Age
Cases
DEC-S2005/113
Full Case Report
Derek Madden -v- The Licensee, Dodbridge Limited, t/a Quinlan’s Public House, Dublin
Headnotes
Equal Status Act, 2000 – Direct discrimination, section 3(1)(a) – Age ground, Section 3(2)(f) – Disposal of goods and supply of services, Section 5(1) – Refusal of entry to a pub – Prima facie case.
1. Dispute
1.1 This dispute concerns a claim by Derek Madden that he was discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the age ground in that on 21 July 2001 he was refused entry to the respondent premises.
The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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 Act.
2 Summary of Complainant’s Case.
2.1 The complainant states that he went to the respondent premises circa 8.15 p.m on 21 July, 2001 with two friends and they were asked to produce identification by the doorman on duty. The complainant was refused entry to the premises on the basis that it was policy not to admit eighteen year olds. The complainant’s companions who were each nineteen years old at that time were told that they would be admitted. The complainant then spoke with the manager of the premises who restated that it was policy not to admit eighteen year olds because of previous bad experience with persons of that age.
3. Summary of Respondent’s Case
3.1 The respondent failed to respond to correspondence from the complainant or the Tribunal and failed to attend at the Hearing of this complaint. No evidence was therefore presented by or on behalf of the respondent.
4. Background
4.1 Complainant
The complainant states that he went to the respondent premises on the evening in question to meet up with work colleagues for a social evening as prearranged. When he and his two companions (named by the complainant) approached the door of the premises they were stopped by the doorman and asked to produce identification/proof of age. All three produced their passports for inspection by the doorman who then stated that the complainant would not be admitted as it was policy in the premises to refuse admission to eighteen year olds. The complainant’s companions, who were each nineteen years old at that time, were told that they would be admitted.
The doorman told the complainant that he could, if he so wished, speak to the manager. The complainant requested to do so. A few minutes later a man, who was identified to the complainant as the manager, arrived at the entrance to the premises and restated to the complainant that it was policy not to admit eighteen year olds.
In the course of the discussion the manager explained to the complainant that previous experience of eighteen year olds, who had behaved badly, had had too much to drink and who had caused problems had led to the introduction of the policy. The complainant explained that he was there to meet with work colleagues and that he would not behave in such a manner. He asked the manager to be reasonable and not to assume that all eighteen year olds would behave in an unacceptable manner. The manager declined to reconsider his position.
The complainant states that the doorman and the manager of the premises were friendly and cordial throughout but would not admit him to the premises. On leaving the grounds of the respondent premises, one of the complainant’s companions offered to, and did, contact his father to check whether it was legal to refuse entry on the basis of age. The companion was told by his father that it was illegal to the best of his knowledge to refuse entry on the basis of age.
The following day the complainant contacted the Equality Authority and was advised how to proceed. He immediately took notes of what had occurred and subsequently notified the respondent in accordance with the requirements of the Equal Status Act 2000 of the basis of his complaint. In the absence of a response from the respondent to the complainant the Equality Authority wrote to the respondent on two further occasions. The respondent did not reply.
4.2 Respondent
The respondent failed to respond to correspondence from the complainant or the Equality Authority and the Tribunal and failed to attend at the Hearing of these complaints.
5 Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a ) Applicability of a discriminatory ground (e.g. the Age ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the complainant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case – Complainant
6.1 The complainant provided evidence of his age and that of his companions on the date in question which clearly shows that he was eighteen at the time of the alleged discrimination, while his companions were nineteen. This fulfils (a) at 5.1 above. The complainant provided written and oral evidence to the effect that he was refused entry to the respondent premises. The respondent has provided no evidence whatsoever to the contrary. This fulfils (b) at 5.1 above. In relation to key element (c) above, the complainant and a witness on his behalf have provided evidence to show that the complainant’s companions on the evening in question, both of whom were nineteen years old at that time, were not refused entry to the respondent premises. The complainant was therefore treated less favourably than his companions because he was eighteen years old and they were nineteen years old.
6.2 On balance, I am satisfied that the complainant has established a prima facie case of discrimination on the age ground.
7 Respondent’s Rebuttal
The respondent failed to respond to any correspondence in this matter from the complainant, the Equality Authority or the Tribunal, and also failed to attend at the scheduled Hearing of these complaints.
8 Conclusions of the Equality Officer
8.1 I am satisfied that the respondent was properly notified of this complaint and of the details of the scheduled Hearing of the complaint. This was confirmed by documentation, provided at the Hearing by the complainant’s representative, which indicates the registered details of the respondent company at the address to which correspondence was directed by the complainant, the Equality Authority and the Tribunal.
8.2 The failure on the part of the respondent to reply to correspondence has compounded the effects of the discrimination against the complainant in that it has added to the cost to the complainant in terms of time and effort expended in seeking to elicit a response to his queries.
The respondent has failed to provide any evidence whatsoever to rebut the complainant’s prima facie case of discrimination.
9. Vicarious Liability
While the action which constituted discrimination is directly attributable to the doorman and the manager (named) who refused entry to the complainant, section 42(1) of the Equal Status Act, 2000 provides that:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”
As the doorman and the manager were clearly acting within the scope of their employment in the course of the refusal of entry I find that their employer, Dodbridge Limited, Licensee, Quinlan’s Bar, is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Act.
10 Decision
I find that the complainant was discriminated against by the respondent on the age ground contrary to Section 3(1) and 3(2)(f) of the Equal Status Act and in terms of Section 5(1) of that Act.
9 Redress
9.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
9.2 I hereby order that €1000 be paid to the complainant by the respondent for the effects of the discrimination.
__________________________
Dolores Kavanagh
Equality Officer
8 August, 2005
DEC-S2001-013
Scanlon & Ryan v The Russell Court Hotel
1. Dispute
1.1 This dispute concerns complaints by Mr Greg Scanlon and Mr Kevin Ryan that they were
discriminated against, contrary to the Equal Status Act 2000, by the Management of the Russell
Court Hotel, Harcourt Street, Dublin 2.
The complainants maintain that they were discriminated against on the ground of age in terms of
sections 3(1) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which is
generally available to the public contrary to Section 5(1) of the Act.
2. Background
2.1 The complainants state that they sought access to a function in the Russell Court Hotel on
New Years Eve 2000, for which they held tickets, but were informed that they could not be
admitted because of their age. The respondents state that they do not operate a discriminatory
policy on the age ground.
3. Summary of the Complainant’s Case
3.1 The complainants state that, on Sunday 31 December 2000, they sought access to a
function in the Russell Court Hotel for which they held tickets but they say that they were informed
that they could not be admitted because there were “too many young people inside already”. The
complainants state that the door staff refused to inspect their passports and that they were given
refunds for their tickets.
4. Summary of Respondent’s Case
4.1 The respondents reject that they operate a discriminatory policy on the grounds of age. They
say that they always act in good faith and that, from time to time, admission is refused when there
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are legitimate concerns on the part of Management relating to compliance with the Licensing Acts. In
this case the respondents stated that some of the complainants’ group were unable to produce valid
proof of age.
5. Evidence of Parties
5.1 At the Hearing of this case on 10 July 2001, the Manager of the Vatican Nightclub, Mr
George Mulholland, explained that the Vatican was one of two night-clubs attached to the Russell
Court Hotel. The other, Bojangles, catered for over-35s while the Vatican provided entertainment
aimed at younger people. He said that he himself had been working for the hotel for 11 years. Eight
of these years on security and three years as Manager.
5.2 With regard to the function on New Years Eve 2000, Mr Mulholland stated that it had been
advertised on radio over Christmas in an effort to maximise attendance. Tickets, which cost £15
each and included a meal, were available in advance from the Reception of the Russell Court. Mr
Mulholland stated that about 200 tickets were sold this way and that a further 150/200 customers
paid at the door on the night. Of the crowd on the premises, Mr Mulholland estimated that 60% to
70% would have been regulars.
Mr Mulholland stated that the hotel had a very strict policy with regard to underage drinking and
always insisted on I.D., if there was a doubt about a customers age.
5.3 Mr Scanlon then described how he had heard the function advertised on radio over
Christmas and how a group of 20 of his friends decided to attend. He described this group as
mostly college students plus a few who were in their final year in school. He maintains that all were
18 years of age or over on 31 December 2000.
On the day prior to the function, Mr Scanlon said that he and a friend went to the Russell Court
Hotel to purchase 20 tickets. He explained how he had collected the money over the Christmas
from those involved. When he asked for the tickets at Reception, he says that he was asked whether
all the group were 18 or over and he says that he confirmed that they were. He says that the
Receptionist then asked them whether they wished to buy Nitelink tickets for New Years Eve from
her, and he and his friend did. He states that he then returned home and distributed the tickets to his
friends.
5.4 Mr Scanlon then described how he and four other friends arrived outside the Russell Court
Hotel at 8.45 pm on New Years Eve. He described how there were 3 doormen outside the hotel.
He says that one doorman asked for their tickets. Mr Scanlon stated that he responded by collecting
the 5 tickets from his friends and handing them to the doorman. He says that the doorman’s next
comment was “We’ll refund the money”. When he enquired as to what was happening, he says that
the doorman stated that they were “too young” and that he had been told by management to “clamp
down on age”.
Mr Scanlon states that he immediately produced his passport and offered it to the doorman but it
was refused. The other complainant Mr Ryan recalled the doorman saying at that point that they
were “clamping down on 18 year olds as there were too many young people inside already”. The
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complainants insist that all five of their group had valid identification with them as they knew from
frequenting other establishments that it was essential to have it if they wanted to be admitted. In
evidence, both complainants have produced copies of their passports showing that they were over
18 on 31 December 2000.
5.5 Mr Scanlon states that he then recalled an article he had read in a student newspaper about
the Equal Status Act which led him to believe that he could not be refused service once he was 18
years of age. He says that he then asked for the Manager in order to discuss the new legislation with
him. He says that one of the doorman went inside and 2 other men came to the door, one of whom
later identified himself as George Mulholland.
Mr Scanlon states that he heard Mr Mulholland ask the doorman what the problem was. Mr
Scanlon states that the two gentlemen then engaged in a short conversation, which he couldn’t hear,
before Mr Mulholland shrugged his shoulders and walked towards the Vatican.
At the Hearing, Mr Mulholland explained his actions by saying that, when he was called to the door,
Mr X informed him that two of the group had no I.D. He said that he then indicated to Mr X that the
two could not be let in and that they should be offered refunds. Mr Mulholland recalled the
complainants referring to the Equal Status Act and said that his door staff would have been aware of
its provisions at the time of the incident.
5.6 Mr Scanlon states that the doorman then went into the Hotel and returned with refunds of
their ticket money. Mr Ryan states that, at that point, he asked the doorman whether he knew he
was breaking the law, to which, he says, the doorman responded that he “didn’t care”. After five or
six minutes, the complainants state that the doorman seemed to become less sure of his position and
changed his approach by pointing to two of their friends and saying that they had caused trouble
before in the Vatican. Mr Ryan states that his friends immediately rejected this accusation and
pointed out that they had only heard of the Vatican recently and that it was only that day that some
of them discovered where Harcourt Street was.
The complainants state that, as it was obvious that they were not being let in, they decided to leave.
They say that they then asked the doorman for his name but he refused to give it. At that point, they
say that Mr Mulholland reappeared and, at Mr Scanlon’s request, gave him his own name. At the
Hearing Mr Mulholland stated that it was Hotel practice for doormen not to personally identify
themselves.
At the Hearing, the complainants accused Mr Mulholland of not performing his management duties
that night by not addressing the situation himself. The complainants stated that they both have
managerial experience in fast-food restaurants and said that Mr Mulholland’s actions on New Years
Eve, were contrary to the training that a good manager would have received.
5.7 The respondents state that there were three doormen on the door on New Years Eve. Mr
John Lacey, who attended the Hearing says that he was on duty that night, although the
complainants state that they do not remember him specifically. Mr Lacey states that he recalls the
complainants and their three friends arriving and another of the doormen, who we shall refer to as
Mr X, asking for their tickets. He states that Mr X then asked for I.D. but that only three of the
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group produced identification. He says that Mr X then indicated that only the three with I.D. could
be allowed in and offered to refund the other two their money.
Mr Lacey also recalls Mr X stating that he definitely recognised two of the complainants’ friends as
having caused trouble in the nightclub before. The respondents explained that Mr X had been
employed with them for 6 years but was now no longer with them, having gone abroad.
5.8 The complainants rejected this account of events and stated that they would not have
pursued the case if their friends had had no I.D. that night. Mr Scanlon stated that he was certain
that all of his friends had I.D. with them that night but that Mr X was not interested in inspecting it.
The complainants maintained that, on first seeing them, Mr X made an “on-the-spot” decision that
they were too young and immediately decided not to grant them admission. The complainants claim
that, as with most doormen, Mr X was not prepared to lose face by changing his mind and,
therefore, stood firmly by his decision. The complainants believe that that was also the reason Mr
Mulholland “shrugged his shoulders” and did not get involved.
5.9 The complainants then accused the respondents of being in a dominant position at the
Hearing because they had the complainants submission in their possession yet they themselves had
not made any submission nor had that replied to the ODEI 5 form.
On the question of the ODEI5 form, the complainants produced a registered envelope showing that
the Russell Court Hotel had, on 5 January 2001, refused to accept the original ODEI5 sent to them
by registered post. They then sent it a second time and it was accepted. The complainants accused
the respondents of being evasive in relation to their complaint by failing to respond to a letter from
the Equality Authority on 19 April 2001 and, more importantly, by making no submission to the
Office of the Director of Equality Investigations.
5.10 In response, Mr Mulholland said that he would not personally handle post addressed to the
Hotel. This was a matter for the Duty Manager who’s job it was to open and distribute post. He
could offer no explanation for the refusal of the original ODEI5. He stated that he did recall receiving
a form ODEI5 in January and he said that he remembers forwarding it and the relevant incident
report to the hotel’s solicitor for attention. He expressed surprise, at the Hearing, that the solicitor
had not responded to any correspondence.
When asked why the hotel’s solicitor was not present at the Hearing, Mr Mulholland said that he
had spoken to him two weeks previously and that the solicitor had indicated to him that he did not
think his presence would be required. When asked whether he had thought of bringing a copy of
the incident report of 31 December 2000 with him to the Hearing, Mr Mulholland replied that he
had not.
5.11 When pressed further on the question of checking I.D. on the night of 31 December 2000,
Mr Mulholland said that he was confident that I.D. checks had been carried out on all of the
younger-looking customers entering that night. In response, the complainants denied that everyone
was checked for ID and stated that, later that evening, they phoned their other friends in the Vatican
to inform them what had happened, and their friends confirmed to them that they had no trouble
getting in and only some had been asked for I.D.
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Mr Mulholland estimated that over 100 non-regulars attended the function that night. About half of
these, he said, were checked for evidence of age. In all cases, he said satisfactory proof of age was
produced. He said that no other customers were refused admission on the night apart from the
complainant’s group.
6. Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur
where, on any of the grounds specified in the Act, a person is treated less favourably than another
person is, has been or would be treated. Section 3(2)(f) of the Act specifies the age ground as one
of the grounds covered by the Act.
In this particular instance, the complainants claim that they were discriminated against on the grounds
of their age contrary to Sections 3(1) and 3(2)(f) of the Equal Status Act, 2000 in not being allowed
access to the Russell Court Hotel, Harcourt Street, Dublin on the night of Sunday 31 December
2000 (New Year’s Eve). The burden of proof initially lies with the complainants who are required to
demonstrate that a prima facie case of discrimination exists. If a prima facie case is established, the
burden of proof then shifts to the respondents.
6.2 This complaint has been lodged on the Age ground under the Equal Status Act 2000. There
are two possible exclusions relating to age, contained in the Equal Status Act 2000, and, to avoid
confusion, I believe that it would be useful at this point to clarify these.
Firstly, the Act provides at Section 3(3) that “treating a person who has not attained the age of
18 years less favourably , or more favourably than another, whatever that other person’s
age, shall not be regarded as discrimination on the age ground” . Thus, a person under the
age of 18 is not permitted to claim discrimination on the age ground. This does not, however,
prohibit a person, who is under 18, from claiming discrimination on any of the other grounds
covered by the Equal Status Act.
As the complainants in this case have shown that they were both over 18 at the time of the alleged
incident, this exclusion does not apply here.
6.3 The second exclusion arises under Section 15(2) of the Equal Status Act, which allows
action taken in good faith by or on behalf of the holder of an intoxicating liquor licence for the sole
purpose of ensuring compliance with the Licensing Acts, and provides that such action will not
constitute discrimination.
Respondents are, therefore, perfectly entitled under the Act, to make, in good faith, any checks they
think necessary for the sole purpose of ensuring that persons under 18 are not sold intoxicating
liquor. For an event such as a disco this might include ensuring that persons under 18 were not
admitted to the premises at all.
In this case, the respondents say that the complainants were excluded because they believed they
might be under age and they say that the claimants could not prove that they were over 18. If this
was the case, and even if they were in fact over 18, the actions of the respondents would appear to
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be covered by the provisions of section 15(2). This does not mean that the hotel is obliged to check
everyone for ID if they are relying on section 15(2). They would only need to check in cases where
they, in good faith, thought the customer might be under age.
6.4 While concerns about underage drinking and compliance with the licensing acts have been
expressed in this case, the point I must decide is more whether the above was the real reason for
the decision not to admit the complainants or whether there was another reason for respondents’
actions, and that this other reason was a discriminatory one.
7 Conclusions of the Equality Officer
7.1 In reaching my conclusions on this matter, I consider that the following are the most relevant
facts and matters worthy of consideration:
the complainants bought their tickets in good faith, the day before the function, from the Russell
Court Hotel. When doing so, they say that they confirmed to the receptionist that all of the group
were over 18. They say that the receptionist even sold them Nitelink tickets for after the
function, which made them look forward to the night more, as this assured them of transport
home.
the complainants state that, on their arrival at the Hotel, the doorman immediately announced
that he would” refund the money” as “there were too many young people already inside”. The
complainants state that the doorman refused to look at their passports. The respondents deny
this and maintain that passports were sought but only three were produced.
Mr X himself did not appear as a witness at the Hearing, the respondents saying that he could
not be contacted as he had left their employment and was now living abroad. In evidence,
another doorman, Mr Lacey, who says he was working that night, gave evidence that Mr X
asked for ID but that only three of the five in the group could produce it. The complainants,
however, state that they don’t recall Mr Lacey being there that night and insist that they all had
ID. with them.
Mr Lacey states that he remembers the other doorman, Mr X, stating that he recognised two of
the complainants’ friends as having caused trouble in the nightclub before.
The complainants state that the Manager, Mr Mulholland, was not prepared to intervene in the
dispute when told about it, and, by so doing, was not fulfilling his role as a manager.
The complainants accused the respondents of treating them and their complaint with disdain for
first having refused to accept their ODEI 5 which had been sent by registered post. Secondly by
not responding to it. Thirdly by not responding to the Equality Authority and, finally, by not
making a submission to the Office of the Director of Equality Investigations.
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The respondents claim that all documentation had been passed to their solicitor for attention and
that they were surprised that he had not made a submission. They said that the solicitor had also
been made aware of the Hearing date but had said that he didn’t think his presence would be
required.
The respondents also referred to an incident report which had been prepared for the solicitor
about the events of 31 December 2000 but stated that they had not thought of bringing a copy
to the Hearing.
The complainants state that they brought the new Equal Status Act to the attention of the
respondents that night and claimed that they were being discriminated against. The respondents
confirmed at the Hearing that they remember hearing the complainants mention the Equal Status
Act at the time.
The respondents confirmed that about 50% of customers were checked for proof of age on the
night but that no other customers were refused access to the New Year’s Eve function.
7.2 In this particular case, I have been presented with conflicting reports of what happened on
31 December 2000 and I must decide, on the balance of probabilities, which version of events is
more likely to be correct.
7.3 The most compelling evidence I have, on which to make my decision, is that the
complainants state that they raised the provisions of the Equal Status Act 2000 with the door staff
on the night in question and the respondents have confirmed that they did.
If, as the respondents say, two of the complainants’ friends were unable to produce identification,
then I can see no reason why the Equal Status Act would have become a topic of conversation. In
such a situation, the complainants would have had to accept, despite the fact that they themselves
had passports with them, that the respondents were within their rights to refuse admission to their
friends if, as they allege, they had no ID with them.
In my opinion, the complainants would have had two options open to them at that point. Either the
two complainants went in to the Russell Court Hotel with their friend who had ID, leaving their other
two friends outside, or none of the group went in. In such a situation, the Equal Status Act would
not have played a part in their reaching a decision.
7.4 Another point of note is that, at the Hearing, the respondents confirmed that two reasons
were given for not allowing the group access to the nightclub. Firstly, the respondents stated that it
was because two of the group could not produce ID. However, shortly afterwards they claimed that
they were not being admitted because two of the complainants friends had caused trouble in the
nightclub before.
To me, this would seem to indicate that Mr X lacked conviction with regard to his original decision
and that he was somewhat unsure of himself. If the respondents truly believed that they had a bona
fide reason for not admitting two of the complainants friends, I see no reason why five or six minutes
later, they would try and use a completely different reason to justify their refusal.
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On this point, it is worth noting, that if the respondents had argued convincingly that there were
reasonable grounds to think that a substantial risk of criminal or disorderly behaviour existed, then
they would have been entitled under Section 15(1) of the Act to refuse admission. However, in this
instance, the respondents did not make such a case.
As no evidence whatsoever has been adduced in this case to support the allegation that any of the
party had caused trouble previously, and the person alleged to have made it, Mr X, has not given
any evidence, I can only surmise that the second “reason” was used to cover up the fact that the first
reason was unsound. I cannot, therefore, accept that the allegation of “previous trouble” was made
in good faith and, therefore, I am not prepared to take it into account.
7.5 As stated earlier, in cases such as this, the burden of proof initially lies with the complainants
who are required to demonstrate that a prima facie case of discrimination exists. If a prima facie
case is established, the burden of proof then shifts to the respondents. From the evidence provided
by the complainants and from the points made above, I am satisfied that a prima facie case of
discrimination has been established and that the burden of proof rests with the respondents.
7.6 Section 26 of the Equal Status Act 2000 enables an Equality Officer to draw such
inferences as appropriate from the respondents failure to reply to a notification issued in accordance
with section 21 of the Act or the failure to supply information sought by the complainant.
It is worth noting that the notification procedure provided for in the Equal Status Act, is designed to
assist both respondents and complainants in properly complying with the requirements of the Equal
Status Act. To this end, this Office specifically designed a form ODEI5 to facilitate complainants in
requesting information and to facilitate respondents in providing that information. The form also
advises respondents of the possible consequences of not replying to the notification. This form
ODEI5 was sent by the complainants to the respondents in January 2001, however, the respondents
chose not to respond to it.
7.7 In this case, the complainants maintain that the respondents were given several opportunities
prior to the Hearing to defend themselves against the accusation that they had discriminated against
the complainants. However, the respondents availed of none of these opportunities.
In this regard, the complainants point to the fact that, firstly, the respondents failed to respond to
form ODEI 5, asking for the reason for their actions on New Year’s Eve. Secondly, the respondents
failed to respond to a letter from the Equality Authority relating to the incident. Thirdly, the
respondents chose not to respond to a request from the Office of the Director of Equality
Investigations for observations on the complaint. Finally, the complainants refer to the respondents’
assertion that their solicitor decided that he did not think “his presence would be required” at the
Hearing.
7.8 In considering these points, I must bear in mind that the Equal Status Act 2000, while
providing for notification to be served on the respondent, does not require the respondent to reply to
the notification. The Act does, however, provide for the drawing of inferences from the respondents’
failure to reply to the notification. In addition, it must be accepted that there is no obligation on
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either complainants or respondents to be legally represented at Hearings and, therefore, the
attendance of the respondents’ solicitor at the Hearing was entirely a matter for the respondents
themselves.
This having been said, it would appear that the respondents in this case have treated this complaint in
a casual manner from start to finish. Their failure to engage in any form of correspondence in the
matter, would infer to me that they have not taken the complaint, or the Equal Status Act 2000, very
seriously.
7.9 In view of the conflict of evidence in this case, I find that I must rely on the provisions of
Section 26 of the Act which enables me to draw inferences from the respondents failure to reply to
the notification form. As some aspects of the respondent’s case still seem unsatisfactory, I am
proceeding to draw an inference under Section 26 and concluding, on the evidence before me, that
the real reason for the treatment afforded the two complainants was discriminatory. I am, therefore,
satisfied that a prima facie case has been established and that burden of proof lies with the
respondents.
8 Decision
8.1 Having fully considered all aspects of this case, I find that the complainants have established
a prima facie case of discrimination on the age ground. I also find that the respondents have not
provided sufficient evidence to rebut the claim that, on the night of 31 December 2000, they
discriminated against the complainants on the grounds of their age.
I, therefore, find that the respondents did discriminate against the two complainants on the grounds
of their age contrary to sections 3(1) and 3(2)(f) of the Equal Status Act 2000.
8.2 The act of discrimination in this case was against two 18 year olds who were simply seeking
to be allowed enjoy the same facilities as older people enjoy. These young men were seeking to
exercise their legal rights to attend a function, for which they held tickets, yet they were prohibited
from doing so by an apparent “on-the-spot” decision by a doorman who decided that there were
already too many young people on the premises.
It is an accepted fact that doormen employed by pubs and clubs, are expected to show authority
and to make “on-the-spot” decisions with regard to the demeanour/age of someone seeking
admittance. As soon as their decision has been made, I believe that doormen feel obliged to
stand-over their decision to save themselves from losing face. On this basis, I would consider it
extremely rare for a doorman to reverse a decision that he had already communicated to a potential
customer.
The above is what I believe happened in this case. I believe Mr X made an “on-the-spot” decision
not to admit the group and then was not prepared to review his decision on being offered
identification by the complainants. For this very same reason, I believe that Mr Mulholland was not
prepared to intervene in the dispute, as, by making any concession to the complainants, he would
have undermined Mr X’s position.
12
In most situations, I would understand a doorman having to make an “on-the-spot” decision,
particularly late in the evening when he would be dealing with a large and diverse spread of
customers seeking to gain access to a premises. In such a situation, I accept that it is important for a
doorman to convey the impression that he is in control.
It is my opinion, however, that the situation on 31 December 2000 was different, as the
complainants’ group were arriving early in the evening for a function, for which they held tickets. I
believe, therefore, that they were entitled to better treatment than they were afforded by the staff of
the Russell Court Hotel.
8.3 I would recommend, therefore, that hoteliers and publicans seriously consider drawing up a
universal Code of Practice, emphasising their commitment to non-discriminatory practices and
setting out clearly the rules which they apply to all customers with regard to proof of age and to the
behaviour expected from customers when on their premises. The Code should also make it clear
that these rules will be applied to all customers, irrespective of their age or background. I would also
recommend that all staff be made fully aware of this Code as well.
8.4 In relation to the events of 31 December 2000, I am satisfied that the complainants suffered
unlawful discrimination at the hands of the Russell Court Hotel within the meaning of the Equal Status
Act 2000.
In considering the level of award in this instance, I believe that a significant fact is that this was the
first New Year’s Eve that the two complainants were legally entitled to frequent a licensed premises
to celebrate the New Year. To ensure that everything went to plan, they went as far as buying their
tickets in advance to avoid disappointment. Yet on the night in question, their plans were laid to ruin
by the snap decision of a doorman who decided not to grant them admission because, in his opinion,
there were already too many young people on the premises.
I, therefore, find in favour of the complainants and order that the respondents pay each complainant
the sum of £1000 (Euro 1270) for the humiliation, embarrassment and loss of amenity suffered by
them on New Years Eve 2000.
Brian O’Byrne
Equality Officer
EQUALITY OFFICER DECISION NO:
DEC – S2002-013
O’Reilly v O’Q
DISPUTE AND BACKGROUND
1. The complainant is aged 72 years old. He claimed that on 13th January, 2001, he sought to
enter Q. Bar with his wife, daughter and son-in-law, but that he was refused entry by the
doorman. The complainant claimed that the reason for his refusal was based on his age and
that the refusal was contrary to the Equal Status Act, 2000. He claimed that if he had been
aged in his twenties or thirties that he would have been admitted to the pub. The other
people in his group were also refused admission by the doorman.
The respondent claimed that it does not know for certain that the complainant was actually
refused from its premises on the date in question. However, it accepted the complainant’s
word that he was refused. The reason the respondent has no knowledge of the refusal is
because the doorman who was on duty at that time and who would have made the refusal is
no longer employed by the security company responsible for carrying out its admission
policy. Consequently, the respondent has been unable to obtain the doorman’s reasons for
the refusal. However, the respondent claimed that the complainant would not have been
discriminated against contrary to the Act on the basis of his age. It claimed that it regularly
serves people of a broad range of ages and that it does not have a discriminatory policy
towards older people. The respondent claimed that the reason for the complainant’s refusal
would have been related to one or all of the following reasons:
– section 15(2) of the Act,
– Q. Bar’s dress code,
– the fact that the complainant was refused as part of a group,
The respondent also claimed that the reason for the complainant’s refusal could have been
related to his wife, his daughter or his son-in-law.
The complainant referred his claim to the Director of Equality Investigations on 21st
February, 2001, under the Equal Status Act 2000. In accordance with her powers under
section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the
Director then delegated the case to myself, 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 Act. Any documents received were copied to both parties and an oral
hearing was held on 6th July, 2001.
SUMMARY OF COMPLAINANT’S EVIDENCE
4
2. The complainant claimed that on 13th January, 2001, he went into Dublin city centre to
celebrate his wedding anniversary with his wife (68 years old) his daughter (35 years old),
and his son-in-law (37 years old). He claimed that they were all well dressed for the
occasion and that they first went for a drink in a pub in Cathedral St. At about 6.00 p.m.
they decided to go to Q. Bar for a meal. The complainant had never been there before but
his daughter and son-in-law had been there a couple of weeks earlier and recommended it.
2.1 As the group approached the door of the pub the complainant and his son-in-law were
together at the front and the two ladies were together behind them. However, when they
tried to enter the pub the doorman refused them all entry and told them that only regulars
were being admitted. The complainant claimed that although his daughter and son-in-law
pointed out that they had been in the pub a couple of weeks before the doorman did not
change his decision to refuse them all entry.
The complainant claimed that he had never been barred from a pub before and that he felt
embarrassed, hurt and humiliated when he was refused entry to Q. Bar. He claimed that he
remained outside the pub for about 5 minutes afterwards and that during this time he
witnessed six or seven people being admitted. The complainant claimed that the people
who were admitted were all aged in their twenties or thirties and that if he had been aged in
his twenties or thirties that he would have been admitted to the pub. The complainant’s
version of events on 13th January, 2001, was supported by his wife, daughter and son-inlaw.
2.2 The complainant claimed that on 16th January, 2001, at 11.00 a.m. he returned to the pub to
complain to the management about the treatment he received on 13th January, 2001. He
claimed that when he entered the pub he was told that the manager was not there and that he
was given no further explanation for his refusal.
SUMMARY OF RESPONDENT’S EVIDENCE
3. Mr Danny O’Connell claimed that he is a director of a company called Ballendale Inns Ltd,
which owns Q. Bar. Mr O’Connell claimed that the premises which Q. Bar now occupies
used to be known as the Harp Bar when it was owned by the previous licensee. He claimed
that in 1999 the licensee of the Harp Bar approached Ballendale Inns Ltd with a view to
selling the premises. Mr O’Connell claimed that the reason the owners of the Harp Bar
wanted to sell was that it appeared likely that the pub’s license would not be renewed whilst
under the ownership of the previous licensee because the pub had a bad reputation due to
some disorderly behaviour which had taken place there over a period of time. Ballendale
Inns Ltd agreed to buy the Harp Bar but to get the license renewed it had to agree to change
the name of the pub, to refurbish it and to totally change the clientele. Ballendale Inns Ltd
took over the Harp Bar in February, 1999, in these circumstances and it was decided to
totally change the image of the pub and to try to turn it into an upmarket type of
establishment. The Harp Bar was closed for some time to allow for the necessary
renovations and in mid-November, 2000, it re-opened as Q. Bar.
3.1 Mr O’Connell claimed that a security company called Failte Security Ltd was engaged to
provide doormen when Q. Bar opened and that the pub had a very strict admission policy up
until March, 2001, which was partly designed to prevent the type of patrons who used to
frequent the Harp Bar and cause trouble from gaining admission to Q. Bar. Mr O’Connell
claimed that the admission policy was also drawn up with a view to ensuring that any other
potential troublemakers who may not have been former patrons of the Harp Bar would also
5
be refused admission. He claimed that the management of Q. Bar told the doormen what
the admission policy was and that the management monitored the doormen when they first
started working there by standing at the door with them to make sure that the policy was
being implemented properly. Mr O’Connell also claimed that the management of Q. Bar
told the doormen not to do anything illegal and made them aware of the Equal Status Act,
2000. In this regard he claimed that all doormen were given copies of a document about the
Act prepared by the Licensed Vintners’ Association (LVA) in October, 2000. He claimed
that all doormen were also given copies of the pub’s current admission code which was
drawn up in February, 2001.
3.2 Mr O’Connell claimed that a doorman employed by Failte Security Ltd was on duty at the
time when the complainant alleges that he was refused. He claimed that the doorman is no
longer employed by that company and that for this reason he cannot confirm that the refusal
took actually place, although he accepts the complainant’s word that it did. Mr O’Connell
claimed that because of these circumstances he does not know the actual reason why the
complainant was refused admission on 13th January, 2001. Mr O’Connell claimed that it is
Q Bar’s policy when refusing someone service to try to give a non-confrontational reason
which will not cause offence or enflame the situation and that this is standard practice in the
bar trade. He claimed that it was probably in this context that the doorman told the
complainant that the reason he could not be admitted was because it was regulars only as
the pub does not actually have a regulars only policy.
3.3 Mr O’Connell claimed that the complainant and the rest of his party should have been
admitted to Q. Bar on the evening in question and that he regretted that they were not. Mr
O’Connell claimed that a huge number of people were refused admission to the pub from
November, 2000, to March, 2001. He claimed that over the Christmas 2000 period that Q.
Bar received about 50 complaints from people who were refused admission to the pub and
that a high proportion of these complaints arose from decisions to refuse admission which
were made by the doorman who refused the complainant. He claimed that the doorman was
too strict in the administration of the admission policy in that he refused too many people
who should have been admitted. He claimed that this was the reason the doorman was no
longer employed by Failte Security Ltd and Mr Liam Dunne, Managing Director of Failte
Security confirmed this at the oral hearing.
3.4 Mr O’Connell claimed that although he does not know why the doorman refused the
complainant entry to the pub this does not necessarily mean the reason for his refusal was
related to his age. He claimed that there was no evidence that the complainant was refused
because of his age and that Q. Bar does not have a policy to discriminate against older
people. He claimed that the pub’s clientele is from a broad age range, particularly during
the daytime when the pub is regularly frequented by a large number of shoppers and office
workers of different ages. Mr O’Connell claimed that the fact that the complainant was
admitted to the pub when he returned to make a complaint on 16th January, 2001, is proof
that the pub does not have a policy to discriminate against older people.
Mr O’Connell claimed that nothing in the Equal Status Act, 2000, prohibits the
management of the pub from designing its service to suit and target the younger market. Mr
O’Connell claimed that for commercial reasons the atmosphere of the pub at night time is
geared towards the 25-35 year old age bracket but that the pub has no problem admitting
people who are outside the target group at any time, regardless of whether they are older or
6
younger. He claimed that on occasions older people have come into the pub at night and left
very shortly afterwards because the atmosphere was not to their taste.
3.5 Mr O’Connell claimed that there could have been any number of other reasons not related
to the complainant’s age as to why he was refused.
He claimed that the complainant was not refused personally and that the reason he was
refused could have been related to one of the other people in the group he was in or to the
fact that he was in a group.
He also claimed that Q. Bar has a dress code and that although the code changes depending
on the time of day at no time will anyone who is untidy or unkempt be admitted. He
claimed that the reason for the complainant’s refusal could have been related to the way he
or the others in the group were dressed.
Mr O’Connell also claimed that the refusal has to be viewed in the context of the
circumstances in which Ballendale Inns Ltd came into the ownership of the premises and
the measures which it had to take to keep the licence. He claimed that under the Equal
Status Act, 2000, action taken in good faith by a publican for the sole purpose of complying
with the Licensing Acts does not constitute discrimination. He claimed that the
complainant’s refusal would have been made on this basis.
RELIABILITY OF RESPONDENT’S EVIDENCE
4. During the oral hearing in response to a question from the complainant’s side Mr O’Connell
stated that Q. Bar had received one other complaint under the Equal Status Act, 2000. Mr
O’Connell claimed that this complaint was also on the age ground but that it alleged that
someone was refused admission because they were too young, as opposed to too old, which
is the allegation in the current case.
After the oral hearing the complainant’s representative brought to my attention the fact that
two other complaints have been made against Q. Bar under the Act and that one of these
basically alleges that someone was refused admission because they were not “young and
trendy”. The complainant’s representative claimed that Mr O’Connell had provided
misleading information at the oral hearing which undermined the respondent’s entire
evidence.
The respondent refuted this allegation and claimed that Mr O’Connell was speaking from
memory and that he prefaced his reply to the question by stating “as far as he was aware”
and “off the top of his head”. The respondent also claimed that the case raised by the
complainant’s side involves a complaint on both the age and gender grounds where the
comparator is a female and that Mr O’Connell associated the complaint in his own mind as
a complaint on the gender ground.
I have considered the point raised by the complainant’s side and my recollection of what Mr
O’Connell stated during the oral hearing tallies with the respondent’s version. Mr
O’Connell openly admitted that there were 50 complaints made to Q. Bar over the
Christmas 2000 period and I do not consider that his entire evidence should be undermined
because he stated that one, rather than two, complaints had been received by Q. Bar under
the Equal Status Act, 2000. I am satisfied that Mr O’Connell was speaking from memory in
7
reply to a question which he did not have much time to consider beforehand and that his
reply should be considered in its proper context.
Notwithstanding the fact that there are two other complaints against the respondent I am
conscious that I cannot attach any significance to this point for the purposes of this
investigation. This is because the other complaints are unproven allegations of
discrimination at this stage.
ISSUES FOR CONSIDERATION
5. Section 3(1)(a) of the Equal Status Act, 2000, provides, inter alia, that discrimination shall
be taken to occur where –
“on any of the grounds specified in subsection (2) ….. a person is treated less
favourably than another person is, has been or would be treated”.
Section 3(2) provides that the discriminatory grounds include the age ground. Section
3(2)(f) states, inter alia:
“that they are different ages (the “age ground)”.
Section 5(1) of the Act provides that:
“A person shall not discriminate in disposing of goods to the public generally or a
section of the public or in providing a service, whether the disposal or provision is
for consideration or otherwise and whether the service provided can be availed of
only by a section of the public”.
The issues for consideration in this complaint are whether or not Q. Bar discriminated
against Mr J. O’Reilly on the basis of the age ground, in terms of section 3(1)(a) and
contrary to section 5(1) of the Equal Status Act, 2000, on 13th January, 2001. In reaching
my decision in this case I have taken account of all of the submissions, both oral and
written, made to me by both parties.
PRIMA FACIE EVIDENCE
6. The complainant claimed that he is aged 72 years old and that he was discriminated against
on the basis of his age. For the complainant’s claim to be upheld he has to establish prima
facie evidence of discrimination on the age ground. If he succeeds in establishing prima
facie evidence on the age ground, the burden of proof then shifts to the respondent to rebut
the inference of discrimination on that ground.
6.1 Essentially this is the approach provided for in the Burden of Proof Directive (Council
Directive 97/80/EC). In adopting this approach I am conscious that the Directive is not
directly applicable to the complaint in hand under the Equal Status Act, 2000, but I consider
that the Directive has persuasive effect in discrimination law. It is notable that the Labour
Court and Equality Officers applied the practice of shifting the burden of proof in
discrimination cases long before any European Community caselaw required them to do so
(as far back as 1983 in Bailieborough Community School v Carroll, DEE 4/1983 Labour
Court, and in 1986 in Dublin Corporation v Gibney, Equality Officer EE5/1986), and
8
that this was a consistent practice across a spectrum of cases (see Curtin, Irish Employment
Equality Law, 1989, p. 222 et seq.). The European Court of Justice caselaw did not address
the issue of the shift in the burden of proof for the first time until the cases of Handels-Og
Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening (Danfoss) (case
no. C-109/88) and Enderby v Frenchay Health Authority and Secretary of State for Health
(case no. C-127/92) in 1989 and 1993 respectively, so this was not done purely in
implementation of Community law. It seems to represent an indigenous development in
Irish discrimination law, which was in advance of Community law. There is no reason why
it should be limited to employment discrimination or to the gender ground.
The practice of shifting the burden of proof in discrimination cases was also applied in very
clear terms by the Supreme Court in Nathan v Bailey Gibson (1998 2 IR 162) and by the
High Court in Conlon v University of Limerick (1999 2 ILRM 131). While these were both
indirect discrimination cases, it seem that the principle should by logical extension apply to
direct discrimination cases if it applies to indirect discrimination cases. It was also very
clearly stated by the Northern Ireland Court of Appeal, again as a matter of first principles
in discrimination cases, in Wallace v SE Education and Library Board, 1980, NI 38, as far
back as 1980.
6.2 To establish what a prima facie case is I have examined definitions from sources which are
persuasive. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is
defined as: “evidence which in the absence of any credible contradictory evidence
by the employer would lead any reasonable person to conclude that discrimination
has probably occurred.”
6.3 In article 4 of the EC Burden of Proof Directive itself the following definition
appears: “when persons who consider themselves wronged….. establish, before a
court or other competent authority, facts from which it may be presumed that there
has been direct or indirect discrimination”.
6.4 In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court
interpreted article 4 of the EC Burden of Proof Directive as follows: ” This indicates
that a claimant must prove, on the balance of probabilities, the primary facts on
which they rely in seeking to raise a presumption of unlawful discrimination. It is
only if those primary facts are established to the satisfaction of the Court , and they
are regarded by the Court as being of sufficient significance to raise a presumption
of discrimination, that the onus shifts to the respondent to prove that there was no
infringement of the principle of equal treatment. Applied to the present case, this
approach means that the appellant must first prove as fact one or more of the
assertions on which her complaint of discrimination is based. “
6.5 In some equality cases in the past, complainants have found it difficult to produce
convincing proof that a prima facie case existed, primarily because independent
corroboration was not available. The question then arose as to whether the
circumstances of the case gave rise to any inference of discrimination or whether
discrimination could be presumed, and whether these inferences constituted
evidence of a prima facie case.
6.6 In Gleeson v The Rotunda Hospital and Mater Hospital (DEE003/2000), the Labour Court
decided that a prima facie case existed only after considering all of the hard evidence and
9
combining it with the inferences of discrimination that could be drawn from the
circumstances of the case.
6.7 I now have to establish whether the complainant has produced sufficient hard evidence
which, in the absence of convincing contradictory evidence, would lead a reasonable person
to believe that the respondent discriminated against him on the basis of his membership of
his age. If he has succeeded in producing sufficient hard evidence then the burden of proof
shifts to the respondent to show that he did not act in a discriminatory manner. In the
absence of sufficient hard evidence any inferences of discrimination which might in
themselves contribute to a prima facie case also have to be considered. However, if the
complainant fails to produce sufficient hard evidence or inferences of discrimination to
establish prima facie evidence, the burden does not shift to the respondent to show that he
did not act in a discriminatory manner.
6.8 In order for the complainant to establish prima facie evidence he has to show that he was
treated less favourably by the respondent than someone who is of a different age. The
complainant claimed that he received less favourable treatment than someone aged in their
twenties or thirties. I have noted that the complainant claimed that after he was refused
admission to Q. Bar he waited outside the pub for a few minutes and witnessed six or seven
people being admitted who were all aged in their twenties or thirties.
6.9 I have also noted that the complainant’s daughter and son-in-law claimed that they were
admitted to Q. Bar some weeks previously when they were not with the complainant and
that the people who were in the pub on that occasion were in the 25 – 40 year old age
bracket. They claimed that they did not see anyone in the pub on that occasion who would
have been aged much over 40 years old although they did not see anyone over that age
being refused admission either. The complainant claimed that the only significant
difference between the time when his daughter and son-in-law were admitted to Q. Bar and
the time they were refused was that they were accompanied by himself and his wife i.e. two
people who were well outside the target age group of the pub. He claimed that all of his
evidence shows that he was discriminated against by Q. Bar on the basis of his age.
6.10 In considering whether the complainant has established prima facie evidence of
discrimination I am particularly conscious of the fact that he is aged 72 years old and that he
is of a substantially different age than someone in Q. Bar’s stated general target group
whom he claims received more favourable treatment i.e. someone aged in their twenties or
thirties. Although I recognise that it may be difficult for publicans and doormen to know
what age a person is I consider that any reasonable person would undoubtedly know from
the complainant’s appearance that he is not aged in his twenties or thirties and that he is
aged a very significant number of years more than this. I must stress that in determining
whether the complainant has established prima facie evidence of discrimination that my
conclusions may have been different if it was more difficult to distinguish his age from his
appearance when compared to someone in their twenties or thirties e.g. if he were in his mid
forties or late teens.
6.11 I have also noted that the complainant notified the respondent in writing on 16th January,
2001, as required by section 21(2) of the Act, of the fact the he considered he had been
discriminated against on the basis of his age. I have also noted the reply which the
respondent sent to the complainant which was incorrectly dated 9th January, 2001. Mr
O’Connell claimed at the oral hearing that although this reply included some standard
10
paragraphs for complaints where someone was refused from the pub that the last paragraph
was not a standard paragraph. The last paragraph was worded as follows:
“With regard to your assertion that you were refused on the grounds of age, I can
assure you that this is not correct. It can easily be seen by observing our patrons
over a period of time that we admit and serve persons of all ages. We have
questioned our manager and door staff about this incident. We are satisfied that
normal policies were applied”.
6.12 I find the wording of this paragraph to be significant and not helpful to the respondents
defence of the allegations made by the complainant. In my opinion the last two sentences
give the impression that the respondent questioned the doorman who refused the
complainant and that it was satisfied that its normal admission policies were applied. This
evidence is clearly not consistent with the oral evidence provided by Mr O’Connell at the
hearing. I consider that the respondent could not have been sure that the reason the
complainant was refused was not related to his age, as stated in the first sentence of the
paragraph, and also at the oral hearing. This is because no evidence was provided that
anybody in the management of Q. Bar, or anyone on its behalf, spoke to the doorman who
made the decision to refuse the complainant. Therefore, the respondent could not possibly
know for certain whether the complainant’s refusal was related to his age or not.
I have also noted that the respondent’s reply to the notification did not mention any of the
reasons which were suggested at the oral hearing for the complainants refusal.
6.13 Section 26 of the Act states:
“If in the course of an investigation under Section 25, it appears to the Director-
(a) that the respondent did not reply to a notification under section
21(2)(a) or to any question asked by a complainant under section
21(2)(b),
(b) that the information supplied by the respondent in response to the
notification or any such question was false or misleading, or
(c) that the information supplied in response to any such question
was not such as would assist the complainant in deciding whether to refer
the case to the Director,
the Director may draw such inferences, if any, as seem appropriate from the failure
to reply or, as the case may be, the supply of information as mentioned in paragraph
(b) or (c).”
6.14 I realise that the respondent received around fifty complaints over the Christmas, 2000,
period but from Mr O’Connell’s own evidence it is clear that there were at most three
section 21 notifications. I can understand dealing with a high number of “normal”
complaints in a largely routine fashion by way of standard letters but I do not consider that
the section 21 notifications would have been considered to be routine. I consider that the
respondent’s reply to the notification which the complainant sent under section 21(2)(a) of
the Act was misleading and I have decided to draw an inference as I am entitled to do under
section 26 of the Act. The inference which I consider appropriate to draw in the light of all
of the evidence presented is that the reason for the refusal of service to the complainant was
based on his age and for no other reason.
11
6.15 I am satisfied that the complainant has established prima facie evidence of discrimination
on the age ground. Accordingly, the burden of proof shifts to the respondent to rebut the
inference of discrimination.
CONCLUSIONS OF EQUALITY OFFICER
7. I have noted that the doorman who actually refused the complainant and the rest of his party
admission to Q. Bar left the employment of Failte Security Ltd in February, 2001, and that
he did not provide any evidence, either written or oral, as to why the complainant was
refused service. As the doorman was the one who made the decision to refuse admission he
is the only one who knows the actual reason for his decision. In the absence of his evidence
I have noted that the respondent has been unable to provide the actual reason why the
complainant was refused. In my opinion much of the evidence put forward by the
respondent simply tries to speculate as to what the reason for refusing the complainant may
have been without knowing whether the reasons suggested are actually correct or not. I
consider that the respondent has not provided any hard evidence to support any of the
suggested reasons which it has put forward. Nevertheless, I shall now examine the
suggested reasons for the refusal put forward by the respondent and detail my findings on
them.
7.1 The respondent has claimed that the refusal would have been made on the basis of Section
15(2) of the Act, which states:
“Action taken in good faith by or on behalf of the holder of a licence or other
authorisation which permits the sale of intoxicating liquor, for the sole purpose of
ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall
not constitute discrimination”.
The respondent did not state which provisions of the Licensing Acts it was trying to ensure
compliance with when the complainant was refused but I am aware that the Licensing Acts
require that publicans, inter alia, do not serve under 18 year olds alcohol on their premises.
However, in view of the age of the complainant and the other people in his party I do not
consider that the respondent could have been acting in good faith by refusing him on this
basis. This is because I consider that it would have been obvious that they were all aged
over 18 years old.
7.2 I am also aware that the Licensing Acts require publicans, inter alia, to run orderly houses
and I will now consider whether the respondent could have been acting in good faith in
refusing the complainant admission on the basis that there could have been a breach of this
aspect of the Licensing Acts if he was admitted.
At the oral hearing Mr O’Connell explained the genesis of Q. Bar and the measures and
lengths which Ballendale Inns Ltd had to go to to ensure that the pubs licence would be
renewed. I noted that Mr O’Connell claimed that when the pub first opened as Q. Bar in
November, 2000, that it had a very strict admission policy until March, 2001, and that a
huge number of people of different ages were refused admission during this period. Mr
O’Connell claimed that the pub “did go overboard” in its admission policy but that the
reason for this was that it wanted to ensure that it met its obligations under the Licensing
Acts. He claimed that a high proportion of approximately 50 complaints over the Christmas
2000 period were about refusals of admission which arose from decisions made by the
doorman who refused the complainant.
12
I fully accept that the respondent had to have a strict door policy in view of the problems
with the pub’s licence. I also fully accept that the respondent was completely entitled to
refuse admission to anyone where the staff were acting in good faith for the sole purpose of
ensuring compliance with the Licensing Acts. However, I consider that the defence
provided in section 15(2) of the Act does not provide carte blanche to publicans to refuse
service to people and that it only allows them to refuse where they are genuinely acting in
good faith for the sole purpose of ensuring compliance with the Licensing Acts. It must be
borne in mind in that in addition to being under a legal obligation to comply with the
Licensing Acts that publicans are also under an obligation to ensure that they do not
unlawfully discriminate against people contrary to the Equal Status Act, 2000.
When invoking the section 15(2) defence I consider that publicans must be able to show in
what way they were acting in good faith when refusing a particular complainant. It is not
sufficient to claim to have a strict admission policy and to explain how it was applied in a
broad sense to people who sought admission generally. I consider that publicans have to be
able to demonstrate how they were acting in good faith in relation to a refusal of a particular
complainant at a particular time for the section 15(2) defence to be successful. They must
be able to explain why they considered that serving a complainant would have led to a
breach of its obligations under the Licensing Acts.
In relation to this particular case Mr O’Connell accepted at the oral hearing that the
complainant and the rest of his party should have been admitted to the pub. He accepted
that they were not previously barred from the pub for any reason and that he had no basis
for assuming that the complainant or the rest of his party were troublemakers. Mr
O’Connell provided no evidence to show that the doorman who refused the complainant
had any reason to believe that the complainant or anyone else in his group was barred or a
troublemaker. Similarly, no evidence was provided by the respondent to show in what way
admitting the complainant to the premises could have breached, or could have led to a
breach, in the respondent’s obligations under the Licensing Acts.
The respondent has argued that it had a strict admission policy in good faith to ensure
compliance with the Licensing Acts and that by implication the doorman who refused the
complainant would have made the refusal on this basis also. However, in the final analysis
I consider that the respondent does not know for certain whether the doorman who refused
the complainant did so in good faith because it never asked him. Essentially the respondent
is speculating that the doorman refused the complainant in good faith. On the basis of the
evidence which the respondent has provided on this point I do not consider that it was
acting in good faith in accordance with section 15(2) when the complainant was refused.
Nor do I consider that the defence provided for in section 15(1) of the Act could be
successfully invoked by the respondent either.
7.3 In stating that a huge number of people of different ages were refused during the period
from November, 2000, to March, 2001, I consider that the respondent was arguing that the
complainant was not treated any differently on the basis of his age i.e. that he was one of a
number of people of different ages who were all refused and that he was treated the same as
these people. I have considered this point and I accept that a large number of people were
refused during the period in question. However, in my opinion when a refusal occurs there
has to be a reason for it. The reason may be of a discriminatory nature or of a nondiscriminatory
nature. I do not have the full facts surrounding the circumstances of the
other refusals which occurred and I am only investigating the incident complained of in the
13
current case. The important point is that under the Equal Status Act, 2000, a respondent has
to be able to explain why a refusal of a particular complainant at a particular time is not
discriminatory under the Act. It is not sufficient of itself to argue generally that just
because younger people were also refused that the complainant was not discriminated
against on the basis of his age although I recognise that this information may help support
such an argument.
7.4 I have noted that Mr O’Connell also claimed that because the complainant was admitted to
the pub on 16th January, 2001, when he returned to make a complaint, that it shows that the
respondent does not have a discriminatory policy towards older people. I consider that
while this information obviously supports such an argument it does not provide an
explanation as to why the complainant was refused service on 13th January, 2001.
7.5 I noted that Mr O’Connell also mentioned that the pub’s dress code could have been a factor
in the complainant being refused. The only evidence provided in relation to the dress code
was that it varies depending on the time of day but that at no time will anyone untidy or
unkempt be admitted. The complainant claimed that he and the other people in his group
were well dressed. In view of the fact that he claimed they were in town to celebrate his
wedding anniversary I accept his claim on this point. I consider that the respondent is only
speculating that the dress code was the reason the complainant was refused because no hard
evidence was produced as to how or why the complainant’s style of dress was unacceptable.
I do not consider that the dress code was the reason why the complainant was refused
admission.
7.6 I also noted that the respondent claimed that the complainant was not refused alone and that
the reason he was refused could have been related to the fact that he was in a group when he
was refused or to one of the other people in the group he was in. However, as the
respondent did not provide any evidence as to why this could have been the case I can only
again conclude that it is speculating on this point because there is no hard evidence to back
it up.
7.7. The complainant in this case was refused admission to Q. Bar by a doorman employed by
Failte Security Ltd and the complainant claimed that the respondent was vicariously liable
for the doorman’s actions. The respondent did not explicitly claim that it was not
vicariously liable for the doorman’s actions but neverthless I shall examine the evidence
provided to determine the position.
7.8 I have noted that Mr O’Connell claimed that all of the doormen were supplied with copies
of a document about the Act prepared by the LVA in October, 2000, and that they were also
given copies of the pub’s current admission code which was drawn up in February, 2001.
In relation to the LVA code I have noted that it is quite brief and that it is not very detailed.
In relation to the age ground it does not state that it is not permissible to refuse someone on
the grounds that they are too old, unlike the February, 2001, admission code.
7.9 The LVA code states that it would be a sensible precaution to ensure that publicans keep
details of refusals in a book specifically for such incidents and yet Mr O’Connell claimed
that no such incident book was kept by the respondent. I realise that there are practical
difficulties involved in keeping a record of refusals for a pub like Q. Bar which is located in
a busy city centre location. However, I consider that it is not consistent for the respondent
to argue that its doormen were aware of the LVA code and the obligations placed on them
14
by the Equal Status Act, 2000, when it is clear that at least one significant recommendation
of the code was not followed. On this point I have noted that one of the other precautions
recommended in the LVA code is not to give a reason for a refusal and the doorman who
refused the complainant did follow this part of the code. I consider that in combination
these inconsistencies suggest that the respondent was not successful in its efforts to ensure
that the door staff generally, and the doorman who refused the complainant in particular,
were appropriately cognissant of the contents or recommendations of the LVA code or of
the requirements of the Equal Status Act, 2000. I consider that this evidence also suggests
that the respondent was selective in the parts of the LVA code which it adhered to.
7.10 In relation to the admission code which was drawn up in February, 2001, I note that it was
not in force when the complainant was refused on 13th January, 2001, so its contents were
not applicable or made known to the doormen at that time.
7.11 The respondent claimed that the doormen employed at Q. Bar were under very close
control, supervision and direction by the bar’s management in relation to the screening of
potential patrons on behalf of Q. Bar at the point of entry to the premises. Mr O’Connell
claimed that the management of Q. Bar told the doormen what the admission policy was
and that the doormen were monitored when they first started working in Q. Bar to make
sure that the policy was being implemented properly. I find it difficult to understand how
the doorman could have misinterpreted the respondent’s stated admission policy so badly in
view of the high level of supervision which the respondent has claimed. Despite this high
level of supervision the respondent acknowledged that the doorman who refused the
complainant refused too many people who should have been admitted. It claimed that there
were over fifty complaints over the Christmas, 2000, period and a that a high proportion of
these were due to him. I consider that this information supports the argument that the
respondent did not exercise an appropriate level of control to ensure that its stated
admission policy was being implemented properly by the doorman who refused the
complainant.
7.12 I am satisfied on the basis of the evidence presented that the respondent was vicariously
liable for the complainant’s refusal by the doorman employed by Failte Security Ltd. In
reaching this conclusion I consider it notable that much of the respondent’s evidence in
relation to the measures which it took was based on verbal evidence at the oral hearing. No
written records were produced to prove that the LVA code or the admission code were
given to the doorman and he did not provide any evidence to confirm the respondent’s
claims. In considering whether the respondent has proven that it took such steps as were
reasonably practicable to prevent the doorman from discriminating against the complainant
I note that Q Bar is part of a chain of pubs which has administrative staff at its disposal.
Consequently, the standard of proof expected of Q Bar has to be different than for a much
smaller publican with fewer monetary and administrative resources available.
In discrimination cases the credibility of the parties is very important to the final
determination and documentary verification of any claims made can be very supportive. In
this case the respondent’s case could have been helped if documentary verification of the
claims made were available or if the doorman had confirmed that he had received the LVA
code and training claimed by the respondent. I consider that this point is particularly
important in view of the misleading reply which the respondent provided in relation to the
section 21 notification.
15
In conclusion I am satisfied that the respondent has failed to rebut the inference of
discrimination.
DECISION
8. On the basis of all of the evidence presented it is my decision that Mr J. O’Reilly was
discriminated against by Q. Bar on the basis of his age on 13th January, 2001, contrary to
the Equal Status Act, 2000.
Under section 27(1)(a) of the Act I order that Q. Bar pay 1,000 Euro to Mr J. O’Reilly as
compensation for the embarrassment and stress which he suffered.
Under section 27(1)(b) of the Act I order that Q. Bar place a sign in a prominent place
behind the bar of its premises stating that “The owner of this pub is committed to treating
people equally in accordance with the terms of the Equal Status Act, 2000”. The sign
should be left on display for at least one month thereafter. The letters of the words on the
sign should be no less than 1 inch in height. The sign should be easily visible to anyone
who seeks service there.
Anthony Cummins
Equality Officer
8th March, 2002
DEC-S2003-116 Full Case Report
Ross v Royal & Sun Allieance Insurance Plc
1. Dispute
1.1 This dispute concerns a complaint by Mr Jim Ross that he was discriminated against, contrary to the Equal Status Act 2000, by Royal and Sun Alliance Insurance plc. The complainant maintains that he was discriminated against on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 This dispute concerns a complaint by Jim Ross that he sought a car insurance quotation from Royal & Sun Alliance Insurance plc by telephone on 9 January 2001 but was refused a quotation because of his age (77)
3.. Summary of Respondent’s Case
3.1 The respondents totally reject that they operate a discriminatory policy on the grounds of age. They acknowledge that Mr Ross was refused a quotation but argue that the refusal was not unlawful as it falls within an exception provided under the Equal Status Act, where the difference in the treatment of persons in relation to insurance policies is not deemed to be discriminatory if “it is effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely, or other relevant underwriting or commercial factors, and is reasonable having regard to the data or other relevant factors.”
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, 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 Act, 2000.
5.1 Basis for Complainant’s Case
Mr Jim Ross was born on 4 July 1923
In 2000, he purchased a new car. However, when he went to renew his insurance
premium, his existing insurance company quoted him a premium which, in his opinion, was exorbitant.
As a result, he decided to “shop around” for a better insurance deal
On 9 January 2001, he phoned the Royal & Sun Alliance for a quotation
At the outset, the staff member asked him for his name, address and age
When he told the staff member that he was 77 years of age, he was informed that the company did not quote for new business for people over 70
Although he had a 7 year “No Claims Bonus” at the time, he was not asked about it
Mr Ross informed the staff member that he had previously been an agent for the Royal
Insurance Company up until his retirement but this did not influence the decision
Evidence of Ms Dorothea Dowling, Chairperson, Motor Insurance Advisory Board
Ms Dowling has been on the MIAB board since 1998
The MIAB was asked in 1998 to monitor developments in motor insurance costs and to provide analysis of the factors influencing changes in motor insurance premium rates, following complaints of anti-competitive practices in the industry
Following a survey in early 2001, the MIAB wrote to 5 of the 26 licensed insurers who appeared not to be cooperating with the Declined Cases Agreement’s requirement that “No proposer is to be refused a quotation on the basis of age”
In a written responce to the MIAB’s letter, the RSA stated “in respect of older drivers …… we do not quote unless there is a 5 year bonus in place”.
In light of the above statement to the MIAB, Ms Dowling said that she was astonished to hear subsequently that the complainant, Mr Ross, had been refused a quote by the RSA.
Ms Dowling considers that the Declined Cases Agreements is a viable method of providing insurance cover and explained that, under the system, the only people likely not to get insurance are those with previous convictions or those suffering from specific disabilities
Declined Cases Agreements
During the course of the Hearings, reference was made to the Declined Cases Agreements (DCA) of June 1981 which established a Declined Cases Committee,consisting of representatives from the insurance industry. It was explained that the DCAs were designed to spread the burden of risk equally amongst insurance companies. Under the Agreements, insurers accepted in principle the obligation upon them to afford proper facilities to the insuring public and it was agreed that insurers would not decline to provide insurance to individual proposers who had approached at least five insurers and had not been able to obtain insurance.
To effect this Agreement, a Declined Cases Committee was established for the purposes of administering the Agreement. The Committee had a number of powers including the power to nominate companies, on a rota basis, to provide insurance and, in cases where the Committee formed the opinion that premiums or terms were excessive, to indicate the maximum premium to be imposed
Evidence of Mr Cyril Connolly, Statistician and Member of the MIAB
Mr Connolly was heavily involved in preparing the Motor Insurance Advisory Board’s Report on the Motor Insurance Industry in 2002
He had specific responsibility for the statistical data contained therein and he is very familiar with statistics, trends and issues pertaining to the motor insurance industry
Mr Connolly has examined the RSA Statistical Reports provided for the 1994- 1997 years and the 1999 year and came to the conclusion that the data could notbe relied upon for informative conclusions as “there was something wrong with the mechanism used to produce data”.
He came to this conclusion having found a number of inconsistencies in the data itself and the manner by which results were obtained
Mr Connolly stated that, from his examination of the statistics, the over-70s data appeared to be consistent with the average for the whole portfolio.
He also said that he could find no evidence in the RSA accident statistics to show that there was more volatility in the over 70’s age category
5.2 Respondents’ Evidence
Evidence of Mr Philip Behan, RSA Pricing and Development Manager
Mr Behan was employed as Underwriting Manager with Sun Alliance from 1988 up until the company’s merger with Royal Insurance in 1996. He since became Pricing and Development Manager with the merged company, Royal and Sun Alliance.
In 1992, Mr Behan undertook a study of Sun Alliance’s Irish market accident statistics for the period 1985 to 1992, with a view towards formulating new age groups for quotation purposes based on the risk factors involved.
His 1992 analysis of the ages of those involved in accidents, indicated that the larger claims tended to involve clients at the extreme ends of the age spectrum.
Mr Behan explained that injury claims were noticeably higher at the younger and older ends of the scale
Mr Behan said that it was clear from his analysis that it would be imprudent to continue to take on new business from anyone over 70 years of age. Even if older clients were taken on at a higher premium, he considered that this could lead to an imbalance of risks.
Based on his analysis, Mr Behan submitted a report to Senior Management recommending that the practice of offering quotations to new customers over 70 be reviewed.
On the basis of his recommendation, the company decided in 1992 to stop taking on new business from anyone over 70 years of age. This decision did not, however, affect existing clients who continued to receive cover on reaching 70 years of age.
Mr Behan explained that Sun Alliance had a high level of older drivers on its books at the time. This situation had arisen from a campaign which the company had run in 1985 to attract experienced drivers in the 35 to 75 age category.
At the Hearing, Mr Behan said that the statistics on which he made his report in 1992 were no longer available but that he could provide statistics from 1994 which, he maintained, closely mirrored the 1985 to 1992 figures.
The decision to restrict insurance to under 70’s was reviewed annually by the company since 1992 and this practice continued after Royal Insurance merged with Sun Alliance in 1996
Mr Behan stated that the annual review of statistics throughout the 1990s affirmed the 1992 decision
In October 2000, a further statistical report was prepared by Mr Behan based on actuarial evidence and statistics from the company’s Irish records for 1999, which, he claimed, again showed that insurance claim costs accelerated in line with age in the over 70’s bracket
Mr Behan said that this report reaffirmed the 1992 decision not to seek new business from people over 70
Mr Behan stated that it was the October 2000 review, that grounded the decision to refuse Mr Ross a quotation in January 2001. This review was based on the company’s statistical data from the Irish market for the 1999 year.
The RSA was only able to compile its report based on data from 1999 as the data from 1997 and 1998 was not fully available on computer. As a result, it was not used as it was considered somewhat unreliable
In 2003, a further actuarial review was carried out which again affirmed the 1992 decision and the emerging figures in 2003 also supported the 2000 assessment
In compiling his reports over the years, Mr Behan said that he also took into account other factors such as market forces and the situation in other countries. In this regard, he regularly liaised with colleagues working abroad with a view to comparing practices and trends.
In an effort to emphasise the difficulties experienced by risk assessors, Mr Behan explained that nowadays, it can take 4 years to establish the true outcome of a claim
In support of their case, the RSA introduced in evidence RSA Statistical Reports for period 1994-1997, for October 2000 and for April 2003. However, on close inspection at the Hearing on 19 May 2003, it was established that some of the figures in the reports for the 1994-1997 years simply “did not add up”.
Having examined the figures in question, Mr Behan acknowledged at the Hearing that some of the numerical calculations in the reports (which appeared to have been computer generated) were not accurate but he was unable to offer an explanation for this.
In early 2003, the RSA began to use a new statistical software package into which the 1999 data was entered for comparison purposes. The ensuing comparison between the 2000 and 2003 analysis of the same data showed significant divergencies in the results obtained in certain categories
On the basis of the 2003 analysis, Mr Behan acknowledged that the 2000 Statistical Report may have been based, to some degree, on inaccurate information leading to the performance of older drivers being viewed in a different light under some headings when compared with the 2003 analysis
Mr Behan insisted, however, that the 2003 figures would not have changed his view as to whether new business from over 70’s should be taken on by the company
Mr Behan stressed also that his function was to conduct risk assessments on the basis of the most accurate and up-to-date information available to him at the time and insisted that his assessments over the past ten years had all been done on this basis
While accepting that the RSA reports contained some errors, Mr Behan insisted that his analysis was sound and based on solid underwriting and commercial factors and he stood over his recommendation to the RSA not to accept new over-70’s business
The RSA is a small insurance company and cannot afford to take blows from a volatile sector of the insurance market.
The RSA already has a higher proportion of over 70 drivers on its books than most other insurance companies
Evidence of Mr Rigby, Deputy General Manager of RSA in 1999
Mr Rigby was the Deputy General manager of RSA during the 1990s until he retired in 1999
During this time the RSA prepared annual statistical packages and carried out quarterly business reviews
RSA relied on Philip Behan’s reports for underwriting purposes
Mr Rigby often regularly discussed Mr Behan’s draft reports with him before they were finalised
It was Mr Rigby’s function to evaluate the risk involved in continuing to offer cover to anyone over 70
He said that it was clear in the early 1990s that the provision of insurance cover to older clients was demonstrably unprofitable and that, as time progressed, there was increased deterioration in profit levels
Mr Rigby acknowledged that the RSA had “burned its fingers” in the mature market in the 1980s and fully supported the decision in 1992 to re-evaluate its position with regard to its over-70s custom
When reference was made to the Declined Cases Agreement, Mr Rigby stated that he had no recollection of the RSA ever been required to provide insurance to someone over 70 under the terms of that Agreement.
Evidence of Mr Ken Keenan, Manager, Personal Financial Services
Mr Keenan took over responsibility for the RSA’s underwriting of the private motor business in November 2000
On his arrival he carried out an extensive analysis of Mr Behan’s October 2000 report and satisfied himself that Mr Behan’s report was based on the best statistical evidence available and that Mr Behan was correct in recommending continuance of the RSA’s over 70s policy
Mr Keenan believed that, in not providing insurance for new over 70’s business, the company’s existing over 70’s customers benefited from lower insurance rates brought about by the RSA’s ability to contain exposure in this volatile segment of the market.
When his attention was drawn to the quotation in the MIAB Report from a RSA letter stating that “in respect of older drivers …… we do not quote unless there is a 5 year bonus in place”, Mr Keenan said that he had not known about that letter but acknowledged that it did give a misleading impression about the RSA’s willingness to quote for new “over 70’s” business.
Evidence of Mr David O’Connor. Tillinghast, Actuarial Consultants
Mr O’Connor is an Expert Risk Assessor with 30 years experience in the insurance business
Mr O’Connor believes that it is essential for insurance companies to carefully select risks because of the high volatility in the sector and recommends that companies restrict over-exposure in volatile sectors
Mr O’Connor would advise strongly against an insurance company taking on a particular risk group as it goes against the basic principle of diversification
It is clear from his own research and experience that greater risks exist at the extreme ends of the age bands
Mr Denis Bergin, Retired Insurance Expert
Mr Bergin was involved in insurance underwriting since 1951
He has examined the RSA data that is available and found it very thorough and impressive
He has also been impressed with the risk management decisions made by RSA over the years
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(f) of the Act specifies the age ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused an insurance quotation by Royal and Sun Alliance on 9 January 2001. I, therefore, must decide whether the treatment afforded the complainant in being refused an insurance quotation constituted discrimination under the provisions of the Equal Status Act 2000.
6.2 Another matter to be considered is the respondents argument that the Equal Status Act 2000 provides an exemption for insurance companies under Section 5(2)(d) where a decision to treat people differently is effected by actuarial or statistical data. The respondents claim that they are entitled under Section 5(2)(d) to treat people of different ages differently in relation to insurance policies where the treatment is “effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely, or other relevant underwriting or commercial factors, and is reasonable having regard to the data or other relevant factors” The respondents argue that this provision in Section 5(2)(d) is “an exemption” from the provisions of Section 5(1) which prohibits discrimination. The complainant, for his part, maintains that the refusal was not consistent with statistical or actuarial data but was a decision imposed arbitrarily on people over 70 years of age.
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the age ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at Labour Court, High Court and Supreme Court level. In this regard, it is important to note that a shift in the burden of proof was applied as a matter of law in Irish discrimination cases long before European Community law developed the idea, so this practice is not dependent on EC discrimination law applying in the context of the Equal Status Act 2000.
7.3 Both the Labour Court and Equality Officers applied the practice of shifting the burden of proof in discrimination cases, long before any European Community caselaw required them to do so. This practice was adopted as far back as 1983 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court) and 1986 ( Dublin Corporation vGibney, EE 5/1986 Equality Officer), and was a consistent practice across a spectrum of cases (see Curtin, Irish Employment Equality Law, 1989 p. 222 et seq.) European Court of Justice caselaw did not address the issue of the shift in the burden of proof for the first time till Danfoss (Case no C-109/88, 1989 ) and Enderby (Enderby v Frenchay Health Authority and Sec of State for Health, C-127/92, 1993 ). The shift in the burden of proof would, therefore, seem to have been an indigenous development in Irish discrimination law, which was in advance of Community law. The practice of shifting the burden of proof in discrimination cases, although this time following European Community caselaw, was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson 1998 2 IR 162 and by the High Court in Conlon v University of Limerick 1999 2 ILRM 131. . While these were both indirect discrimination cases, it seems that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
7.4 The burden of proof issue has more recently been addressed in Irish caselaw in a 2003 “age” case under the new equality legislation ( O’Mahony and others V The Revenue Commissioners (Labour Court Determination No. EDA 033). In that case, which was taken under the Employment Equality Act 1998, the Labour Court, in applying the burden of proof test, stated that “the Court must consider if the complainants have established the primary facts on which they place reliance in furtherance of the complaint of discrimination. If those facts are established the Court must then consider if they are of sufficient significance to raise a presumption of discrimination. If that evidential burden is not discharged the complainant cannot succeed. If that burden is discharged it then becomes a matter for the respondent to prove, on the balance of probabilities, that the complainant’s age was not a factor that influenced their exclusion from the panel.” On the basis of the foregoing, I can see no obvious reason why the principle of shifting the burden of proof should not be extended to complaints arising under the Equal Status Act 2000 on any of the new grounds.
7.5 With regard to (a) above in paragraph 7.1, the complainant has satisfied me that he was over 70 years of age when he was refused an insurance quotation by the Royal and Sun Alliance. In relation to (b), the respondents accept that the complainant was refused a quotation. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment a person of a different age would have received, in similar circumstances.
7.6 Section 5(2)(d) of the Equal Status Act 2000 The respondents argue in this case that the Equal Status Act 2000 provides an exemption for insurance companies under Section 5(2)(d) and that the RSA’s refusal to provide Mr Ross with a quotation was covered by this exemption. Section 5(1) of the Equal Status Act 2000 states: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” Section 5(2)(d) of the Equal Status Act 2000 states: “Subsection (1) does not apply in respect of – (d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment –
(i) is effected by reference to
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors, and
(ii) is reasonable having regard to the data or other relevant factors”
7.7 Therefore, in order to show that they are covered by the Section 5(2)(d) exemption, I consider that the respondents must show that the difference in treatment afforded Mr Ross was (1) “effected by reference to actuarial or statistical data” which was “obtained from a source on which it is reasonable to rely” AND “is reasonable having regard to the data or other relevant factors” OR (2 “is effected by reference to other relevant underwriting or commercial factors” AND “is reasonable having regard to the data or other relevant factors” . In order to fall within the Section 5(2)(d) exemption, I consider that the respondents must show that they fully satisfy either test (1) or test (2) above.
7.8 In regard to test (1) above, the respondents maintain that they are covered by the Section 5(2) exemption in this case, as Mr Philip Behan utilised the latest and most accurate information available to him at the time, in recommending to the RSA, from 1992 onwards, that the company should cease to quote for new business in the over-70’s age bracket. While acknowledging that there may have been some inaccuracies in the data used over the years, the respondents maintain that Mr Behan acted in a professional manner at all times. In deliberating on the evidence before me, I have no reason to doubt that Mr Behan acted in an entirely professional manner in conducting his reviews and that every effort was made, on each occasion, to ensure the integrity of the statistics used. I am, therefore, satisfied that Mr Behan’s findings complied with the first part of test (1) in that they were “effected by reference to actuarial or statistical data”. This then raises the question as to whether the actuarial or statistical data used between 1992 and 1999 came from “a source on which it is reasonable to rely”. In this regard, I note that the source and the integrity of the statistics have now been called into question with the admission that (a) the 1992 figures are no longer available, (b) that there were “black holes” in respect of periods between 1992 and 1998 where the relevant data relied on was incomplete or is no longer available and (c) that the 1999 figures now show different outcomes when processed through a different software package. On the basis of this information, I find that there is insufficient evidence before me to convince me that the actuarial or statistical data, which guided the respondent’s over-70s policy, “was obtained from a source on which it is reasonable to rely” or that their decision was “reasonable having regard to the data or other relevant factors”. Accordingly, I consider that the respondents have not fully satisfied the test at (1) above.
7.9 With regard to the test at (2) above, the respondents have identified a number of underwriting and commercial factors which influenced their policy decision on over-70s, such as the older age profile of the company’s customers compared to other insurers, their small share of the motor insurance market and the need for averaging-out risks. Section 5(2)(d) states, however, that where the treatment is effected by reference to other relevant underwriting or commercial factors that it must also be “reasonable having regard to the data or other relevant factors”. In my opinion, there are many other considerations, apart from those identified above, that should be taken into account when assessing a person’s suitability for insurance cover. These considerations include, among others, the person’s health, their driving experience, their previous claims history and the condition/age of their car. These to me are “other relevant factors” that should be taken into account in making such decisions. Another “relevant underwriting or commercial factor” which I consider needs to be taken into account is the fact that insurance companies have signed up to the Declined Cases Agreement which specifically states that “No Insurer shall decline a risk on the grounds of age of driver alone”. In the case before me, it is clear that the RSA does not take into account all of the relevant factors referred to above nor does it address the individuality of each request for a quotation. Instead, the RSA applies an “across the board” policy of refusing quotations to persons over 70 years of age, with no regard for a person’s particular circumstances or the company’s own obligations under the Declined Cases Agreement. For these reasons, I find that I cannot accept that the company’s policy “is reasonable having regard to … other relevant factors”. Accordingly, I find that the respondents have also failed to satisfy the test at (2) above and I have concluded that their over-70s policy does not fall within the exemption provided for under Section 5(2)(d) of the Equal Status Act 2000.
7.10 In their submission, the respondents claim that the “over 70s” are a very volatile segment of the market and that, if the respondent had to substantially increase its exposure to this age group, from taking on new business, this would have an adverse impact on their overall capital allocation and also increase the cost of reinsurance. They also claim that, as a small motor insurer, attracting a large volume of business in the 71 plus age group would risk threatening its viability. In addition, they maintain that increased exposure in this market would threaten the continuation of cover for existing customers who would be facing a very large premium increase. They argue, therefore, that by not accepting new business in this age group, the respondent can control its exposure. Clearly there is some substance in the respondent’s claim that a large increase in exposure in the over 70s market could be damaging to business. Whether this increase is likely to materialise, however, if the respondents opened their books to new business in the over 70s market, is a matter which I consider needs to be examined. In this regard, I note that I have little or no evidence before me which attempts to quantify the number of “floating” over 70 drivers who are seeking to change insurers. The respondents themselves have said that the industry practice has traditionally been to “look after your old customers” and not to compete for new business in this area . I also note that the respondents have given no indication as to the number of customers they have refused over the years based on their “no over 70s” policy nor have they tried to identify the volume of business that is likely to be generated if they were to begin accepting new over 70s business. On this point, I also note that, in referring to the Declined Cases Agreement, the respondents own witness, Mr Rigby, has stated that, to his knowledge, the Declined Cases Committee have never referred a new over-70s customer back to the RSA for the provision of insurance.On the basis of the above, I find that I have little or no evidence to support the view that there is a large market of “floating” over 70s customers out there who are seeking to change insurer. Indeed, Mr Rigby’s evidence would seem to suggest the contrary, that the number of such customers are few and far between. I, therefore, find that there is insufficient evidence before me to support the respondents’ claim that any change in its over-70s policy would expose the company to a risk which was likely to threaten its viability and lead to large premium increases for existing customers.
7.11 Notwithstanding the above findings, it is clear that reliable actuarial and statistical data is essential to the insurance industry in conducting risk assessment and I note that the data provided by the respondents, despite its flaws, does indicate that higher claim costs are more likely to arise from accidents involving elderly drivers than those involving middle-aged drivers. On this basis, I consider that there is a case to be made for a company quoting proportionately higher premiums to older drivers, based on the results of their actuarial reviews. What cannot be accepted is the complete refusal of a quotation based solely on a person’s age.
7.12 During the course of the Hearings, much analysis took place of the statistical and actuarial data used by Mr Behan in the period 1992 to 2000. In analysing the statistical data at the two Hearings, the parties entered into a long and indepth debate over the detail contained in the reports. Comparisons were drawn between different reports and questions were raised about loss ratios, burning costs, average costs etc. During the course of this debate, great emphasis was placed on the commercially sensitive nature of the statistical data under discussion and there was general agreement amongst all present that it would be prudent if the specific detail of the data under consideration was not included in the Equality Officer’s Decision. For this reason, specific details of the statistical evidence submitted by the respondents and considered at the Hearings has been omitted from this decision.
7.12 I find that a prima facie case of discrimination on the age ground has been established by the complainant, resulting in the burden of proof shifting to the respondents. I also find that the respondents have failed to rebut the allegation.
8 Decision
8.1 I find that the respondents, in not being able to produce full details of the actuarial or statistical data that had guided their “over-70s” policy, have failed to satisfy me that the data came “from a source on which it was reasonable to rely”. I also find that that the respondents’ “over 70s” policy was not “reasonable having regard to the data or other relevant factors” as it did not take all relevant factors into account in considering individual requests but simply applied an “across the board” policy of refusing quotations to persons over 70 years of age. Accordingly, I find that the respondents are not covered by the exemption provided for under Section 5(2)(d) of the Act.
8.2 I find that the complainant has established a prima facie case of discrimination on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in relation to the treatment he received in being refused a motor insurance quotation by Royal and Sun Alliance on 9 January 2001. I also find that the respondents have failed to rebut the allegation.
8.3 In considering the level of redress that is most appropriate, I am mindful of the following:
More than most, the RSA has reason to want to reduce the number of older customers on its books as the company already has a higher proportion of over 70 drivers than other companies, as a result of its campaign in the 1980’s to attract more mature drivers.
It is clear that the RSA does not completely discriminate against people over 70, as its policy is to continue to insure its existing customers when they turn 70.
As matters stand, the Declined Cases Agreement provides insurance seekers with a form of “safety net” in that some insurance company will eventually be required to offer them insurance. In the knowledge that this system is in place, it is possible that some insurance companies may not fully comprehend the discriminatory implications of refusing a quotation on the grounds of age.
8.3 As I have found that discrimination has occurred in this instance, I order that the Royal and Sun Alliance pay the complainant the sum of €2000 (roughly the cost equivalent to Mr Ross of three years insurance) for the loss of amenity suffered. 8.4 In light of this Decision, I would also suggest that the RSA and other insurance companies review any existing practices that are still in place where an individual is refused a quotation simply on the grounds of his/her age.
DEC-S2010-041-Full Case Report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-041
Murphy v Champion Lettings
File Ref: ES/2008/228
Date of Issue: 13 August 2010
Keywords: Equal Status Acts 2000-2008 – Section 3(2)(f), age ground -prima facie case – discrimination
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 23 December 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 27th April 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on August 11th, 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr Murphy that he was discriminated against by the respondent on the grounds of age in terms of Sections 3(2)(f) of the Equal Status Acts, 2000-2008 when they refused to allow him to rent a property which was on their books.
2. Summary of the Complainant’s Case
2.1 The complainant alleges that because he is an old age pensioner, he has been discriminated against by the respondent. In August 2008, the complainant was interested in renting a house in Meath and so he visited a property which was being offered for rent by the respondent. He decided to take it and he signed an agreement with Champion Lettings. He gave a holding deposit and followed this up shortly afterwards with several other documents to support his status as an excellent and reliable prospective tenant. Over the next couple of weeks he exchanged emails with Ms A, an employee of the respondent. These emails related to details about the property, such as the switching the phone line, the TV cable and other issues.
2.2 Immediately before he was due to move into the house, Mr Murphy received a call from Ms A to say that the landlord was not prepared to rent the house to an old age pensioner and so the arrangement was off. He was extremely shocked and disappointed and asked for his deposit and documents to be returned. Mr Murphy had already made all the arrangements for the move by this stage, including engaging (and paying a deposit to) a removal company, terminating his existing tenancy, packing all his belongings and changing his phone and broadband accounts. Therefore this abrupt change of plan caused him financial loss as well as considerable emotional stress and upset.
2.3 Mr Murphy believes that the respondent operate in a badly organised and ageist manner. He was also annoyed by the fact that they did not work with him to find another property suitable to his needs. He feels that he was very badly treated by them and he has taken this case to ensure that no-one else should suffer the same treatment.
3. Summary of the Respondent’s Case
3.1 In July 2008 the respondent was asked by Sherry Fitzgerald to advertise a property to let in the Duleek area. The reason was that the sale of this house had fallen through and the owner decided to rent it out instead. The respondent put the property on its books and advertised it for rent around late July 2008. The complainant was interested in the house, viewed it on 11th and 13th August and decided to take it.
3.2 The process for rental properties is that once an interested party decides to take it, they are asked for a holding deposit. They are given a receipt for the holding deposit and then the property is not advertised further. Then they ask for references, bank statements and all the supporting documentation. Once this process is complete, a signing/moving-in day is agreed. On the signing/moving-in date, the parties sign an agreement and the first month’s rent is taken.
3.3 In the present case, the respondent states that they went through all the initial steps, but they never got as far as signing the agreement, because the landlord withdrew the property beforehand. The respondent stated that landlords often change their minds, that this is legal and there is absolutely nothing they can do about it. In these cases, they apologise to the prospective tenant and return their deposit. This is what happened in this case.
3.4 The respondent agrees that they did not answer the letter of complaint sent by Mr Murphy. They say this is because he sent it to the wrong office and because they were annoyed about his allegations and his subsequent behaviour when he visited their office.
Witness for the Respondent – Ms A, Employee
3.5 Ms A is an employee of the respondent and was responsible for showing potential properties to Mr Murphy. Ms A showed the house in question to the complainant on August 11th and 13th. When he decided that he wished to rent the house, Ms A took a holding deposit from him and communicated with him regarding the arrangements over the next couple of weeks. Mr Murphy sent emails to her regarding his new phone line in the house and the arrangements with the TV cable company. Ms A answered Mr Murphy’s questions by communicating with the landlord first and sending the responses to the complainant. Ms A also completed a PRTB form on behalf of the landlord and agreed to change the ESB accounts herself in order to assist both parties. Ms A believes that she agreed a moving-in date on or about 26th August with the complainant. This was to be the date he would pay the first month’s rent and sign the contract.
3.6 On August 25th, the landlord contacted Ms A and told her he was not interested in renting the property anymore. Ms A understood that his reasons for doing so were financial – ie: he really needed to sell the property because he had already built another house and needed the money. Ms A contacted the complainant and told him that the landlord had changed his mind about renting and had decided to sell the house instead. She is adamant that neither she nor the landlord ever mentioned his age or the fact that he was an OAP. She explained to the complainant that the decision to sell was out of her control. She says that she apologised to him and offered to keep looking for properties to match his requirements. At the time she had no other properties in the area which matched his requirements, but she intended to keep searching. She pointed out that she was also disappointed the arrangement fell through because she was paid on commission and thus she received nothing for the work that she had done.
Witness for the respondent – Mr B, Landlord
3.7 In 2008 Mr B had a house for sale through Sherry Fitzgerald. However the market was volatile at the time and on two occasions, the potential sale of the house fell through. Therefore in July 2008, he decided that he needed to get some income from the house (which was lying empty) and so he decided to rent out the property. He advised Sherry Fitzgerald of his decision and, as their branch did not handle lettings, they put him in touch with Champion Lettings. About a month later he was advised by Sherry Fitzgerald that they had a strong potential buyer and so he decided to withdraw from the rental market and sell instead. He communicated this decision to Champion Lettings by phone on August 25th 2008. He did not know of any potential tenant for his house and he says that his wife may have discussed these arrangements with Ms A. He says that he could never have made reference to the age of the potential tenant, because he did not even know the tenant existed. The house was eventually sold about 6 months later and it was never rented out at any stage.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 In terms of basic facts both the complainant and the respondent agree that the complainant viewed the house in question, placed a holding deposit and was due to move in around August 26th 2008. The parties disagree with respect to the other facts, particularly the key issue of whether or not the respondent ever made a remark about the complainant’s age. The complainant is adamant they did refer to his age; the respondent is equally certain that they did not. Therefore I have to look at the issue of credibility of the parties. During the hearing the complainant gave evidence that he had signed a contract with the respondent; however this turned out not to be the case upon closer examination. The complainant was also unable to be specific on many of the other details of the case. It is to be regretted that the complainant was unaware that the landlord had a right to withdraw from the arrangement at any stage. The fact that he believed the matter was fully settled served to increase his shock and disappointment. It also caused him financial loss, because he made all of his moving arrangements and paid deposits in good faith. All of this contributed to the complainant’s understandable anger and upset, but they do not provide evidence that discrimination occurred.
4.3 The respondent gave an outline of the procedure involved in renting a house and it is clear that it was followed in this case; ie: that no contract was entered into because the landlord withdrew before that. It is also clear from the documents provided by Sherry Fitzgerald and from the evidence of the landlord, that the house was withdrawn from the market in order to sell it and not to offer it to another tenant. The respondent submitted a document which showed that they had deleted the house from their rental database shortly after August 25th. The respondent submitted to the Tribunal all the emails exchanged between Ms A and the complainant in order to show that they had put considerable effort into the arrangement. It is apparent that the respondent lost out here too, in that they had done the viewings, done the reference checks, completed all the paperwork, but they did not receive any commission because the house was returned to the selling agent at the last minute. The issue of poor customer service was raised by the complainant on several occasions; however it is clear that the relationship breakdown between the parties contributed to this. In any event the level of customer service provided to the complainant is not a matter for this Tribunal, unless it can be shown to be related to one of the protected grounds.
4.4 Considering all the evidence above, I find that the complainant brought this case in good faith and that he genuinely believed that he had been discriminated against by the respondent. However I find that all the evidence points to the matter unfolding exactly as described by the respondent. I found the respondent’s employee Ms A to have been honest and credible throughout the oral hearing. Therefore I find that Ms A did not make the remark about OAP’s which has been attributed to her by the complainant. I find that she advised him the rental had fallen through, purely a result of the landlord deciding to sell the property instead. I believe that the severe personal stress which the complainant was under at the time, may have led him inadvertently to misinterpret the respondent, when she told him the bad news.
5. Decision
5.1 On the basis of the foregoing, I find that the complainant has not raised a prima facie case of discrimination on the grounds of age and I therefore find in favour of the respondent.
Elaine Cassidy,
Equality Officer
13 August 2010
DEC-S2004-042 – Full Case Report
Dalton v Limerick County Council
Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act, 2000, the Director has delegated this complaint to me Mary O’Callaghan, 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 Act, 2000. The hearing of the case took place on 11th March 2004.
1. Dispute
1.1 This dispute concerns a claim by Mr. Patrick Dalton that he was discriminated against on the ground of age when he sought access to a refuse collection service at a reduced rate from Limerick County Council in 2002. Mr. Dalton alleges that the treatment he received was contrary to Section 3 (2) (f) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public he was subjected to treatment contrary to Section 5(1) of the Act.
2. Background
2.1 The complainant said that when he applied to Limerick County Council in January 2002 for a 140 litre refuse bin at a reduced rate he was informed that this service was restricted to those over 65 years of age and living alone; two person households where at least one person was 65 years or older and to those who were already on possession of a 140 litre bin.
3. Summary of the Complainant’s Case
3.1 The complainant said that he was first provided with a wheelie bin by Limerick County Council in 1997. At that time he chose the 240 litre bin. He did not recall if there was a range of sizes available to him at that time. By 2002 a charge for the refuse service was being levied by the council. At that time there were two people in his household neither of whom were over 65 years of age. He said that Limerick County Council were the only provider of a domestic refuse collection service available to him. His refuse was collected once weekly.
3.2 In January 2002 the complainant said that he applied to Limerick County Council Environment Department for a smaller refuse bin (140 l) for a refuse collection rate of €150 which was €105 cheaper than the €255 he was being charged for his refuse service at that time. He said that in response to his request he was provided with an application form which stated that the provision of 140 litre bin at the €150 rate for the refuse collection was confined to 3 specific categories: those living alone and 65 years of age or older; two person households where at least one person was 65 years or older and to those who were already in possession of a 140 litre bin. As he was not included among any of these categories the complainant formed the opinion that the council was discriminating on the ground of age.
3.3 The complainant said that the reasons he applied for the 140 litre bin at the time he did were because he was attracted by the cheaper price for that service; that he didn’t have a lot of refuse each week and he was aware that some of his neighbours already had 140 litre bins. He was aware that one of these neighbours was over 65 years of age and that the other was unwell.
3.4 Although he hadn’t expressed a preference for a smaller refuse bin prior to January 2002, he said that a 140 litre bin would have been ample for the refuse needs of his household.
3.5 The complainant referred to a recommendation of the Ombudsman, quoted in his 2001 annual report in which the rigid enforcement of conditions attached to a waiver scheme for refuse charges was considered to be unfair to a non contributory pensioner in her eighties. This person, who although in receipt of a social welfare pension amounting to the same sum as that of the qualifying pension, was not awarded a waiver of the charge as the pension she received was not an old age pension. This according the complainant reinforced his view that the council was discriminatory in its approach to granting access to the reduced charge. He said he hadn’t considered taking his complaint to the Ombudsman.
3.6 On examination the complainant said that that the reason he didn’t seek a smaller bin prior to 2002 was that the charge for both types of bin was the same. He said he had never enquired if he could avail of a 140 litre bin from the council and he was not aware of any other collector providing a refuse collection service in his area at the time. He had always dealt with Limerick County Council. He said that it was definitely the lower price which encouraged him to apply for the smaller bin in 2002.
4. Summary of the Respondent’s Case
4.1 The respondent said that the council commenced providing wheelie bins in 1997. There were 4 categories of bin:1100 litre for commercial waste; 330 litre for small businesses and particularly large households; 240 litre which was the standard domestic waste bin provided to most households and the 140 litre bin which was provided to people with a minimal amount of waste, to houses where access was restricted and where other circumstances warranted it.
4.2 Until 2002 the charge to a householder for the refuse collection was the same whether a 240 litre or 140 litre bin was provided. A waiver scheme was in operation up to the end of 2001 for certain categories of people who may have had difficulties in meeting the charge.
4.3 The refuse charge for each coming year is determined by the elected members of the council in October/ November each year and the council implements it. At the end of 2001 it was decided that the waiver scheme in place was incompatible with the “Polluter Pays” principle which is now the policy which applies to waste management. The scheme was to be phased out and it was decided to offer 140 litre bins at a reduced rate to the groups outlined above. The respondent said that the application of these categories widened the group of people to whom the reduced rate applied. The council was also aware due to the Ombudsman’s recommendation in 2001, that the 2001 waiver scheme may have been too rigid. Existing 140 litre bin customers were allowed to avail of the reduced rate regardless of their status.
4.4 The respondent said that the at all times 140 litre bins were provided on request to those who wanted them, subject to availability, at the full rate. Those seeking a 140 litre bin for the first time in 2002 would have been liable to the €255 charge unless they were in the over 65 age groups outlined. Those already in possession of the smaller bin could have availed of the reduced charge of €150. This preferential fee was only available to the over 65s in the categories given and to existing 140 litre bin customers. At no time was any customer of the service who requested one, refused a 140 litre bin if one was available. The respondent said that they knew of no instance where a customer who wanted a 140 litre bin was refused one if he/she was prepared to pay the full fee. They stated that such requests were rare. The council said that the use of 140 litre bins had been problematic in that some of those customers using them had been overloading them due to the lack of a developed recycling infrastructure in the county at that time. There had also been instances where waste was being burned by customers which risked breaches of the Air Pollution Act.
4.5 The respondent said that due to a decision by the elected members of the council the 140 litre bin was made generally available at the reduced fee in 2003. This was against the advice of the council officials administering the scheme. This decision placed such a financial strain on the council in providing a refuse service that the council had to withdraw from directly providing a refuse service before the end of that year and move to licensed private operators to provide the refuse service. 4.6 The council said that there was no legal obligation on it to provide a refuse collection service but to ensure that as many as possible households in the council area had access to a service. Its primary function in this area was to regulate the service.
5. Conclusions of the Equality Officer
5.1 In considering this complaint I must in the first instance consider whether the complainant has established a prima facie case of discrimination. In order to establish a prima facie case of discrimination three criteria must be met. These are:
(1) that he is covered by the relevant discriminatory ground, in this case the age ground
(2) that he has been subjected to specific treatment by the respondent.
(3) that he has been treated less favourably than someone who was not covered by the age ground would have been treated in similar circumstances.
5.2 In relation to those who could have availed of a new 140 litre bin at the €150 rate, i.e. those in the over 65 age group as outlined, I am satisfied that the complainant is of a different age group. Therefore, I accept that he has satisfied the first criterion above. The complainant has said that he requested a bin at the preferential rate and was told that he or his wife had to be at least 65 years of age to qualify. I am prepared to accept that this satisfies the specific treatment criterion.
5.3 In order to address the complaint before me here and whether the complainant has satisfied the third of the criteria above, it is necessary to consider the domestic refuse service applied for by the complainant on a number of levels.
5.4 Firstly I must consider if the complainant was provided with a domestic refuse service of a level similar to the service provided to the other customers of the council. I am satisfied that that in being provided with a weekly refuse collection by the council the council did not discriminate against the complainant.
5.5 Secondly I must look at the charge being levied by the council for this service. It appears that the standard charge levied for the domestic refuse collection service provided by the council was €255 in 2002, however a preferential rate of €150 was offered to those in the over 65 year categories outlined and to existing holders of 140 litre bins. With regard to the first group (over sixty fives), Section 16 (1) of the Equal Status Act 2000 states as follows:
Imposing or maintaining a reasonable preferential fee charge or rate in respect of anything offered or provided to or in respect of persons together with their children, married couples, persons in a specific age group or persons with a disability does not constitute – (a) discrimination for the purposes of section 5 or 6…..
5.6 I am satisfied that in providing a service for €150 to this group of customers the council was acting in accordance with the Act and was not discriminating against other customers.
5.7 In relation to the application of the preferential rate to existing 140 litre bin holders section 16 (1) of the act does not apply as there has been no evidence of any reason for charging this rate other than the fact that they already had a smaller than the standard bin. However, I am satisfied that if the complainant had applied for and received a 140 litre bin at any time prior to the January 2002 he too could have availed of the preferential rate in January 2002 regardless of his status.
5.8 The only other circumstance where an examination of whether there was a difference in treatment under the Equal Status Act is necessary is in relation to access a 140 litre bin at the preferential rate in 2002 to those outside the over 65’s groups described. The evidence from both parties is that those already in possession of a 140litre bin could avail of the preferential rate in 2002 while those availing of the bin for the first time were not able to do so and were obliged to pay the full rate. I have considered whether this difference could constitute discriminatory treatment under the act particularly in relation to age as claimed by the complainant. It is not disputed that those wishing to avail of the smaller bin could do so subject to availability at any time prior to and during 2002 regardless of their status. Any difference in treatment that existed relates to the different fee charged. There has been no evidence that this difference is related to age or to any of the discriminatory grounds covered by the Equal Status Act. The evidence has been that there was a randomness or arbitrariness in the decision to accord the preferential rate to existing bin holders and that status was never a factor in the decision to differ between these two groups. While it is acknowledged that the two groups were treated differently, this difference in treatment does not constitute discrimination under the Equal Status Act, 2000 as the difference in treatment was not related to the status of the individuals concerned but merely to when they availed of the 140 litre bin for the first time. I conclude that any person of any status seeking a 140 litre bin in 2002 from the respondent council apart from those in the specific older age group who were legitimately offered a preferential rate would have been treated similarly by the council in 2002. The third of the criteria that must be met in order to establish a prima facie case has not been satisfied and therefore the complainant has failed to establish a prima facie case of discrimination under the Act.
6. Decision
6.1 I find that Limerick County Council did not discriminate contrary to the Equal Status Act 2000 in its provision of a refuse service to the complainant Patrick Dalton in 2002 and that the complaint is not upheld.
________________
Mary O’Callaghan
Equality Officer
29th April 2004
DEC-S2009-080 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 080
PARTIES
Cronin v HSE
File Reference: ES/2007/037
Date of Issue: 16 November 2009
Key words
Equal Status Acts 2000-2004 – Section 3(2)(i), Age ground – Examination for fitness to drive – treatment not less favourable – medical card scheme – no prima facie case
1. Delegation under the relevant legislation
1.1. On 29 March, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2004. On the 21st August, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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, 2000-2004, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Cork on Tuesday, 28th July, 2009. Both parties were in attendance at the hearing. Further information was requested from and provided by both parties and final correspondence in this regard was received on 10th September, 2009.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the age ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(f) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably on the age ground on 19 October 2006 by requiring him to pay for a service (i.e. obtaining an examination in relation to fitness to drive) while in receipt of a medical card, that someone of a different age was not required to pay for.
3. Summary of the Complainant’s case
3.1. The complainant stated that, on 19 October, 2006, he went to his GP to obtain a medical report that was required in order to have his driving licence renewed. He stated that, even though he had a medical card, he was asked to pay €40 for the report in question. He said that he objected to this on the spot when requested for the money at the doctor’s office, but paid it nonetheless as he had to get the licence. He also stated that he did not see any notice in the doctor’s office saying medical card holders had to pay for this particular examination.
3.2. The complainant received his medical card when we was 70 years of age, on 15 August 2004. At the time of the incident in question, persons over that age were automatically entitled to a medical card (this has since changed and over 70’s are now subject to a means test). He stated that, since he took up the card, he has had his regular prescription paid for and has received other GP services, though the scheme does not cover him when he is abroad.
3.3. The complainant submitted he was discriminated on the age ground as he said that a person under the age of 70 can have a driving licence for €7, but that he has to pay an additional €40, and that for some older people the cost of obtaining the licence could rise to €400. He submitted that the respondent should make it clearer as to what is not covered by the Scheme. He submitted that, as far as he was concerned, the terms and conditions of the medical card scheme are laid out on the back of the card itself and this does not say anything about the test in question not being covered. If he had been made aware the test wasn’t covered, he said he could have shopped around.
4. Summary of the Respondent’s case
4.1. The respondent did not dispute the facts as presented by the complainant, but submitted that at no time did it treat the complainant less favourably on the ground of age. It submitted that the complainant was not deprived of the service of an examination for a driving licence, rather the State was not prepared to pay for that service. It pointed out that the complainant had availed of other services under the Medical Card scheme (“the Scheme”) in the past, and submitted that the state did not have infinite resources and the HSE is obliged to ensure the resources available are allocated towards those services it is statutorily required to provide. It submitted that the decision to specifically exclude examinations in relation to fitness to drive is not in contravention of the Equal Status Acts as it was taken for legitimate policy reasons and was applied to all medical card holders, regardless of age.
4.2. The respondent informed the Tribunal that the Scheme is governed by legislation, including the 1970 Health Act, which specifies that the HSE shall make available the relevant medical services without charge to persons with full eligibility. A means test is applied. Up until 2009, persons over 70 were exempted from the means test and received automatic eligibility. In any event, all medical card holders have the same entitlements.
4.3. The Scheme is implemented at Ministerial discretion and is issued by way of guidelines from the Minister. The respondent submitted that these guidelines are issued on a yearly basis and are widely published. The Scheme entitles users to a wide range of services. It covers all in-patient and out-patient public hospital services in public wards, including consultant services, and includes some other services. It does not cover every aspect of those other services it provides, however, as some exemptions apply in relation to, for example, dental and ophthalmic services. Equally, while it includes access to some GP services, it does not include the entire range of these services (see par. 4.4 below).
4.4. In that regard, the respondent outlined the process and procedure for obtaining access to GP services for medical card holders. It went on to state that the Department of Health and Children determines the rules regarding what services are covered by the card and it has determined that not all services which a GP may be able to provide are covered by the medical card. The respondent said that it is for policy reasons that the examination at issue in relation to this complaint is excluded from the Scheme. It said that an examination in relation to fitness to drive has been specifically excluded from the services to be provided under the Scheme, along with a number of other services, on the basis, so the respondent understood, that they were not assessments made with a view to providing for the healthcare of the individual, which is the purpose of the Scheme. It is therefore up to GP’s themselves to decide whether they wish to charge medical card holders for the examination in relation to fitness to drive as, either way, they are not reimbursed by the HSE for this examination.
4.5. At my request, the respondent provided further documentation from the Department of Health and Children as to the operation of the Scheme. In that context, the Department wrote to the respondent that “Section 11 of the terms and conditions of the Form of Agreement with the Registered Medical Practitioner for the provision of services under Section 58 of the Health Act, 1970…stipulates that the fees paid to GMS GP’s are not made in respect of certain certificates which may be required, for example, ……..for the issue of driving licences.” The respondent also provided the Tribunal with a copy of the 2009 guidelines for the Scheme.
4.6. The respondent also submitted that the exclusion of the examination in question from the Scheme is clearly specified in the Agreement between it and Registered Medical Practitioners and is notified to users of the Scheme in all GP practices. A sample of the notice in question was provided to the Tribunal. The respondent could not say whether it was in the office of the complainant’s doctor at the time of the incident in question, but confirmed that it was there now.
4.7. In any event, the respondent said that it is made clear to medical card holders when obtaining the card in the first instance that it does not cover every aspect of its services. It said that people are told to ask their GP or contact the HSE with regard to specific queries of what is or is not covered as it is not feasible to outline everything with the original documentation sent to medical card applicants. The respondent argued that informing medical card holders about everything that is and/or is not covered by the Scheme is problematic. It said that the question was where do you stop in sending information to people as the scope of the scheme is quite complex. It said that it believed the contract with medical practitioners was readily available on the web in general. Although it is not on its own website, it submitted that its website nonetheless does say what is excluded from the Scheme.
4.8. In any event, the respondent submitted that it had no role in deciding the requirements for obtaining a driving licence, which was a matter for the Department of Transport and/or the Road Safety Authority.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. The complainant submits that he was discriminated against by the respondent on the age ground because it required him to pay for a test which someone of a different age would not have had to pay for. However, I am satisfied that the medical card scheme does not cover anybody for a test similar to the one at issue in this case, irrespective of age. I am satisfied that if such a test was required of someone of a different age, such a comparator, who had access to the medical card scheme, would also have been charged for the service in question.
5.3. It is clear to me that the respondent has not failed to provide any services to the complainant which were provided to anyone else and I am satisfied that the services available to the complainant as a recipient of the medical card scheme are made available to him on the same basis and under the same conditions as they are made available to anyone else who qualifies for the Scheme. The question at issue here is, as the respondent submitted, whether the complainant was treated less favourably by being required to do the test at issue in the first place, and the HSE are not responsible for this. As the HSE is the only respondent in this matter, I have no jurisdiction to consider it any further.
5.4. I am satisfied that, in all the circumstances of the present complaint, the complainant has failed to raise an inference that there was less favourable treatment of him by the respondent on the age ground.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, the complainant has failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to him. The complainant has therefore failed to establish a prima facie case of discrimination on the part of the respondent.
6.3. Accordingly, the complainant’s case fails.
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Gary O’Doherty
Equality Officer
16 November 2009
Equality Officer Decision
DEC-S2011-004
Mc Greal v Cluid Housing
File Refs: ES/2009/90 and ES/2010/32
Date of Issue: 20 January 2011
Keywords: Equal Status Acts 2000-2008 – Section 3(2)(f), age ground – Section 3(2)(g), disability ground – prima facie case – direct discrimination – indirect discrimination – victimisation – harassment – provision of housing
Delegation under the Equal Status Acts, 2000 to 2008
These complaints were referred to the Director of the Equality Tribunal on 10 August 2009 and 23 February 2010 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 26 May 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, oral hearings were held on 1 September 2010 and 6 October 2010. Both parties were in attendance. Correspondence continued to be exchanged following the second hearing and this process was concluded on 8th November 2010.
1. Dispute
This dispute concerns a claim by Mr Mc Greal, a tenant (hereafter “the complainant”) that he was discriminated against, discriminated against by association, harassed, and victimised by his landlord, Cluid Housing Association (hereafter “the respondent”) on the grounds of age and disability in terms of Sections 3(2)(f) and 3(2)(g) of the Equal Status Acts, 2000-2008. In summary the complainant claims that he had ongoing issues with Cluid, which has resulted in them pursuing to date an attempt to terminate his tenancy.
In addition to the oral evidence given, there was a very large volume of correspondence submitted by both parties to this case, which covered the 6 years of interaction between the parties. I have carefully reviewed all of the written and oral evidence; however for the purposes of clarity, it is proposed to deal with only the substantive issues in this written decision.
Summary of the Complainant’s Case
2.1 Complainant’s evidence
2.1 (a) Background
The complainant Mr Mc Greal is a tenant of the respondent, Cluid Housing, since 2004. He was 73 when he took the first of the Equal Status complaints and he is now 74 years old. The complainant is originally from the Tuam area, but had previously been living and working in London for 50 years, latterly as a mechanical and electrical foreman whose job included responsibility for fire safety, health and safety and security issues. He had maintained contacts in Tuam while he lived in London and when he retired, he decided to return to the area as part of the “Safe Home” scheme. This is a scheme which assists Irish emigrants to return and live in Ireland in their retirement. He was able to secure a place in the Cluid housing scheme which was designed to provide sheltered accommodation to tenants who were referred by the Local Authority or as part of the Safe Home scheme, or both.
In 2004 before he moved in, the complainant took part in a pre-tenancy course organised by the respondent. He did not recall in detail the topics covered at this course, but thought that they mainly talked about paying rent. He stated that he was not aware of the “no-cause eviction” which was provided for in his tenancy agreement and he did not seek legal advice before he signed the agreement. He assumed that Cluid Housing Association were acting in his best interest and that he therefore had no need to seek legal advice.
2.1. (b) Discrimination
Complaints
During the 5 years from 2004 to 2009, the complainant raised a number of complaints with the management of his building, St Jarleth’s Court, (hereafter SJC). The complainant states that these complaints can be summarised into 3 categories; fire safety concerns, security issues and lack of transparency in the residents association accounts. Briefly the complainant described his issues as follows:
(i) With respect to fire safety, the complainant points out that he worked for the Department of the Environment in the UK and has a particular knowledge about health and safety issues. It has therefore been a source of ongoing annoyance to him that the standards of fire safety in SJC are not adequate in his opinion. He submits that the residents have a wide range of physical and mental abilities and that particular care needs to be given to fire safety. He submits for example that in his time there, he has seen about 20 fire drills and in his opinion not one of them resulted in all the residents leaving the building.
(ii) The next issue concerns security in the building; in summary the complainant has been involved in a long-running issue regarding security alarms on the doors. He says that early in his tenancy some belongings went missing and that he experienced problems with people hanging around in the carpark at night beside his apartment. He believes Cluid did not handle this issue well – in the first place they tried to isolate him by saying that he was the only one making this complaint – however he pointed out that he was the only one living on the ground floor at the time and therefore he was the only person who could have been affected by it. He says that they did get the alarm issue sorted out and it worked very well for a couple of years, but then the alarm was removed on spurious grounds which he considers to be harassment.
(iii) The third issue concerned the residents’ committee accounts. In late 2007, the complainant, together with 20 other residents, complained that there were no annual accounts published for the residents’ committee. They argued that this was unacceptable since the committee was in receipt of public money. The complainant says that they never tried to imply that there was any dishonesty involved in the management of the accounts; simply that, as a matter of good practice, there was a need for transparency. A long and bitter dispute followed and was eventually resolved the following year, but the complainant submits that this had the effect of “demonising” him in the eyes of the management and certain residents.
Elder Abuse Allegation
Shortly after the dispute about the residents’ accounts, there followed a significant issue, which the complainant believes may have contributed to the respondent’s decision to issue him with a notice to quit. Around April 2008, he and four other fellow residents met with the HSE to discuss their concerns about the management at Cluid. The issue was initially characterised by the HSE as a complaint of elder abuse and communicated to the respondent as such. The respondent interpreted it as a complaint specifically against the then Scheme Manager, Ms A. The complainant later asked the HSE to clarify to Cluid that no complaint of elder abuse against Ms A had been made and that the residents were simply seeking help to mediate with the respondent regarding their general concerns. This clarification was made to Cluid in June 2008. The complainant was called to a meeting with the respondent Area Manager, Ms B, regarding the issue in August 2008. During the meeting with Ms B, the complainant was told it was a tenancy review but he did not know what that was. He assumed the main topic for discussion was the alleged complaint of elder abuse and he told Ms B that he could not speak to her about it, because Ms A had said she was considering taking a case against him for making false allegations of elder abuse against her. As a result of this potential legal issue, he was advised by his solicitor not to discuss the matter with Ms B. As a result the meeting lasted just a few minutes. About a month later, he received notice to quit his home.
The complainant accepts that he has made a significant number of complaints, but denies that he complains just for the sake of it. He submits that all the complaints boil down to just three issues and the reason that he keeps raising them is because they are never properly dealt with the first time. He submits that there is no genuinely effective complaints procedure at SJC; despite the fact that he goes through each management level, the final answer he gets from the top is to pass it back down to the local level again. Therefore he feels that he is stuck in this loop which he cannot break out of. He believes that although there were others involved in some of these complaints, he has been particularly singled out by the management. As a result, he submits that other residents are now too afraid to complain about anything, since they have seen what has happened to him. He submits that he is the only person ever in the SJC Housing Scheme to be subject to eviction proceedings.
Tenancy Agreement
Regarding his tenancy agreement, the complainant submits that he was unaware that he had the opportunity to “upgrade” his agreement in Spring 2008. This upgrade would have removed the “no-cause eviction” and given him greater security of tenure, which would have avoided the problems he now faces. He submits that the reason he was unaware of the opportunity was because the notice was placed in the Cluid Spring Newsletter. He agrees that a copy of the newsletter was available to him, but says that, like most people, he never reads it and he certainly would never have expected it to contain such important information about his contract. He submits that, at a minimum, the tenants should have received a letter advising them that they had a right to sign a new agreement and providing full details of that agreement. The complainant eventually found out from one of the other tenants that there was a new agreement in place and at that point he asked whether he could sign the new agreement. The respondent refused on the basis that they had issued proceedings against him under the old agreement and it would not be in their interest to allow him to sign the new agreement. The complainant says that it is extraordinary that they did not give him better notice of such an important document, especially considering the relevance which they are now attaching to it.
2.1 (c) Harassment
The complainant claims that the respondent has harassed him within the meaning of the Acts. He says the fact that they removed the security chain (which had greatly improved his safety and peace of mind) is evidence of their harassment of him. He further submits that the way Cluid have handled meetings and potential mediations with him is harassment in itself. He says that they repeatedly offer to meet with him at too short notice and/or without a third party present. As a result, he declines the meeting and they then say that he is being obstructive by refusing to meet with them. He says that this is not true and he is simply not willing to meet without having time to prepare and/or get a third party to attend as witness.
He submits that the way they singled him out regarding the residents committee accounts is harassment. He says that Cluid Management asked all the committee members to step down as a result of his complaint about the lack of transparency in the accounts, and this had the effect of making the committee members angry and directing their anger at him. He says that he never sought to abolish the committee – he simply wanted to see the accounts published.
The complainant submits that he likes his accommodation very much and has no desire to leave. He believes the management to be “wanting” and he believes that they could have dealt with his concerns in a more humane and fruitful way. He believes they have adopted a ruthless approach. He submits that the proceedings against him have had a very severe effect on his health. Prior to the Notice to Quit in September 2008, he had enjoyed excellent health. He is now attending a psychiatrist for the first time and is suffering from panic attacks. As a result he now takes 6-7 drugs on an ongoing basis. He is not sleeping well and has developed a breathing complaint which his doctor attributes to the stress of the legal proceedings against him and the fear that he will lose his home. He says that Cluid have sought to give an impression that alternative accommodation will be made available to him, but it has been confirmed to him that the Local Authority will not be obliged to accommodate him if he is evicted.
The complainant states that prior to the issues with Cluid, he has been a person of unblemished character. He says that he gets on well with the majority of tenants at SJC, with the exception of 4-5 tenants who do not like him. He says that he prefers to lead a quiet life and not get involved with the social activities which are organised. He says that he should be entitled to live independently and not be forced into group activities.
2.2 Witness for the complainant – Dr Padraic Kenna
Background
The witness Dr Padraic Kenna is a lecturer in Law at NUI Galway and an expert in housing law. He has written the main Irish text on housing law entitled “Housing Law and Policy in Ireland” and he has written a large volume of papers and lectured extensively to a wide variety of bodies in Ireland and England. He has worked with a range of statutory and other agencies in the UK and Ireland in an advocacy role and he has also worked in the development and management of housing. Dr Kenna established, with others, the FEANTSA Expert Group on Housing Rights, in 2004 and he is a member of the Editorial Advisory Board of both the International Journal of Law in the Built Environment and the Irish Human Rights Law Review. He was one of the Irish Legal Experts Group for the EU Fundamental Rights Agency (FRALEX) until 2010. The witness became involved in this case, when he was asked by the complainant to mediate with the respondent. The mediation attempts were not successful, but Dr Kenna did attend the District and the Circuit Courts on behalf of the complainant.
Tenancy agreement
Dr Kenna gave evidence that the clause in the complainant’s tenancy agreement esentially provided for a “no-cause eviction” under Deasy’s Act. This meant that the respondent could terminate the complainant’s tenancy by only giving him the minimum notice required (ie: no reason was required). In the complainant’s case, he believed that this was exactly what happened and he was not aware of the parties engaging in any process leading up to this termination notice.
Dr Kenna gave evidence on what in his opinion would be considered good practice by a housing authority who were considering a termination of tenancy. He said that generally in such cases of landlord-tenant problems, the parties engage in an ongoing process. This process would generally begin with letters to the tenant outlining the difficulties and there would be a series of meetings to discuss the issues. In the event that matters did not improve, there may be warning letters and follow-up meetings. This may be followed by a notice of intention to terminate the tenancy, which is effectively a final warning. He submitted that the termination of the tenancy would be the last resort and he stressed that each of the stages outlined above would involve progressively moving up the chain of authority of the housing body. He said that the termination of a tenancy is a huge step and would generally go to the board level of an organisation, as it has such an impact of the tenant’s life. It is not something which would ever be considered a day-to-day operational matter and he would have expected, at a minimum, a report to the Board seeking their permission to take legal action against a 74 year- old man. There was no evidence that this had happened in this case. As far as he was aware, the respondent had decided to take this action as an operational matter because they believed the complainant was simply taking up too much of their time.
Dr Kenna stated that the use of the no-cause clause conflicts entirely with the principles of social housing. When he was helping to prepare for the complainant’s Circuit Court case, he did some research and found that there was no evidence of any other case where a tenant of a housing authority was evicted under Deasy’s Act. He stated that housing authorities are regularly faced with extreme forms of anti-social and criminal behaviour, but any resulting evictions would follow a process similiar to that outlined above; in short he said that drug-pushers would be better treated than the complainant. Dr Kenna stated that only an amateur organisation would attempt to evict someone so suddenly without working through an appropriate process. In the present case, Dr Kenna submitted that every single step of the entire process had been missed.
Impact of Notice to Quit
Dr Kenna submitted that the impact of this eviction threat on someone of Mr McGreal’s age is very severe. The complainant had moved to this house with the expectation of living there for the rest of his life. Even aside from the fear of being unable to secure alternative accomodation, it would be devasting for the complainant to have to leave his home at his stage of life. Dr Kenna submitted that the impact of moving in such circumstances, was considerably greater to the health and life of an older person than that to a younger person. As a final comment, Dr Kenna wished to strongly emphasize that in his entire career he had never come across a situation where a person of 74 years of age was being evicted in such circumstances.
2.3 Witness for the complainant – Mr Y
Mr Y was previously a Town Councillor in Tuam and has known the complainant for 40 years. He has attended four meetings between the respondent and the complainant to help deal with issues at SJC. He says that the location, facilities and houses at SJC are excellent, but believes more could be done on the management side. He agrees that the complainant tried to arrange a mediation with the respondent over a long period, but it never happened. He says that they were promised mediation by Cluid management, a promise he believes to have been genuine. However the mediation never happened and he thinks this is possibly due to staff turnover and lack of follow-though. He describes the relationship between the complainant and the respondent over the years as one of “brinkmanship” and “extreme stubbornness on both sides”, and he strongly believes that the parties could hold a mediation and resolve this whole issue, but they would both need to show more flexibility.
2.4 Witness for the complainant – Mr Z
Mr Z is an auctioneer in the town of Tuam and has known the complainant for 20 years. Prior to taking up residence at Cluid, the complainant rented accommodation from Mr Z. Mr Z described him as a model tenant who always paid in advance and was courteous to the staff. They were very pleased to have him as a tenant. Mr Z describes the complainant as a very decent, honest, transparent person, who is obsessed about details and hates sloppiness and mistakes. He said that the complainant might be difficult, but he is never incorrect. Over the years, he was in some cases a first-hand witness to the events at SJC and he said in general that he found the management response to the complainant’s issues to be lacking. He said that they would promise to do something and then it would not happen. This was the type of behaviour which drove a perfectionist like Mr McGreal mad. In particular he believed the complainant’s concerns about fire safety to be reasonable and he also disagreed with how the respondent handled the issue regarding the residents’ committee accounts. He thinks that the respondent is inclined to run away from issues instead of dealing with them. He believed it should have been unquestionable that public money should be properly accounted for and he believes that it was Mr McGreal’s raising this issue, which triggered the serious problems between the parties.
Mr Z said that the complainant’s health had gone dramatically downhill since he had received the notice to quit. He said he found the respondent generally dismissive towards the complainant because he is an older man. He said that they did not expect to be questioned by Mr McGreal and they did not bother to respond to him. He said because he himself is a younger working man, he is very sure the respondent would not treat him the same way as they treated Mr McGreal. He attributes their treatment directly to the complainant’s age and situation in life.
2.5 Legal Submissions on behalf of the complainant
2.5 (a) The complainant submits that the respondent is seeking to evict the complainant using an archaic procedure, which is disavowed by most housing associations, according to their expert witness (see full details above). They submit that this procedure is widely considered to be unlawful and amenable to challenge under both the Constitution and the ECHR. (They referred the Tribunal to Pullen v Dublin City Council and others [2008] IEHC 379, Dublin City Council v. Liam Gallagher [2008] IEHC 354 and Donegan v. Dublin City Council & Others [2008] IEHC 288, in which a similar procedure under S.62 of the Housing Act 1966 was found to be incompatible with the ECHR). They claim that the fact that the respondent chooses to use such a procedure, casts doubt over their bona fides with respect to their dealings with the complainant. They point out that there are two agreements which are in use at this housing development. The first, which the complainant is subject to, allows for eviction without cause. The second agreement does require due cause before a tenant can be evicted and this agreement is in place for newer tenants. They say that the complainant has been seeking to change to the second agreement since late 2008. They say that the respondent was not obliged by virtue of the provisions of the tenancy agreement to pursue a no-fault eviction and assert the rights they reserved in this agreement. They say that if the respondent was treating the complainant equally with its newer and generally younger tenants, the respondent could, right up to the hearing of the eviction proceedings before the Court, have elected to have the terms of the new tenancy agreement apply by agreement with the Complainant on the basis that it would have provided him with greater protection.
2.5.(b) Counsel for the complainant submit that the complainant has been singled out for treatment in a way which has never happened before. They submit that, in the absence of any apparent justifiable reason for the extraordinary steps taken by the respondent, the only remaining explanation is that the actions are discriminatory against the complainant on the grounds of age. They point out that the complainant feels ill-equipped to protect himself in the face of this unfair procedure because of his age, and the impact of the procedure on him is all the greater for this. They further state that this is not a one-off act, but has been sustained over time. It started with the decision to issue the notice to quit in Aug/Sept 2008 and continues, insofar as the respondent continues to maintain and pursue a no-fault eviction through the courts. This continuing state of affairs has aggravated the stress for the complainant.
2.5 (c) Counsel for the complainant also submitted that the alleged (but not substantiated) complaint of elder abuse was the trigger for the discriminatory actions of the respondent. They claim that this alleged complaint caused the respondent to completely lose all objectivity and independence in their dealings with the complainant. The complainant is an elderly man who was asked by a group of other residents to join them to speak to the HSE about their concerns. He was not the instigator of the complaint, rather he was a participant in it. The complainant submits that the concerns of this group were properly made before the appropriate authority and therefore it cannot be considered reasonable for the respondent to react to this complaint in such an adverse manner.
2.5 (d) Counsel for the complainant claims it has made out a prima facie case against the respondent on the grounds of age and therefore the burden falls on the respondent to disprove the allegation of discrimination. It was submitted that given that all the relevant information is within their control, they must show a cogent reason for their actions. It was submitted that they have failed to adduce any evidence to rebut the claim.
Summary of the Respondent’s Case
3.1 Witness for the respondent – CEO
Background
The respondent CEO has worked for Cluid since 1995 and runs four regional offices, covering the whole country. They are a voluntary housing association who have evolved from general housing provision to specialising in sheltered housing and housing for the elderly. The objective of this type of housing is that elderly people can live independent lives there with minimum assistance. In total, they have up to 4,000 units and most tenants come from the Local Authority housing lists. Some tenants (such as the complainant) are referred from the Safe Home scheme, but all tenants must be approved by the Local Authority, regardless of the origin of the referral.
Complaints / Elder Abuse Allegation
The CEO said that when the complainant moved to SJC in 2004, there were problems immediately and they issued him with a notice to quit at an early stage. However they rescinded this notice, following a meeting between the complainant, a town councillor and the respondent. For the next few years there were ups and downs with the complainant, but generally the issues were resolved. However they found the constant involvement of outside parties (at the complainant’s request) to be difficult and distracting. This came to a head in April/May 2008 when the complainant complained to the HSE. The CEO believes that this was a deliberate attempt by the complainant to undermine Cluid in the eyes of the HSE and thus to prevent contracts for further housing schemes being awarded to Cluid. This was a tipping point as far as the respondent was concerned. It became obvious to them that the complainant was not suited to SJC and they issued him with a notice to quit. The CEO submitted that they would have been prepared to re-house the complainant in more suitable accommodation. The CEO submitted that the complainant tried to say afterwards that the complaint to the HSE was never about elder abuse. However it is his belief that Mr McGreal had deliberately tried to give the impression that elder abuse was involved and that he only backed away from this allegation subsequently. The CEO submitted that the allegation caused considerable upset to his staff who had devoted their lives to the care of the elderly. He further submitted that the complainant’s constant threat of involvement of outside parties such as politicians and the media, was in itself bullying, because it put fear in his employees and hampered them from doing their jobs effectively.
Tenancy Agreement
Regarding the specific issue of the complainant’s tenancy agreement, the CEO said that when they got up-and-running in the 1990’s, they simply used the standard housing agreement which was around at the time. This agreement allowed the respondent to evict the complainant without cause. The CEO agreed that this agreement was presented to tenants as a “fait accompli” and there was in practice no question of the tenants negotiating any of the clauses. In early 2008 a new agreement was made available to all existing tenants and it has become the standard agreement for all new tenants now. This agreement requires that the respondent must give due cause before it can issue a Notice to Quit to the tenant. The availability of the new agreement was notified to existing tenants in the Spring 2008 Newsletter.
3.2 Witness for the respondent – Regional Director – Ms B
The witness Ms B took up employment with Cluid in 2008 as Regional Director. She is responsible for 750 housing units in the North West region. When she commenced employment with the respondent, she was told there was a tenancy review of Mr Mc Greal in progress. She reviewed the files and submitted that in her 24 years of experience she had never seen so many complaints from one person. The review had been carried out by Ms C, who was based in an office in Sligo and was the line manager of SJC’s housing manager, Ms A. Based on Ms C’s review, a meeting was arranged with the complainant in September 2008. Ms B submitted that she hoped this meeting would give her an opportunity to get to the bottom of the issues and try to fix them. However the meeting was very unsuccessful and lasted less than ten minutes. According to Ms B, the complainant arrived and read a prepared statement saying that he could not discuss the matter without his solicitor present, because of the legal issues involved. He called her “the new kid” and said that she would not be able to sort this out. The witness was very surprised and could get no further with the meeting.
After this meeting, Ms B consulted with her manager, the CEO, and it was decided that the complainant should be issued with a notice to quit. The notice was issued in October 2008. Ms B submitted that her role is supposed to be strategic and that she should not have to get involved with operational matters like this. However the complainant’s appeals to a variety of sources such as local councillors, TD’s and MEP’s have forced her to spend a great deal of time answering them and thus she was taken away from her regular work. She submitted that it was impossible to satisfy the complainant.
3.3 Witness for the respondent – Ms A , the Housing Manager of St Jarleth’s Court
Ms A has worked for the respondent since 2004. Prior to that she worked on a scheme which provided a variety of services to isolated older people in rural areas. She has extensive experience of working with older people and when she started at SJC, she immediately set about trying to improve the social interaction between the residents. She felt that the atmosphere there was not good and she put considerable effort into encouraging social activities to ensure that people would not feel lonely.
Ms A found that, from the beginning of her employment at SJC, the complainant was constantly coming into to her office about fire safety issues. He took up a huge amount of her time, and although he may have had some good ideas, he was incessant about following them up. She found that there was nothing she could do to satisfy him, no matter how hard she tried. She submitted that the complainant did not get on with either residents or management and she believed that he was unsuited to living in an apartment. They offered him a house which was situated away from the scheme, but he refused. She submits that in the end, he was taking up all her time and he would berate her constantly. She had to bring work home, because she could not get it done in the office. She found the complainant to be aggressive and she started to feel sick going into work as a result of his behaviour. Finally after the complaint of elder abuse was made against her, she was extremely upset and decided she could take no more. She asked to be transferred to another Scheme. Her management facilitated the request and she no longer works at SCJ. She submitted that Cluid would never treat the matter of eviction lightly, but they did not have the resources to deal with all of the complaints made by the complainant.
3.4 Witness for the respondent – Receptionist at St Jarleth’s Court
The witness stated that she started to work at SJC as a receptionist in October 2007 and she is the first point of contact for residents. She met the complainant on her third day in the job and he told her how bad things were there. She was present at most of the meetings between the Housing Manager and the complainant. She said that he would often be flushed and angry and behaved in a threatening and intimidating manner. She said that they tried to accommodate him, but it was not always possible.
She said that the Housing Manager would only be at the Scheme 2-3 days per week and that most of her time (the Housing Manager’s) would be spent dealing with the complainant. They also had to deal with media and politicians and answer all their queries related to the complainant. As a result, she said that they did not have time to do their jobs effectively. She submitted that no resident was treated differently because of their age or disability and no employee of Cluid harassed or discriminated against the complainant.
3.5 Witness for the respondent – Chairperson of the SJC Residents’ Committee
The witness is 68 years old and has been in the role of chair of the RC effectively since late 2007 onwards. He characterises SJC as high quality accommodation, which is well-maintained and has a majority of happy residents. Generally the relationship with the Scheme management is co-operative and the tenants get on ok, although there can be some disputes over noise.
He submits that most of the tenants participate in the residents association, with the exception of the complainant who only attended to complain about the accounts. He clarified that their association is separate to Cluid and not controlled by it in any way. He says that they manage themselves and are not afraid to take up issues with the Scheme management. He agrees that there may have been an issue with the accounts, but attributes it to the lack of experience of the members in dealing with such matters. He says that they held an open meeting to deal with the accounts issue, but the complainant denounced the meeting as rubbish. Additionally the association raised funds to improve their TV cable package and to buy gym equipment, but the complainant did not help at all. The witness gave other examples of what he sees as the difficult behaviour of the complainant. He believes that the complainant is obsessed by fire safety and takes things too far. The witness has never experienced any discrimination at SJC and believes, if there is any difference in treatment, it is to treat older residents with more care.
3.6 Witness for the respondent – Ms E, a member of the Sisters of Mercy Order and
resident of St Jarleth’s Court
Ms E submitted that she had never said anything to the complainant about her Order providing the land for the housing scheme. She also denied that her Order had taken over the residents’ committee, saying that only one sister was on the committee at any time. She said that the complainant had made complaints to the head of her Order about her presence in SJC, taking up a housing unit unnecessarily, but it was not her choice to live at SJC – she was sent there by her Order to maintain a presence. She said that the complainant does not speak to her and she is upset by him. She submits that she has never personally experienced discrimination at SJC and she is of a similar age to the complainant.
3.6 Legal submissions on behalf of the respondent
3.6 (a) Direct Discrimination
The respondent states that the complainant is obliged to raise a prima facie case in accordance with S.38 of the Acts. It contends that the following rebuttals of the complainant’s allegations mean that it is not possible to raise a prima facie case:
With respect to the complainant’s allegation that he was not given any explanation of the terms and conditions of his tenancy agreement in 2004, the respondent states that it provided a pre-tenancy course for all new tenants, so the complainant was not in a less favourable position to the others. It further states that the complainant’s assertion that he did not understand the agreement, is particularly far-fetched, given the complainant’s obvious intelligence and ability to call on the political system, the media, the Freedom of Information Act and the Data Protection Act to support his case. They also state that this point is supported by the evidence of the complainant’s own witness to the Tribunal, Mr Joyce.
The respondent further refutes the complainant’s claim that people who are under 65 years of age are offered greater security of tenure than he has. They state that all existing tenants were offered the new contract at the same time (in March 2008) and the complainant himself chose to ignore this correspondence. The respondent submitted a list of tenants, aged over 70, in other schemes, who have the new tenancy agreement.
The respondent submits that the complainant has made a list of complaints relating to security, fire safety and the resident’s committee and that they have successfully rebutted each of these claims in oral evidence during the hearing. They further submit that none of these issues are connected with grounds under the Equal Status Acts.
The respondent further submits that the complainant has tried to link the issue of the alleged elder abuse complaint with the issue of age discrimination under the Acts. The respondent submits that contrary to his assertion to the Tribunal, the complainant did in fact make a complaint of elder abuse, which he later tried to retract. Secondly they submit that his claim was properly investigated and as far as they were concerned, the matter was closed in August 2008. They state that if their action had been taken solely on the basis of the elder abuse accusation, then the other couple (who were involved in the HSE complaint) would also have been issued with a Notice to Quit and this did not happen. The respondent submits that the other couple are elderly and direct comparators to the complainant.
3.6 (b) Legitimate aim of the Respondent
The respondent submits that their Notice to Quit and Ejectment proceedings against the complainant were pursued as a result of an objective and legitimate aim; namely the efficient running of the SJC Scheme, ensuring staff resources were properly allocated, and providing a safe and comfortable environment for their staff to work in. They submit that the complainant has caused untold difficulties throughout his time living there. There have been many complaints from members of staff about his behaviour, including one official complaint from a (now former) employee about her conditions of employment. In addition the respondent lost a very valued member of staff, when Ms A asked for a transfer out of SJC following the unfounded complaint of elder abuse against her. They submit that the residents of SJC have a lost a dedicated, kind and caring employee as a direct result of the complainant’s behaviour. They further submit that the complainant seems to feel that he personally should be entitled to determine who should be housed at SJC, and that he does not wish any members of the Sisters of Mercy Order to be so housed. They submit that his behaviour towards the Sisters, in particular with respect to his information requests to the Residential Institutions Redress Board has been undermining and harassing, and that they cannot tolerate such behaviour within a sheltered housing scheme.
The respondent further submits that the means of achieving the legitimate aim were appropriate and necessary. To this end, they state that they had originally offered him a separate 3-bedroomed house away from the other tenants. Secondly they state that they went to considerable efforts to engage in mediation with the complainant, so that the issue could be dealt with without a Court Order. They submit that they sought adjournments on three separate occasions, so that they could try to mediate with the complainant. However the complainant did not cooperate with these attempts until the last possible moment, when he realised that he could be ejected from his accommodation. By this stage the respondent submits that it had given up trying to facilitate mediation. The respondent submits that their efforts to mediate with the complainant were made in good faith and went beyond what was reasonable.
The respondent says that it has been suggested by the complainant that the implementation of the termination clause would render him homeless, as the Local Authority would have no obligation to place him on a housing list. The respondent submits that this is an incorrect interpretation of the correspondence sent by the Galway County Council Housing Officer to the local TD. This correspondence states that if a tenant is “evicted” from a Local Authority or housing agency, then there would not be an obligation on the Authority to put the person on the list for re-housing. However the respondent states that the complainant is not being “evicted”, and the “no fault” termination clause which they are using would be to the complainant’s advantage, as he would not be omitted from future housing lists. The respondent states that the “no fault” termination clause is widely used by Local Authorities and Housing Associations and is essential for good estate management. It submits that the term is lawful and this Tribunal has no jurisdiction to determine otherwise. The respondent further submits that I should view the behaviour and motivation of the respondent in light of their bona fides as a charitable body with the stated intention of providing housing for the elderly, disabled and people in need.
3.6 (c) Harassment
The respondent denies all claims of harassment by the complainant and maintains that the complainant himself is the cause of all the difficulties which have been experienced between the parties. The respondent submits that the complainant is a very difficult, aggressive, intimidating man who happens to be elderly, and he has used this Tribunal in an attempt to punish the respondent for its actions and in an attempt to further undermine the respondent’s reputation and resources.
(i) Fire Safety: The respondent denies that it has harassed the complainant with respect to the fire safety and security issues he has raised. It submits that it treated the complainants’ issues at all times with courtesy and professionalism. It further submits that even if this were not the case, there has been no evidence that these incidents could constitute harassment on the grounds of age under the Equal Status Acts.
(ii) Elder Abuse Complaint: The respondent denies that it harassed the complainant with respect to how they handled the complaint of elder abuse. They deny that it was them who insisted on calling it elder abuse and that they harassed the complainant by investigating the issue with him. They state that the complainant was aware all along exactly what the subject matter of the complaint was, and the only reason he changed his story was because he was told that Ms A was considering legal action against him. They state that once a complaint of elder abuse is made, it is incumbent upon the respondent as a provider of sheltered housing to the elderly, to investigate such a claim. It cannot be considered harassment against the complainant for them to carry out this function. The complainant was properly invited to participate in an investigation of the matter, but he failed to cooperate with the investigation. Therefore they were obliged to conclude without his input. Following the investigation, they notified the complainant that the matter was closed. No action was taken against the complainant and the respondent refutes the allegation that the complainant was in any way “harassed or humiliated” during the investigation, as he claimed in his complaint to the Equality Tribunal.
(iii) Notice to Quit: The respondent disagrees that the issuing of a Notice to Quit can constitute harassment under the Acts. It submits that such a claim makes no reference to any of the protected grounds and further submits that this is a legal matter outside the jurisdiction of the Equality Tribunal. The respondent denies that the complainant is suffering ongoing harassment in the failure to allow him to complete a new tenancy agreement. It submits that the first time the complainant asked to change to the new tenancy agreement, he was no longer lawfully a tenant of the development, having been served with Notice to quit. Therefore, if the respondent acceded to his request, it would invalidate their Notice, which would clearly not be in their legal interest.
(iv) As a related matter, the respondent submitted that the failure to mediate cannot be construed as harassment by them, because they made considerable efforts to mediate and it was the complainant himself who continually frustrated these efforts.
3.6 (d) Victimisation
The complainant has made two claims of victimisation, both of which are denied by the respondent.
The first claim of victimisation on the grounds of age was made in the ES1 form in August 2009 and referred to the Notice to Quit, which had been issued in Oct 2008. The respondent submits that as the equality issue was first raised in July 2009, the complainant cannot have been victimised by an act which took place prior to that in October 2008.
The respondent claims that the second complaint of victimisation, dated February 2010, (on the grounds of age and disability) refers to the fact that they have pursued eviction proceedings against the complainant in the District Court and that they have refused the complainant’s application for adjournment in that Court. The respondent claims that the matter of adjournment is exclusively within the power of the Court to decide (ie: it is not within the respondent’s power) and that in any event, this entire matter is ultra vires the Equality Tribunal, as it refers to ongoing court proceedings.
Conclusions of the Equality Officer
4.1 I begin my conclusions by listing for clarity a very brief summary of the timeline of the issues between the parties:
2004 The complainant moved to St Jarleth’s Court and raised issues regarding noise and security. A Notice to Quit was issued by the respondent, but later rescinded.
2004-2007 There was a series of disputes between the complainant and the respondent involving a number of issues, but primarily related to fire safety and security.
Nov 2007 There was a dispute between a large group of tenants (of which the complainant was one) and the resident’s committee, relating to a lack of published and audited accounts for the committee. The issues were resolved around March 2008.
Apr 2008 The complainant and four other residents contacted the HSE to request help dealing with some issues which had arisen with the management at SJC. The complaints were initially characterised as elder abuse by the HSE and communicated to the respondent as such.
May-July 2008 there was a series of correspondence between the HSE, the complainant and the respondent regarding the allegations. An investigation was carried out by Cluid into the claims. Ms A said that she was thinking of taking legal action against the complainant, for making false allegations against her. The HSE later concluded that the complaints had been incorrectly characterised as elder abuse and should all along have been referred to as management/tenant issues.
Aug 2008 the respondent closed the investigation into the above matter.
early Oct 2008 the respondent issued a Notice to Quit against the complainant.
Aug 2009 the complainant made the first complaint (on the grounds of age) to the Equality Tribunal, citing the ongoing and earlier treatment of him by the respondent.
Jan 2009-July 2010 there were unsuccessful attempts to hold an independent mediation session.
Feb 2010 the complainant made the second complaint (on the grounds of age and disability) to the Equality Tribunal.
4.2 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 Discrimination on the grounds of age
4.3 (a) The respondent’s case, in essence, is that the complainant was extremely difficult to deal with and made such a volume of complaints over the years that it became too difficult for their staff to manage. Therefore they decided to utilise their right to terminate the tenancy without cause. The respondent has argued that the issues between the parties were unrelated to the complainant’s age and there can be no case under the Equal Status Acts because the all of the tenants of this Scheme were elderly and thus there is no comparator. However I note that the Notice to Quit against the complainant was made very shortly after the investigation into the alleged complaint of elder abuse concluded. Several of the respondent employees, including the CEO, gave evidence at the oral hearing and they were all very annoyed and upset by the complaint of elder abuse to the HSE. There had been many difficulties between the parties prior to that, but it was clear from the evidence given that this complaint was the tipping point for the respondent, and prompted their decision to terminate his tenancy.
In a case such as this, it may be very difficult for a complainant to demonstrate that a Housing Association which provides housing for the elderly and for disadvantaged groups, may in fact be acting in a discriminatory way towards someone from that very group. However a line of precedent establishing the concept of the shifting burden of proof was formally adopted by the Equality Act 2004. The Acts require the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. If such facts are established, the burden shifts to the respondent to rebut that inference of discrimination. Although the present case has been taken under the Equal Status Acts, I find there are parallels with the Labour Court case of Ntoko v Citibank EDA045. In that case, the complainant had been summarily dismissed for a relatively minor infringement of company policy. The Court found that the treatment of the complaint had been very extreme in the circumstances and it also found that there was a difference in race between the complainant and other employees in similar circumstances. The court found that the combination of the extraordinary treatment and the difference in race was sufficient to raise a prima facie case of discrimination and it therefore fell to the respondent to prove otherwise on the balance of probabilities. This case has been taken under the Equal Status Acts; however I find the reasoning of the Labour Court to be persuasive. Despite the fact that the respondent is a professional body providing services for elderly people, it appeared that they could not tolerate the elder abuse complaint which was properly made before the appropriate statutory authority. In a similar way to the Citibank case, the respondent Cluid Housing, took a very severe action (issuing a notice to quit), following an incident with the complainant (his alleged complaint of elder abuse to the HSE). Elder abuse, which is defined as having a lowest age of 65 years, is clearly and intrinsically a complaint which can only relate to an older person and could only have been made by one of Cluid Housing Association’s older tenants. Given that it was this specific issue which provoked the extraordinary action of the respondent, I find that the complainant has established facts which have raised an inference of discriminatory treatment on the grounds of age. The complainant has shifted the burden of proof and it therefore falls to the respondent to rebut this inference.
4.3 (b) The respondent has made a number of rebuttal arguments which I will consider in turn:
(i) The Termination Clause in the Complainant’s Tenancy Agreement
With regard to the specific clause of the contract, which allows for the tenancy to be terminated without cause, the complainant has argued that this is an extraordinary and extremely unfair provision to utilise against a tenant in social housing. Indeed the respondents themselves have now removed this clause from all new tenancy agreements, which indicates their acceptance of this fact. Despite this, they sought to justify using it against the complainant on the basis that:
(a) he was not under any obligation to sign the original agreement back in 2004, and he could have got his own legal advice if he had had concerns about it
(b) he chose not to upgrade to the new contract when they made it available in Spring 2008
(c) it would have been entirely contrary to their interests to allow him to sign a new agreement once they had decided to utilise the clause in the old agreement, to terminate his tenancy.
I will deal with each of these arguments in turn. (a) I do not accept the argument that the complainant could have chosen not to sign the agreement. The respondents are providers of social housing and a number of considerations flow from this fact. In the first place, a recipient of social housing is clearly not in the same position, as a private tenant, to pick and choose their accommodation. Secondly all the tenants of the respondent (and particularly the tenants of this scheme) are by definition (age, disability, finances) in a more vulnerable position with respect to their ability to negotiate terms in their own favour. Finally the respondent CEO agreed during the oral hearing that the contract was presented to the tenants as a “fait accompli” and there was no question of making any individual changes to it. Therefore I find it entirely unreasonable to suggest that the complainant had any real choice in the matter. In fact I find that the complainant had every reason to expect that a fair and balanced agreement would be provided to him by a voluntary charitable organisation in receipt of public monies.
(b) The respondent claims that the information about the new tenancy agreement was made available in their Spring 2008 Newsletter and that this was sufficient notice to the tenants. A number of points undermine this claim, not least the complainant’s contention that no-one, including himself, actually reads the newsletters. Having carefully read the notice which appeared in the newsletter, I find that it does not encourage tenants to change their agreement; on the contrary it appears to specifically discourage them from looking into the possibility. (For example it says in large bold type at the beginning of the article that “existing tenants are not affected!!”). On questioning during the hearing, the respondent said that they did not wish to draw a lot of attention to the new contract, as tenants tended to be suspicious of any changes. Given that not a single tenant of the scheme in question has actually upgraded their agreement, even though it is in their best interest to do so, leads me to conclude that they were not genuinely on notice. The behaviour of the respondent with respect to the new agreement can only lead to the conclusion that they were at best indifferent as to whether the tenants signed it, and at worst they did not actually want them to sign it. In this specific case, it is clear that the complainant has faced enormous consequences as a result of not signing the new agreement. On this basis, the respondent’s lack of action with respect to the new agreement appear unreasonable in the circumstances.
(c) The respondent claims that it would have made no sense for them to offer the complainant a new agreement, once they had decided to terminate his tenancy based on the old agreement. Logically this is true, as it was clearly contrary to their own interest. However I return again to the respondent’s status as a charitable provider of social housing. It must be expected in circumstances where there is a great imbalance of power, where the tenant is in a vulnerable position and where the landlord professes to be fulfilling a social need, that such a landlord would attempt to provide some equality of arms or fair procedures. If the respondent had allowed the complainant to avail of the second tenancy agreement, they would still have been able to seek termination of his tenancy, but they would have been obliged to prove that there was due cause. In summary I find that the use of the no-cause termination clause against the complainant, although contractually sound, was very heavy-handed in the circumstances, and it does not assist the respondent in rebutting the inference of discrimination which has been raised by the complainant.
(ii) Cluid’s complaints management system
The respondent contends that the complainant is an impossible man to deal with and he has made life miserable for the staff of Cluid. In support of this, they presented a number of employees, of whom Ms A was key witness. Ms A presented as a very credible witness with a genuine concern and interest in the people she cared for. However I found that a number of factors (unconnected with the complainant himself) appear to have contributed to her experiencing difficulty with him. Firstly, although Ms A has extensive and excellent experience of working with elderly people, she had no experience of Housing Management, prior to taking up the position of Housing Manager at Cluid. The expert witness Dr Kenna has stated, which I accept, that housing management is a very specific and demanding role, even irrespective of the specialised requirements of this job. Secondly Ms A’s role was part-time only which limited the time available to her to deal with tenants’ issues. Thirdly she had to rely on her line management structure which, based on the oral evidence given at the hearing, appeared to be incapable of giving her the support she needed and incapable of dealing with complaints effectively.
(iii) The respondent has stated that the complainant made too many complaints throughout his entire time at SJC and it was impossible to satisfy his demands. As a result they claim that they were unable to give sufficient attention to other tenants, because the complainant took up so much time. The complainant has argued that the majority of his complaints boil down to just three issues and the only reason he kept making the complaints was that they refused to deal with them properly in the first place. He said that he was stuck in a loop, instead of having an escalation path. It is clear to me, based on the oral evidence and the written submissions that the complainant did in fact make a very large volume of complaints. However I also noted from the written responses that there was a consistent note of hostility from the respondent towards the complainant. It is not my role to determine who was right or wrong in these disputes; rather to assess whether the respondent has shown that there was no less favourable treatment on the ground of age. In assessing that, I have taken note of the technique of complaint handling used by the respondent and in the specific case of the complainant, I find it to be lacking in objectivity. I find that while Cluid may well have good reason to label the complainant as extremely difficult, they appear to me to lack a professional distance which would allow them to deal with tenants more objectively. The alleged complaint of elder abuse is the most stark example. Given the fact that the complainant himself did not personally instigate this claim, and the fact that this group of residents were fully entitled to bring their concerns to the HSE, as the appropriate authority, I find that the sense of outrage which appears to have been personally directed at the complainant by the respondent, to have been excessive. Therefore I do not accept as a rebuttal, their argument that the complainant was simply too difficult to retain as a tenant. It is my opinion that considerably less drastic actions could have been taken to resolve the issues.
(iv) Respondent’s bona fides
The respondent has submitted that they are a charitable not-for-profit organisation whose goal is to provide housing for those in need, in particular the elderly, the disabled and the displaced. Therefore their bona fides must be construed in the light of these objectives. I understand this to mean that I should consider that any action they have taken against the complainant to have been motivated by their concern for the common good. While I do not dispute that this may indeed be the case, I also note that the respondent is a professional housing organisation in receipt of public land and public monies to fund their activities. The complainant has argued (which I accept) that the respondent in this case is considered a public authority insofar as housing provision is concerned. This is evident from the fact that tenants are identified from the local authority housing list and accommodated only with the approval of the local authority. Therefore I find it is insufficient for me to only consider their good intentions, given that this is a large organisation fulfilling a public role.
(v) Investigative Procedure
The respondents have stated that every action they have taken is lawful in a contractual sense and it is not for this Tribunal to determine otherwise. However I also note that the expert witness Dr Kenna, a recognised authority on housing law, stated unequivocally that he had never in his entire career seen an elderly tenant, over 70 years of age, be pursued for ejectment without any investigative procedure whatsoever or without any of the normal causes (failure to pay rent, extreme anti-social behaviour), notwithstanding the fact that it is in most cases legally possible for landlords to do so. I have considered this issue in light of the proceeding paragraph about the appropriate standards in a case such as this. I observe that in the case of a large, essentially public body, it is clear that all the power lies with that party, and therefore the onus must be on that party to discharge its functions in a way which is fair. This is particularly true when the matter concerns an issue of such huge importance as housing. In the present case the respondent persists in acting as though this was a simple contractual matter and there was equality of arms between the parties. However this is patently not the case. They have repeatedly made reference to the fact that they were simply exercising their legal rights and that the complainant could have taken legal advice before signing the tenancy agreement. All of this ignores the fact that the respondent is a provider of social housing, the complainant is a recipient and the power balance therefore is in their favour. In these circumstances it would appear unfair to operate this clause against the weaker party, without giving any warning whatsoever and without holding any sort of investigation. The expert witness Dr Kenna agreed that many other Local Authorities and Housing Associations would also have the benefit of similar “no cause” eviction clauses, but he stressed that the norm in all circumstances is to have some sort of investigative procedure, which gives the tenant the opportunity to defend his position. No such opportunity was provided in this case. The complainant has pointed to the fact that the special position of the home and its heightened protections are long and well established by law, as outlined by Hardiman J in the Supreme Court decision of DPP v Barnes [2006] IECCA 165:
“….a dwelling house is a higher level, legally and constitutionally, than other forms of property. The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwellinghouse, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family”
The well-recognised special protection of the home makes it all the more extraordinary that the respondents would attempt to take it away from the complainant without due process.
4.4 (c) In addition to considering the defences put forward by the respondent above, I have also taken note of a number of other factors which I find to be persuasive:
(i) The complainant has put forward the cases of Pullen, Gallagher, and Donegan (see para 2.5(a)) in support of his case. In each of these cases, the Superior Courts found that the fundamental rights of the plaintiffs had been breached contrary to the Constitution and the ECHR, in respect of the evictions which were being pursued against them by Local Authorities. The common thread in each of these cases was that the Local Authorities in question were not required to justify the proposed evictions. As a result the tenants had no opportunity to defend themselves against the action. I also note in these cases, that the Authorities did in practice go through an investigative procedure with the tenants, but the Courts found those procedures lacking compared to the gravity of the subject matter (housing). While I have no jurisdiction as an Equality Officer, to make any finding under the ECHR, I am influenced by the fact that the Superior Courts have in these cases expressed the view that an appropriate procedure/investigation should be followed before action is taken against tenants. In the instant case, there can be no analysis of the thoroughness of the procedures, since the respondent produced no evidence whatsoever of any procedure being followed before the notice was issued.
(ii) The respondent also failed to provide any evidence that the decision to issue the Notice to Quit had been taken at the highest possible level within their organisation. According to the expert witness, Dr Kenna, it would be expected that such a serious matter would go to the respondent’s Board. In fact the evidence given by Ms B at the oral hearing suggested that it was a mere operational matter, the result of a discussion between herself and the CEO, and not a decision requiring any scrutiny or review by the Board of the respondent.
(iii) One of the witnesses for the complainant Mr. Z, who is familiar with the situation, stated clearly (see para 2.4) that he believed a younger working man like himself would not have been so badly treated by the respondent. He believed that there was less respect given to the complainant because of his age and the respondent therefore treated his complaints in a dismissive way. I find this statement to be persuasive given the credibility of the witness and his knowledge of the parties. It also concurs with my own observation of the interaction of the parties during the oral hearing.
(iv) The complainant claims that the respondent should have used the guidelines provided by the Irish Council for Social Housing (ICSH) with respect to the procedures involved in the termination of tenancies. The respondent claims that these are not guidelines, but simply advice from an advocacy group and there is no onus on them whatsoever to take this advice. However I note that Cluid have in fact changed their tenancy agreements to reflect what is considered good practice by the ISCH, so it is clear that they accept this is good practice, but they are not prepared to allow the complainant to benefit from it.
(iv) Dr Kenna, a witness for the complainant, stated during the oral hearing, that in his personal opinion, the particular impact of an eviction on a man of the complainant’s age would be extremely severe in comparison with a younger person. In the complainant’s particular case, he had left his life in London to return to Ireland under the Safe Home Scheme and he would have had a natural expectation that he would be able to live the remainder of his life in this home. Dr Kenna stated that the impact on anyone whose tenancy was terminated in these circumstances would be devastating, but as the complainant was 74 years old, retired and dependant on sheltered housing, the impact would be even worse. There was no guarantee that he would be able to secure any sort of alternative accommodation and he would face the prospect of becoming homeless at 74 years of age. The complainant himself also gave details of the severe impact the ongoing proceedings are having on his mental and physical health. I fully accept the evidence given in this regard and accept that the proceedings being taken against the complainant are all the more severe as a result of his age.
4.4 (d) Having evaluated each of the respondent’s arguments in turn and considered each of the additional factors noted above, I conclude that the respondent has not been successful in rebutting the prima facie case of discrimination, on the basis that their rebuttals have simply not been convincing. The complainant has successfully shifted the burden of proof to the respondent and they have been unable to rebut it. They been unable to demonstrate that their actions were untainted by discrimination on the grounds of age. Therefore I find that the respondent did discriminate against the complainant on the grounds of age, in terms of their decision to issue him with a notice to quit and in terms on their ongoing treatment of him in this matter.
4.5 Discrimination on the grounds of Disability
The complainant added the ground of disability in his second complaint to the Equality Tribunal, but as neither side made any substantive submissions on this issue, I have focussed exclusively on the issue of age.
4.6 Victimisation
The complainant made a claim of victimisation in both of his complaints to the Equality Tribunal; however neither complaints were followed up at the oral hearing and I note that no evidence was provided of any incident of victimisation as defined in the Acts. The Acts define the ground of victimisation as between any two persons at S.2(j) as follows:
(j) that one-
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv)
and the other has not (“the victimisation ground”)
Regarding the first complaint of victimisation, the respondent has argued that there cannot possibly be victimisation with respect to their Notice to Quit, because this notice preceded any of the actions specified at S.2(j) taken by the complainant. I accept the respondent’s arguments on this point and find that the complainant’s first claim of victimisation does not succeed.
The second complaint of victimisation refers to the issue of granting adjournments in the District Courts. The complainant has claimed that the respondent refused to grant an adjournment, in retaliation for the complainant taking a claim to the Equality Tribunal. However I find that the issue of whether or not an adjournment was granted is exclusively a matter for that Court and I can have no jurisdiction in this matter. Therefore the second claim of victimisation also fails.
4.7 Discrimination by Association
The complainant withdrew this aspect of the complaint at the oral hearing.
4.8 Harassment
The Equal Status Acts define harassment under S.11(5)(a) as follows:
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and…..
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”
The complainant has made a complaint that he was generally harassed by the respondent in his dealings with them. Specifically during the hearing he referred to their handling of the security chain issue, the fire drill issue, the resident’s accounts issue and their failure to mediate with him. I have examined the large volume of correspondence submitted by both sides in relation to these issues and I have found that both sides, but particularly the complainant himself, approached these issues in an aggressive manner which was more likely to provoke than resolve the issues. The complaints of harassment referred mainly to day-to-day landlord-tenant issues between the parties and the on-site employees gave credible evidence that they were regularly upset and intimidated by the complainant when they tried to help him. One of the complainant’s witnesses at the oral hearing described both parties as “extremely stubborn” and characterised their relationship as one of “brinkmanship”. Having reviewed the correspondence, I would have to agree with this description. I cannot find a prima facie case of harassment, where the issues were primarily related to landlord-tenancy issues (rather than age or disability related) and as an additional point, it clear that there was an extremely fractious relationship between the parties, to which the complainant himself was, at the very least, an equal contributor.
Decision
5.1 On the basis of the foregoing, I make the following findings:
(i) that the complainant has not established a prima facie case of victimisation
(ii) that the complainant has not established a prima facie case of harassment
(iii) that the complainant has not established a prima facie case of discrimination on the grounds of disability
(iv) that the complainant has established a prima facie case of discrimination on the grounds of age, and this has not been rebutted by the respondent.
5.2 Therefore I award the complainant 6349 euros for the discrimination on the grounds of age. This represents the maximum award which can be made under the Equal Status Acts, in recognition of the seriousness of the subject matter of the complaint.
5.3 I further order that the respondent conduct a review of its policies and procedures to ensure that they are in compliance with the Equal Status Acts 2000-2008.
Elaine Cassidy,
Equality Officer
20 January 2011