Case Number: DEC-S2012-002- Full Case Report. Equality Tribunal

• Docket Number: DEC-S2012-002- Full Case Report
• Date: 01 January 2012
• Court: Equality Tribunal

The Equality Tribunal
Equal Status Acts 2000 to 2011 Decision Number
DEC-S2012-002 Parties A service user and a minor (suing by his next friend)
(Represented by Mr. Tiernan Lowey BL on the instructions of Kent Carty Solicitors)

V

A service provider
(Represented by Ms. Cathy Maguire BL on the instructions of the in-house legal service) Case ref: ES/2010/0063 and 64 Issued: 12 January 2012

DECISION NUMBER DEC-S2012-002 - CASE REFERENCES ES/2010/0063-64

Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Discrimination by association - Race -Disability - Provision of Goods and Services - Prima Facie case

1. Delegation under the Equal Status Acts 2000 to 2008

1.1. A service user and a minor suing by his next friend (hereafter "the complainant" and "minor" respectively) referred claims to the Director of the Equality Tribunal under the Equal Status Acts on 23 June 2010. The respondent was notified of these complaints in accordance with the Acts on 20 February 2010. The case was struck out by the Director as it was found to be outside the time limits required by the Acts. An order of the Circuit Court dated 9 February 2011 directed the Tribunal in accordance with s. 21(3), that s.21(2) shall be dispensed with and the matter be readmitted for hearing. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 27 September 2011. An oral hearing, as part of the investigation was held in Dublin on 8 December 2011. The complaint lodged by a third complainant was adjourned during the hearing when it became apparent to the equality officer that she spoke little or no English and was thus unable to participate in the proceedings.

2. Dispute

2.1. The dispute concerns complaints of unlawful discrimination on the race and disability grounds. The complainants submitted that a service provider (hereafter "the respondent") discriminated against them by firstly insisting that the minor pay for his ticket (despite the minor being in possession of a valid companion pass) and secondly, by ordering the complainants off the bus.

3. Case for the complainant

3.1. The complainants were in a city centre on 16 January 2010. The complainants are black and the service user originates from a named African country. The minor, now 7, who is visually impaired and has insulin dependent diabetes, was receiving mobility training in order to facilitate his independence as he grows older. The complainant and the minor had been in town shopping. The complainants were intending to get a bus as the complainant was anxious to get home as the minor had only recently been diagnosed with type 1 diabetes and required his insulin injection.

3.2. At approximately 12.00 o'clock the complainants were boarding a bus. Both the complainants have a 'Companion Free Travel Pass'. Such a pass entitles the bearer to unlimited travel and to bring an additional passenger as a companion. The complainant submitted that he boarded the bus first, closely followed by his son whose arm the complainant was supporting. The complainant clearly displayed two companion passes to the driver who then retorted that he would not allow the minor on the bus as by law a child would have to pay for a fare. Having heard this, the minor became upset and stated crying. The complainant replied to the driver that the minor had his own bus pass and was entitled to board the bus. Both bus passes were shown to the driver and the complainant insisted that the driver close the doors of the bus and proceed with the journey. The bus did so but at the next stop the driver ordered the complainants to get off the bus. The complainants were shocked at this treatment but got off the bus as they were embarrassed with the imputation that they had done something wrong.

3.3. The complainant rejected the respondent's claim that the driver simply misunderstood the companion pass used in this incident. Such passes are widely used. Furthermore, the complainant rejected the respondent's claim that the driver did not actually see the minor's pass and as a result, the driver was only ensuring that the complainant understood that the child could not be covered by the companion pass. The complainant is adamant that the two passes were clearly shown to the respondent. It is his claim that the driver suspected the complainant and the minor of wrongdoing. The reason for this, he suggested, was perhaps the fact that they had two companion passes in one family.

3.4. The complainants maintained that they were treated less favourably than white Irish people would have been treated in similar circumstances. The complainant submitted that white older people were not asked to display their passes, they were merely waved in. In the alternative, it was submitted that the foregoing is evidence of disability discrimination against the minor whose visual disability was clearly evident from the fact that he was carrying his (folded) white stick. The complainant was discriminated by reason of his association with the minor.

3.5. The complainant submitted, in very strong terms, that this incident has had a detrimental affect on the complainant and the minor, who could have suffered serious health consequences as a direct result of this treatment. The minor himself told the investigation that he no longer travelled on buses and as a result, his independence has been seriously curtailed by this incident.

3.6. It was submitted that the fact that the driver did not report the incident to his manager was suspicious. Furthermore, it was...