of context when not examining the document and the immediately preceding sentences.

Again, language such as “such seating does not impede… does not obstruct….does not impede…” is functional language. A passenger who would impede and obstruct in such a seat should not be allocated and fly in those seats. Again, this does not equate to a blanket label resulting in having a disability meaning no exit seat.

Having regard to the detail of the complainant’s medical issues I have decided to anonymise the parties in the matter.

The complainant gave his evidence on affirmation.

The complainant submitted a notification letter to the airline requesting special assistance on his flight.  He  is autistic and also uses a sleep apnea machine.  He  was flying from Dublin to London return and all went well on the first leg of the trip. He was given the seat he had booked with extra leg room, as he had specified.

On the return journey and on arrival at the airport to check in his baggage he was informed that his seat had been changed. He had booked an extended legroom seat at the emergency exit.

When he asked why it was changed, he was told it was due to his disability.

He produced his medical certification in relation to the accommodation he required and confirmed he had a medical device.  He was told to speak to the cabin crew. He asked if she could have it resolved quickly and discretely so that he would not have to keep explaining his disability in the presence of other passengers.

After speaking with someone on the phone, the cabin crew member informed him that she could “soft book” that emergency exit seat he had already booked and that it was not a problem and just to speak with the cabin crew.

He  asked how he could avoid the queue at security (one of his required accommodations),  but he was required to get in a long queue, and it took some time to get through.

He  went to the gate early and was the first person there but soon followed by other passengers.

He first spoke with a woman who did not understand his difficulty.

A large crowd gathered to go through the gate to check in. She then called a colleague to confer with and at this point he turned around and the gate was full for the flight and all the people were queuing behind him.  He  again told the entire story to the airline staff member at the gate and showed his accommodation letter.

She explained that as a result of being autistic they would not let him sit at the emergency exit. He  explained that he is employed in a demanding career and would have no problem assisting people off the plane in an emergency. She told him to speak to the cabin crew.

He  again stated that he found it humiliating and degrading having to discuss his diagnosis in front of a large crowd of onlookers about to board and just behind him.  They all could hear what was happening.

He  again asked the gate checker if she could let the cabin crew know the position so that he did not have to reiterate it. He was told to wait until the gate supervisor completed his tasks. All the other passengers could see and hear the  conversations.

He was told that he could not sit in the emergency exit row, despite his having already booked it. He  explained that his disability was unrelated to opening or assisting people off the flight and he had no cognitive or physical impairment that would affect his ability to assist.

He again explained that he needed this seat to be able to move his legs and highlighted that any move from his prebooked seats would also have to have additional legroom.

The gate supervisor explained that there might be other seats with extended leg room free and said that there were actually at least three seats with extended leg room free that were not at an emergency exit but was eventually told that he could not sit there either on account of his disability.

He was offered a row of three seats but explained it was the extended leg room that was needed.

On boarding he asked to speak to a cabin crew member but was moved to his seat and they would be with him shortly. He  sat in row 2 with his legs pinned up against the seats in front of him. Unable to move them. he again requested to speak with a member of cabin crew as people were boarding. They said they would come to him shortly.

He noticed that immediately a number of options with extended leg room. None of those seats were at an emergency exit.

He  spoke to a cabin crew member who explained he could not be seated at the emergency exit because of his disability, and he again explained that he would have no difficulty with doing anything required to sit at an emergency exit, but to no avail.

He  explained how distressing all of this was and said it was not suitable. He  sat in that seat for the remainder of his flight. It was a distressing, humiliating,  and degradingexperience.

He had sent the ES1 form to the airline via registered post on April 15th,  2024. It was delivered on the following day (signed on delivery). The  airline did not respond and did not provide any of the requested information.

In a later submission, in response to one from the respondent’s the complainant confirms that the claim for harassment related to the repeated requirement to refer publicly  to his diagnosis in public due to the persistent questions from the respondent’s employees.

He says that the respondent failed to provide him with alternative accommodation and that it failed to reply to his ES1 form

He also says that the respondent failed entirely to refer to the complaint of victimisation. He was re-seated having made a formal complaint of discrimination.

He also says that even where an airline gets notice that is less that than specified it is required to make efforts to provide reasonable accommodation, and relies on a European Civil Aviation Conference  (ECAC) document in that regard which states specifically that

 ‘All carriers should take all reasonable efforts to accommodate persons with disabilities and persons with reduced mobility, even if there is no advance notification of their travel’

The complainant challenges the ‘blanket rule’ approach on the basis that there must be a genuine safety reason specific to the passenger’s capacity. A blanket ban on all autistic passengers in exit rows fails to meet this standard.

ECAC Doc 30 Policy from the European Civil Aviation Conference

Outlined in Commission regulation (EU) no 965/2012 (The “Air Operations Regulation”), Cat.op.mpa.155 “Carriage of special categories of passengers (SCPs)” define SCPs as follows (page 75).

“(a) Persons requiring special conditions, assistance and/or devices when carried on a flight shall be considered as SCPs including at least:

(1) persons with reduced mobility (PRMs) who, without prejudice to Regulation (EC) No 1107/2006, are understood to be any person whose mobility is reduced due to any physical disability, sensory or locomotory, permanent or temporary, intellectual disability or impairment, any other cause of disability, or age;”

As also outlined in Commission regulation (EU) no 965/2012 (The “Air Operations Regulation”), Cat.op.mpa.155 (emphasis added) Page 75.

“(c) SCPs shall not be allocated, nor occupy, seats that permit direct access to emergency exits or where their presence could:

impede crew members in their duties.

obstruct access to emergency equipment; or

impede the emergency evacuation of the aircraft.”

“Could impede” is conditional, it does not mandate an automatic ban of all passengers with autism or any other disability from an exit row seat. The airline must determine whether an individual with or without a particular disability actually poses a risk in the exit row.

Outlined in ECAC Doc 30 Policy statement from the European Civil Aviation Conference). This is not EU legislation but is often used for guidance by airlines, such as with “persons with reduced mobility (PRMs)” Emphasis added.

“PRMs should not be allocated seats in the exit row if their presence would hinder or impede an emergency evacuation or obstruct the crew in carrying out their duties”.

The ECAC Doc 30 again describes a functional check, not a blanket ban on all those under the label of a disability. It is about preventing a PRM whose disability genuinely impairs them from responding in an emergency. The ECAC Doc 30 Policy goes onto say (emphasis added) (pages 157.

“Air carriers should enable persons with disabilities and PRMs and other passengers who need assistance – for example to fasten/unfasten a seat belt or grab an oxygen mask - to choose seating which minimises inconvenience to them and maximises the scope for cabin crew assistance providing that such seating does not impede the crew in their safety duties, does not obstruct access to emergency equipment and does not impede the emergency evacuation of the aeroplane. They should never be allocated seats in the exit row.”

The line “they should never be allocated seats in the exit row” could easily be taken out of context when not examining the document and the immediately preceding sentences.

Again, language such as “such seating does not impede…does not obstruct….does not impede…”is functional language. A passenger who would impede and obstruct in such a seat should not be allocated and fly in those seats.

Again, this does not equate to a blanket label resulting in having a disability meaning no exit seat.

The narrative of events is set out above and is not in any significant dispute.

The complainant travelled to London on March 18th, 2024, having given notice of his requirement for special accommodation on the flight, specifically a seat with extra legroom; Seat 12A. While the airline responded to his request early in the morning of his day of travel, it was not  seen by the flight crew.

Accordingly, he occupied seat 12A on the outbound flight, despite this being in the emergency exit row. As will become critical later,  the respondent says that passengers with a disability are not permitted to travel in the emergency row.

He returned to Dublin on March 24th, and it is at this point that the complaint begins to take shape. On this occasion the fact that the complainant had registered himself as having disability was noticed and he was reallocated to another seat, not at an emergency exit.

There is a parallel issue as to how the matter was handled by aircraft personnel at both check-in and on the flight bearing in mind that he had set the following out in his request for Special Assistance.

 “I need to be able to not que (sic) through security or when boarding on the plane. I have purchased priority boarding, but sometimes there are also extended ques when boarding. If this could be done somewhat discretely that would be appreciated. I have a sleep apnea machine. (cap). It is a standard one. it will come with a facemask, hose, console itself, and plug.”

The alleged treatment of the complainant in relation to this makes up his complaint of harassment to which I return.

But the first issue is the denial of the complainant’s request to sit in the seat with extra legroom, located at the emergency exit.

Both parties have set out the governing law and regulations.

CAT.OP.MPA.155 Carriage of special categories of passengers (SCPs)

(a)            Persons requiring special conditions, assistance and/or devices when carried on a flight shall be considered as SCPs including at least:

(1)            persons with reduced mobility (PRMs) who, without prejudice to Regulation (EC) No 1107/2006, are understood to be any person whose mobility is reduced due to any physical disability, sensory or locomotory, permanent or temporary, intellectual disability or impairment, any other cause of disability, or age; infants and unaccompanied children; and

(2)            deportees, inadmissible passengers or prisoners in custody.

(b)            SCPs shall be carried under conditions that ensure the safety of the aircraft and its occupants according to procedures established by the operator.

(c) SCPs shall not be allocated, nor occupy, seats that permit direct access to emergency exits or where their presence could:

(1)                          impede crew members in their duties;

(2)            obstruct access to emergency equipment; or

(3)               impede the emergency evacuation of the aircraft.

Of significance in this definition of a passenger who is to be considered ‘Special Category’ is the qualification (admittedly not an exhaustive one) in clause (c) 1 that the person be a person with ‘reduced mobility’ (PRMs)….

 ‘due to any physical disability, sensory or locomotory, permanent or temporary, intellectual disability or impairment, any other cause of disability, or age; infants and unaccompanied children.’

The respondent  goes on to submit that in the latest edition of the ECAC Policy Statement in the Field of Civil Aviation Facilitation ECAC Doc 30 (13th edition dated December 2023 e)), Section5isontheFacilitationoftheTransportofPersonswithDisabilitiesandPersons with Reduced Mobility and Annex 5-F provides an Advisory Note on Procedures for Carrying Persons with Disabilities and Persons with Reduced Mobility.

The Annex explains:

“The definition of PRM in Article 2 (a) of Regulation (EC) No 1107/2006, as well as in Section 2 of JAR-OPS - IEM OPS 1.260, is much wider than a person with disabilities. The definition includes older persons, persons who have sustained injuries etc. In other words, it is understood to be a person whose mobility is reduced as a result of physical, sensory or cognitive impairment, age, illness or any other cause and who needs some degree of special accommodation or assistance over and above that provided to other passengers.”

ECAC Doc 30 proceeds to note as follows (page 157):

“Air carriers should enable persons with disabilities and PRMs and other passengers who need assistance – for example to fasten/unfasten a seat belt or grab an oxygen mask - to choose seating which minimises inconvenience to them and maximises the scope for cabin crew assistance providing that such seating does not impede the crew in their safety duties, does not obstruct access to emergency equipment and does not impede the emergency evacuation of the aeroplane. They should never be allocated seats in the exit row.” 

In summary, these state, insofar as they relate to the complainant that a Special Category Passenger shall be a person with reduced mobility due to a physical or intellectual disability or impairment, and that they should not be permitted to sit in emergency exits.

it is understood to be a person whose mobility is reduced as a result of physical, sensory or cognitive impairment, age, illness or any other cause and who needs some degree of special accommodation or assistance over and above that provided to other passengers.”

In respect of the Annex to the latest edition of the ECAC Policy Statement in the Field of Civil Aviation Facilitation, relied on by the respondent and cited above, it broadens the definition to go beyond persons with disabilities to include ‘older persons, persons who have sustained injuries etc.’ and any person ‘whose mobility is reduced as a result of physical, sensory or cognitive impairment, age, illness or any other cause and who needs some degree of special accommodation or assistance over and above that provided to other passengers.’

The complainant has described this as a ‘blanket ban’ and drawn attention to the references in the ECAC regulations to factors such as the placing of the SCP impeding cabin crew and restricting access to emergency equipment, although it does admittedly say that such passengers should never be seated in an emergency access row.

It is not in dispute that the complainant is not a person who falls into any of these additional qualifying criteria. He is a teacher in a third level institution and does not experience a physical or intellectual disability that affects his mobility or that would impede the cabin crew in the exercise of any functions they may have to carry out in an emergency. His only requirement was that he would have enough room for his sleep apnoea device.

He represented himself at the hearing articulately and competently.

In that regard the issue is not only whether the application of the regulations by the respondent is a ‘blanket ban’ but more specifically whether they have interpreted them correctly.

A full reading of the regulations makes it clear that the critical criterion is that of mobility, and its impact on safety in an emergency, and therefore the issue is whether any person who is technically an SCP is then captured by the seating restrictions.

It seems from the respondent’s submission that the regulations have been interpreted to have  the effect of retro-fitting quite specific provisions in that respect to any ‘persons requiring special conditions, assistance and/or devices when carried on a flight,’ regardless of whether it meets either the letter or the spirit of the qualifying criteria which follow. One understandable measure of these is whether there is a requirement for assistance with putting on a seat belt, another criterion which has no applicability to the complainant.

In response to the complainant’s statement that he had

 ‘Explained that I am employed in a high profile and demanding career and have no problem assisting people off the plane in an emergency’

the respondent says that

‘It is an unreasonable onus on cabin crew to make an assessment on the type of disability a passenger has or where on a spectrum a person with a disability falls on a case-by-case basis’

and that the complainant had registered himself as a person with a disability and therefore, came within the remit of the EU legislation.

This is accepted, and it is not difficult to agree with this assertion. Cabin crew should not be placed in a situation of having to make decisions on a case by case basis, (although this appears to have happened inKane v Eirjet Limited (DEC2008-026), (as the complainant noted in his submission) but this does not mean that there should be no assessment on a case by case basis as to the applicability of the regulations in specific cases, and I return to this below.

The respondent understandably relied strongly on its obligation to observe strict compliance with safety requirements but where this may result in potential discriminatory outcomes (for example, by insisting on outcomes that are not necessary to achieve compliance with safety requirements)  it must do more than this.

While the respondent may reasonably argue that the cabin crew should be freed from the obligation to assess passengers’ status at the time does not mean that there is no obligation on anyone to do so.  This simply passes that responsibility for the correct interpretation of the Regulations back to the airline.

The regulations on which the respondent relies have actually gone to some trouble to qualify, define and illustrate the meaning and type of disability and also to define the purposes for which the restrictions are imposed, as set out above.

It is noted that those further qualifications are not exhaustive and are themselves qualified by the phrase at the end of the following sentence (and underlined)

 Persons requiring special conditions, assistance and/or devices when carried on a flight shall be considered as SCPs including at least.’

Nonetheless I find that, having regard to the entire text of the regulation, its clear purpose is to prevent a passenger who might not be able to assist or might actually impede an emergency exit being seated there (or anywhere on an aircraft where they might similarly create a difficulty).

The definition of PRM in Article 2 (a) of Regulation (EC) No 1107/2006, as well as in Section 2 of JAR-OPS - IEM OPS 1.260, is much wider than a person with disabilities. The definition includes older persons, persons who have sustained injuries etc. In other words, it is understood to be a person whose mobility is reduced as a result of physical, sensory or cognitive impairment, age, illness or any other cause and who needs some degree of special accommodation or assistance over and above that provided to other passengers.”

Underlining added

If it was simply intended to impose a ban on where any, or more accurately every person who is an SCP or who has a disability of any sort this might sit then all of this additional qualification would not have been necessary; the determinative criterion is that of mobility, and whether this (or any other factor) could impede emergency procedures.

The following appears in the respondent ‘s submission above.

The operator of a commercial passenger airline is obliged to comply with safety regulations and standards set under EU aviation law.

Regulation (EC) No 1107/2006 of the European Parliament and of the Council of July 5th, 2006, concerning the rights of disabled persons and persons with reduced mobility when travelling by air (the “EU PRM Regulation”) regulates the rights of persons with disabilities and PRMs and the obligations of air carriers.

Article 2 of the EU PRM Regulation defines persons with disabilities or PRMs as:

“… any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaption to his or her particular needs of the service made available to all passengers.”

I have underlined the references to the criterion of reduced mobility, the second of which is decisive in reaching my conclusions.

Accordingly, in my view an airline is required to have regard to the purpose and intent of the regulations and apply them accordingly by reference to the actual purposes for which the Regulations were drafted.

Airlines (or airport) staff already do this in relation to security. Any (indeed every) passenger may be questioned about how their luggage has been packed and about the nature of its contents as part of a security check.  If so, what can safely be assumed to be a much smaller number who seek special assistance may be asked about the nature of any disability they may have declared, and its impact on their mobility and capacity to be seated in specific sections of the aircraft as defined by the Regulations.

The Equal Status Act provides at Section 4.(4) as follows.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

This would provide justification for the core mobility-related restrictions in the Regulations relied on by the respondent not to seat a person with a relevant disability in certain sections of an aircraft, but it clearly imposes an obligation to actually establish what ‘the circumstances’ are; that is, the facts in relation to the nature of the disability, and specifically its impact on mobility and its potential to cause harm to others before doing so.

The complainant has made three complaints under the Act, a general complaint of discrimination, a complaint relating to the failure to provide reasonable accommodation specifically at the gate on his departure from London, a complaint of harassment, and a final complaint of victimisation

I find as follows.

The refusal to seat the complainant in his chosen seat was not well grounded in a correct interpretation of the regulations, which have to be understood in their full context as set out above in both parties’ submissions and in this Decision. Specifically, this turns on the issue of the passenger’s mobility and any actual and relevant diminution in the required capacity to comply with safety regulations.

Only on the basis of a most selective interpretation that has no regard to the overall context and purpose of the Regulations relied on could the respondent’s arguments succeed on the facts of this case.

They do not provide a blanket ban on seating any person who may be a Special Category Passenger at an emergency exit row, unless the nature of that person’s disability or lack of mobility pose a reasonable impediment to the safe evacuation of the aircraft.

 It is a matter for the airline to assess this when the passenger applies to be treated as an SCP, and it is not an unreasonable burden to do so.

In this regard it is worth noting that Section 3(2) (g) of the Act acknowledges that there is not just a generic, one dimensional notion of disability. It defines discrimination as follows.

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Underlining added

In relation to reasonable accommodation the following is the relevant section of the Equal Status Acts.

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

I find that what can only be described as the shambles at the gate and thereafter on board on the occasion of the return flight, given at that stage the respondent’s clear knowledge of the complainant’s condition, represented a failure to provide him with reasonable accommodation having regard to the nature of his condition and his requirement to use the sleep apnea device. These facts also ground his complaint of harassment.

Section 11(5) of the Act deals with harassment and sexual harassment.

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.]

On the basis of the complainants uncontested evidence the complaints under both these headings are well founded.

The complainant selected discrimination in relation to ‘accommodation’ on the complaint form which was not pursued at the hearing, and which may have been a clerical error and accordingly no finding is required on this point

Finally, the complainant makes a complaint of victimisation. The grounds for such a complaint are set out at Section 3 (2) (j) i-v of the Equal Status Acts and the complainant has not made out a case that would bring him within any of the provisions set out there and that complaint fails.

Accordingly, I decide as follows.

The complaint succeeds and I make an order that the respondent pay the complainant €7,500  for the effects of the discriminatory treatment set out in my Decision above. In deciding on this compensation, I have had particular regard to the treatment of the complainant during and after the boarding process on the return journey.

Also, on foot of the authority in Section 27 (1) (b) of the Act I order as follows.

The respondent must establish procedures and take such steps as may be necessary in respect of any passenger seeking Special Category Passenger status to ascertain their capacity and mobility by reference to the specific criteria related to mobility and safe evacuation of an aircraft set out in the various Regulations referred to above, and of course may seek such verification as required, before declining a booking in any part of an aircraft.  

The complaint is upheld, and I make an order that the respondent pay the complainant €7,500  for the effects of the discriminatory treatment set out in my Decision above.

Also, on foot of the authority in Section 27 (1) (b) of the Act I order as follows.

The respondent must establish procedures and take such steps as may be necessary in respect of any passenger seeking Special Category Passenger status to ascertain their capacity and mobility by reference to the specific criteria related to mobility and safe evacuation of an aircraft set out in the various Regulations referred to above, before declining a booking in any part of an aircraft.

Equal Status, Disability