Enforcement
Cases
M. Helen Marshall v Southampton and South-West Hampshire Area Health Authority
[1994] 2 WLR 392, [1994] 1 All ER 736, [1994] 1 AC 530, [1994] AC 530, [1994] ICR 242
“18 It is therefore necessary to identify the objectives of the Directive and in particular to see whether, in the event of a breach of the prohibition of discrimination, its provisions leave Member States a degree of discretion as regards the form and content of the sanctions to be applied.
19 The purpose of the Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards the various aspects of employment, in particular working conditions, including the conditions governing dismissal.
20 To that end, Article 2 establishes the principle of equal treatment and its limits, whilst Article 5(1) defines the scope of that principle with regard specifically to working conditions, including conditions governing dismissal, to the effect that men and women are to be guaranteed the same conditions without discrimination on grounds of sex.
21 As the Court held in Case 152/84 Marshall, cited above, since Article 5(1) prohibits generally and unequivocally all discrimination on grounds of sex, in particular with regard to dismissal, it may be relied upon as against a State authority acting in its capacity as an employer, in order to avoid the application of any national provision which does not conform to that article.
22 Article 6 of the Directive puts Member States under a duty to take the necessary measures to enable all persons who consider themselves wronged by discrimination to pursue their claims by judicial process. Such obligation implies that the measures in question should be sufficiently effective to achieve the objective of the Directive and should be capable of being effectively relied upon by the persons concerned before national courts.
23 As the Court held in the judgment in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, at paragraph 18, Article 6 does not prescribe a specific measure to be taken in the event of a breach of the prohibition of discrimination, but leaves Member States free to choose between the different solutions suitable for achieving the objective of the Directive, depending on the different situations which may arise.
24 However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. As the Court stated in paragraph 23 of the judgment in Von Colson and Kamann, cited above, those measures must be such as to guarantee real and effective judicial protection and have a real deterrent effect on the employer.
25 Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. In the event of discriminatory dismissal contrary to Article 5(1) of the Directive, a situation of equality could not be restored without either reinstating the victim of discrimination or, in the alternative, granting financial compensation for the loss and damage sustained.
26 Where financial compensation is the measure adopted in order to achieve the objective indicated above, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules.
The first and second questions
27 In its first question, the House of Lords seeks to establish whether it is contrary to Article 6 of the Directive for national provisions to lay down an upper limit on the amount of compensation recoverable by a victim of discrimination.
28 In its second question, the House of Lords asks whether Article 6 requires (a) that the compensation for the damage sustained as a result of the illegal discrimination should be full and (b) that it should include an award of interest on the principal amount from the date of the unlawful discrimination to the date when compensation is paid.
29 The Court’ s interpretation of Article 6 as set out above provides a direct reply to the first part of the second question relating to the level of compensation required by that provision.
30 It also follows from that interpretation that the fixing of an upper limit of the kind at issue in the main proceedings cannot, by definition, constitute proper implementation of Article 6 of the Directive, since it limits the amount of compensation a priori to a level which is not necessarily consistent with the requirement of ensuring real equality of opportunity through adequate reparation for the loss and damage sustained as a result of discriminatory dismissal.
31 With regard to the second part of the second question relating to the award of interest, suffice it to say that full compensation for the loss and damage sustained as a result of discriminatory dismissal cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. The award of interest, in accordance with the applicable national rules, must therefore be regarded as an essential component of compensation for the purposes of restoring real equality of treatment.
32 Accordingly, the reply to be given to the first and second questions is that the interpretation of Article 6 of the Directive must be that reparation of the loss and damage sustained by a person injured as a result of discriminatory dismissal may not be limited to an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the effluxion of time until the capital sum awarded is actually paid.
The third question
33 In its third question, the House of Lords seeks to establish whether a person who has been injured as a result of discriminatory dismissal may rely, as against an authority of the State acting in its capacity as employer, on Article 6 of the Directive in order to contest the application of national rules which impose limits on the amount of compensation recoverable by way of reparation.
34 It follows from the considerations set out above as to the meaning and scope of Article 6 of the Directive, that that provision is an essential factor for attaining the fundamental objective of equal treatment for men and women, in particular as regards working conditions, including the conditions governing dismissal, referred to in Article 5(1) of the Directive, and that, where, in the event of discriminatory dismissal, financial compensation is the measure adopted in order to restore that equality, such compensation must be full and may not be limited a priori in terms of its amount.
35 Accordingly, the combined provisions of Article 6 and Article 5 of the Directive give rise, on the part of a person who has been injured as a result of discriminatory dismissal, to rights which that person must be able to rely upon before the national courts as against the State and authorities which are an emanation of the State.
36 The fact that Member States may choose among different solutions in order to achieve the objective pursued by the Directive depending on the situations which may arise, cannot result in an individual’ s being prevented from relying on Article 6 in a situation such as that in the main proceedings where the national authorities have no degree of discretion in applying the chosen solution.
37 It should be pointed out in that connection that, as appears in particular from the judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others v Italian Republic [1991] ECR I-5357, at paragraph 17, the right of a State to choose among several possible means of achieving the objectives of a directive does not exclude the possibility for individuals of enforcing before national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone.
38 Accordingly, the reply to be given to the third question is that a person who has been injured as a result of discriminatory dismissal may rely on the provisions of Article 6 of the Directive as against an authority of the State acting in its capacity as an employer in order to set aside a national provision which imposes limits on the amount of compensation recoverable by way of reparation.
Costs
39 The costs incurred by the United Kingdom, the Federal Republic of Germany, Ireland and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the House of Lords, by order of 14 October 1991, hereby rules:
1. The interpretation of Article 6 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be that reparation of the loss and damage sustained by a person injured as a result of discriminatory dismissal may not be limited to an upper limit fixed a priori or by excluding an award of interest to compensate for the loss sustained by the recipient of the compensation as a result of the effluxion of time until the capital sum awarded is actually paid.
2. A person who has been injured as a result of discriminatory dismissal may rely on the provisions of Article 6 of the Directive as against an authority of the State acting in its capacity as an employer in order to set aside a national provision which imposes limits on the amount of compensation recoverable by way of reparation.”
Teresa Mitchell (appellant) v. Southern Health Board (Cork University Hospital) (respondent);
AEE/99/8
Court: Labour Court
Judge(s):
Date: (15 February 2001)
Employment equality—Discrimination—Access to employment—Whether claimant had established prima facie case of discrimination on grounds of sex—Onus of proof—Gender imbalance on interview board, although undesirable, not of itself sufficient to amount to discrimination—Employment Equality Act 1977 (No. 16) , sections 2(a), 3 and 12 —Council Directive 97/80 on the Burden of Proof in Cases of Discrimination Based on Sex , Article 4
Facts
The claimant, a locum physician employed by the respondent since 1990, applied for a full-time position in 1994. She was unsuccessful and a male candidate was appointed to the post. She brought a claim to the Equality Officer who found that the respondent did not discriminate against the appellant contrary to the provisions of the Employment Equality Act 1977 . The appellant appealed that recommendation to the Labour Court. In her submissions, which were denied by the respondent, the claimant alleged, inter alia , that she had greater experience than the successful candidate, was better qualified than the successful candidate, that discriminatory remarks were made prior to the interview and that her previous experience and academic achievements were ignored at the interview. As a preliminary point, the Labour Court had to determine whether it had jurisdiction to proceed with the substantive complaint or refer the matter back to an Equality Officer who had initially determined that he had no jurisdiction to investigate the substantive complaint according to section 12 of the 1977 Act since the disputed appointment had been made by the Local Appointments Commission.
Determined in dismissing the appeal:
(1) The Court has no statutory authority to refer a complaint back to an Equality Officer when an Equality Officer had made a prior recommendation to the Court and had previously determined that he had no jurisdiction to investigate the substantive complaint under section 12 of the 1977 Act. Accordingly, the Court would proceed to investigate the substantive complaint.
(2) 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.
(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the respondent to prove that there was no infringement of the principle of equal treatment. Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 followed .
(4) Gender imbalance in an interview board, although highly undesirable, does not, in itself, lead to a prima facie finding of discrimination in every case. Nonetheless, such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out. Gleeson v. Rotunda Hospital [2000] ELR 206 considered .
(5) The appellant had not discharged the evidential burden which she carried and the appeal should accordingly be dismissed.
Cases referred to in recommendation
Gleeson v. Rotunda Hospital and Mater Misericordiae Hospital [2000] ELR 206
Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193
Full text of Labour Court determination:
Background
The full background of the case is set out in the Equality Officer’s Recommendation No. EE16/1998.
The appellant was employed as a locum consultant physician in general medicine, diabetes and endocrinology at Cork University Hospital from July 1990 to December 1995. In December 1994, the post she occupied was advertised in a permanent capacity. The appellant applied for the post but was unsuccessful, with a male candidate being appointed to the post.
The Equality Officer in his recommendation found that the Southern Health Board did not discriminate against the appellant, contrary to the provisions of the Employment Equality Act 1977 .
The appellant appealed the recommendation to the Labour Court on 23 September 1998, on the following grounds:
(i) the Equality Officer erred in law and in fact in finding that the Southern Health Board did not discriminate against the appellant contrary to section 3 of the 1977 Act;
(ii) the Equality Officer erred in law and in fact in finding that the Southern Health Board was not responsible for the appointment given that the board’s chief executive made the appointment following a recommendation from the Local Appointments Commission;
(iii) the Equality Officer erred in law and in fact in not awarding an appropriate remedy to the appellant for the discrimination experienced by her and the consequent distress to her;
(iv) on all grounds submitted during the Equality Officer’s investigation and such grounds as may arise during the course of the appeal.
The appellant claims that she:
• had greater experience in general medicine, diabetes, endocrinology and metabolism than the successful candidate (details supplied to the Court);
• was better qualified than the successful candidate;
• had more publications, more first authorship, more supervisory authorship, more publications in diabetes than the successful candidate;
• the successful candidate submitted additional data to update his CV on the day of interview;
• there was no correlation between remarks made about candidates at interview and final ranking of these candidates;
• the interviewers did not appear to refer to referees re candidates.
The appellant also claims that she was the subject of discriminatory remarks before the interview. She believes that her experience and academic achievements were ignored at the interview.
The board denies that any discriminatory remarks were made to the appellant, either before or during the interview, or that any sexual discrimination took place. While it accepts that the appellant was sufficiently suitable/experienced/qualified for the post, it asserts that the successful candidate was more suitable/experienced/qualified and that this has been borne out since the appointment.
A Labour Court hearing took place on 28 November 2000. The following is the Court’s determination.
Determination
The appellant claims to have suffered discrimination on grounds of her sex in not being appointed to the post of consultant physician in general medicine, diabetes and endocrinology with the Southern Health Board (Cork University Hospital). The selection for the post was carried out by the Local Appointment Commission pursuant to section 14 of the Health Act 1970 . The disputed appointment was made in April 1995. The appellant had held the post for the previous five years in a locum capacity.
The appellant made a complaint to the Court pursuant to section 19 of the Employment Equality Act 1977 (the Act) in June 1996. The Court referred the dispute to an Equality Officer for investigation and recommendation. The Equality Officer concluded that section 12 of the Act precluded him from investigating the substance of the complaint, since the disputed appointment had been made on foot of a recommendation made by the Local Appointments Commission. The Equality Officer found that the named respondent, the Southern Health Board, did not discriminate against appellant as it had not made the selection which formed the subject of the complaint. It was against that finding that the appellant appealed to the Court.
The appeal opened before the Court on 24 March 1999. Having received submissions from both parties, the Court issued Determination DEE 992, dated 2 July 1999. In that determination, the Court held that section 22 of the Act did not preclude an investigation of the appellant’s complaint under the Act. The Court adjourned the hearing on the substantive complaint, so as to allow the parties to make submissions on how the Court should proceed with the investigation in the light of its findings on the issue of jurisdiction.
The Southern Health Board then appealed the Determination of the Court to the High Court on a point of law. That appeal came on for hearing before Barr J on 25 February 2000. In an ex tempore judgment, the court struck out the proceedings, holding that they were premature since this Court had not made any finding on whether or not the appellant had been discriminated against.
Following the judgment of the High Court, this Court invited the parties to make written submissions on how it should proceed in the investigation of the substantive complaint. Solicitors for the appellant submitted that the Court should refer the dispute back to an Equality Officer for investigation. They claimed that the appellant was entitled to a hearing of all the evidence at first instance before an Equality Officer, with the possibility of a full appeal to the Labour Court. The Southern Health Board did not make any submission on this point.
Having considered the submission received, the Court concluded that it had no statutory authority to refer the case back to an Equality Officer, and was obliged to make a definitive determination on the complaint of discrimination. The Court’s reasoning was formulated by way of a preliminary conclusion and was conveyed to the parties by letter dated 21 July 2000. The parties were again invited to make submissions on the view taken by the Court. Neither party demurred from that view.
The substantive case
The submissions of the parties
The appellant’s claim is grounded on a number of assertions, namely:
(i) That prior to the interview for the post, a named member of the interview board subjected her to discriminatory remarks.
(ii) That she was better qualified for the post and more experienced than the successful candidate.
(iii) That the interview was not fairly conducted.
Full particulars in relation to each of these assertions were provided to the Court.
The respondent made its submission to the Court without prejudice to its contention that it was not a proper party to the proceedings, as it had not exercised any discretion in the selection or appointment to the disputed post.
The respondent’s defence was essentially a contradiction of the appellant’s claims. They denied that the named member of the interview board had subjected the appellant to discriminatory remarks, either before the interview or at all. They said that six candidates were interviewed for the post; they were all excellent candidates and each of them was qualified and suitable for appointment. The successful candidate was, however, considered to be outstanding, and for that reason was recommended for appointment.
Onus of Proof
Counsel for both parties made submissions to the Court on how the evidential burden should be applied in this case. Counsel for the appellant submitted that, once the appellant makes out a prima facie case, the onus falls on the respondent to rebut the presumption of discrimination. He relied on the decision of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 .
Counsel for the Health Board submitted that the onus is on the claimant to prove, on the balance of probabilities, that she did suffer discrimination.
Council Directive 97/80 of 15 December 1997 , on the Burden of Proof in Cases of Discrimination Based on Sex, sets out the procedural rules to be followed in applying the evidential burden in discrimination cases. Article 4.1 of the Directive provides that, where a plaintiff in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
This Directive has not yet been transposed into Irish law. The date for implementation is 1 January 2001, and it cannot have direct effect before that date. However, in the preamble to the Directive, it is expressly stated that its provisions are derived from the case law of the ECJ. It would appear, therefore, that the aim of the Directive is to formalise in legislation the case law of the ECJ as it presently stands, rather than to introduce a new procedural requirement.
With regard to the Wallace case, this decision of the Northern Ireland Court of Appeal is of persuasive rather than binding authority. It was, however, fol lowed by this Court in Gleeson v. Rotunda Hospital and Mater Misericordiae Hospital [2000] ELR 206 .
Wallace is authority for the proposition that, where it is established that a person suffered discrimination in the filling of a post, the onus shifts to the employer to establish that the discrimination did not arise from the gender of the unsuccessful candidate. To that extent, it is consistent with Article 4 of the Onus of Proof Directive and the case law of the ECJ on which it is based.
On that basis, the Court accepts that the principles set out in Wallace and Article 4 of the Directive provide the appropriate procedural rule to be applied in the present case.
It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. 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 these 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 a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.
The evidence
The original defence made by the respondent was that section 12(3) of the Act precluded an investigation by the Court into the selection by the Local Appointments Commissioners of a person to an office or position. In interpreting the Act in conformity with European law, the Court held in DEE 992 that the Local Appointments Commissioners are immune from liability in a claim of discrimination, but that no such immunity can be extended to the respondent as the prospective employer.
Having so decided, the Court expressed the view that by virtue of section 12(3) of the Act, evidence in relation to the selection process of the Local Appointments Commission might not be compellable in relation to the substantive case. In the event, the Local Appointments Commission co-operated fully with the Court in its investigation of this case and provided the Court (and the parties) with a complete file of all documents in its possession relating to the filling of the disputed post.
These included the curricula vitae of all candidates interviewed for the post, the notes of the interview, and the marking sheet on which the results were recorded. This file also contained a copy of the report of the interview board to the Local Appointments Commission. This report set out the attributes that the board considered necessary for the post, and the reasons for its decision to nominate the successful candidate for appointment.
Oral evidence was given by the appellant and by four witnesses called by the respondent. All of this oral and documentary evidence, together with the demeanour of the witnesses, has been taken into account by the Court in reaching its conclusions,
The appellant gave her evidence with conviction and clarity. She told the Court that some time before the interview a named member of the interview board told her that she had two disadvantages — she is a locum and a woman. In his evidence to the Court, which was given with equal conviction and clarity, the person named strenuously denied having made this or any similar comment. The appellant also told the Court of having mentioned the offending remark to a medical colleague after the result of the competition became known, and of having raised it at a meeting with the hospital administrator some time later. Both persons gave evidence for the respondent, and neither had any recollection of being told of this remark.
The appellant also told the Court of her professional qualifications and experience, including research and publications, which she claimed were superior to that of the successful candidate. She also told the Court that, in her opinion, all but one of the other candidates for the post were unsuitable for appointment.
Medical witnesses called by the respondent, who had participated in the interview board, said that the appellant had different qualifications and experience to that of the successful candidate, but they did not accept that it was of superior quality. These witnesses accepted that the appellant was an excellent candidate. However, they told the Court that the interview board was unanimous in the view that the doctor recommended for appointment was an outstanding candidate.
It was common case that, once it became known that the appellant was not successful in her application for the disputed post, the hospital management sought to retain her valued services. To this end, management attempted to create a restructured post, at a similar level as the locum post that the appellant had occupied, and to which the appellant could be appointed. Whilst this initiative was being actively pursued for some time, it was discontinued when the appellant commenced the present proceedings.
With regard to the interview, the appellant said in evidence that she felt that she was being hurried and that the board seemed uninterested in her work and experience. The members of the board who gave evidence said that the appel lant’s interview was conducted no differently to that of other candidates.
Conclusions of the Court
The onus of proving the factual basis on which unlawful discrimination may be presumed rests with the appellant.
The Court found the appellant to be an impressive witness. She appeared to have a clear recollection of the disputed events to which she averred. She was also firm in her opinion as to the superiority of her own qualifications and experience relative to that of the successful candidate. These recollections and opinions were, however, unsupported by any evidence beyond that of the appellant herself. They were also hotly contradicted by equally impressive witnesses called by the respondent.
The Court fully accepts that the appellant had provided five years satisfactory service as a locum in the disputed post. The Court also accepts that the appellant might reasonably have expected that her past service and clinical experience would have been a decisive factor in her favour. However, in the Courts view, these considerations could not of themselves establish that the, selection made was so irrational or unfair as to raise a presumption of unlawful discrimination.
Taking the evidence as a whole, the Court has concluded, with some hesitation, that the appellant has not discharged the evidential burden which she carries. Accordingly, her claim cannot succeed.
There is, however, one further aspect of this case on which the court considers it appropriate to comment. The interview board established by the Local Appointments Commission comprised five members, all of whom were men. There was no evidence to indicate that the Commissioners made any effort to secure the services of a suitably qualified woman to serve on the board.
Relying on the determination of this Court in the Gleeson case, counsel for the appellant submitted that such a gender imbalance in the composition of the interview board is sufficient to establish a prima facie case of discrimination. The relevant statement by the Court in Gleeson must, however, be read in context. In that case, the Court found five instances of unfairness in the selection process, the cumulative effect of which resulted in a prima facie finding of discrimination. The composition of the board was but one of these instances.
The Court considers it highly undesirable to constitute an interview board made up entirely of men. This is particularly the case where, as in the medical profession, there is a dominance of men at the most senior professional level. Gleeson cannot be regarded as authority for the proposition that gender imbalance in an interview board must, in itself, lead to a prima facie finding of discrimination in every case. Nonetheless, the Court considers that such a practice is potentially discriminatory and can form part of the evidential chain on which a claim of discrimination could be made out.
The Court would strongly urge all appropriate parties to have full regard to the now accepted need to ensure gender balance at all levels in the process of selection for appointment.
Determination
It is the determination of the Court that the complaint before it is not well founded, and that the appellant did not suffer discrimination within the meaning of section 2(a) of the Employment Equality Act 1977 . The complaint herein is dismissed.
Deputy Chairman: Kevin Duffy
EQUALITY OFFICER DECISION NO: DEC – S2002-012
O’Brien v Scruffys Bar, Killarney Towers Hotel
File Ref: ES/2001/27
Date of Issue: 8th March, 2002
Table of Contents
Summary 3
Dispute and Background 4
Need for Two Hearings 4
Summary of Complainant’s Evidence 5
– Evidence of Mr O’Brien 5
– Evidence of Mrs O’Brien 6
Summary of Respondent’s Evidence 6
– Evidence of Mr Frank McCarthy 6
– Evidence of Mr Con Murphy 7
– Evidence of Mr Danny McGough 7
– Evidence of Mr Daniel Nagle 7
Issues for Consideration 8
Admissible Evidence 8
Prima Facie Evidence 9
Conclusions of Equality Officer 10
Decision 14
2
Summary of Decision DEC-S2002-012
Mr Robert O’Brien
(Represented by Liam F. Coghlan & Co., Solicitors)
-vScruffys
Bar, Killarney Towers Hotel
(Represented by Mr Padraig J. O’Connell, Solicitor)
Headnotes Equal Status Act 2000 – direct discrimination – section 3(1)(a) – membership of the Traveller
community ground – section 5(1) – refusal of service in the bar of a hotel – burden of proof on
complainant to present prima facie evidence – no prima facie evidence presented.
Background
Mr Robert O’Brien claimed that he was discriminated against contrary to the Equal Status Act,
2000, on the basis of his membership of the Traveller community when he was asked to leave
Scruffys Bar, Killarney Towers Hotel, on 25th November, 2000.
The respondent claimed that the complainant was not discriminated against on the basis of his
membership of the Traveller community. It claimed that the reason the complainant was asked to
leave the bar was because his previous behaviour warranted it. It claimed under section 15 of the
Equal Status Act, 2000, the holder of an authorisation which permits the sale of intoxicating liquor
is permitted to refuse service where there are grounds for believing that someone may cause trouble
and that the complainant was asked to leave on this basis. The respondent also claimed that the
incident occurred on 18th November, 2000, and not 25th November, 2000, as claimed by the
complainant.
Conclusions of Equality Officer
The Equality Officer found that the complainant did not succeed in establishing prima facie
evidence of discrimination on the membership of the Traveller community ground. Consequently
the burden of proof did not shift to the respondent to rebut an inference of discrimination
Decision
The Equality Officer decided that the respondent did not discriminate against the complainant
contrary to the Act on 18th November, 2000.
3
Equality Officer Decision DEC-S2002-012
Complaint under the Equal Status Act 2000
Mr Robert O’Brien
(Represented by Liam F. Coghlan & Company, Solicitors)
-vScruffys
Bar, Killarney Towers Hotel
(Represented by Mr Padraig J. O’Connell, Solicitor)
DISPUTE AND BACKGROUND
1. Mr Robert O’Brien claimed that he was discriminated against contrary to the Equal Status
Act, 2000, on the basis of his membership of the Traveller community when he was asked
to leave Scruffys Bar, Killarney Towers Hotel, on 25th November, 2000.
The respondent claimed that the complainant was not discriminated against on the basis of
his membership of the Traveller community. It claimed that the reason the complainant was
asked to leave the bar was because his previous behaviour warranted it. It claimed under
section 15 of the Equal Status Act, 2000, the holder of an authorisation which permits the
sale of intoxicating liquor is permitted to refuse service where there are grounds for
believing that someone may cause trouble and that the complainant was asked to leave on
this basis. The respondent also claimed that the incident occurred on 18th November, 2000,
and not 25th November, 2000, as claimed by the complainant.
The complainant referred his claim to the Director of Equality Investigations on 29th
January, 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.
NEED FOR TWO HEARINGS
2. Two hearings were held into this complaint. The first hearing took place on 15th May,
2001, and the second hearing took place on 16th January, 2002. The reason there was a
need for two hearings was because the respondent did not bring its incident book or duty
roster to the first hearing and I asked that they be supplied to me after the hearing. When I
received these documents I copied them to the complainant with some other information
which the respondent supplied after the first hearing. The complainant had some questions
in relation to this information and I considered that a second hearing was the most
appropriate way of progressing the complaint.
4
SUMMARY OF COMPLAINANT’S EVIDENCE
3. Evidence of Mr O’Brien
Mr O’Brien claimed that:
He is a member of the Traveller community as are the rest of his family. He is
settled but his parents used to live a nomadic lifestyle in the past.
He went into Scruffy’s Bar on 25th November 2000 between 8.00 p.m. to 9.00 p.m.
He is certain that this is the date the incident occurred because it was fresh in his mind
when he made the complaint. His wife, sister, and cousin, who are all Travellers, and
two non Travellers were also in the bar with him that evening.
He had one or two pints when after about half an hour to an hour Mr Con Murphy,
one of the doormen on duty that night, asked him to leave. None of the other people he
was with were asked to leave.
He was not given any reason why Mr Murphy wanted him to leave and when he
asked for one he was told “you know”.
He told Mr Murphy he would leave when he finished his drink but Mr Murphy and
another doorman took his glass off him and physically made him leave the bar. Mr
Danny McGough was not the other doorman who assisted Mr Murphy, as claimed by
the respondent, and Mr McGough was not on duty that evening.
The reason he was asked to leave and treated in the manner described was because
he is a member of the Traveller community.
Mr Murphy knew he was a Traveller. They are around the same age and lived near
to each when they were growing up.
He was never abusive in any way to any member of the respondent’s staff, as
claimed by the respondent.
He was not involved in any assaults on people as described by Mr Murphy and Mr
Danjo Nagle. Mr Nagle is the head of Danjo Nagle Security Services, the security
company which has the contract for the bar’s security.
He was not involved in any of the incidents claimed by Mr McCarthy, the Group
Manager of the chain in which the Killarney Towers Hotel is part of. When he was in
the Killarney Avenue Hotel on 1st December, 2001, Mr McCarthy did not speak to him
and ask him not to return as claimed by Mr McCarthy.
He was never in trouble with the Gardai.
He had been in the bar a couple of times a year before the incident on 25th
November, 2000, but he could not remember the last time he was there before that date.
Sometimes when Mr Murphy and Mr Nagle were on duty at the door of the pub they let
him in but other times they would not let him in.
There is a quota system in operation at the bar whereby no more that 8 Traveller
couples are allowed in the bar at any one time.
Before Travellers can be admitted to the bar they have to approach Mr Nagle in a
store where he also works to get his permission. Only Travellers have to go through this
special procedure before they can be served.
5
Evidence of Mrs O’Brien
3.1 Mrs O’Brien claimed that:
Her husband’s account of the events of 25th November 2000 is correct.
She had problems getting into the bar before. She had to ask Mr Nagle in the store
where he also works if she could be admitted to the bar. Another Traveller also had to
go through this procedure.
Other Travellers have also made complaints under the Equal Status Act, 2000, about
Mr Nagle.
SUMMARY OF RESPONDENT’S EVIDENCE
4. Evidence of Mr Frank McCarthy
Mr McCarthy is the Group Manager of the chain in which the Killarney Towers Hotel is
part of. He claimed that:
The incident described by Mr O’Brien occurred on 18th November, 2001, and not
25th November, 2000. Mr O’Brien had an ulterior motive in alleging that the incident
occurred on 25th November, 2000, in that he would have known that the respondent
would not have had any records in relation to an incident on that date. The duty roster
for 18th November, 2000, confirms that Mr McGough was on duty that night.
Mr O’Brien was not discriminated against on the basis of his membership of the
Traveller community when he was asked to leave the bar. He was asked to leave
because he was barred due to his previous conduct.
It was not appropriate to give a reason for the refusal on the night as it would have
added fuel to the fire. The practice of not giving reasons for refusals is common in the
bar trade.
The respondent’s policy is to serve anyone who is over 18 years old, not drunk and
well behaved. The respondent does not have a policy to exclude Travellers.
The respondent is under an obligation under the health and safety legislation to
protect its staff and patrons.
The Gardai put pressure on the respondent to ensure that there are no breaches of
public order in the bar.
It is not necessary for a respondent to know for certain that someone has a criminal
conviction before they can refuse service. Under section 15 of the Equal Status Act,
2000, the holder of an authorisation which permits the sale of intoxicating liquor is
permitted to refuse service where there are grounds for believing that someone may
cause trouble. Mr O’Brien was refused on this basis.
He saw Mr O’Brien in a group of 8 Travellers on 1st December, 2001, in the
Kenmare Rooms of the Killarney Avenue Hotel, which is a sister hotel of the Killarney
Towers Hotel. He let him stay there because he did not want to embarrass him. One
other person in Mr O’Brien’s group was asked to leave. When Mr O’Brien was leaving
he was asked not to return.
On 26th December, 2001, he counted 70 people in the Kenmare Rooms and he
estimated that 32 of these were Travellers. He claimed that this shows the respondent
does not have a discriminatory policy towards serving Travellers. The reason he was
counting the number of customers in the hotel at that time was for insurance and
security reasons.
Evidence of Mr Con Murphy
4.1 Mr Murphy claimed that:
6
He was employed by Danjo Nagle Security Services as a doorman for Scruffy’s Bar
on the night in question. He started working for the security firm in 1998 and first
worked in Scruffy’s Bar at that time
He did not see the complainant entering the bar but he saw him there later on.
He approached the complainant and asked him to leave the bar because he
considered that there was a risk of violence when he had alcohol consumed. The reason
he thought this was because about three and a half years previously he saw the
complainant hitting people outside a restaurant in the town. He thought the complainant
was drunk on that occasion by the way he was walking.
The complainant did not want to leave. He became aggressive and raised a glass to
him. Mr Danny McGough, another doorman, then came to his assistance and the two of
them took the glass off the complainant and escorted him off the premises.
Mr Nagle told him in March, 2000, that the complainant was barred from the
premises because he had been abusive after he was refused admission.
He did not know the complainant was a member of the Traveller community.
He could not remember the last time the complainant was in the pub before the
incident on 18th November, 2000.
Evidence of Mr Danny McGough
4.2 Mr McGough claimed that:
He was on duty as a doorman on the night in question.
He assisted in escorting the complainant off the premise as described by Mr
Murphy.
Evidence of Mr Daniel Nagle
4.3 Mr Nagle claimed that:
He is the head of Danjo Nagle Security Services, the company which provides
security at the bar.
He meets the bar’s management every week to discuss any issues which arise in
relation to the security service.
He refused the complainant admission to the bar previously because he considered
that he had too much to drink. On that occasion the complainant became abusive and he
told him that he was barred.
He knew the complainant is a member of the Traveller community.
The complainant is a nice person when he is sober but he becomes abusive when he
consumes alcohol.
It is policy to refuse admission to anyone who is under 18 years old, drunk or
abusive – regardless of whether they are Travellers or non Travellers.
About 20 -25 Travellers are served in the bar that he knows of.
About 300 people are barred from the respondent’s premises.
It is not practical to keep records of every refusal of service which occurs.
An incident book is kept which records significant incidents which occur. The
refusal of the complainant on the night in question, would be recorded in the incident
book.
He is aware that the complainant and another person were previously involved in an
assault on someone. The Gardai investigated the incident.
Mrs O’Brien and another Traveller did approach him in the store where he works to
see if they could be admitted to the bar. No non Travellers have ever done this but he
does not know why. There is no prior approval system or probationary periods before
Travellers can be admitted to the bar.
7
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) of the Equal Status Act, 2000, provides that the discriminatory grounds include
the membership of the Traveller community ground and I am satisfied that the complainant
is covered by this 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 these complaints are whether or not Scruffys Bar, Killarney
Towers Hotel, discriminated against Mr Robert O’Brien on the basis of his membership of
the Traveller community, in terms of section 3(1)(a) and contrary to section 5(1) of the
Equal Status Act, 2000.
ADMISSIBLE EVIDENCE
6. In making my decision in this case I have taken into account all of the evidence provided,
both written and oral, with the exception of the extracts from the respondent’s incident book
which were supplied. The reason I am not taking the extracts into account is because the
respondent was unwilling to supply the whole incident book. It claimed that in addition to
the extracts about the complainant which were supplied that the incident book also contains
sensitive information which is not relevant to this complaint. The complainant claimed that
he needed to examine the incident book in full and not just the extracts provided to assess
its veracity.
I agreed with the complainant’s view and I informed the respondent on 29th January, 2002,
that if the whole incident book was not supplied before close of business on 12th February,
2002, that I would not take any of the extracts into account. The respondent failed to reply
to my notification in this regard and, therefore, I am not taking into account any of the
extracts provided for the purposes of my decision. The parties were notified of this on 19th
February, 2002.
8
PRIMA FACIE EVIDENCE
7. For the complainant’s claim to be upheld he has to establish prima facie evidence of
discrimination on the membership of the Traveller community ground. This means he has
to show that he was treated less favourably than a non Traveller in the same circumstances.
If he succeeds in establishing prima facie evidence, the burden of proof then shifts to the
respondent to rebut the inference of discrimination.
7.1 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
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.
7.2 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.
7.3 To establish what a prima facie case is I have examined definitions from sources which are
persuasive. In Dublin Corporation v Gibney 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.”
7.4 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”.
7.5 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
9
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. “
7.6 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.
7.7 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
combining it with the inferences of discrimination that could be drawn from the
circumstances of the case.
7.8 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 membership of the Traveller
community ground. In other words the complainant has to show that a non Traveller would
have received more favourable treatment in the same circumstances. If he has succeeded in
producing sufficient hard evidence then the burden of proof shifts to the respondent to show
that it 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 it did not act in a discriminatory manner.
CONCLUSIONS OF EQUALITY OFFICER
8. The parties disagree about the date on which the alleged discriminatory treatment occurred
and who was involved in escorting the complainant off the premises with Mr Murphy. The
complainant claimed that it occurred on 25th November, 2000, and that Mr McGough was
not involved but the respondent claimed that it occurred on 18th November, 2000, and that
Mr McGough was involved. The respondent also claimed that the complainant had an
ulterior motive in alleging that the incident occurred on 25th November, 2000. The
respondent claimed that the complainant would have known that it would not have any
records in relation to an incident on that date and that consequently its defence of the
allegations would be more difficult.
The respondent supplied a copy of what it claimed was the duty roster for 18th November,
2000, confirming that Mr McGough was on duty that night. I have examined this document
and it is not clear that it is for the 18th November, 2000, because the date is partly illegible.
The date has clearly been changed and it could be the duty roster for any one of a number of
dates in November, 2000. However, I accept the respondent’s word that it was altered at
the time it was drawn up and not for the purpose of defending the complaint. In reaching
my conclusion on this point I am conscious that the question of whether Mr McGough was
on duty that night essentially boils down to the word of the complainant and his wife against
that of Mr Murphy and Mr McGough. As Mr McGough gave evidence to the effect that he
10
was involved, on the balance of probabilities I believe him. Consequently I am also
satisfied that the incident complained of occurred on 18th November, 2000, but I do not
believe that the complainant had any ulterior motive in suggesting that the incident occurred
on 25th November, 2000, because the respondent had no evidence to support this claim. In
my view the mix up over the date of the incident was an honest mistake on the
complainant’s part.
8.1 The complainant claimed that the reason he was asked to leave the bar was based on his
membership of the Traveller community. The respondent denied discriminating against the
complainant on this basis and claimed that in asking him to leave it was treating him the
same as anyone else in the same circumstances.
8.2 Mr Murphy was the doorman who asked the complainant to leave the bar and his evidence
is very important in this case. At the first oral hearing Mr Murphy claimed that he asked the
complainant to leave because he considered that there was a risk of violence when the
complainant had consumed alcohol. He claimed that the reason he thought this was because
he saw the complainant hitting people about three and a half years previously outside a
restaurant in the town. He thought the complainant was drunk on that occasion by the way
he was walking.
At the second oral hearing Mr Murphy claimed that Mr Nagle had told him in March, 2000,
that the complainant was barred from Scruffys Bar because he had been abusive to him
when he was refused service there previously. Mr Murphy claimed that this was also a
contributory factor in his decision to ask the complainant to leave the bar.
8.3 At the first oral hearing Mr Nagle claimed that the complainant was abusive to him when he
sought admission to Scruffys Bar previously. Mr Nagle claimed he told the complainant
that he was barred on that occasion.
8.4 The complainant denied the claims made by Mr Murphy and Mr Nagle. He claimed that at
the time of the incident described by Mr Murphy he would have been aged less than
eighteen years old and that he was too young to have consumed alcohol at that time.
8.5 In considering the question of whether the allegations made by the respondent’s witnesses
are correct I believe that Mr Murphy’s evidence was not entirely convincing. This is
because at the first oral hearing when I asked him why he asked the complainant to leave he
did not mention the fact that Mr Nagle had previously told him that the complainant was
barred. Also Mr Murphy claimed that he did not know the complainant was a member of
the Traveller community. I find this difficult to believe in view of the complainant’s claim
that they had known each other for years and lived close to each other and Mr Nagle’s
claim that he knew the complainant was a Traveller.
8.6 I have noted that the respondent also claimed that the complainant was abusive to security
personnel on 18th March, 2000, 19th March, 2000, 3rd June, 2000, and 10th February,
2001, but no evidence was provided to support these claims as I cannot take into account
the extracts from the incident book which were supplied. The complainant denied the
respondent’s claims and I have noted that the date of incident alleged to have occurred on
10th February, 2001, was after the date of the incident on 18th November, 2000, so it could
not have been a material factor in the decision to ask the complainant to leave at that time.
11
8.7 However, I can take into account the verbal evidence of Mr Nagle in relation to an incident
which he alleged to have occurred on a previous unspecified date before the incident on
18th November, 2000. Mr Nagle claimed that he refused the complainant admission on that
occasion because he considered that he had too much to drink. Mr Nagle claimed that the
complainant became abusive and that he barred him because of the abuse which he
received. The complainant denied the claims made by Mr Nagle about this but I found Mr
Nagle’s evidence to be convincing and on the balance of probabilities I am satisfied that his
version of events is correct.
8.8 Mr Nagle also claimed that the complainant and another man assaulted someone and that
the Gardai investigated the incident. The complainant denied this allegation and asked why
had he not been prosecuted if the Gardai were involved. I have considered this allegation
and I am satisfied that it is based on hearsay.
8.9 The complainant also claimed that the respondent has a discriminatory policy towards
Travellers. He claimed that Travellers have to go through special procedures before they
can gain admission to the bar and that there seemed to be a quota of no more than 8
Traveller couples at any one time in the bar. Mrs O’Brien claimed that she had problems
getting into the bar before and that she had to ask Mr Nagle in the store where he also works
during the day if she could be admitted. Mrs O’Brien also claimed that another Traveller
had to go through this procedure. I have noted that that the complainant did not provide any
hard evidence to support his claim in relation to a quota system.
8.10 The respondent denied having a discriminatory policy towards Travellers and claimed that it
serves anyone who is over 18 years old, who is not drunk and who is well behaved. Mr
Nagle accepted that Mrs O’Brien and another Traveller approached him in the store where
he works and asked him whether they could be admitted to Scruffys Bar. Mr Nagle also
accepted that non Travellers had never approached him in this way. In considering the issue
as to whether the respondent had special procedures which Travellers had to comply with I
have noted that Mrs O’Brien claimed that she decided to approach Mr Nagle and I consider
the fact that she made the approach is the important point here. No evidence was presented
to convince me that Mr Nagle or the respondent put special procedures in place before
Travellers could be admitted. Mrs O’Brien approached Mr Nagle herself and not at the
request of Mr Nagle. I do not believe that Mr Nagle should be blamed if someone
approaches him uninvited in his day job in respect of an issue associated with the
respondent’s premises. I consider the fact that non Travellers have not approached him in
this way is not significant in the context of this complaint.
8.11 I have also noted that the complainant claimed that other Travellers have made complaints
against Mr Nagle under the Equal Status Act, 2000. However, I cannot attach any
significance to this point for the purposes of this investigation. This is because no hard
evidence was presented to prove that any complaints against Mr Nagle have been
substantiated. If there are any other complaints against Mr Nagle they are unproven
allegations of discrimination at this stage.
8.12 I have also noted Mr McCarthy’s claims that he saw Mr O’Brien in a group of Travellers on
1st December, 2001, in one of the respondent’s sister hotels. The complainant confirmed
that he was there. Mr McCarthy also claimed that on 26th December, 2001, he counted 70
people in the respondent’s sister hotel and he estimated that 32 of these were Travellers. Mr
12
McCarthy claimed that this evidence shows the respondent does not have a discriminatory
policy towards serving Travellers.
In considering the points made by Mr McCarthy I am conscious of the fact that the
respondent’s policies at the time of the incident on 18th November, 2000, are at issue in this
complaint, not the policies in place over one year later. I also think it is inconsistent for Mr
McCarthy to claim that the reason the complainant was asked to leave Scruffy’s Bar on 18th
November, 2001, was that there was a risk of trouble based on his previous behaviour,
while over one year later on 1st December, 2001, he let the complainant stay in the
respondent’s sister hotel because he did not want to embarrass him.
8.13 Both parties in this case agree that when the complainant was asked to leave the bar that he
was accompanied by his wife, his sister and his cousin, who are all Travellers, and two non
Travellers. Both parties also agree that none of the other people in the complainant’s
company were also asked to leave the bar. I believe this to be a crucial point in this
complaint. While I recognise that two non Travellers were allowed to stay in the bar while
the complainant was asked to leave, I consider that it is very significant that none of the
other Travellers in the complainant’s company were asked to leave either. I consider that
this supports the argument that the complainant was not treated less favourably because of
his membership of the Traveller community when compared to a non Traveller. I consider
that this fact also supports the argument that the respondent did not have a discriminatory
policy towards members of the Traveller community at that time. In my opinion the fact
that the complainant was admitted to Scruffys Bar a couple of times a year before the
incident complained of further supports the argument that the respondent did not have a
discriminatory policy towards members of the Traveller community.
8.14 I have noted that the respondent did not reply to the notification under section 21(2)(a) of
the Act which the complainant sent on 13th December, 2000. I have also noted that I can
draw such inferences, if any, as seem appropriate, under section 26 of the Act because of
the respondents failure to reply to the notification. Although I consider that the respondent’s
failure to reply to the notification was not helpful in this case, having considered fully the
evidence provided by the parties, including any inferences of discrimination which can be
drawn from the circumstances of the case, I do not consider it appropriate to draw any
inferences from the respondent’s failure to reply to the notification.
8.15 Having fully considered the admissible evidence in this complaint, including any inferences
which can be drawn from the circumstances of the case, I am satisfied that the complainant
has not established prima facie evidence of discrimination on the membership of the
Traveller community ground. Consequently the question of the respondent rebutting an
inference of discrimination does not arise.
DECISION
9. I find on the basis of the evidence presented that Scruffys Bar, Killarney Towers Hotel, did
not discriminate against Mr Robert O’Brien, contrary to the Equal Status Act, 2000, on the
basis of his membership of the Traveller community on 18th November, 2000.
13
Anthony Cummins
Equality Officer
8th March 2002
14
DEC-S2011-027- Full Case Report
T
Equal Status Acts 2000 to 2008
Decision Number
DEC-S2011-027
Connors v Mothercare Ireland Limited
Case ref: ES/2009/0045
Issued: 18 July 2011
DECISION NUMBER DEC-S2011- 027 – CASE REFERENCE ES/2010/0045
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination – Provision of Goods and Services – Traveller community – Vicarious Liability – Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Margaret Connors (hereafter “the complainant”) referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 April 2009. The complainant was granted an extension of time to notify the respondent in accordance with section 21(3)(a) on 28 October 2009. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 19 April 2011. An oral hearing, as part of the investigation was held in Dublin on 24 June 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination by the complainant in relation to the provision of goods and services contrary to section 3(2)(i) and section 5(1) of the Equal Status Acts. The complainant maintains that she was refused service and asked to leave by members of staff of Mothercare Ireland Limited (hereafter “the respondent”) on 19 November 2009 at approximately 4 pm. The complainant submitted that because she was given no reason to justify this refusal she can only surmise that it was because she, her brother and children are members of the Traveller community.
3. Case for the Complainant
3.1. The complainant stated that she is a member of the Traveller community. She stated in direct evidence that she, in the company of her four young children and her brother, entered the respondent premises in Carrickmines Retail Park in Dublin with a view to purchase a gift for her youngest child. It was her youngest child’s first birthday and the party had made their way to the store’s section that stocks bicycles at approximately 4 or 5 pm. The complainant stated that while they were looking at the selection she and her group was approached by a male, dressed in casual clothing, who asked the complainant to leave. The complainant asked this man to give her a reason why she should leave and stated that a blond woman in store uniform joined the man and told the complainant that she needed to leave. The complainant further stated that the blond woman said: “we do not need to give you a reason”.
3.2. The complainant submitted that she and her party then left the store feeling humiliated. The complainant stated that her eldest daughter (not a party to the proceedings) who was 8 years of age at the time found the matter very upsetting. The complainant submitted that she and her children then made her way to another named store and purchased the gift for her child there. She stated that she experienced no difficulty with the competing provider of goods and services.
3.3. The complainant submitted that she could think of no other reason for the request that they leave the store but for the fact that she, her children and her brother, are members of the Traveller community. She stated that she had never been in this store before and certainly, because of this experience, would never return. She stated that if she had been a non-Traveller she would have been allowed to purchase safety bike for her child.
3.4. It was submitted that the complainant, as a person with poor literacy skills, would have been unable to make her case to this Tribunal without the assistance of a representative. It was also submitted that the complainant was willing to give the same evidence under oath.
4. Case for the Respondent
4.1. The respondent accepted that the complainant is a member of Traveller community on the basis that the complainant herself stated that she was a Traveller.
4.2. The respondent denied that the incident happened at all. It was submitted that the store in question did not have security personnel on the date in question and that no male members of staff were employed at the time. Subsequently, and this occurred three days after the alleged incident, security has been provided in the store and it was submitted that any security personnel deployed by the respondent always wear the company uniform of the security company. It was accepted that the store manager at the material time was a woman with blonde hair and that all respondent employees working on the shop floor wear store uniforms.
4.3. The respondent submitted that it was not in a position to comment on the allegations other than to state that after the respondent became aware of the complaint, it questioned staff at the store in question about the alleged incident and stated that the staff knew nothing about it. It was submitted that CCTV footage was only stored for up to 30 days and as the respondent only learned about the incident in mid January 2009 (when the complainant’s representative wrote to the respondent) it was too late to examine whether it could shed light on the facts as alleged by the complainant. The respondent questioned the fact that the complainant has sought legal representation instead of approaching the respondent herself.
4.4. The respondent submitted that it was not in the business of refusing service and asking customers to leave. Any customer is welcome to the respondent store(s).
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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. This is a case where all the facts are in dispute. One party claims that an incident occurred and the other refutes this. In effect, this is a case of deciding which party’s account is more compelling. Having considered the facts presented to me, I find that both the complainant and the respondent gave the Tribunal honest accounts of their version of events.
5.3. I find that the complainant was a credible witness whose account of the incident was cogent. She is adamant that she, her brother who she says has an intellectual disability and her four young children, were asked to leave the store while they were selecting a present for her youngest child. The date in question was the complainant’s child’s 1st birthday. I find that the fact that there were a number of other Travellers in the complainant’s company makes it also more likely that she would have been identified as a Traveller.
5.4. While I appreciate the difficulty the respondent submitted it has had in refuting an incident that it says never occurred, I am not satisfied that this complaint has been approached by the respondent with the seriousness that such an allegation warrants. The respondent provided no reports, incident books, etc to the investigation to support its argument that it looked into the matter at all. I note that the respondent stated that it had asked the store manager about the incident but that appears to be the extent of the matter. I do not find such an approach to be sufficient to refute the inference the complainant’s direct evidence has established. It is also clear that it is unreasonable to expect that a vulnerable person who has experienced discrimination ought to have some onus on them to return to such a place to discuss the matter with the source of discrimination.
5.5. Having considered the evidence presented to me at the hearing I find on the balance of probabilities, that the incident complained about occurred. The fact that the complainant identified a person who was in a store uniform as the source of the refusal is sufficient to give rise to an inference of vicarious liability in accordance with section 42(1). The respondent gave oral evidence that no male person was working in the store at the material time. I was however provided with no information about the respondent’s overall employee situation. I find that there is a possibility that the respondent’s non- floor employees visit regional stores and am not satisfied that such an option has been investigated by the respondent.
5.6. I am mindful that this incident involved 4 young children and while I note that they were not included as co-complainants in this matter I am satisfied that the very purpose of these Acts is to ensure that individual complainants who belongs to protected groups, such as Travellers, are entitled to avail of goods and services, education and accommodation in as favourable manner as members of the settled community do. This means that there is an onus on providers of goods and services to justify any refusal to engage with a person belonging to such a group by relying on activities that are not discrimination within the meaning of the Acts. Providers of goods and services must ensure that all of its employees are made aware that it is not lawful to refuse service simply because a person is viewed to belong to a social group.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of discrimination contrary to sections 3(2)(i) and 5(2) of the Equal Status Acts. The respondent has not rebutted this. Therefore, I find in favour of the complainant and in accordance with section 27A award her €1500 in compensation for the effects of the discrimination.
____________
Tara Coogan
Equality Officer
18 July 2011
DEC-S2010-013 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2010-013
PARTIES
A Complainant v A Supermarket
File Reference: ES/2007/0054
Date of Issue: 2 March 2010
Key words
Equal Status Acts – Section 3(2)(g), Disability ground – Section 15(1) – Disability not obvious – Whether respondent aware of disability – Onus on complainant to show respondent aware of disability – No prima facie case
1. Delegation under the relevant legislation
1.1. On 23rd May, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th October, 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, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Tuesday, 15th December, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably in the course of an incident at the respondent’s premises on 20th September, 2006.
3. Summary of the Complainant’s Case
Evidence re incident in question
Submissions and evidence of complainant
3.1. The complainant has been diagnosed with clinical depression and clinical anxiety which, inter alia, manifest itself in shyness, nervousness and confusion.
3.2. The complainant submitted that, on or about 20th September, 2006, he was standing in the respondent’s premises speaking with a friend, Mr. A, when he was approached by Mr. B, a security guard working for the respondent, who, he submitted, applied strong pressure to his back. In oral evidence, he described this pressure as punches to his back. The complainant submitted that Mr. B asked him to leave the respondent’s premises in question, telling him he was barred. He submitted that he was shocked by this as he had been shopping in that particular store for 20 years without any incident prior to this occurrence. The complainant submitted that when he asked him why he was being asked to leave, Mr. B told him he didn’t have to tell him why.
3.3. The complainant said that he remained in the store for two hours thereafter. In that time, he spoke once more with Mr. B and asked if he could speak with a Manager, which request was initially refused by Mr. B. The complainant said he also asked Mr. B if he would contact An Garda Siochana. He said that he was told later that this had been done and that they would come to the store. Although he later spoke with a manager, he left the store about two hours after entering it in the first instance as the Gardai had not arrived at that stage. The complainant said that he then proceeded to the nearest Garda station to contact them about the incident, although he was informed later that the Gardai did arrive to the store after he had left. The complainant submitted that he returned to the store two days later and was informed that he was barred from the premises and again he was not given a reason as to why. He stated that he has not returned to the store since.
3.4. The complainant stated that, two years previously, he had written a letter of complaint against a member of the respondents staff when, responding to another member of staff who had referred to the complainant as “her best customer”, she had said that he was not her best customer. The complainant submitted that he had never received a reply to the letter of complaint. He also said he could not confirm whether, at that stage, he had told anyone of his disability.
3.5. The complainant denied the respondent’s statement that his invitation to shop in the store had previously been withdrawn because his behaviour towards some of the female staff members (Ms C and Ms D) had made them feel somewhat uncomfortable. He submitted that the respondent told him of this accusation after the events in question took place. He submitted that the real reason why he was excluded from the store was because of his disability.
Evidence of Witness Mr. A
3.6. Mr A said that, on the day in question, he met with the complainant and heard Mr B tell him he shouldn’t be there. He said that when the complainant asked to speak with the Manager, Mr B said the Manager was not there and escorted him off the premises through a side door. He said that he went out the door through which he had come in and chatted with the complainant outside. He said that the complainant was terribly upset.
3.7. In relation to the time of 6:45 p.m. on the DVD of the CCTV footage that was presented in evidence by the respondent, Mr A said that he was sure the incident took place between 12 and 2 in the afternoon as that was the time he went home for lunch. He added that he was in the aisle when he was speaking with the complainant, and so he could not have been the man who was standing with the complainant on the DVD, as the man in question was not in the aisle.
Evidence of Witness Ms. E
3.8. Ms E, a witness for the complainant, said she entered the respondent’s premises on the day in question and saw the complainant standing in the doorway. She said she knew before she got to him that there was something wrong and so she asked him. She said he told her what had happened and she offered him the use of her phone to call the Gardai. She left him briefly and assumed when she returned that he had called the Gardai. She said that he told her he was not going to leave the shop until he got a reason why he was being asked to leave. She was not sure what time of day this incident occurred, but thought it might have been the afternoon.
Submissions re knowledge of complainant’s disability
3.9. While the complainant agreed that it is not always apparent that he had a disability, he said that sometimes it was apparent. He spoke of one individual, Mr X, who still worked for the respondent and to whom he had told he had a disability. He stated that he had passed pleasantries with Mr X but had also told him things about his personal life. He acknowledged that some of the staff members of the store may not have been aware of his disability, in particular anyone he met on the day of the incident in question. The complainant said he did not know who Ms C or Ms D were.
3.10. Mr A said that he knew the complainant for ten years. He said that he had found out about the complainant’s disability through mutual friends, although he had suspected there was something through the symptoms that the complainant displayed. He accepted that he would have a different view on the complainant than someone passing him in the street and that the respondent’s employees might have and said that the complainant was not agitated immediately before the incident in question took place.
3.11. Ms E said she knew the complainant before the incident. She said she was a friend of a neighbour of the complainant who lives a couple of doors away from him. She said that she knew the complainant through “general chit-chat”. She said that when she approached him, she knew there was something wrong as he was standing there and was red in the face. She said he looked like a man who was about to have a heart attack. She said that she was not familiar with his behaviours though admitted that she might know what was a high colour in him better than a staff member of the respondent might.
Additional Submissions
3.12. The complainant submitted a letter from a loss adjustor on behalf of the respondent which referred to an investigation into the incident that was underway. He submitted that this was in response to a letter he wrote to the respondent on 14th November, 2006. He said he received no further information regarding the matters raised. He also noted that the respondent had told him there was no contemporaneous note of the incident in question and yet one was submitted to the Tribunal at the hearing.
3.13. The complainant submitted that the respondent could not rely on Section 15 of the Acts as a defence as there was no evidence of disorderly or inappropriate conduct on his part and that he had been shopping in the respondent store for twenty years. He submitted instead that Mr B was the author of the incident, as a result of listening to gossip and telling people to go to the manageress etc.
3.14. In general, the complainant submitted that he was told only that he was barred and was not told why. He said that he had therefore suffered embarrassment, humiliation and loss of amenity as a result of discrimination by the respondent.
4. Summary of the Respondent’s submission
Evidence re incident in question
Evidence of Mr B
4.1. Mr B stated that Ms C and Ms D had spoken to him about a man they were afraid of who they stated had already been barred from the store. He said that all the managers knew about the earlier incident involving the complainant. He told Ms C to point this person out if he came into the store and so, on the day of the incident in question, she came over and said that the man she had referred to was in the store. He stated that she identified that man as the complainant and then went to a floor manager who then told Mr B that he was to leave the store. Mr B said that he then went over to the complainant, touched his arm and asked him to step aside, which he did. He denied that he punched the complainant in the back but said that the complainant looked shocked. He said he told him that his invitation to treat in the store had been withdrawn. Mr B said that he was unhappy that when the complainant asked him why, he “started looking me up and down”. Mr B said he responded by saying that “you know why” and that the complainant agreed with him. He then pointed the complainant’s way to the side door as he did not want him leaving through the main door.
4.2. Mr B said that the complainant then left the store but came in later and stayed for two hours. He said that the complainant wanted to speak with the Store Manager but, as she was not available, spoke with Ms Y, the Duty Manager. The Gardai were eventually called, though Mr B said he told the complainant they could be a while. Mr B said that he rang the Gardai when the complainant left to tell them that the problem was over but was not aware that they turned up later.
Evidence of Ms Y
4.3. Ms Y, who was working with the respondent for 18 years, was the Duty Manager on the night in question. Though she was not directly involved when Mr B first asked the complainant to leave the store, she did witness the incident. She said that, after Ms C had identified the complainant to Mr B and the Store Manager, she saw Mr B approach the complainant and said the complainant left and came back in. She said that she later approached the complainant with Mr B. Although she didn’t recall what was said, she did know that Mr B had phoned the Gardai, because Ms C was upset, and they were waiting on them to arrive.
4.4. She said that while she had known the complainant as a customer from coming in and out and that he had been ok as a customer as far as she knew, he first came to her attention when Ms C spoke of a customer harassing her, though she said that she didn’t know who the customer involved had been at the time of this incident. She said that Ms C was very upset after the confrontation in question and that Ms D was also upset. As far as she knew, this was the first time the complainant had been barred but she added that Ms C had had been working for the respondent for 12 years and had not reported any other customers.
4.5. Ms Y said that disability was not a motivation in her thinking on the day in question. She said that she was aware the complainant’s invitation to treat had been revoked but it was not apparent that the complainant suffered from a disability, and she was not aware that he did. In that regard, she said that, though the complainant’s mannerisms were obvious at the hearing, his demeanour on the day in question was normal, though he was irate. She said she knew Mr X but he had never said anything to her about the complainant’s disability.
4.6. Ms Y said she had not participated in any investigation and did not did not know about the letter of 14 November, 2006, from the complainant.
Evidence of Ms Z
4.7. Ms. Z, a witness for the respondent, had been the supervisor of Ms. C prior to the incident in question. She described an incident involving Ms C and the complainant following which, she said, Ms C refused to serve the complainant anymore. She said that the complainant sent a letter to them regarding the incident in question also complaining about the incident in question. She said that she rang him and apologised for the way he was served. She indicated that this incident was unrelated to the incident which resulted in him being barred from the store. She said she had moved to a different store operated by the respondent by the time the incident complained of occurred.
Further submissions re incident in question
4.8. In further seeking to establish the time the incident took place, the respondent stated that the complainant was talking to a night security man on the day in question but the complainant denied this.
4.9. The respondent submitted a DVD to the Tribunal which, it submitted, showed that Mr B did not apply strong pressure to the complainant’s back, as alleged. It also submitted that it showed that the incident took place at a later time in the day than that alleged by the complainant.
Submissions re knowledge of complainant’s disability
4.10. The respondent submitted that none of its staff, and in particular its management staff, were aware that the complainant had a disability and the complainant had failed to present any evidence that would show that it was aware of his disability. In fact, it said that the complainant had not made it aware of his disability and, in that regard, disputed that the complainant had the alleged conversation with Mr. X, who was not present at the hearing. Furthermore, Mr B and Ms Y both stated that they knew Mr X and he had not told them about the complainant’s disability. The respondent added that, prior to the hearing, it was still unaware of the nature of the complainant’s disability. Furthermore, it said that the complainant normally presents very well and it wouldn’t be apparent that he was suffering from a disability and Mr B and Ms Y made statements at the hearing to this effect.
4.11. The respondent submitted that its policy towards people with disabilities, both customers and staff, was appropriate.
Submissions re Section 15
4.12. Section 15(1) of the Equal Status Acts (hereinafter referred to as “the Acts”) states, inter alia,: “…nothing in this Act…shall be construed as requiring a person to dispose of goods..or to provide services…to another person (the “customer”) in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods….or the provision of the services…to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought…”
4.13. The respondent denied that the complainant was excluded from the store because of his disability. However, it submitted that, even if the Tribunal was to find that it had discriminated against the complainant on the disability ground in that regard, it was entitled to its defence under Section 15(1) of the Acts as the complainant had previously engaged in disorderly behaviour at the store. In that regard, it submitted that the complainant was asked to leave as he had been identified by two members of staff, Ms C and Ms D, as someone whose invitation to shop in the store had previously been withdrawn because his behaviour towards them had made them feel somewhat uncomfortable. (In that regard, both Mr B and Ms Y stated that Ms C would not attend the hearing because she was terrified of him). It stated that it had a duty and obligation to protect its employees from disorderly conduct and was therefore entitled to take the steps it did in relation to the complainant. In any event, it said that any individual would have been treated the same way in the same circumstances.
Additional Submissions
4.14. The respondent said, in relation to the allegation that Ms C engaged in idle gossip, that she had never made a complaint despite being 12 years working for the respondent.
4.15. The respondent said it could not see how discrimination would have motivated the complainant being asked to leave. It said there was no logical basis for asking him to leave other than the real reason, being that outlined in par. 4.13 above. Therefore, the complainant was not treated any differently, or less favourably, than anyone else would have been treated in the same or similar circumstances. In addition, it stated that the individual involved in the incident was not aware of his disability. It said that the complainant functions in society, at least in the supermarket in question, and it is not readily apparent that he suffered from a disability and there are no visible signs of same. It submitted, therefore, that the complainant had not crossed the threshhold for establishing a prima facie case of either direct discrimination or a failure to provide reasonable accommodation.
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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Section 15(1)
5.2. The respondent submitted that the complainant’s past behaviour had caused it to withdraw its invitation to treat and, even if I were to find that it had discriminated, that it was nonetheless entitled under Section 15(1) to refuse permission to the complainant to continue to shop in its premises. In looking at whether the respondent is entitled to rely on Section 15(1), the question I have to consider is whether it was reasonable for it to conclude, based, inter alia, on its past experience with regard to the complainant, that there was a substantial risk of criminal or disorderly conduct by him if it allowed him to enter its premises.
5.3. It is clear that the complainant was barred by the respondent based solely on the word of Ms C and Ms D. However, neither of these witnesses were present to substantiate their allegations or to present themselves for cross-examination by the respondent. The evidence presented by the respondent in relation to the alleged incident involving the complainant that led him to have his invitation to treat withdrawn was almost entirely based on hearsay. I also note that, given that he had been barred from the premises where he had shopped for almost two decades without any explanation, the DVD provided by the respondent showed the complainant to be remarkably calm, though clearly upset. There was certainly nothing in the DVD in question to indicate that there was even a remote possibility that he might pose a substantial risk of criminal or disorderly conduct or behaviour or damage to property. His demeanour at the hearing attested to this, as did the testimony of the witnesses on his behalf. I am therefore satisfied that there is no credible evidence of the complainant having carried out any behaviour remotely approaching the high bar required for the respondent to avail of Section 15(1).
Discrimination
5.4. Both parties spent some considerable time focussing their submissions on a number of disputes: the extent, if any, of the physical contact applied by Mr B to the complainant; the time of day the incident took place; who called the Gardai and when they were called. However, these particular disputes are immaterial to the substance of the complaint before this Tribunal, which is that the respondent is alleged to have treated the complainant less favourably than another person, without a disability, or with a different disability, would have been treated in the same or similar circumstances.
5.5. I note that the allegations being made by the complainant rest on the premise that his treatment by Mr. B was, in some way, motivated by his disability. Even if Mr B was not aware of that disability, the complainant nonetheless submits that the reason for his being barred from the respondents premises was related to his disability and so ultimately led to Mr B taking the action that he did. I am satisfied that if the respondent was not aware of the complainant’s disability in that context, then it could not have discriminated against him on that ground, taking into account all the circumstances of the present case. Therefore, the key dispute in this particular complaint is whether or not the respondent was aware that the complainant had a disability. Only if I am satisfied that it was so aware do I need to consider whether the treatment of the complainant was less favourable on the disability ground.
5.6. I am satisfied based on the evidence presented that the complainant has a disability within the meaning of the Acts. I am also satisfied that the complainant has established that a person who became reasonably acquainted with him, but who hadn’t been told by him directly that he had a disability, nonetheless might reasonably become aware of his disability over time, through observation and/or inquiry of third parties. Conversely, I am satisfied, based on all the evidence presented to me regarding the present complaint that, in general, a person whose contact with the complainant was infrequent and/or only in passing would not necessarily conclude that he had a disability. I also note that, while the complainant did not keep his disability a secret, equally he did not advertise it widely.
5.7. It is therefore not enough for the complainant to say that he didn’t have a difficulty telling people about his disability, the inference being that, given how long he had been shopping in the respondent’s premises, the respondent should and would have known about it. The onus is on the complainant to prove his prima facie case and I am not satisfied that any of the respondent’s staff would have known him frequently enough and/or well enough to have become aware of his disability in the context outlined in the previous paragraph. In such circumstances, then, the onus is on the complainant to prove that he explicitly made the respondent aware that he had a disability.
5.8. While I am satisfied that the complainant informed Mr X of his disability, he was not involved in the incident in question and there was no evidence that he informed other members of staff of the complainants disability. In particular, there was no evidence that any member of the management of the respondent, or anyone directly involved in the incident in question, were told by Mr X that the complainant had a disability. I am also satisfied that it cannot properly be inferred from any of the evidence, including the testimony of the complainant, that he had made any existing member of the respondents staff, other than Mr X, aware of his disability.
5.9. Therefore, I do not, on the balance of probabilities, find that the complaint has proven that the respondent was aware of his disability in the context in which the alleged incidents of prohibited conduct took place, as outlined in paragraph 5.5 above. In that context, I must conclude that the treatment of the complainant by Mr B, or any other treatment of the complainant by the respondent in relation to the issues at stake in this complaint, was not connected with the complainant’s disability. Consequently, the respondent did not discriminate against him on that basis, and so the complainant has failed to establish a prima facie case of discrimination on the ground of disability and his complaint fails.
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 the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a) , 3(2)(g) and Section 5(1) of the Equal Status Acts.
6.3. Accordingly, the complainant’s case fails.
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Gary O’Doherty
Equality Officer
2 March 2010
Iarnrod Eireann -v- Mannion
[2010] IEHC 326 (27 July 2010)
Cite as: [2010] IEHC 326Judgment of Mr. Justice Hedigan delivered on the 27th day of July, 2010.
1. The applicant herein was the subject of complaints of alleged unlawful discrimination, harassment and victimisation made by the notice party herein. The respondent is an Equality Officer employed by the Equality Tribunal which is the body charged with investigating complaints of discrimination made pursuant to the Employment Equality Acts 2000 – 2008.
2. These proceedings arise out of a complaint to the Director of the Equality Tribunal by the notice party that the applicant had breached the Employment Equality Act 1998 – 2004 by discriminating against her on gender grounds in relation to her conditions of employment and in relation to access to promotion and further harassed and victimised her.
3. The notice party commenced work with C.I.E. in 1971. She trained as a computer programmer and worked in C.I.E.’s computer services department. She was one of three staff (and the only female) to be awarded a scholarship to U.C.D. to complete a degree in commerce. She attained first place in international marketing in her degree in 1984. C.I.E. sponsored her to do an MBS in international marketing the following year. She obtained first class honours. She joined C.I.E.’s marketing department and was involved with the task force that implemented the establishment of Iarnród Éireann. She complained that on her return from a career break in January 2003 her career trajectory took an unexpected and unexplained nosedive. She attributes this to discriminatory treatment on the basis of gender against her by the applicant.
4. Her complaint in that respect was received by the Equality Tribunal on 20th March, 2007. By a questionnaire dated 4th April, 2007 she requested information from the applicant pursuant to s. 76 of the Employment Equality Act 1998 as amended. The applicant did not respond to that questionnaire. They say this was due to “inadvertence”. She provided detailed particulars of her complaint by way of written submissions dated 19th December, 2007. The applicant responded to those submissions on the 21st January, 2008. Further submissions were made by the applicant in writing on 27th February, 2008. On 22nd May, 2008, the Director of the Equality Tribunal assigned the complaint to the respondent for investigation in accordance with the provisions of the Employment Equality Acts 2000 – 2008. On request, an equality review document was provided by the applicant. An oral hearing of the investigation took place on the 3rd December, 2008. Both applicant and the notice party attended and were legally represented. At this hearing, the respondent requested further details from both applicant and notice party relating to the evidence given and the submissions made. A written list of all the required documentation was prepared and read out at the hearing. It was agreed by both parties that this documentation would be provided. The respondent further wrote to the applicant by letter dated 5th December, 2009 setting out in that letter the documentation agreed to be provided. By letter of 9th January, 2009 the applicant’s solicitors responded enclosing some of the requested documentation. The applicant made further reply by letter of 13th January, 2009 and enclosed further categories of the requested documentation. Two of the categories that had been requested were not enclosed. These were:-
(a) The issue of whether budgets were available to employees in the applicant’s marketing section in circumstances where it was not denied that the notice party did not have any such budget.
(b) Whether the applicant had paid professional fees and expenses for persons reporting to the director of strategy and business development.
These two categories of documents were never made available to the Equality Officer and have not been produced to this Court. No explanations were made to the Equality Officer in relation to these documents. In these Court proceedings their absence was explained as follows:-
(a) Due to inadvertence the documentation under these two categories was overlooked. (Para. 9 of the grounding affidavit of Geraldine Finucane).
(b) There may not have been any documentation held by the respondent under these two categories. (Para. 9 of grounding affidavit of Geraldine Finucane).
(c) The reality is that the information sought would be extremely difficult to obtain and/or compile. (Para. 7 of replying affidavit of Geraldine Finucane).
5. By her decision dated 13th November, 2009 entitled Monica Murphy v. Iarnród Éireann EE/2007/128 the respondent decided that the applicant in these proceedings had breached the Employment Equality Acts 1998 – 2004 in the manner in which it had treated the notice party to these proceedings. The respondent decided as follows:-
(1) The applicant discriminated against the notice party in relation to her conditions of employment on the gender ground.
(2) The applicant discriminated against the notice party in relation to access to promotion on the gender ground.
(3) The applicant victimised the notice party.
6. The applicant’s complaint in this case is limited to that part of the decision in which the respondent found the applicant had discriminated against the notice party in relation to her conditions of employment on the gender ground. In the course of that part of the decision, on two occasions, the respondent stated that the applicant had failed to supply information or documents which she had sought and went on to draw inferences from that failure. The relevant passages are as follows:-
“4.4 I am satisfied the complainant was isolated from the rest of the marketing department (2.3 and 3.3). Her salary was paid out of the Human Resources allocation. She has not received any increments since 2003 as she is at the top point of graded scale. I requested the budgets available to Mr. A.’s direct reports as well as Mr. G. from 2003 to 2006. This information was not supplied to me so I may draw appropriate inferences. I accept the complainant’s contention (and the respondent did not deny this) that she was given no budget to spend on marketing campaigns. She had no staff reporting to her. The staff suggestion scheme which was her main duty was left dormant since January 2004 until Ms. Murphy was assigned it in March 2005. It clearly was not a business priority for Iarnród Éireann. This was not a role commensurate with the complainant’s marketing skills and experience. In direct evidence, Mr. A. admitted that since 2003 the complainant does not have a proper job title.”
“4.7 From the start the complainant saw the issue of non-payment of subscriptions in Iarnród Éireann as one of gender discrimination (2.7 and 3.2). … Ms. Murphy named a number of male colleagues in her area of work whose subscriptions continued to be paid. Iarnród Éireann did not dispute this. Iarnród Éireann did not present to me a written protocol for paying professional membership subscriptions for employees. Of course, Mr. A., as Ms. Murphy’s Line Manager has a right and responsibility to ensure public money [is] spent wisely. I requested the details of professional fees paid to all direct reports to Mr. A. from 2003 to 2008 to include sanctions and refusals of same. This information was not supplied to me and again I may draw appropriate inferences. I accept the complainant’s contention that professional fees were paid for her male colleagues. I find that the complainant has been treated less favourable than her male peers in the commercial area in relation to this issue. This along with Mr. A.’s refusal to sign off on annual leave and other expense claims (no evidence was presented that male direct reports were treated in the same way) and the exclusion of the complainant at the CILT dinner while entertaining male colleagues constitutes less favourable treatment on the ground of gender.”
The essence of the applicant’s complaint is that the respondent drew what she described as appropriate inference from its failure to supply details of budgets made available to Mr. A. and Mr. G. and also of its failure to provide details of any written protocol for paying professional membership subscriptions for employees.
It is to be noted that Iarnród Éireann did not at the hearing before the Equality Officer dispute that a number of named male colleagues of the notice party did have professional subscriptions continuing to be paid.
7. The case made by the applicant at this hearing was that the inferences made were the basis of the decision in respect of this particular aspect of the claim. They say that this decision by reason of the inferences made was ultra vires size=”2″ face=”Verdana”> and in breach of fair procedures.
The Decision of the Court
8. Ultra vires : The applicant argues that because the Equality Officer has power by statute to order information and materials to be produced she is precluded from making inferences in situations such as herein where the documentation was agreed to be produced. It is argued that where the documents are not produced she may not make inferences but must instead invoke those statutory powers.
9. Fair procedures: The applicant argues that the respondent should have warned the applicant that she intended to make such inferences.
10. It seems to me that the first matter to be considered herein is as to whether the inferences made by the respondent in her decision did in fact form the basis of that decision. In this regard, apart from the inferences of which the applicant complains, the Equality Officer in addressing whether or not the notice party was discriminated against in relation to her conditions of employment, also noted that she was satisfied that the complainant was isolated from the rest of the marketing department, that her salary was paid out of Human Resources allocation, that she had not received any increments since 2003, that she had no staff reporting to her, and that the main duty assigned to her was one which had lain dormant since fifteen months prior to being assigned to Ms. Murphy. She noted that Mr. A. had admitted that since 2003 the complainant did not have a proper job title. The information agreed to be but not provided was as to what budgets were available to equivalent colleagues to Ms. Murphy. It was not denied by the applicant that she was given no budget to spend on marketing campaigns. It is clear therefore that this complaint in relation to the lack of a budget, is very far from being the only complaint upon which the respondent made her decision. Moreover, an inference that there were budgets available to Mr. A. and Mr. G. would appear to be inescapable from the fact that although asked to provide details of the same in the light of the non-availability of the same for the complainant, the applicant herein had provided no such information and no explanation for failing to do so. As to the second part of this complaint, the applicant had not in fact disputed that a number of Ms. Murphy’s male colleagues did have their professional subscriptions paid. No issue therefore arises in relation to this finding. No inference was necessary to prove something on which there was no disagreement. In the result it is clear that in the decision she made, the inference related to only one part of the grounds on which she found against the applicant. There was ample additional evidence. Moreover, the inference in respect of budgets seems an inevitable one to be made and beyond criticism. This finding on its own disposes of the case. However, as the other matters hereafter were extensively argued before me I think I should express a view on them:-
Ultra vires
It seems to me that the fact that the Equality Officer has powers to compel parties to provide documents or information could never be taken to mean she cannot request and accept an agreement to provide them. A commonsense approach to the conduct of administrative proceedings which allows them to proceed in as informal a way as is possible is, generally, the right approach. The powers that are provided are to enable the Equality Officer deal with recalcitrant parties. Nothing in the statute prohibits the Equality Officer from requesting and accepting informal agreement to provide documentation. Where subsequently one of the parties fails to honour their agreement to provide some of that documentation, basic principles seem to me to dictate that she could do either one of two things. She could make an order under s. 94 or she could proceed without any order to draw any reasonable inference from the failure of the party in question to provide such documentation or an explanation in their absence. The obvious inference is that the document either does not exist or is not supportive of the case the party seeks to make. Such inference may be made in any decision making process. There can certainly be no duty on any deciding officer when coming to draft their decision following a hearing to revert back to such a defaulting party seeking an explanation of their default. The hearing is ended, the opportunity to provide agreed documentation has been given and responsibility rests upon the head of the defaulting party in respect of any reasonable inferences that may properly be drawn from their failure to provide agreed documentation.
11. Fairness of procedures
The list of cases cited to me does indeed establish that parties before administrative tribunals are entitled to fair procedures. This is well established law and needs no further elaboration. None of these cases, however, refer to circumstances similar to those that exist here. The Irish case law shows that the fairness of procedures inevitably varies according to the nature of those proceedings. In determining cases of alleged discrimination, it is well recognised that special evidential difficulties may arise from the very nature of discrimination itself. This is often hidden or unrecognised by the party alleged to discriminate. In King v. Great Britain China Centre [1992] ICR 516 at 528 – 529, Neill L.J. stated as follows:-
“(2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’.
(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw … from an evasive or equivocal reply to a questionnaire.”
This statement of the law was approved by the House of Lords in Glasgow City Council v. Zafar [1998] 2 All ER 953 where Browne-Wilkinson L.J. stated at p. 958 that complaints of racial discrimination:-
“… present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them.”
Both of these decisions were cited with approval by Quirke J. in Davis v. DIT (Unreported, High Court, 23rd June, 2000). I also gratefully adopt the rationale of these two decisions.
12. Inferences are a legitimate part of any decision making process. There are undoubtedly limits. However, to show on judicial review that inferences made were a violation of a party’s right to fair procedures it would be necessary for the party so alleging to show those inferences were not properly made. To do this, the applicant would have to show by some evidence that the inference made was clearly wrong and was an essential part of the ultimate decision made. Neither element has been shown here. In the first place the inference obviously drawn was that the documentation in question did not support the applicant’s case. In the light of the fact that the documentation has never been produced even at this hearing when it was central to the application, demonstrates beyond doubt in my view that such an inference was correct. As to the second part of the above, it is clear on any reading of the decision that the inference was but a small part of the reasoning behind the decision that the applicant discriminated against the notice party in relation to her conditions of employment. By no stretch of the imagination could it be regarded as essential.
13. It must be noted that the applicant in these proceedings, including during the hearing when questioned about it, has studiously avoided any reference to the contents of the documentation in question. This silence is impossible to justify. If the documentation is of no evidential value or does not exist then the Equality Officer and this Court should have been told so. If the documentation does exist but is unfavourable to the applicant, then the applicant is concealing evidence from both the Equality Officer and this Court. If the applicant as stated in the replying affidavit of Geraldine Finucane considers it would be too much trouble to comply with their agreement to produce, then this is a manifest disrespect to the Equality Officer who is exercising functions with which she is charged by the Oireachtas. It is also manifestly disrespectful to this Court. Any one of the above scenario constitutes conduct by the applicant so unacceptable that I cannot conceive of any Court exercising its discretion in judicial review in their favour even were it persuaded that the application had any merit. In my view however, for the reasons outlined above, this application is devoid of merit either in law or on the facts.
The application is refused.
Equal Status Acts 2000-2008
Decision
DEC-S2011-056
Walczak v Community Welfare Services, HSE West
File Reference: ES/2010/089
Date of Issue: 30/11/2011
Decision
DEC-S2011-056
Key words
Equal Status Act, 2000 – 2008, Direct discrimination, Section 3(1) – less favourable treatment, Race – 3(2)(h) – provision of a service, Section 5(1), no prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 24th of August 2010. On the 17th of August 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On this date my investigation commenced. A submission was received from the complainant on the 24th of August 2010 and the 8th of August 2011 and from the respondent on the 5th April 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 7th of September 2011. The final correspondence was received from the respondent on the 3rd October 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the race ground in relation to the services provided by the Community Welfare Services. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant’s Case
2.1 The complainant, a Polish national, referred a complaint to the Equality Tribunal claiming that the respondent discriminated against him in relation to his application for rent supplement allowance. The complainant’s wife applied for the allowance after he and his wife were made redundant and they were granted it without any difficulty. They received same for the period 16th November 2009 until 22nd May 2010. He said that their financial situation was assessed in April 2010 and he understood that assessment was valid and gave them an entitlement to rent supplement allowance up until November 2010.
2.2 The complainant said that he spoke to the Community Welfare Officer in May 2010 about changing house, because the house the family was living in was damp and cold and it was difficult to heat. The complainant said that he went into the office and spoke to the CWO and he gave him a letter dated 6th May 2010 outlining the reasons he wanted to change. He said that the CWO understood the reason they wanted to change the house and he stamped their application. He said that he understood, after that conversation, that he could change house and it would not affect the rent supplement allowance. They changed house on the 14th May 2010 and on the 22nd May 2010 the rent supplement was stopped.
2.3 The complainant said that he believed that he had met the criteria for the payment of rent supplement. The complainant said that a letter of approval for local authority housing from Galway County Council was with the CWO since 6th June 2009. They were not informed that they required a new assessment letter at the time they spoke to the CWO. On the 17th of June 2010 his wife wrote to the CWO enquiring why the rent supplement was stopped and outlining the difficulties this had caused to the family. They were informed that they needed a new housing assessment from Galway County Council and this was provided on the 17th of June and immediately forwarded to the CWO. However the rent supplement was not reinstated. The complainant said that they received a letter from the Superintendent of the CWO on the 21st June 2010 refusing their application for rent supplement because they did not meet the criteria i.e. be residing in the private rented accommodation for a period of 183 days within the proceeding twelve months of the date of the claim for rent supplement, or have an assessment of housing needs carried out by the relevant local authority within 12 months of the date of the claim and is deemed eligible for and in need of social housing. The complainant was informed of his right to appeal. The complainant and his wife appealed the decision to the Appeals Officer on the 24th June 2010 and they also complained that they considered that the treatment by the respondent was discriminatory. On the 5th July 2010 the complainant sent a notification under the Equal Status Acts to the respondent complaining about discriminatory treatment.
2.4 The complainant’s wife was awarded rent supplement by letter dated the 6th September 2010 which was backdated to the 6th of May 2010. The complainant submits that he was discriminated against on the race ground in that he believes that Irish people applying for rent supplement or other benefits did not experience the same delay as he did. He attaches the blame for the delay to the CWO and stated that this was the second time that he was made wait for approval from this office. He said that he applied for supplementary welfare allowance in 2009 and he had to wait 3 months for payment.
3 Respondent’s Case
3.1 The respondent denies that the complainant was discriminated against. It was submitted by the General Manager of the respondent that the delay in paying the rent supplement to the complainant and his wife occurred because of an administrative error. The complainant, in February 2009 and his wife in March 2009 made an application for supplementary welfare allowance to the CWO and his wife also made an application for rent supplement. Rent supplement was paid from the 2nd March 2009 until 13th June 2009. Payment ceased when confirmation was received by the CWO that the complainant’s wife was in full time employment and therefore did not qualify for rent supplement. The complainant appealed this decision and also complained by email dated 5th August 2009 that he had not been awarded supplementary welfare allowance on foot of an application he made in June 2009.
3.2 Following receipt of this complaint the CWO contacted the complainant and advised him that no application had been made in June 2009 for supplementary welfare allowance. The complainant then applied for the basic Supplementary Welfare Allowance on the 3rd of September 2009. Following a means test of his wife’s earnings a supplementary welfare allowance in the amount of €70.90 was paid to the complainant. A further application for rent supplement was made in November 2009 and this was granted by the CWO on the 16th November 2009. On the 6th May 2010 the respondent received an application from the complainant’s wife for supplementary welfare allowance and rent supplement. The CWO said that he probably spoke to complainant or his wife about the regulations for rent supplement. As there was no housing need letter from the Local Authority attached to the claim, the claim was processed and sent to the Superintendent CWO for decision.
3.3 On the 21st June 2010, in a letter to the complainant, the respondent in refusing the application stated that the complainant and his wife had failed to satisfy the conditions for paying a rent supplement. The respondent stated in evidence that this letter should not have been issued because at that stage the respondent had a letter from Galway County Council confirming that the complainant had a housing assessment and was in need of housing. The complainant’s wife contacted the CWO’s office on the 17th June 2010 and she was informed that she needed a letter from her Local authority before the CWO could process her rent supplement application. This letter was received on the 21st June 2010 in the CWO office in Loughrea but it was not associated with the file because the file was in Galway with the Superintendent and she issued the letter of refusal on the 21st June unaware that the letter was in the Loughrea office. The file was then returned to the Loughrea office and the CWO, who was on holiday when the housing need assessment letter was delivered to the Loughrea office, was not aware this letter arrived and the complainant’s file was put away. On the 24th June the complainant appealed the decision to refuse the rent supplement and the appeals officer requested a copy of all the documentation pertinent to the appeal and also a report from the Superintendent CWO.
3.4 The CWO, on the 20th July 2010, contacted the complainant’s wife to give them a further opportunity to provide a housing needs assessment. The one already provided had still not been associated with the file. The complainant’s wife then submitted the letter from Galway County Council dated the 21st June but she failed to mention that she had already provided it to the office while the CWO was on holidays and the CWO then submitted the file to the Superintendent for approval for the payment of rent supplement as the conditions were now met. When the file arrived in the Superintendents office, she understood it was submitted in relation to the appeal, and the file was put in the appeals tray in her office rather than the approval tray and the claim was not put forward for payment. The application for rent supplement was eventually granted by letter dated the 6th September 2010 and was backdated to the 10th May 2010. In the letter the respondent apologised for the delay in processing the claim. The CWO denied that he discriminated against the complainant and said that he usually deals with his wife whom he has a good relationship with. He said that he administers all the services provided in accordance with the regulations and applies them equally to all applicants regardless of their nationality. It was submitted that there was no documentation requested of the complainant that was not requested from all other applicants regardless of their nationality and part of the delay can be attributed to the complainant not initially providing all the supporting documentation required.
3.5 The respondent submits that the delay in processing the application was due to an administrative error and was not discriminatory treatment due to the complainant’s nationality. They also submitted that the CWO office was under severe pressure from the large increase in all claims being processed by the office e.g. there was a 51% increase in new claims for rent supplement in the period 2007 to 2010 and similar increases in demand for other services provided by the office. About 40% of their customers are non Irish and of these they provide assistance to about 40 Polish people. It was submitted that applicants are refused rent supplement because they do not meet the requirements to qualify including the means test and the habitual residency requirement, but they are never refused rent supplement because of their race. The GM said that at the moment he is dealing with 2 cases of Irish applicants whose documentation went astray in their system. He said that there are always some level of complaints about the operation of the service but given the huge increase in demand for services the volume of complaints are lower than expected.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified… (in this case the race ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) provides that: as between any two persons, the discriminatory grounds … are … that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),” and
Section 5. — (1) provides: ” 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 burden of proof is set out in Section 38A which provides:
38A. — (1)” Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”
4.2 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. The matter for consideration is whether the delay in approving the complainant’s application for rent supplement amounts to discriminatory treatment ion the race ground contrary to the ES Acts.
4.3 In order for the complainant to establish that he was discriminated against on the race ground he has to submit some evidence that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances. The complainant submits that he was discriminated against on the grounds of his race when the respondent cut off the rent supplement when he and his family moved house with the permission of the respondent because the house they were living in was damp and cold. Furthermore he submits there was a delay of over 4 months by the respondent in approving their application for rent supplement for their new house. Despite having submitted the documentation to the respondent and contacting the CWO office in person and by email, the complainant claims that the respondent did not allow their application in a timely manner and did everything to say that they were ineligible. The respondent accepts that there was a delay in awarding the rent supplement and it arose because of an administrative error which was eventually corrected. The respondent submitted that they apologised by letter to the complainant’s wife about the delay and explained the reason and the delay was in no way connected to the complainant’s nationality.
4.4 Having examined all the evidence presented to me including all the documentation in relation to the application for the rent supplement, I can find no evidence that the treatment of the complainant was in any way motivated by the complainant’s nationality. The complainant has presented no evidence to establish less favourable treatment on the race ground. I note from the respondent’s evidence that they have received complaints about the services they provide from both Irish people and non-nationals and at the time of the hearing the GM said that he was dealing with a similar complaint from two Irish nationals whose documentation was lost in the system. It is clear that the respondent’s evidence that the CWO office experience a great increase in applications for services from 2007 onwards resulting in delays in approving and providing the services. However, I am satisfied from the evidence in this case that the delay was caused by a series of administrative errors and the lack of clarity in the communications with the complainant. While the handling of the application for rent supplement by the respondent was careless and inconsiderate, I am satisfied it was not discriminatory. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.
5. Decision
5.1 I find that the complainant was not discriminated against on the race ground and contrary to the Equal Status Acts.
I recommend that the respondent reviews their procedures and to put systems in place to ensure that such administrative errors do not occur in the future, and where English is not the first language of applicants that the procedures and the supporting documentation required by applicants for such services are clearly communicated and explained.
___________________
Marian Duffy
Equality Officer
30th November 2011
DEC-S2007-008 – Full Case Report
Equal Status Act 2000-2004
Equality Officer Decision DEC-S2007-08
Stanev v Pearse College
Keywords
Equal Status Acts 2000-2004- Direct discrimination, Section 3(1)(a)- Gender Ground and Race Ground, Section 3(2)(a) and 3(2) (h)- “Eviction”, Suspension, Expulsion- Section 5(1)- Discrimination in relation to service provision
Delegation under the Equal Status Act 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000-2004. 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 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 -2004. The hearing of the case took place in Dublin on 7th December, 2006.
1. Dispute
1.1 The complainant alleges that he was subjected to discriminatory treatment when he was sent home from college on 8th November 2004 and subsequently when conditions were laid down governing his return. He maintains that this treatment is in breach of the Equal Status Act 2000-2004 in terms of Sections 3 (2) (a) and 3(2) (h) and contrary to Section 5 (1) of the Act, i.e. that he was refused access to goods and services because of his gender and race.
2. Summary of the Complainant’s Case
2.1 The complainant is a Bulgarian national who has lived in Ireland for a number of years. He was pursuing a course of study in the respondent college with a view to gaining a qualification with which he could set up his own business. In November 2004 he was told at a party by a fellow student (A), that another student in the college (B), had said that the complainant was a pervert. He was angered and distressed by this information. The incident arose following contact the complainant had made with a female student (C) with a view to establishing a friendship. That student had not responded to his approach.
2.2 He said that he went to the Principal of the college seeking assistance in dealing with the issue and was told by her that she would take advice on the matter and that he should set out what had happened in writing.
2.3 When he met student (A) again, he demanded that student (A) tell him who had made the remark. He said he suspected he knew who had said it but he wanted to be absolutely sure before he took any action in this regard. The complainant said that student (A) told him that he would let him know and show him who had said it. The complainant said that for the following few days students (A), (B) and (C) were absent from the college and when he met student (A) again he refused to show him the student (B) who had made the allegation against him. He said that he became angry and that an argument broke out between him and student (A). The complainant said he approached the principal again but that on this occasion he felt that the finger of blame was being pointed at him in relation to what had occurred. He was told that he should leave the college and return the following Monday to discuss matters with the Principal.
2.4 On the following Monday when he met with the Principal he was told that the whole matter was a misunderstanding and that there had been no slander. He refused to accept this explanation and the Principal then issued him with a note instructing him to leave the college for a “cooling off” period and to return the following Monday. He received another letter in the interim from the Principal stating that she had found no basis for his complaint and that the meeting the following Monday could only take place “if you accept my explanation of recent events and are prepared to guarantee that your future behaviour is in keeping with the rules of the college…” Mr. Stanev did not attend for the meeting. A series of strongly worded letters were exchanged between him and the Principal over a number of the following months and he has not returned to the college. Mr. Stanev’s view is that the reason for his exclusion from the college was mainly on the ground of race although since the party he was in dispute with was a woman he also believes that there was a gender dimension to his treatment. He said that he believes the Principal had twisted the situation to defend student (B) who was Irish and a female and that he was blamed for what had happened because he was a foreigner and that racism is a hatred of foreigners. When asked if he would return to the college now he said he had not considered it. He has not been able to continue with his studies since the incident partially due to financial constraints and he is not working at present. He said that the situation has caused him great stress. He did not know if there had been similar treatment of other students of his ethnic background at the school or of Irish students.
3. Summary of the Respondent’s case
3.1 The Principal of the college said that the complainant had not come to her particular attention in his time at college before the incident complained of, apart from an incident during the previous year when he was peripherally involved in defending a female student who was in dispute with another girl. She was unaware of the complainant’s nationality until the circumstances surrounding the incident complained of blew up and his application form to attend the college came to her attention. She said that there are over 80 international students attending the college out of a student complement of 540.
3.2 She said that the complainant approached her regarding the remarks made just prior to the mid term break when the college would be closed for a week. She understood that there had been a social event organised by the student council in a bar in the centre of Dublin and the original allegation that the complainant was a pervert had been made there. She told the complainant that she needed time to consider the situation and to take advice. The college was closed for a number of days due to the mid-term break and after initially trying to contact the VEC head office without success she decided to let the matter rest until after the mid term break. On receipt of advice she told the complainant to put his complaint in writing. She received this a day or two later and she forwarded it to head office seeking advice. The advice received was that if the matter had occurred outside the college she should not get involved. The complainant demanded that the matter be investigated and in a meeting in her office an argument developed where strong language was used and the complainant was ultimately asked to leave.
3.3 Following this she took written statements from students (A), (B) and (C) and made a decision on the complaint made. The statements of the students were not made available to the complainant for comment at the time (and on the evidence it would appear that their existence only came to his attention in the lead up to the hearing of this matter). The principal said that the normal policy for dealing with complaints from students was to question the student making the complaint and then to consult with the person with whom the complaint was against and to come back to the student making the complaint about it. In relation to the race or gender dimension to this complaint she said that the only person who had raised these issues was Mr. Stanev, the complainant. She said that he had called her a racist, a label which she considered to be discriminatory against her but she let it go. She said as far as she was aware the complaint made by Mr. Stanev to her was handled no differently than the way she would handle a complaint from any student. She said there had been about two incidents of a similar nature in the college neither of which involved the complainant and they were dealt with in a similar manner to the incident involving the complainant. Generally, she said that there were no more that one or two incidents in a year.
3.4 The principal said that the suspensions or expulsions would not occur in the college as there were specific regulations set down by the VEC that stipulated that such actions would have to come before the board of the college for decision and therefore, she would not have been in a position to impose such a sanction on a student herself. She said that a student could be asked to leave temporarily to allow time to arrange a meeting, where a sensible discussion on the issues in dispute could take place. She said that this was what was involved in Mr. Stanev being sent home. She said she was concerned for Mr. Stanev’s fellow students on the grounds of health and safety and she wanted to be sure that when he returned he would abide by her decision and behave in a manner that was compliant with VEC rules. Mr. Stanev refused to attend the meeting and a number of letters were exchanged between the parties since then. The principal stated that her position in regard to Mr. Stanev’s return to college remained that Mr. Stanev could return to the college if he complied with the registration requirements and his behaviour did not conflict with the rules laid down by the VEC. She said that he was not discriminated against on either the ground of gender or race.
4. Conclusions of the Equality Officer
4.1 At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that he is covered by the relevant discriminatory grounds i.e. in this case the gender and the race grounds. It must also be established that the actions complained of actually occurred and finally it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not covered by the discriminatory grounds referred to above. He must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainant if it is to fail.
4.2 With regard to the first of the criteria, I accept that the complainant satisfies the criterion set down above at para 4.1 above, in that he is of a different gender to some and of a different ethnic origin to the other students with whom he compared his treatment with, i.e. students (A), (B), and (C). I do not accept, however, that the fact that the respondent i.e. the principal’s gender is different from the complainant is sufficient to ground his complaint on gender and at times this was the proposition made by the complainant. I do accept, however, that the principal ground of complaint asserted by Mr. Stanev is that of race and that he believes that the treatment afforded to him by the college in response to his request for an investigation was rooted in his ethnic origin and that any allegation of gender based discrimination may be secondary to this. I am satisfied that there is sufficient evidence to support the second criterion that of specific treatment in that the complainant was asked to leave the college premises on the day of the meeting with the principal. What occurred subsequent to this including his failure to return to the college under the conditions laid down leads me to consideration of the third criterion outlined, that is the test of less favourable treatment being afforded to the complainant than that which would be provided to another person in similar circumstances who is of another gender or race (ethnicity).
4.3 The facts of this case are that the complainant sought to have the incident where it is alleged he was described in a derogatory and offensive manner by fellow students investigated and dealt with within the college where they were attending. He pursued the investigation by reporting the incident to the college principal and by conversations with one particular student about the matter. This led to a heated exchange between him and other students which resulted in him being summoned to the college authorities i.e. principal and vice principal. Following on this meeting the principal conducted an investigation through interviews with the students with whom the complainant associated the offensive remark and made a decision on the merits of Mr. Stanev’s grievance arising from statements made by the parties concerned. The outcome was that, on communicating her decision to the complainant, a number of conditions were laid down governing his resumption of his course of study. The complainant Mr. Stanev has refused to accept the decision of the principal believing it to be grounded in racial and possibly gender discrimination. He, therefore, has not returned to the college.
4.4 The manner in which the incident reported by Mr. Stanev was dealt with by the principal gives rise to some concern regarding his access to the statements made by the other students to the principal during her enquiries. It is noted that he was not informed that these statements were actually made until a submission was made by the respondent in the lead up to the hearing of this case and he did not see them until the day of the hearing, when they were provided to him when a request do so was made. He, consequently, had no basis on which to assess the reasoning underpinning the decision made, nor had he an opportunity to assess in his own right the version of the incident presented by students (A), (B) and (C). While it is acknowledged that the principal’s enquiries were made within the context of an educational/school type environment, the students concerned were adults, pursuing tertiary education, having at a minimum completed the second level. My conclusion from all of the evidence considered in this case is that while the enquiries were made in good faith by the principal with a view to bringing a swift conclusion to the issue, the approach taken may have only served to exacerbate the frustration and anger already felt by the complainant. While this approach may have been more appropriate if one were dealing with minors, it failed to take account of an adult’s legitimate expectation of what would constitute fair procedures in such circumstances. I should, however, also note that the tone of the complainant in the series of letters to the principal in the aftermath of the incident went beyond mere anger and frustration.
4.5 It remains for me to determine whether what happened was less favourable treatment within the criteria outlined at para 4.1.Having carefully considered the evidence presented by both parties I have concluded that the approach taken by the principal which resulted in the complainant leaving the college and not returning to date is the approach that would have been taken to dealing with a similar situation involving any student regardless of gender of race/ethnic origin and consequently while it was in my view imprudent it was not discriminatory on the grounds complained of. Accordingly the complainant has not established a prima facie case of discrimination.
4.6 I note particularly that the college would still be open to an approach from Mr. Stanev to return to complete his studies subject to compliance with the rules of the VEC and I would hope that he would consider this option so that he could pursue his desire to set up his business, and that the college could facilitate a trouble-free return if he chooses to take this opportunity.
5. Decision
5.1 The complainant, having failed to establish a prima facie case of discrimination on the gender and race grounds cannot succeed in his complaint (ES/2004/0235) and accordingly my finding is for the respondent in this case (DEC-S2007-08)
Mary O’Callaghan
Equality Officer
2nd February2007
DEC-S2003-029 Full Case Report
Bridget O’Brien v Iarnród Eireann/Irish Rail
1. Dispute
This dispute concerns a complaint by Ms Bridget O’Brien that she was discriminated against, contrary to the Equal Status Act 2000, by Iarnród Eireann. The complainant maintains that she was discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000.
2. Summary of the Complainant’s Case
This dispute concerns a complaint by Bridget O’Brien that, while travelling on an Iarnrod Eireann service from Tralee to Dublin on 26 July 2001, she was accused of complicity in the theft of another passenger’s luggage. She says that, without any prior notification of the allegation, she was removed from the train at Portlaoise where a Garda subjected her luggage to a search on the platform. Ms O’Brien believes that she was treated in this manner because she was recognised as a member of the Traveller community.
3. Summary of Respondent’s Case
3.1 The respondents reject that they discriminated against the complainant and maintained that she was treated the same way as anyone else would have been treated in similar circumstances.
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 Evidence of Complainant, Bridget O’Brien
Mrs O’Brien travels from Tralee to Dublin several times each year to visit relatives.
On 26 July 2001, she boarded the train in Tralee after 6 pm and was accompanied by her son (9) and her daughter (8).
Mrs O’Brien had some clothes and personal items with her in a black plastic sack.
They changed trains at Mallow around 8 pm where she sat in a smoking carriage
Shortly after the train left Mallow, there was an announcement about a passenger having lost some luggage
During the early part of the journey, her children left her carriage to go to the shop a few carriages away
Some time after the announcement, the Ticket Collector came into her carriage and starting searching the luggage compartment over her head and the space under her seat.
He did not search the area around other passengers as thoroughly.
The Ticket Collector did not speak to her while he was conducting his search.
As the train was pulling into Portlaoise station,, she heard the Ticket Collector roaring
” Where’s the bag?” at her son who was returning from the toilet
She immediately asked the Ticket Collector why he was accusing her son but got no reply
The Ticket Collector made no reference to the fact that an allegation had been made against her and her children, nor was she told that the Gardai had been summoned
There was no doubt in her mind, from the Ticket Collector’s attitude and the manner in which he dealt with her children, that he recognised them as Travellers
The Ticket Collector then left her and went to talk to some Gardai who were on the platform
Two of the Gardai then boarded the train and asked her to step onto the platform with her luggage (a black sack containing mainly clothes).
On the platform, the Gardai told her an allegation of larceny had been made against her and asked her to empty her black sack. A Garda then went through her belongings .
The Garda then told her everything was in order and that she could put everything back in her bag and reboard the train.
She was highly embarrassed as the search on the platform was conducted in full view of other passengers sitting on the train.
This search was overseen by the Ticket Collector. Also present was the passenger whose luggage had been stolen. This was the first time that she had seen this gentleman on the train.
She said to the Garda that she had been discriminated against and victimised. In response, the Garda told her she “had nothing to be ashamed of”.
She asked the Garda for his name and got back on the train
The Ticket Collector did not speak to her after that.
She received no apology from the Ticket Collector nor anyone else, nor has anyone from CIE contacted her since about the incident.
Mrs O’Brien has travelled on the Tralee to Dublin service a few times since
Evidence of Respondents – Michael Anderson, District Manager
Iarnród Eireann, normally have a Driver, Ticket Collector and a Train Guard on board the Mallow to Dublin train
In situations where incidents occur (thefts, trouble etc) the Ticket Collector or Guard call the Driver and ask him to arrange for the Gardai to meet the train at the next convenient station.
In such situations, the driver usually contacts the Central Traffic Control Office in Dublin who make the necessary arrangements with the Gardai. Every effort is made to keep the train running on schedule
The Company have built up a good working relationship with the Gardai, in relation to these incidents, over the years.
All front line staff have now received training in the provisions of the Equal Status Act 2000.
In 2002, the company developed an awareness training program on cultural diversity for all front-line staff. These courses are held in Inchicore and presented by the company’s equality officer. This training had not commenced at the time of this complaint in July 2001.
Evidence of Respondent – Gareth Nolan, Ticket Collector
Mr Nolan was on duty on the Mallow to Dublin evening train on Thursday 26 July 2001
He recalls that the service was running behind schedule that night. The train was waiting in Mallow for about 15 minutes before departing
41 passengers (including Mrs O’Brien and her children) transferred from the Tralee train at Mallow while 60 others boarded at Mallow itself.
Several minutes before the train left Mallow station, a male passenger reported to Mr Nolan that his luggage had been stolen. The passenger described it as a black shoulder bag
The passenger said that he had left it on the train and that it had gone missing while he was in the toilet.
When Mr Nolan suggested that perhaps he had left it on the platform, they both alighted from the train, checked the platform but found nothing.
They both then reboarded the train and Mr Nolan told the passenger that he would help him search for his luggage after he had finished checking tickets.
While checking tickets, Mr Nolan recalls seeing Mrs O’Brien and her children.
He specifically remembers the children running around and recalls asking the girl to sit down as she was barefoot and he was concerned that she might cut her feet.
He did not recognise the family as Travellers at the time and did not discover this until the Gardai were speaking to Mrs O’Brien on the platform
When he was finished checking tickets, he spoke again to the passenger who had lost his luggage and asked him whether he suspected anyone in particular
The passenger said that he himself had not seen anyone near his luggage but had a suspicion that Mrs O’Brien and her children may have had some involvement.
The passenger then told Mr Nolan that he had spoken to two other passengers who were sitting near him who had told him they were suspicious of two children they had seen going up and down the carriage. The two passengers had admitted to the passenger, however, that they had not seen the children go near his luggage.
When Mr Nolan asked the passenger how sure he was about the accusation, the passenger replied that it was “50/50”
The passenger did not identify the two passenger witnesses to Mr Nolan nor did Mr Nolan ask who they were.
On the basis of this information, the passenger insisted that Mr Nolan should check to see if there was any evidence that the children, who Mr Nolan had identified as belonging to Mrs O’Brien, had taken his luggage.
Mr Nolan informed the passenger that “the law is very tricky” with regard to this type of situation and asked him whether he had any hard evidence. The passenger repeated that he was going on the word of the two passengers who had “surmised” that the children had been involved
Mr Nolan then undertook a thorough search of the train, including Mrs O’Brien’s carriage. He checked all the luggage racks in Mrs O’Brien’s carriage and did not treat her any differently than other passengers.
Mr Nolan gave Mrs O’Brien no indication that any allegation had been made against her or her children
Having failed to locate the luggage, the passenger insisted that the Gardai be called to search Mrs O’Brien
Mr Nolan again warned the passenger that he should be careful, unless he had any hard evidence, as “the law was tricky” but the passenger insisted that he wanted the Gardai.
Mr Nolan said that he was reluctant to ask for a specific search of one passenger and suggested that the Gardai be asked to carry out a full search of the train. The passenger, however, insisted that the Gardai should concentrate on Mrs O’Brien as, in his opinion, she was the prime suspect. On account of the passenger’s insistence, Mr Nolan felt that he was obliged to act on the passenger’s request.
Mr Nolan then asked the Train Guard to radio for the Gardai to meet the train in Portlaoise.
As they were pulling into Portlaoise, Mr Nolan said that Mrs O’Brien’s son made a comment to him in the carriage. Mr Nolan thought the boy said that “he had found the bag” and asked him where it was. At that point Mrs O’Brien interjected and said “Don’t accuse my son” .
He then went out onto the platform to speak to the two Gardai who were waiting
Mr Nolan informed the Gardai that a passenger had asked for the Gardai to be called as he suspected a lady of stealing his luggage
Mr Nolan explained to the Gardai that he himself would prefer if the Gardai searched the whole train
He then identified Mrs O’Brien to the Gardai and they asked her to step off the train with her luggage which was in a black plastic bag
The Gardai searched Mrs O’Brien’s bag but found nothing
The passenger whose luggage was missing watched proceedings but made no comment
Mr Nolan did not take the passenger’s name or details
He did not make a written record of the incident
Mr Nolan did not speak to Mrs O’Brien after the Garda search
Mr Nolan is not aware of anyone from CIE having contacted or apologised to Mrs O’Brien since the incident.
To Mr Nolan’s knowledge the luggage was never found
At the Hearing, the respondents could not produce the name of the passenger who made the allegation against Mrs O’Brien
Evidence of Respondents Mark Phelan, Station Guard, Portlaoise
On foot of a call from the Central Control Office, Mr Phelan arranged for the Gardai to come to the station
He had been told that a passenger had had his luggage stolen and that he knew who had taken it and wanted the Gardai to search the lady in question
At the station, the Gardai first spoke to the passenger concerned before boarding the train and asking Mrs O’Brien to get off the train
The train was delayed for about 15 minutes while the Gardai searched Mrs O’Brien’s luggage and took the names of those involved
Evidence of Garda Liam Campbell
At 9.45 pm on Thursday 26 July 2001, Garda Campbell received instructions to go to Portlaoise Station to investigate an allegation involving larceny of items and money on the Cork to Dublin train
At the station, Mr Nolan met him and told him that a passport and some Irish and German money had been taken from a male passenger’s luggage
The passenger, whose name Garda Campbell was able to produce at the Hearing, spoke to him and told him that the items had been taken at Mallow station
Garda Campbell recalls the passenger showing him a luggage bag from which the items were taken
The passenger identified Mrs O’Brien as the suspect and referred to her two children who had been running around
When Garda Campbell asked whether there were any witnesses, the passenger told him that there were two clear witnesses to support the allegation. Garda Campbell got the impression that one of them was a CIE employee
Garda Campbell asked to speak to the witnesses but neither could be located
While the non-production of the witnesses gave him some cause for concern, he was persuaded from the evidence of the passenger and Mr Nolan, that Mrs O’Brien was a realistic suspect
Mr Nolan then led Garda Campbell to Ms O’Brien on the train.
Garda Campbell asked Ms O’Brien if he could speak to her on the platform, as other passengers were within earshot
On the platform Garda Campbell outlined the complaint to her and told her that he had been told that there were two independent witnesses to support the allegation
Mrs O’Brien immediately denied the allegation
Garda Campbell said that the allegation took her by surprise and that she was seriously embarrassed by it
Mrs O’Brien said to him that she believed she was being victimised because she was a Traveller
She told him she had never been in trouble before and that the Gardai in Killarney would confirm this
He told her that she was not under arrest and that there was no obligation on her to let her belongings be searched
Mrs O’Brien freely offered her handbag to be searched. Garda Campbell recalls her showing him a large handbag and not a black sack
She opened her bag for Garda Campbell to search and he found nothing suspicious inside
Garda Campbell again asked for the two witnesses but they were not produced.
On foot of this, Garda Campbell told Mrs O’Brien that the Gardai would not be taking any further action and that she was free to get back on the train
Garda Campbell said that he had no reason to be suspicious of Mrs O’Brien and that he had felt some sympathy for her because of the situation she had found herself in
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)(i) of the Act specifies the Traveller community 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 she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment she received on the Cork to Dublin train on Thursday 26 July 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 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 High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
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 Traveller community 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 What constitutes “prima facie evidence’ and how a “prima facie case” is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondents accept that an allegation of larceny was made against the complainant and that the Gardai were called to carry out a search of her belongings. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 26 July 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In this particular case, I have not been provided with any comparable situation where a non-Traveller was accused of larceny while a passenger on an Iarnrod Eireann service. I, therefore, find that I am unable to compare this case with another “real-life” situation which has occurred in the past. In order to properly evaluate the complainants’ case, I believe, therefore, that it is necessary to introduce a hypothetical comparator at this point. The Equal Status Act 2000 provides for the use of a hypothetical comparator in Section 3(1)(a) where it states that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated.
7.5 Hypothetical comparators have been introduced in a number of other Equal Status cases in recent years where an actual comparator did not exist. For example, in the case of McDonagh v Tesco (DEC-S2001-016), the Equality Officer found that a member of the Traveller community, who was forcibly removed from a supermarket, was less favourably treated than a non-Traveller would have been treated in similar circumstances. Similarly, in the case of O’Brien v The Canada House (DEC-S2002-002/003), where two female members of the Traveller community were approached by staff on arrival in a shop, the Equality Officer found that a non-Traveller would not have received the same treatment.
A hypothetical comparator was also introduced in a recent case under the Employment Equality Act 1998. In Minaguchi v Wineport Lakeshore Restaurant (DEC-E2002-020) a trainee chef, who had been placed for work experience with a restaurant, was asked to work a trial period before taking up her placement. She argued that the difference in treatment was discriminatory based on her older age and marital and family status. In that case, the Equality Officer found that the appropriate comparator was a hypothetical student from the complainant’s class who was of different age or of different marital or family status. The construction of a hypothetical comparator has also been a feature of recent UK equality caselaw. In Balamoody v UK Central Council for Nursing, 2002 IRLR 288 (Court of Appeal), the Court of Appeal found that the Employment Appeals Tribunal had erred in not having regard to any hypothetical comparator.
More recently, the House of Lords, in its decision in a race discrimination case, Shamoon v Chief Constable of RUC, ( 2003 UK HL 11 ), has stated the principle that it is correct and appropriate for a tribunal to construct a hypothetical comparator , where no actual comparator is available, in order to make the necessary comparison with someone in similar relevant circumstances.
Although the above UK precedents are not binding, I consider them persuasive as the wording of the relevant provisions in the Race Relations Act 1976 are extremely similar to the definition contained in Section 3(1)(a) of the Equal Status Act 2000.
7.6 As stated earlier, no reference has been made to previous situations where a non-Traveller has been accused of larceny on a train. I believe, therefore, that it is necessary to introduce a hypothetical comparator at this point and ask the question as to whether the respondents would have adopted a different stance if the incident on 26 July 2001 had involved a non-Traveller woman with two children.
7.7 In considering the evidence before me, I note that there is some contradiction as to whether a full luggage bag was stolen or just some items from the luggage bag. On this point,
I note that both parties agree that a full luggage bag was reported missing and, therefore, I am prepared to accept that this was the case.
7.8 To me, the key pieces of evidence in this case are as follows:
The Ticket Collector, Mr Nolan, says that he distinctly remembers noticing Mrs O’Brien and her children from the fact that her children were running around the train and that one of them was barefoot.
Mr Nolan was prepared to accept the word of a passenger that Mrs O’Brien was the prime suspect on the basis that two other passengers had “surmised” that the two children had been involved
Mr Nolan made no attempt to identify or interview the alleged witnesses himself before calling the Gardai
Mr Nolan chose not to inform Mrs O’Brien that an allegation of theft had been made against her and her children
Mr Nolan has stated that he knew that “the law was tricky” and that he asked the Gardai at Portlaoise to search the whole train. The Garda witness, however, states that it was the passenger and Mr Nolan that had actually persuaded him that Bridget O’Brien was the prime suspect and that it was Mr Nolan himself who led him to Ms O’Brien.
Mr Nolan has admitted that he did not speak to Mrs O’Brien after the incident and has acknowledged that neither he nor anyone from CIE has ever apologised to her for the incident
Mr Nolan never asked the passenger in question for his name during the course of the incident nor does it appear that Mr Nolan obtained Mrs O’Brien’s name on the day in question
Mr Nolan himself did not make a written report of the incident
7.9 On the basis of the above pieces of evidence, I simply cannot accept that Mr Nolan would have acted in a similar manner if a non-Traveller woman with two children had been accused of larceny.
I believe that, if a non-Traveller had been involved, it is reasonable to expect that the Ticket Collector would have at least asked to speak to the two witnesses who had been identified before agreeing to call the Gardai. Yet, despite the fact that the passenger had said that it was only “50/50” that Mrs O’Brien’s children had been involved, Mr Nolan chose not to seek out the two witnesses to confirm their reports. More importantly, Mr Nolan chose not to inform Mrs O’Brien of the allegation against her, which I find hard to believe is standard practice, especially where an unfounded allegation has been made against a passenger.
I also cannot accept that Mr Nolan was following standard procedures in not speaking to Mrs O’Brien afterwards or offering her some form of apology. It also appears that Mrs O’Brien was never offered an apology from anyone in Iarnrod Eireann over the incident.
7.10 Mr Nolan has stated that he did not suspect that Mrs O’Brien was a member of the Traveller community until she made the point to the Garda in Portlaoise. I have serious difficulty in accepting this statement as I consider that it would have been obvious to Mr Nolan
(1) from talking with Mrs O’Brien about her son,
(2) from the fact that one of her children was barefoot, and
(3) from the fact that she had her luggage in a black sack,
that she was a member of the Traveller community. I also find it hard to believe that the family’s suspected Traveller identity would not have been communicated to Mr Nolan by the passenger who made the accusation.
7.11 Having considered all the evidence before me, I have reached the conclusion that on 26 July 2001, Mr Nolan did recognise Mrs O’Brien as a Traveller and, in choosing to act on an unsubstantiated allegation against her, treated her less favourably than he would have treated a non-Traveller in similar circumstances.
I am, therefore satisfied that the actions of Mr Nolan on 26 July 2001 constituted discrimination on the Traveller community ground contrary to the provisions of the Equal Status Act 2000.
8 Decision
8.1 In this particular situation, I consider that the complainant were clearly identifiable as a member of the Traveller community when she travelled on the Tralee to Dublin rail service on 26 July 2001 and that this led to her receiving less favourable treatment than a non-Traveller would have received in similar circumstances. I, therefore, find that a prima facie case of discrimination has been established and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainant was discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the respondents on the grounds of her membership of the Traveller community.
8.2 In considering the level of redress to award, I note that Iarnrod Eireann have since put in place staff training on the provisions of the Equal Status Act 2000 and have developed an awareness training program on cultural diversity for all front-line staff.
8.3 In the case before me, however, I consider that the complainant suffered serious distress and humiliation on 26 July 2001 and I order that the respondents pay Mrs O’Brien the sum of €2500 in compensation.
Brian O’ Byrne
Equality Officer
DEC-S2004-001 Full Case Report
O’Connor v The Icon Night Club
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 24 October, 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 me, Marian Duffy, 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.
1. Dispute
1.1 The dispute concerns a claim by Mr. Thomas O’Connor that he was discriminated against by The Icon Night Club on the gender ground in terms of Sections 3(1)(a), and 3(2) (a) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act in that females were allowed free into the night club on a Thursday night while males are charged an entrance fee. The respondent denies discriminatory treatment on the gender ground in relation to access to the night club.
2 Summary of the Complainant’s Case
2.1 The complainant and a friend went to the respondent’s night club on 3 May, 2001.The complainant enquired at the door about the entrance fee and was told that it was £5 for males and free for females. The complainant complained to the doorman that it was unfair that he had to pay and that females were not charged. He had been in the nightclub before and this was the first occasion he was made aware that there was a difference in the entrance fee for males and females. He choose not to pay the entrance charge on the night in question. The complainant submitted that this was discriminatory treatment on the gender ground.
3 Summary of the Respondent’s case
3.1 Mr. Ciaran Gleeson, proprietor, said that since the nightclub opened in December,2000, with the exception of about 8 months, females are allowed in free up to 1a.m.on a Thursday night and males are charged an entrance fee of £5. This policy was adopted for promotional reasons and had proved very successful in attracting females to the club. In July, 2001 he opened a bar attached to the nightclub and decided to run soccer nights on Monday night. Any male who came into the bar to watch soccer was let into the nightclub free. He discontinued the practice after about 2 months because it was not successful.The respondent’s representative submitted that the practice was positive discrimination in favour of women and as such was allowed under the Equal Status Act.
4 Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(a) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:”On any of the grounds specified… (in this case the gender ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds … are… that one is male and the other is female (the “gender ground”),”
Section 5(1) provides inter alia 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 sevice provided can be availed of only by a section of the public.”
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists.I have identified the three key elements which need to be established to show that a prima facie case exists as follows:
(i) is the complainant covered by the ground?
(ii) in what circumstances was the complainant not provided with a service by
the respondent on 3 May, 2001?
(iii) is there evidence that the treatment received by the complainant was less
favourable than the treatment a female would have received in similar
circumstances.
If and when those elements are established, the burden of proof shifts to the
respondent, meaning that the difference in treatment is assumed to be discriminatory
on the relevant ground. In such cases it is not necessary for the complainant to prove
that there is a link between the difference in treatment and the membership of the
ground, instead the respondent has to prove that there is not.
I am now going to examine the issues I have identified above and consider whether
the complainant has established a prima facie case.
4.3 I am satisfied that the complainant is covered by the ground. While the complainant
was not refused a service, he could have availed of the service if he had chosen to
pay. However he could not have availed of a free service. I am satisfied therefore,
that the second element of the test has been satisfied. Similarly I am satisfied that the
complainant was treated less favourably than a female would have been treated in the
circumstances, in that a female would have got into the night club free, while the
complainant, a male, would have to pay £5 solely because of his gender. While the
difference in treatment between female customers and male customers is small, such a
difference in treatment between men and women under the Equal Status Act is
nevertheless discriminatory, unless it is covered by a specific defence. I am satisfied
therefore that the complainant has established a prima facie case of discriminatory
treatment.4.4 The next question for consideration is whether the respondent has provided sufficient evidence to rebut the prima facie case raised by the complainant. The respondent stated that Thursday night free entry for females was a promotional night for females only and has proven very successful. He also stated that he ran a free entry night for males on a Monday night but it was unsuccessful. The complainant sought entry to
the disco on 3 May, 2001 and the Monday free nights were not in operation at that
time. Secondly the free nights for males was on a Monday night and ran for a limited
period and the conditions attaching to these free nights were different in that males
had to be drinking in the pub before they could get entry to the nightclub no such
conditions attached to females gaining free entry on a Thursday night.
4.5 The respondent’s representative submitted in defence that the practice of allowing
free access to female customers up to 1a.m. was positive discrimination in favour of
women and allowed under the Act. Section 14(b)(i) of the Equal Status Act, 2000
provides:
“Nothing in this Act shall be construed as prohibiting–
(b) preferential treatment or the taking of positive measures which are bona fide
intended to-
(i) promote equality of opportunity for persons who are, in relation to other
persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons.”I note that positive measures are permitted by the Act as an exception to the general principle that discrimination based on the gender ground is unlawful. I would need therefore to be satisfied that the particular situation in this case does in fact come within the terms of section 14(b)(i) above. The requirement under this section is that the measures taken are in “good faith” intended to promote “equality of opportunity for persons who are …disadvantaged…”. The respondent has not provided any evidence to suggest that women as a group are disadvantaged relative to men as a group in their ability to get into nightclub before 1a.m.
4.6 In considering this point in relation to relative disadvantage, I have referred to theLabour Court decision in an employment case, NBK Designs Ltd v Inoue ED/02/3Determination No. 0212. This is where the Court held that an expert tribunal could take account, even in the absence of specific evidence, matters such as risk of disparate impact on a protected ground under the Act which are well established and are obvious from its specialist experience. In Inoue, the Labour Court held that it was obvious that measures impacting on part-time workers, or on those caring for small children, would impact disproportionately on women. It would be reasonable therefore to infer from this rationale that an expert tribunal such as the Equality Tribunal could similarly take account of matters such as relative disadvantage supporting positive action, which are obvious from its specialist experience.However, the Tribunal is not aware of any such disadvantage from its own specialist experience which could be taken into account in this case. It may be that some groups of women find it more difficult to go out to nightclubs in the evening due to economic disadvantage or lack of childcare support, but the entrance fee involved is relatively small one, which would not appear in my view to present difficulties for women generally, and the waiver of the entrance fee is not targeted to any groups of women experiencing particular disadvantage. I am satisfied therefore, that the free entrance to the nightclub for females up to 1a.m. is not a positive action measure,taken in good faith in order to reduce barriers confronting women as a disadvantagedgroup. I believe the measure was taken for commercial reasons aimed at attracting more customers into the nightclub. For the above reasons this defence fails. I find therefore, that the respondent has failed to rebut the prima facie case of less favourable treatment on the gender ground raised by the complainant.
5. Decision
5.1 I find, that the Icon Night Club did unlawfully discriminate against Mr. Thomas O’Connor on the gender ground on 3 May, 2001 in terms of Sections 3(1)(a), and 3(2)(a) and contrary to Section 5(1) of the Equal Status Act, 2000.
5.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. 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.”
5.3 I consider that an award of compensation would be appropriate in respect of the discriminatory treatment. Under Section 27 above the maximum amount of compensation I can award is €6,349. The complainant sought a minimum amount of compensation and I agree that the maximum would not be appropriate in this case. In the circumstances, I order the respondent the Icon Night Club to pay to the complainant, Mr. Thomas O’Connor the sum of €10 and free entry to the night club for 7 nights of his choice.
5.4 Under Section 27(1)(b) of the Act I also order the respondent to review his entrance
policies to comply with the requirements of the Equal Status Act.
______________
Marian Duffy
Equality Officer
5 January, 2004
EC-S2011-004- Full Case Report
Equal Status Acts, 2000 to 2008
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.
DEC-S2010-052
A Traveller v A Local Authority
File Ref: ES/2008/183
Date of Issue: 26/11/2010
Keywords: Equal Status Acts 2000-2008 – Section 3(2)(i), Traveller ground -prima facie case – discrimination – discrimination by association – victimisation
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 12 September 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 25th May 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 16th November, 2010 and both parties were in attendance.
1. Dispute
The dispute concerns a claim by A Traveller (hereafter “the complainant”) that he was discriminated against by association, discriminated against, and victimised by A Local Authority (hereafter “the respondent”) on the grounds of his status as a member of the Traveller community in terms of Sections 3(2)(i) of the Equal Status Acts, 2000-2008 when they did not provide him with a method of paying his rent other than cash collection. The complainant requested, and was granted, anonymity in this decision, as he is still working at the local authority in question.
2. Summary of the Complainant’s Case
2.1 The complainant is an employee of the respondent in this case. At the time of the complaint he lived in Traveller Specific Accommodation which was provided by the respondent. Therefore he was obliged to pay rent to the respondent, his employer. The complainant states that other non-Traveller employees of the respondent were able to have their rent deducted automatically from their wages. However because he lived in Traveller Specific Accommodation, he was not provided with the facility to pay his rent through the payroll system. Instead he was obliged to pay cash on a weekly basis to a rent collector who called to his home. The complainant states that both he and his wife were working at the time and therefore it meant that either they had to stay home from work to pay the rent or they had to travel into town during the working day, to pay the rent at the offices of the local authority. This caused him great inconvenience, as there was no set time for the rent collector to arrive. He submits that it was also dangerous, as they sometimes had to go to a halting site to pay the rent and this was risky for them due to an ongoing feud with residents at that site.
2.2 The complainant submits that this was an issue for him over a considerable period, but in 2005 he raised the issue with the respondent and requested that the rent be deducted via payroll. From 2005 onwards he continued to make these requests but nothing was changed. His legal representative says that the complainant would have accepted any payment method which was not cash based, for example a rent card.
2.3 The complainant says that the issue caused him to get into arrears with his rent, but that anytime he did happen to meet the rent collector, he would pay him for a week or maybe more. He stated that he did try to pay by cheque a few times, but it did not work out because he was absent from work due to sickness and had not been paid. He says that as of today the arrears are fully paid.
2.4 The complainant says that the respondent was aware of his request for an alternative form of payment and yet despite this, he received a threat of a Notice to Quit from the respondent. He says that person who signed this notice, was the same person who had been assigned to deal with his request to change his payment method. Therefore they were deliberately victimising him despite his attempts to resolve the issue. He says that this letter caused his wife great distress and it also meant that they were excluded from the respondent’s repair service. As a result they were without electricity for a couple of days on one occasion, until they called for an electrician and paid for it to be fixed themselves.
2.5 The complainant agrees that the respondent now has in place a system for making electronic payments and the door-to-door collection system has now been phased out. However he says that he was never formally made aware of this by the respondent and he only found out from the rent collector in passing.
2.6 The complainant pointed out that he was never looking for the whole system for Travellers to be changed and his request was made exclusively on his own behalf. Therefore he does not see why the respondent had to roll out a whole programme to change all Traveller rent payments. Additionally he points out that this “discrimination by association” has caused him problems, because of a comment made by one of the rent collectors. He submits that on one occasion last year, a rent collector (who was an employee of the respondent) was explaining the new rent payment system to some Travellers at a named halting site and the rent collector told the group that they “could thank X for this”. (X being the full name of the complainant). The complainant said the remark was deliberately intended to cause trouble because it was made to a group involved in a feud against him, and because many Travellers would not want the new system of payment.
2.7 The complainant’s legal representative referred to an Equality Tribunal case Reilly v HSE ES2007-59 in support of their case. In this case the Equality Officer found that it was discriminatory that Travellers had to travel to a central service in the city centre to have their Social Welfare benefits paid, when non-Travellers could use a local service. The complainant’s legal representative reminded the Tribunal that Section 2(3)(b) of Act covers discrimination by inaction as well as by positive action.
“In any proceedings a respondent is presumed, unless the contrary is shown, to fail to do something when….the period expires during which the respondent might reasonable have been expected to do it.”
In the present case the complainant points out that, similar to the Reilly case, a reasonable period of time had long elapsed before the respondent resolved the issue. Additionally he points out that he has never been officially informed by the Respondent that his problem is in fact fixed.
3. Summary of the Respondent’s Case
3.1 The respondent gave some background to the system with respect to Traveller rent payments. In the mid-1990’s, the local authority changed the system of rent payment for all of their tenants, and this involved a move from cash-based payments to electronic payments. At the time, representatives of the Traveller community strongly objected to this change and as a result the system of cash payments was maintained for Travellers only. Therefore the system of weekly rent collections at Traveller Specific Housing continued. This group comprises about 1% of local authority housing in the geographical region. The respondent submitted that the maintenance of this system for such a small number of tenants was very expensive, time-consuming and a health and safety risk for their employees.
3.2 The respondent further submitted that the entire scheme of Traveller housing was different from other local authority tenancies and therefore it was not possible to make a like-for-like comparison. The following distinctions were made, in addition to the different collection method as outlined above:
– the level of Traveller rents were fixed in a different way to non-Travellers. In the instant case, the respondent points out that the complainant was paying a fixed weekly rent of €23 for a 4-bedroom house, whereas a non-Traveller worker would pay a differential rent, based on the level of his/her income and the size of the house/apartment. The respondent submits that in all cases this would be considerably more than the complainant’s rent.
– Travellers were entitled to apply for both Traveller Specific- and Standard Housing, while non-Travellers could only apply for standard housing.
– Travellers generally received a high priority status on their housing applications, putting them automatically ahead of other tenants. Additionally their applications were not subject to the points system established by the Scheme of Letting Priorities,
– Traveller Schemes had an on-site caretaker in contrast to all other schemes.
Overall the respondent submitted that at the time of the complaint, the housing system for Travellers was substantially different and considerably more favourable than the schemes available to all other tenants.
3.3 Regarding this specific complaint the respondent employee strenuously denied at the hearing that the complainant raised the issue any earlier than 2008. In defence of this, he pointed to the following evidence:
– A note dated 20/10/2006 on the complainant’s file saying that the complainant intended to pay off some of his arrears by cheque. (The respondent submits that if the complainant had been insisting on electronic payments at the time, he would not have volunteered to pay by cheque).
– The local authority’s “Plan for 2009-2013” showing the proposed changes to Traveller Housing (which would fulfil the complainant’s requirements)
– The respondent employee’s own letter dated October 2008 saying that he had already fully conceded the point that the complainant should be able to pay his rent electronically and that he had been working for some time on the systematic changes.
In contrast to the evidence above, the respondent employee pointed out that there was no evidence on their files, nor provided by the complainant, to show that the issue had been raised by the complainant any earlier than 2008.
3.4 The respondent employee submitted that he accepted the complainant’s request and agreed from the outset that he should be entitled to pay rent by a means other than cash collection. The complainant’s request coincided with the implementation of a large programme which aimed at significantly overhauling the operation of the Traveller Housing Schemes. The respondent intended to eliminate most of the distinctions outlined at 3.2 above, and thus bring the Scheme more in line with standard housing schemes. Part of this programme would result in fixing the specific issue raised by the complainant. The respondent submits that the proposed changes required substantial technical input and he made his request to the IS Department of the local authority. He pointed out that his request was just one of potentially hundreds of requests to the IS Department and therefore resources would have been allocated in line with the priorities of the IS Department. As a result the changes were not implemented immediately upon the complainant’s request, but they were actioned within the following 12 months. The respondent considers that this is a reasonable turnaround time for the complaint to be resolved. The changes introduced mean that the system of Traveller letting is now very similar to standard housing and the complainant could therefore pay his rent via the rent card or via deduction from his pay. The respondent submits that the problem was resolved by 2009; however the fix has not actually benefited the complainant, as he left the accommodation for personal reasons in early 2010.
3.5 Regarding the claim that the complainant had been threatened with a notice to quit, the respondent said that the letter sent to the complainant was a standard letter generated when tenants went into arrears. It was not a Notice to Quit, but a warning that the respondent could pursue this particular course of action. However he submitted that in practice they never pursued this action against Traveller tenants under the old Scheme. Additionally the respondent pointed out that in 2003, the complainant was 30 weeks in arrears and this rose steadily to 85 weeks of arrears by 2007 and 3 years of arrears by the time he left the house in 2010. The respondent submits that the complainant made some payments by cheque in 2006, but these cheques bounced. As a result the respondent followed its standard procedure and sent the warning letter. As a related issue, the respondent operates a policy of refusing to carry out repairs for tenants who are substantially in arrears. This was the reason for their refusal to resolve the complainant’s electricity problem and they submit that this was not victimisation.
3.6 The respondent employee disagreed that the issue dealt with in Reilly v HSE (above) is similar to this case. He stated that in that case, the change had not been made for 20 years and that was unreasonable. In contrast he submits that he took relatively fast action to resolve the complaint.
3.7 Regarding the allegation that a staff member of the respondent rent collection team had made a remark which was intended to cause trouble for the complainant, the respondent employee who attended the hearing said that he was certain that the staff were very sensitive to Traveller issues and would not have said such a thing.
3.8 Additionally the respondent submitted (in response to the complainant’s claim that he had to pay at halting sites), that the rent collectors always went to the house of the complainant and there was no occasion when the complainant would have been obliged to go to a halting site which was dangerous for him.
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.
Employee Claim under the Equal Status Acts
4.2 On the matter of direct discrimation, the complainant in this case raised two issues – he claimed that he should have been able to make his rent payments electronically and/or he should have been able to have his rent deducted automatically through the payroll system. I will deal with the latter issue first. The comparator in the latter situation would be other non-Traveller employees of the respondent who had the benefit of a wage deduction at source. I find that the matter of payroll deductions is a matter connected specifically with the complainant’s status as an employee, rather than his status as a tenant. The complainant has referred this case under the Equal Status Acts and the respondent therefore has had no opportunity to defend a claim under the Employment Equality Acts. Therefore I am precluded from considering the employment aspect of the claim and have I limited my considerations to the respondent’s responsibilities as a landlord and service provider.
Discriminatory treatment
4.3 The complainant has also claimed that he should have been able to pay his rent by some electronic method, in order to avoid the inconvenience of having to wait for the rent collector. This concerns his status as a tenant and falls within the ambit of the Equal Status Acts. The complainant submits that he raised this issue with the respondent in 2005, but it was not resolved until 2009. The respondent submits that the issue was first raised in 2008. Having examined the available information, I find that although the complainant may genuinely have wished for it to be dealt with as far back as 2005, it is normally the case that large organisations tend to require documented requests and all the documented evidence points to the respondent first becoming aware of the complainant’s concerns in early 2008. Specifically I note:
– An email from the respondent’s equality officer to the complainant in March 2008 saying that she had received an email from the Traveller Housing Unit, to say that they were working on the problem and it would be fixed shortly.
– An email from the respondent HR department in April 2008 to the complainant to say that the Traveller Housing Unit were working with IS to progress the issue.
– A draft copy of the local authority’s “Traveller Accommodation Programme 2009-2013”, which demonstrates that all matters relating to Traveller tenancies were under review and there was a consultation period from July-September 2008 to consider all matters with the relevant advocacy groups. (The issues for review encompassed the issue raised by the complainant).
At the hearing the respondent submitted that the complainant’s request had come at a time when they were planning to make major changes to the provision of Traveller Housing, and as a result, they did not consider his request in isolation. At the time of his request, they were working on the 2009-2013 draft plan for future Traveller tenancies. This draft plan would implement changes affecting all Traveller tenancies. In particular it was decided that an electronic rent card would be introduced and that the door-to-door rent collections would cease. The respondent stated that in the intervening period since the exemption for Travellers was made in the mid-90’s, the issue of Health & Safety had come to the fore, and the respondent was concerned about its duty of care towards its own employees who worked as rent collectors. As a result, it was a very high priority for them to ensure that the door-to-door collections would cease. This coincided with the complainant’s request for an alternative payment method. In June 2009, the rent card was introduced, meaning that the complainant and others could pay rent electronically. The respondent submitted that by October 2009, it was also possible to have the rent deducted from payroll, as all employees/tenants were on the same differential rent system. The issue to be determined is whether the respondent reacted to the complainant’s request within a reasonable period of time. It appears that it took about 18 months for the request to be actioned and the respondent argues that this is reasonable, given the normal system of prioritising projects in any large organisation. I agree with the complainant that it was far from an ideal turnaround time, but I find that it was reasonable in the circumstances, and I would distinguish it from the Reilly v HSE case, because the time period in this case was considerably shorter and more importantly, in this case, the respondent did actually implement the changes. I accept the respondent’s argument that, as it was on the cusp of implementing a major change for all Traveller tenants, it would not have been feasible to make a change for one tenant, in advance of the programme rollout. Therefore, I find that while the complainant did raise a prima facie case of discriminatory treatment, the claims have been successfully rebutted by the respondent.
Discrimination by Association
4.4 The complainant has argued that the respondent has discriminated against him by association. He rightly points out that he requested a change on his own behalf as an individual working Traveller, and that he never sought to have the entire system changed. I can accept that if the complainant had taken this case as an employee, it may well have been reasonable to expect his employer to quickly confer on him an individual benefit which was already available to all other employees. However, as I am considering this case under the Equal Status grounds, I find it reasonable for the respondent to have considered the tenancy matter in conjunction with their general tenancy review, particularly considering that the difference in treatment arose specifically as a result of the request by the Traveller community to maintain cash payments. I find therefore that the complainant has not raised a prima facie case of discrimination by association.
Victimisation
4.5 The final issue arising are the claims of victimisation of the complainant by employees of the respondent. The complainant made the following claims of victimisation:
4.5.1 He received a threat of a Notice to Quit, which was signed by the same person who he understood to be responsible for addressing his problem with electronic rent payments. The respondent submitted that this is a standard letter which goes out automatically to all tenants who are in arrears and it would have also been sent to the complainant on many previous occasions, as far back as 2003. The respondent also submitted that it was signed by a junior adminstrative employee, who would sign all such correspondence from the department. The complainant has not denied that he was in arrears and I accept that the Housing department were simply following their normal procedure in this case.
4.5.2 I apply the same reasoning to the complainant’s second claim of victimisation, regarding the repairs. The respondent gave credible evidence that it is the normal practice of the respondent of deny the repair service to any tenant who is in substantial arrears. The complainant accepted that the arrears were substantial; however claimed that it was a direct result of not being around to pay the rent collector when he called. However, as a matter of policy, I cannot support the proposition, that a potential claimant before this Tribunal should withhold over 85 weeks of rent in support of their claim here. It is also clear that the respondent gave the complainant the opportunity to pay by cheque, but those attempts failed.
4.5.3 Finally the complainant submits that an employee of the respondent (a rent collector) made a remark to another group of Travellers in June 2009 when they were introducing the new rent card to Travellers. He submits that this remark was deliberately intended to present him in an unfavourable way to other Travellers. I believe that the respondent employee would have been well aware of the sensitive situation between the specific groups, which means that the remark could not have been accidental. The respondent denied that an employee of theirs would make such a remark. I found the complainant’s evidence on this point to have been credible and the respondent did not have direct evidence to the contrary available. This incident took place after the complainant had made an equality complaint. Therefore I find that, on this specific point, the complainant has established a prima facie case of victimisation which the respondent has been unable to rebut.
5. Decision
5.1 On the basis of the foregoing, I find that the complainant has not succeeded in his complainant of discrimination or discrimination by association. I find that he has succeeded on one element of his claim of victimisation. The Tribunal takes findings of victimisation very seriously and on this basis I award him €3,000.
______________
Elaine Cassidy,
Equality Officer
26/11/2010
Equal Status Act 2000
EQUALITY OFFICER DECISION NO: DEC – S2001-020
Maughan v The Glimmer Man Ltd
File Ref: ES/2001/024
Date of Issue: 18th December, 2001
Table of Contents
Summary 3
Dispute and Background 4
Summary of Complainant’s Case 4
Summary of Respondent’s Case 6
Issues for Consideration 7
Evidence at Oral Hearing 7
Prima Facie Case 8
Conclusions of Equality Officer 10
– Family Status 10
– Membership of the Traveller Community 14
– Disability 15
Decision 18
Summary of Decision DEC-S2001-020
Mr John Maughan
(Represented by The Equality Authority)
-vThe
Glimmer Man Ltd
(Represented by McKeever Rowan, Solicitors)
Headnotes
Equal Status Act 2000 – direct discrimination – section 3(1)(a) – three grounds claimed under
section 3(2) – family status 3(2)(c) – disability 3(2)(g)- membership of the Traveller community
3(2)(i) – section 5(1) – refusal of service in a pub – prima facie evidence – section 15 defence.
Background
The complainant is visually impaired and claimed that on 2nd November, 2000, at 4.15 p.m.
approximately, he entered the Glimmer Man pub with his wife (who is also visually impaired but not
as severely as the complainant) his thirteen year old son and his guide dog. The complainant claimed
that he was refused service contrary to the Equal Status Act, 2000, because of i) his family status,
ii) his disability and iii) his membership of the Traveller community.
The respondent claimed that the complainant was not discriminated against contrary to the Act on
the three grounds. It claimed that the reason the complainant was refused service was because it
has a no children policy and the complainant’s son kept coming into the pub while the complainant
was being served there. It claimed that in having a no children policy it is acting in good faith for the
sole purpose of ensuring compliance with the Licensing Acts and is not in breach of the Equal Status
Act, 2000. The respondent also claimed that when parents are consuming alcohol they tend not to
supervise their children properly and that its no children policy is also designed to prevent disorderly
conduct on its premises.
Conclusions of Equality Officer
The Equality Officer was satisfied that the complainant established prima facie evidence of
discrimination on the three grounds claimed. The Equality Officer found that the respondent did not
succeed in rebutting the inference of discrimination on the family status ground but that the
respondent did rebut the inferences of discrimination on the disability and membership of the
Traveller community grounds.
Decision
The Equality Officer found that The Glimmer Man Ltd discriminated against the Mr John Maughan
on the basis of his family status but that it did not discriminate against him on the basis of his disability
or his membership of the Traveller community.
Equality Officer Decision DEC-S2001-020
Complaint under the Equal Status Act 2000
Mr John Maughan
(Represented by The Equality Authority)
-vThe
Glimmer Man Ltd
(Represented by McKeever Rowan, Solicitors)
DISPUTE AND BACKGROUND
1. The complainant is visually impaired and claimed that on 2nd November, 2000, he entered
the Glimmer Man pub with his wife (who is also visually impaired but not as severely as the
complainant) his thirteen year old son and his guide dog. The complainant claimed that he
was refused service contrary to the Equal Status Act, 2000 because of i) his membership of
the Traveller community, ii) his disability and iii) his family status.
The respondent claimed that the complainant was not discriminated against contrary to the
Act on the grounds claimed. It claimed that the reason the complainant was refused service
was because it has a no children policy and the complainant’s son kept coming into the pub
while the complainant was being served there. It claimed that in having a no children policy
it is acting in good faith for the sole purpose of ensuring compliance with the Licensing Acts
and is not in breach of the Equal Status Act, 2000. The respondent also claimed that when
parents are consuming alcohol they tend not to supervise their children properly and that its
no children policy is also designed to prevent disorderly conduct on its premises.
Any documents received were copied to both parties and an oral hearing was held on 24th
April, 2001.
SUMMARY OF COMPLAINANT’S CASE
2. The complainant claims that at 4.15 p.m. approximately on Thursday, 2nd November,
2000, when he entered the Glimmer Man pub with his wife, Margaret, thirteen year old son,
Martin, and his guide dog, the following occurred:
His party approached the bar and they sat down on bar stools.
There were other customers in the pub.
There were three bar staff on duty that day, one male and two females.
He asked the barman for 2 pints of Carlsberg which were for himself and his wife.
The barman replied that he could not serve him because the pub had a no children
policy.
The complainant then sent his son home and his son did not return to the pub.
The complainant was still not served by the barman so he asked to speak to the bar
manager.
At that stage he began talking to the younger of the female bar staff who told his wife her
name was Aisling.
Aisling told him that she couldn’t serve him because the pub serves food and doesn’t
allow dogs on the premises in case dog hairs get into the food.
The complainant then showed Aisling a card which stated that guide dogs are allowed
entry to restaurants, food shops and other food premises.
Aisling then said “this is a drinking house, I suppose you want one”.
The complainant and his wife were then served one pint each and subsequently received
a second pint each when they had finished the first.
During the time when the complainant was drinking his two pints he asked Aisling
whether the reason he had difficulty being served was because of his membership of the
Traveller community. Aisling replied that this was not the reason and that the reason
was because of the risk of dog hairs getting into the food.
When the complainant sought to order a third pint for himself and his wife he was
ignored by the bar staff. Up until this point the staff had been polite to him at all times.
After about half an hour trying to be served a third pint he and his wife left the pub.
2.1 Mrs Margaret Maughan, the complainant’s wife, and their son, Martin, gave evidence at the
hearing in support of the complainant’s version of events.
2.2 The complainant claimed that he was discriminated against by the respondent on the basis of
i) his family status, ii) his disability and iii) his membership of the Traveller community. The
complainant originally claimed that he was also harassed by the respondent on each of these
grounds but he withdrew his allegations of harassment at the oral hearing.
2.3 In relation to the family status ground the complainant claimed that the respondent has a no
children policy and that the respondent would not serve him while his son was in the pub.
He claimed that this is in breach of the Act. He claimed that nothing in the Licensing Acts
prohibit children from being in pubs at the same time as their parents and that section 34(2)
of the Intoxicating Liquor Act, 1998, makes it legal for a child to be in a pub at the same
time as its parents.
2.4 In relation to the disability ground the complainant claimed that he suffered less favourable
treatment than someone with no guide dog would have received. He claimed that the reason
for this was that the respondent initially refused to serve him because of his guide dog and he
was only served when he produced the card. The complainant’s representative provided in
evidence some material which it claimed makes it legal for people with guide dogs to be
served in pubs, restaurants, etc. The material was a copy of a letter from the Department of
Health and Children, enclosing:
i) a copy of section 25 of the Food Hygiene Regulations, 1950,
ii) a circular dated December 2000, from the Department of Health
and Children to the Chief Executive Officer of each health board, and
iii) a circular dated 7th June, 1991, from the Department of Health to
the Chief Executive Officer of each health board.
On the membership of the Traveller community ground the complainant claimed that the staff
on duty would have recognised him to be a member of the Traveller community and that this
was part of the reason why he was refused service.
SUMMARY OF RESPONDENT’S CASE
3. Mr William Fortune said that he is the owner of the Glimmer Man public house for the past
eleven years. He claimed that on 2nd November, 2000, when the incidents complained of
occurred:
He was not on duty himself.
His wife, Mrs Ita Fortune, and a bar man called Mr Stuart Kelly were the only staff on
duty at the time.
Nobody named Aisling was working in the pub and nobody of that name ever worked
there.
When the complainant’s party first entered the pub they were told that they would not be
served because children were not allowed on the premises.
The complainant sent his son outside the pub.
The complainant and his wife were served a pint each.
The complainant’s son came back into the pub and service was again refused when the
complainant ordered a second round of drinks.
The complainant sent his son back outside and he and his wife were served a second
pint each.
The same thing happened again when the complainant sought and received a third pint.
It was raining outside and on each occasion when the complainant’s son came back into
the pub he became more agitated and insistent that his parents leave the pub and go
home.
The complainant became abusive when a fourth pint was refused to him and his wife.
Action taken in good faith by a publican for the sole purpose of ensuring compliance
with the Licensing Acts is permitted under section 15(2) of the Equal Status Act, 2000.
The complainant was refused service because a child under his care was on the
premises while he was consuming alcohol. The policy not to allow children on the
premises is for two main reasons which are in keeping with section 15(2):
i. The respondent is conscious of the obligations which the Licensing Acts,
1833-1999, place on it regarding the consumption of alcohol on the premises by
under eighteen year olds. Its policy of not allowing children on the premises is
designed to prevent a potential breach of the terms of its pub license. The
respondent stated that in particular sections 34 and 35 of the Intoxicating Liquor
Act, 1988 are appropriate in this regard.
ii. Adults having charge of children are consuming alcohol and tend not to
adequately supervise the children, which may endanger the childrens’ safety, and
also be troublesome for customers and staff alike. During his eleven years as
owner of the Glimmer Man pub he has found from experience that children are
likely to engage in disorderly conduct or behaviour when left without supervision
in such circumstances. The respondent claimed that section 13 of the 1872
Licensing Act deals with public order offences and is appropriate in this regard.
The staff on duty did not see the complainant come into the pub and at the time when he
first sought service they did not know that he had a guide dog with him. This was
because when the complainant was sitting at the bar the dog was lying down and was
not visible to the staff from behind the bar.
Although after the complainant had been served the bar staff became aware of the guide
dog’s presence there was no discussion between the complainant and any of the staff on
duty to the effect that he could not be served in case dog hairs got into the food.
No card was produced by the complainant stating guide dogs are allowed entry to
restaurants etc. and the dog was not a factor in the complainant’s refusal. The pub only
serves pre packed food, i.e. sandwiches, crisps, peanuts etc., so hygiene was not an
issue.
There was never any mention of the complainant being a member of the Traveller
community until he brought it up himself when he was leaving the premises.
Mrs Ita Fortune and Mr Stuart Kelly gave evidence at the hearing in support of the
respondent’s version of events.
ISSUES FOR CONSIDERATION
4. 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 family status ground,
disability ground and membership of the Traveller community 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 The Glimmer Man Ltd
discriminated against Mr John Maughan on the basis of the grounds claimed, in terms of
section 3(1)(a) and contrary to section 5(1) of the Equal Status Act, 2000, on 2nd
November, 2000. 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.
EVIDENCE AT ORAL HEARING
5. At the oral hearing the respondent’s representative objected to the way in which the
witnesses for the parties gave their evidence because they were not required to provide
sworn evidence. He also objected to the evidence of the parties being referred to as
“evidence” and claimed that the word “statement” was more appropriate.
I have considered this matter and in my view the case of Kiely v Minister for Social
Welfare (1977) I.R. 276 is particularly relevant. As Henchy J. stated:
“Tribunals exercising quasi-judicial functions are frequently allowed to act
informally – to receive unsworn evidence, to act on hearsay, to depart from
the normal rules of evidence, to ignore courtroom procedures, and the like –
but they may not act in such a way as to imperil a fair hearing or a fair
result”.
I am satisfied that the oral hearing was conducted in accordance with the principles of
natural and constitutional justice. I am also satisfied that the absence of sworn evidence did
not prejudice either party or imperil a fair result in any way.
PRIMA FACIE CASE
6. For the complainant’s claim to be upheld on any of the grounds claimed he has to establish
prima facie evidence of discrimination on that ground. In order for the complainant to
establish prima facie evidence on a ground he has to show that he was treated less
favourably than someone in the same circumstances who is not covered by that ground. If
he succeeds in establishing prima facie evidence on a ground, the burden of proof then shifts
to the respondent to rebut the inference of discrimination on that ground.
The complainant claimed that he was discriminated against on the family status, disability and
membership of the Traveller community grounds.
Family Status
6.1 Section 2(1) of the act defines family status, inter alia, as meaning:
“Being pregnant or having responsibility-
(a) as a parent or as a person in loco parentis in relation to
a person who has not attained the age of 18 years,”.
Both parties agree that when the complainant first entered the pub his thirteen year old son
was with him. I am therefore satisfied that the complainant is covered by the family status
ground.
Disability
6.2 Disability is defined in section 2(1) of the Act as:
“(a) the total or partial absence of a person’s bodily or mental
functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a
person’s body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or malfunction,
or
(e) a condition, disease or illness which affects a person’s thought
processes, perception of reality, emotions or judgement or
which results in disturbed behaviour”.
The complainant claims that because of his visual impairment he falls within the scope of this
definition and I accept that this is the case.
Membership of the Traveller Community
6.3 Section 2(1) states that “Traveller community” means:
“the community of people who are commonly called Travellers and who are
identified (both by themselves and others) as people with a shared history,
culture and traditions, including historically, a nomadic way of life on the
island of Ireland.
At the oral hearing the complainant stated that although he does not lead a nomadic lifestyle
at the moment he did so in the past with his parents for a time. He said that he has always
considered himself to be a member of the Traveller community and that his relatives also
identify themselves as Travellers. He said that he lived on a halting site for a number of
years and I consider that he is a member of the Traveller community within the meaning
defined in the Act.
Number of Refusals
6.4 I have noted in this case that the parties agree that at least two refusals of service took
place. The first agreed refusal occurred when the complainant was told he could not be
served because of the no children policy. The second agreed refusal occurred, according to
the complainant, after he was served two pints but the respondent claims that it occurred
after the complainant was served three pints.
The complainant claims that a third refusal of service also took place in between the two
agreed refusals. He claims that the third refusal occurred after his son had left the pub when
he was then told that he could still not be served in case his guide dog’s hairs got into the
food.
The respondent denies that the third alleged refusal occurred but it claims that a number of
other refusals occurred because the complainant’s son kept coming back into the pub after
the complainant had received service. The complainant denies this and claims that his son
went straight home and did not return to the pub.
6.5 Having satisfied myself that the complainant is covered by the three grounds claimed I now
have to consider whether he has established prima facie evidence of discrimination on any of
the grounds claimed when any of the refusals, including the refusals alleged by both parties,
occurred. Both parties agree that when the complainant first entered the pub other people
were being served there at the time. It is agreed that none of them were blind and none of
them were known to be members of the Traveller community. It is also agreed that the
respondent has a no children policy. In these circumstances I am satisfied that the
complainant has established prima facie evidence of discrimination on the three grounds
claimed. It now falls to the respondent to rebut the inference of discrimination on the three
grounds.
CONCLUSIONS OF EQUALITY OFFICER
7. I will now examine the complaint on each of the grounds claimed.
Family Status
7.1 The respondent accepts that it has a no children policy and that it has signs up in the pub to
this effect. To avoid any confusion it is important to note what the respondent’s no children
policy means in practical terms. Its policy is not to always refuse service to parents of
children under 18 years old and only to serve people who have no children under that age.
It does not differentiate between parents and non parents in this way. Rather, its policy is to
refuse parents service when their children under 18 years old are with them on its premises
at the same time. Once the children are no longer on the premises the parents will then be
served in normal circumstances. The respondent claimed that its no children policy applies
to all children no matter what their age i.e. from 1 day to 17 years and 364 days. At the
oral hearing the respondent said that the only circumstances where he might consider serving
parents with children was if the parents did not consume alcohol. However, I got the
impression that the respondent was not very definite about this and he did not state whether
this had ever happened since he introduced his no children policy.
7.2 The complainant has claimed that he was discriminated against by the respondent on the
basis of his family status in that he was unable to avail of the service provided by the
respondent when his son was with him. He claimed that as someone with family status,
within the definition in the Act, that he received less favourable treatment than someone with
no family status i.e. someone who sought service with no children with them, in that he was
initially refused service because his son was with him and the only way the respondent would
serve him was if his son left the pub. He claims that this constitutes discrimination as defined
in the Act.
Section 15(2) of the Act 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”.
I have noted that the respondent invoked the section 15(2) defence. It claimed that its
reasons for having a no children policy are basically that it is acting in good faith for the sole
purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999. In
particular it is conscious of its obligations to ensure that under 18 year olds do not consume
alcohol on its premises and it is relying on sections 34 and 35 of the Intoxicating Liquor Act,
1988, in this regard. The respondent also claimed that parents tend not to properly
supervise their children when consuming alcohol themselves and that this can result in trouble
for staff and other customers and danger to the childrens’ safety. The respondent claimed
that it was also trying to ensure compliance with section 13 of the 1872 Licensing Act in this
regard.
7.3 I have studied carefully all of the legislation which the respondent quoted. I have also noted
that at the oral hearing the complainant’s representative claimed that nothing in the Licensing
Acts prohibits children from being in pubs with their parents. The complainant’s
representative also claimed that section 34(2) of the Intoxicating Liquor Act, 1998,
specifically allows children to be in pubs when accompanied by their parents. On this point
I have checked the Licensing Acts and there does not appear to be an Intoxicating Liquor
Act, 1998, so I am taking it that the complainant’s representative was actually referring to
the Intoxicating Liquor Act, 1988, and not 1998, as stated.
Section 34(1) of the Intoxicating Liquor Act, 1988, states that:
“Subject to subsection (2) of this section, the holder of a licence of any
licensed premises shall not allow a child to be at any time in the bar of his
licensed premises”.
Section 34(2) of the Intoxicating Liquor Act, 1988, states that:
“It shall not be unlawful for the holder of a licence of any licensed premises to
allow a child to be in the bar of his licensed premises at any time (other than a
time during which the sale of intoxicating liquor is prohibited under the Act) if
such child is accompanied by his parent or guardian”.
I have noted that section 34(1) states that it is subject to section 34(2). On the basis of the
evidence presented it is clear to me that 34(2) of the Intoxicating Liquor Act, 1998, allows
children to be in licensed premises when accompanied by a parent at any time, other than
when the sale of intoxicating liquor is prohibited i.e. before opening time, after closing time,
etc.. In this particular case the complainant sought to receive service from the respondent at
4.15 p.m. approximately, on Thursday, 2nd November, 2000. I have noted that both
parties agree that the complainant was served after his son left the pub and that no evidence
was presented that the sale of alcohol was prohibited at that time. I am satisfied that the sale
of intoxicating liquor was not prohibited by the Licensing Acts at that time.
I have also studied the other subsections of section 34 and section 35 in its entirety. I am
satisfied that nothing in these prohibit children from being in licensed premises with their
parents.
7.4 It is accepted by both sides that the respondent or its staff did not know the complainant’s
party before they came into the pub on 2nd November, 2000. Accordingly, I consider
that the staff on duty had no basis for assuming that the complainant would attempt to give
alcohol to his thirteen year old son. The respondent did not raise this point as an issue in
relation to the complainant specifically and claimed that its no children policy was designed
to ensure that no under 18 year olds consume alcohol on its premises.
7.5 I acknowledge that publicans are obliged by the Licensing Acts not to serve alcohol to
people under 18 years old and that they are entitled to put procedures in place to ensure
that under 18 year olds are not served alcohol. Although I consider the respondent in this
case is to be commended for having a rigorous policy not to serve alcohol to under 18 year
olds I can see no basis for using sections 34 and 35 of the Intoxicating Liquor Act, 1998,
for refusing to serve parents while their children under 18 years are present on the premises
at the same time. In this case I also consider that the respondent’s staff could not have been
acting in good faith under section 15(2) to ensure compliance with these parts of the
Licensing Acts by refusing service to the complainant. This is because they had no previous
knowledge of him or the rest of his party and I have not been convinced that they had any
basis for assuming that any breaches of these parts of the Licensing Acts would occur.
7.6 Section 13 of the 1872 Licensing Act, states:
“If any licensed person permits drunkenness or any violent, quarrelsome, or
riotous conduct to take place on his premises, or sells any intoxicating liquor
to any drunken person, he shall be liable to a penalty not exceeding for the
first offence ten pounds, and not exceeding for the second and any subsequent
offence twenty pounds. Any conviction for an offence under this section shall
be recorded on the license of the person convicted, unless the convicting
magistrate or justices shall otherwise direct”.
I have considered this piece of legislation in conjunction with sections 15(1) and 15(2) of the
Act and I am satisfied they cannot legitimately be used in good faith by the respondent as a
reason for refusing service to the complainant. This is because a reasonable person, having
the responsibility, knowledge or experience of the complainant and his party, would not
have believed that there was any danger of disorder, criminal conduct or damage to
property at or in the vicinity of the pub. I am also satisfied that a reasonable person would
not believe there was a risk of drunkenness, violent, quarrelsome or riotous behaviour in
serving the complainant when he first sought service in the pub with his son. As stated
earlier the respondent’s staff had no previous knowledge of the complainant’s party before
they entered the pub and no evidence was presented to the effect that the staff on duty
suspected that any of the party would be in any way disorderly. Although Mr Kelly said in
oral evidence that he thought the complainant had drink taken when he first came into the
pub this point was denied by the complainant and was not substantiated in any way by the
respondent. I note that the respondent’s solicitor did not mention it as a reason for the
complainant’s refusal in the letter which was sent to me dated 19th February, 2001.
7.7 I am satisfied that the respondent has failed to rebut the inference of discrimination on the
family status ground. The only way the complainant could receive service from the
respondent was to send his son outside the pub. I consider that having a blanket ban on
under 18 year olds being in pubs with their parents is a discriminatory policy against parents
of under 18 year olds on the family status ground under the Equal Status Act, 2000. I am
satisfied that the complainant was treated less favourably by the respondent and that the
respondent directly discriminated against him on the basis of his family status.
7.8 Although there are strong moral and social arguments why parents should not bring children
under 18 years old into pubs with them I consider that under current legislation parents are
entitled to bring their children into licensed premises with them if they wish. However, my
findings on this point should not be interpreted as meaning that publicans must serve parents
when accompanied by their children under 18 years old in all circumstances. This is
because the Licensing Acts require publicans to run orderly houses and to ensure that under
18 year olds do not consume alcohol on their premises. The Equal Status Act, 2000, has
not changed their obligations in this regard.
It is important for publicans to note that there are provisions in the Equal Status Act which
allow them to refuse service to parents who are accompanied by their children under 18
years old. For example, as mentioned earlier, under section 15(2) of the Act where
publicans act in good faith for the sole purpose of ensuring compliance with the Licensing
Acts they can refuse service and not be in breach of the Equal Status Act, 2000. Although
the respondent in this case unsuccessfully invoked the section 15(2) defence there are
situations where I consider it could be successfully invoked. For instance if a publican saw
an under 18 year old consuming alcohol on the premises when accompanied by a parent
then the publican could be entitled to refuse service. Similarly a publican could be entitled to
refuse service in other situations such as if a parent was drunk or if a parent or under 18
year old were disorderly. I consider that publicans could also successfully invoke other
defences contained in the Act but the important point for them to note is that they cannot
have blanket bans on parents who seek service when accompanied by children under 18
years old.
7.9 I now have to consider whether the complainant was discriminated against by the
respondent on this ground at any other time on 2nd November, 2000. In this regard I have
noted that the respondent has alleged that the complainant’s son kept coming back into the
pub after he first left and that the complainant was refused further service on each occasion
when this occurred. The respondent claimed that the complainant became abusive when he
was refused a fourth pint for this reason. The respondent also claimed that this was why he
was refused further service. I have also noted that the complainant denies the respondent’s
version of events and claims that his son went straight home and did not return.
7.10 Having considered this point carefully I consider that it essentially boils down to the word of
one party against the other and that the evidence is inconclusive as to who is correct.
Accordingly, I cannot find that further discrimination occurred on the family status ground.
In any event the complainant claimed that his son did not return to the pub. I consider that if
I were to accept his word in this regard I could not find that any of the further alleged
refusals were based on his family status. This is because no evidence was presented to the
effect that the respondent has a policy to refuse service to parents when their children under
18 years old are not on the premises with them at the same time.
Membership of the Traveller Community
8. I will now deal with the complainant’s claim of discrimination on the membership of the
Traveller community ground.
8.1 There is a conflict between the parties as to how many staff were on duty that day. The two
witnesses who the respondent accepts were there, Mrs Fortune and Mr Kelly, both stated
at the hearing that they did not know that the complainant was a member of the Traveller
community until he raised this point himself when he was leaving the pub after the second
agreed refusal occurred. Their perception is particularly important because they were the
ones who decided to refuse service to the complainant.
8.2 Both parties agree that the complainant was never in the pub before 2nd November, 2000,
but the complainant claimed that the staff on duty would have known he was a Traveller
because it is possible to tell Travellers from non Travellers by their appearance. I believe in
some cases it will be obvious whether someone is covered by a ground covered by the Act.
For example, I consider it was obvious to the respondent’s staff that the complainant was
covered by the family status ground because his thirteen year old son was with him when he
sought service. However, having said this I accept that there are circumstances where
respondents may have some difficulty identifying people who claim to be covered by the
membership of the Traveller community ground.
8.3 The complainant’s representative claimed at the oral hearing that although there was no
direct evidence of discrimination on the Traveller ground that there rarely is in discrimination
cases and that inferences of discrimination can be used to establish that discrimination
occurred. The complainant’s representative also claimed that there was no other apparent
reason for the way the complainant was treated and that this fact contributed to showing that
he was discriminated on the membership of the Traveller community ground. I do not
accept that the claim of the complainant’s representative in this regard is correct. This is
because the complainant has also claimed that he was discriminated against on the disability
and family status grounds and it is clear, therefore, that there could have been other reasons
for the way he was treated.
8.4 No other evidence was presented to the effect that the respondent’s staff knew the
complainant was a member of the Traveller community before he mentioned this fact to
them. On the balance of probabilities I am satisfied that the respondent’s staff, regardless of
whether it was two or three of them, did not know the complainant was a member of the
Traveller community from his appearance or demeanour when the first refusal occurred. I
consider that the respondent has succeeded in rebutting the inference of discrimination up
until the time when the complainant made it known to the respondent’s staff that he is a
member of the Traveller community.
8.5 Both sides agree that after the complainant had been served he disclosed to the
respondent’s staff that he was a member of the Traveller community. I consider that the
position after this fact was made known warrants further investigation and that the timing of
the complainant’s disclosure in this regard is important.
8.6 The key question which needs to be determined is exactly when the complainant told the
respondent’s staff that he is a member of the Traveller community – was it before or after the
respondent decided to refuse further service to the complainant. This is crucial because
from the point of disclosure onwards there is no doubt that the respondent’s staff were
aware that the complainant was a member of the Traveller community and from that point
onwards the respondent has to show that it did not act unlawfully. I have noted that the
parties disagree as to when the complainant made this fact known. The complainant claimed
that it was before service was finally refused but the respondent claimed that it was after the
complainant was refused service as he was leaving the pub.
On the balance of probabilities I am satisfied that the staff did not know the complainant was
a member of the Traveller community until after the decision had been made to refuse him
further service. Accordingly, the respondent has succeeded in rebutting the inference of
discrimination in relation to the membership of the Traveller community ground.
Disability
9. The complainant claims that after his son left the pub he was still not served so he asked to
speak to the manager. He claims that one of the female bar staff named Aisling then told
him that the reason he was not being served was in case his guide dog’s hairs got into the
food. The complainant claims that he then produced a card which stated that guide dogs are
allowed entry to restaurants, food shops and other food premises and that he was then
served. This card was produced at the oral hearing and I am satisfied that it was issued to
the complainant by Irish Guide Dogs for the Blind and not the Minister for the Environment
or the Environmental Officers Association as stated by the complainant in his written
submissions.
9.1 The complainant’s version of events is disputed by the respondent. It claims that the
complainant was served after his son left the pub and that the complainant was not refused
because of his guide dog. It claims that this was because its staff did not know the
complainant had a guide dog at that stage as its staff did not see the complainant come into
the pub and the dog was not visible from behind the bar when the staff were first dealing
with the complainant. It also claims that none of the comments which the complainant
alleges were made and that the complainant did not produce a card from the Minister for the
Environment or anyone else. The respondent also claims that only two staff were on duty
and that it never employed anyone named Aisling.
9.2 In considering the complainant’s claims about this alleged refusal I am conscious that there is
a major conflict in the evidence of the two parties and although both sides had witnesses to
support their evidence none of these could be considered to be totally independent. In these
circumstances I have to judge whose account I consider to be the most credible and I have
taken into account all of the evidence provided.
I have noted in particular that the letter dated 19th February, 2001, from the respondent’s
representative stated that there were complaints from other customers about the guide dog
but at the oral hearing Mr Kelly stated that there were no such complaints. I have also
noted that the letter dated 19th February, 2001, also stated that the complainant was
abusive when he was told his son would have to leave before he could be served but Mrs
Fortune said at the oral hearing that he was not abusive at that time. As both of these
inconsistencies relate to around the time when the complainant alleges this refusal occurred I
consider that they are pertinent to this issue and that they are not helpful to the respondent’s
case.
9.3 In reaching my conclusions in relation to this ground I have also taken into account that Mr
Fortune said at the oral hearing that until this complaint under the Equal Status Act, 2000,
was brought to his attention he had a policy not to allow dogs, including guide dogs, in his
pub. Mr Fortune said that although he had never refused service to someone with a guide
dog before that he would have done so if someone with a guide dog came into his pub. He
said that his no dogs policy came about because one of his customers used to bring a dog
(not a guide dog) into the pub and it was a bit of a hazard because it tended to get in the
way of other customers. Mr Fortune also said that because the only food which the pub
serves is pre packed sandwiches, crisps, peanuts etc., food hygiene was not a contributory
factor in his policy to ban dogs from the pub.
9.4 I consider that Mr Fortune’s evidence on this point is significant and lends credibility to the
complainant’s version of events. In this case the complainant brought his guide dog into a
pub which had a policy not to serve people with dogs, including guide dogs. Although Mr
Fortune also stressed that he never had to enforce this policy I am, nevertheless, satisfied
that the respondent’s staff were aware of the no dogs policy and that they automatically
refused to serve the complainant initially because of it.
9.5 On the basis of the evidence presented I consider that the respondent’s staff saw the
complainant coming into the pub with his dog. I also consider that after the complainant’s
son had left the pub a female member of the bar staff told the complainant that he still could
not be served in case his dog’s hairs got into the food. I am satisfied that the reason the
complainant was refused at this point was because the staff were aware of the respondent’s
no dogs policy. I consider that the complainant then produced the card from Irish Guide
Dogs for the Blind which stated “Guide Dogs are allowed entry to Restaurants, Food
Shops and other Food Premises. Their very special training means that they are not a
risk to hygiene in such premises”. In my opinion, the staff may not have known for
certain until then that the dog was a guide dog and I noted at the hearing that the parties
disagreed as to whether the dog was in a harness and whether the complainant had a white
cane. However, once the card was produced there could have been little doubt that the dog
was a guide dog. I am satisfied that the card sparked a doubt in their minds as to whether
the no dogs policy extended to guide dogs. The staff then decided to serve the complainant
because of the doubts which they had.
9.6 At the oral hearing the complainant claimed that he was discriminated against on the
disability ground because although he was eventually served, he was initially refused service
because of his guide dog. He claimed that this amounted to less favourable treatment on the
disability ground. Having clarified what I consider to have happened I now have to
determine whether the refusal of service before the card was produced constitutes less
favourable treatment on the disability ground.
9.7 In reaching my conclusions on this ground I am satisfied that if a person brought a dog,
which was not a guide dog, into the respondent’s premises they would not have been served
in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant
was not treated less favourably because he was treated the same as anyone else with a dog
would have been treated. However, because of his visual impairment the complainant was
not in the same circumstances as someone else with a dog who was not visually impaired.
This difference is important and to quote the European Court of Justice ruling in the case of
Gillespie and others v Northern Health and Social Services Boards and others (Case
no. C-342/93) “ discrimination involves the application of different rules to
comparable situations, or the application of the same rules to different situations”.
This principle is supported by the ruling in the US Supreme Court case of Jenness v
Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O’Brien
v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38). I believe that
section 4 of the Act is relevant on this point.
Section 4 of the Act states, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which
subsection (1) refers shall not be deemed reasonable unless such provision
would give rise to a cost, other than a nominal cost, to the provider of the
service in question”.
I consider that allowing a guide dog into a pub with a visually impaired person is
special treatment without which it would be impossible or unduly difficult for the visually
impaired person to avail of the service. The respondent did not raise the question of nominal
cost and no evidence was presented to suggest that allowing a guide dog into a pub would
involve expenditure for the respondent.
9.8 I consider that by showing the card to the staff the complainant was essentially trying to
make them aware of his special circumstances and the way in which his need to bring his
guide dog into the pub differed from the needs of non visually impaired people with other
types of dogs. I am satisfied that once the staff read the card which the complainant showed
them from Irish Guide Dogs for the Blind that they effectively decided to ignore the usual no
dogs policy and provided special treatment to the complainant in line with section 4(1) of the
Act.
9.9 I am aware that the complainant was only served after he produced the card but I do not
consider that he was treated less favourably. Effectively he was treated the same as anyone
else with a dog would have been treated up until the point where he showed that his dog
was a guide dog and that special treatment would be required. I consider that if the staff
were unsure whether the complainant’s dog was a guide dog they were entitled to refuse
service until their doubts were clarified by the complainant. Once it was clear-cut that
special treatment was required the staff decided to ignore the usual policy and served the
complainant. I consider that the card effectively served one of the purposes for which it was
probably designed i.e. to help people with guide dogs gain access to pubs, restaurants, etc..
Taking into account all the circumstances of the case I am satisfied that the respondent has
succeeded in rebutting the inference of discrimination on the disability ground up until this
point.
9.10 I will now consider whether discrimination occurred on this ground at any other time when
the complainant was on the respondent’s premises.
The respondent claimed that the reason the complainant was finally refused service was
because his son kept coming back into the pub and the complainant became abusive when
he was refused further service. The complainant denied the respondent’s version of events
but as I stated previously I considered the versions of both parties and found that the
evidence was inconclusive as to who is correct.
However, both parties agree that the complainant was served at least two pints before
service was finally refused. The respondent claimed at the hearing that because the
complainant was served with his guide dog it shows that he was not discriminated against on
this basis. In considering whether the disability ground was the reason for the complainant’s
final refusal I have to consider whether it is logical that the respondent’s staff would initially
refuse the complainant service because of his guide dog, then serve him at least two pints
knowing that he had a guide dog and then stop serving him because he had a guide dog.
Having thought about this carefully in my opinion such a sequence of events, although
possible, is unlikely. On the balance of probabilities I consider that the respondent has
succeeded in rebutting the inference of discrimination on this ground.
DECISION
10. Taking account of all the evidence presented it is my decision that Mr John Maughan was
discriminated against by The Glimmer Man Ltd on the basis of his family status on 2nd
November, 2000, contrary to the Equal Status Act, 2000. It is also my decision that Mr
John Maughan was not discriminated against by The Glimmer Man Ltd on the basis of
disability or his membership of the Traveller community on the same day.
Under section 27(1) of the Act the types of redress which may be ordered following a
decision in favour of a complainant are:
“(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”.
Under section 27(1)(a) of the Act the maximum amount I can award is £5,000 but I do not
think that the maximum would be appropriate in this case. This is because the Equal Status
Act, 2000, only came into operation on 25th October, 2000, and the discriminatory act only
happened just over a week after that. Therefore, despite its clear legal duty to comply fully
with the Equal Status Act, 2000, I consider that the respondent did not properly assess and
realise the full range of new obligations placed on it by the Act. I order that The Glimmer
Man Ltd, pay £2,000 (2,539 Euro) to Mr John Maughan as compensation for the
embarrassment and stress which he suffered.
Under section 27(1)(b) I order that:
i) The Glimmer Man Ltd take down any signs in the Glimmer Man
pub which give the impression that parents cannot be served when
accompanied by their children under 18 years old.
ii) The Glimmer Man Ltd place a sign in a prominent place behind the
bar of the Glimmer Man public house 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
18 December, 2001
DEC-S2009-020 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2009-020
PARTIES
Banjoko v Mellon t/a Dolmen Nursery & Montessori School
File Reference: ES/2007/0083
Date of Issue: 31st March, 2009
Keywords
Equal Status Acts 2000-2004 – Direct discrimination, Section 3(1)(a) – Gender Ground, Section 3(2)(a) – Marital Status Ground – Section 3(2)(b) – Family Status Ground, Section 3(2)(c) – Disability Ground, Section 3(2)(g) – Race Ground, Section 3(2)(h) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 26th July, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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 on 24th February, 2009.
1. Dispute
1.1 This dispute concerns a complaint by Ms. Feyi Banjoko that she was discriminated against by the respondent, Ms. Linda Mellon t/a Dolmen Nursery & Montessori School in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(c), 3(2)(g), 3(2)(h) and 4(1) of the Equal Status Acts, 2000 to 2008 on the basis of the respondent’s refusal to allow her daughter to be dropped off and collected from its crèche by way of taxi for a period of time after the complainant had sustained serious neck injuries in a road traffic accident.
2. Summary of the Complainant’s Case
2.1 The complainant’s daughter was aged 4 years when she commenced attendance at the respondent’s crèche in March, 2006 and it was the complainant’s normal practice to drop off and collect her daughter from the premises on each day of attendance. The complainant was involved in a car accident on 12th June, 2007 in which she suffered serious neck injuries and as a result of these injuries she was unable to drive for a period of time. During this period the complainant was unable to drop off or collect her daughter from the respondent’s crèche each morning and evening. The complainant’s husband was out of the country at this time and as she did not have any alternative transport arrangements the complainant engaged the services of a registered taxi service to transport her daughter to and from the crèche for the period in which she was incapacitated. The complainant contacted the crèche on Friday, 15th June, 2007 in order to inform it of this arrangement and she stated that her daughter was dropped off and collected from the crèche by way of taxi without any difficulties on both Monday, 18th and Tuesday, 19th June, 2007.
2.2 The Manager of the crèche, Ms. A, contacted the complainant at approx. 19:45 on Tuesday, 19th June, 2007 and informed her that the crèche would not allow her daughter to be dropped off and collected from the premises by the taxi service on the basis that this arrangement was in contravention of its policy. The complainant was extremely surprised and upset by this as the crèche had not raised any objection with the arrangement on the previous two days. The complainant explained the difficulties that she was experiencing in terms of the transportation of her daughter to and from the crèche following the road traffic accident and she advised the crèche that she had established the taxi service was registered and that it had proper health and safety procedures in relation to the drivers that it employed. The complainant offered to indemnify the crèche of any responsibility for her daughter arising out of the arrangement and she personally delivered this letter of indemnity and a letter of authorisation to the crèche when her daughter was being dropped off the following morning (Wednesday, 20th June, 2007). The complainant also delivered a letter of complaint to the crèche on this occasion regarding its refusal to permit the transportation arrangement for her daughter that she had put in place.
2.3 The complainant stated that she received a number of telephone calls from the proprietor of the crèche, Ms Linda Mellon later that morning in which the issue was discussed. Ms. Mellon informed the complainant that the crèche would not allow her daughter to be collected by the taxi service nor would the crèche collect her daughter from school and bring her to the crèche that afternoon. The complainant stated that she was extremely distressed by the respondent’s refusal to grant permission for the transportation arrangement that was in place and she was left with no option but to withdraw her daughter from the respondent’s crèche and enrol her in an alternative childcare facility. The complainant’s daughter ceased attendance at the respondent’s crèche on 20th June, 2007 and was placed in another childcare facility which permitted the complainant to transport her daughter to the premises by way of taxi. The complainant accepted that she had decided to withdraw her daughter from the respondent’s crèche prior to the alleged incident of discrimination and that she had made arrangements to have her daughter enrolled in another childcare facility. The complainant claims that she has been discriminated against by the respondent on the basis of its refusal to allow her daughter to be transported to and from the crèche by way of the taxi arrangement that she had put in place following her involvement in a car accident.
3. Summary of the Respondent’s Case
3.1 The respondent operates a crèche and Montessori school which was established in 1996 and which can provide childcare facilities for up to twenty two children. The complainant’s daughter enrolled at the crèche in March, 2006 and the complainant was made aware at that juncture of the respondent’s policy regarding the dropping off and collection of children at the premises. It was the crèche’s policy not to permit children to leave the premises unaccompanied by their parent/guardian or the alternative person that had been named on the enrolment registration form. In the event that the parent/guardian or alternative named person was unable to collect their child the crèche would only release the child to a responsible adult whose name and contact number had been furnished to it prior to the time of collection. The complainant contacted the crèche on Friday, 15th June, 2007 and informed a staff member that she was in hospital following a car accident and would therefore be unable to pick up her daughter that evening but would make arrangements with a friend to collect her. The complainant also informed the staff member that she would make further contact with the crèche in relation to who would be bringing/collecting her daughter to and from the crèche over the next few days.
3.2 The complainant accompanied her daughter to the crèche in a taxi on Monday, 18th June, 2007 and informed the staff member on duty that she would be bringing her to the premises by way of taxi as she was unable to drive following her car accident. The respondent understood from this that the complainant would be accompanying her daughter in the taxi on each occasion she was dropped off and collected from the premises; however, the complainant’s daughter was not accompanied in the taxis that collected her that evening or upon arrival at the crèche the following morning (Tuesday, 19th June, 2007). The respondent’s staff had serious concerns about releasing an unaccompanied child to an unnamed taxi driver and this matter was reported to the crèche’ manager, Ms. A., who was on maternity leave but had been on the premises on that date. Ms. A. contacted the complainant by telephone at 19:45 that evening and reiterated the crèche’s policy regarding the dropping off and collection of children. She also informed the complainant that the crèche was extremely concerned for the welfare of her daughter in terms of the taxi arrangement which she wished to put in place. The complainant became annoyed during this telephone conversation and Ms. A informed her that she would be passing the matter to the proprietor of the crèche, Ms. Linda Mellon. The respondent contacted a number of different agencies for advice on the matter as this was the first occasion since the crèche was established that a parent/guardian had requested such an arrangement be put in place in relation to the dropping/collection of a child to and from the premises. Based on the advice obtained the respondent subsequently amended its policy to state that it would not permit a child to be collected by a taxi unless he/she was accompanied by a responsible adult in the taxi.
3.3 The proprietor of the crèche, Ms. Linda Mellon, had been apprised of the situation involving the complainant by her staff and she contacted her by telephone on Wednesday, 20th June, 2007 in order to discuss the matter. Ms. Mellon informed the complainant that she could not permit any of her staff members to allow her daughter to be dropped off or collected from the premises in a taxi without being accompanied by their parent/guardian as it was in contravention with the crèche’ policy which was in place for the protection and welfare of the children in her care. Ms. Mellon informed the complainant that the crèche could only provide care for her daughter if she was collected and dropped off in accordance with this policy. The respondent stated that the complainant withdrew her child from the crèche on Wednesday, 20th June, 2007. The respondent strenuously denies that it discriminated against the complainant on any of the grounds claimed and it stated that the safety and welfare of her daughter was its foremost concern at all stages; however, it submitted that the crèche could not continue to care for her daughter if the complainant refused to abide by its policies.
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 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. I will now proceed to examine the complaint on each of the grounds claimed.
Gender, Marital Status and Race Grounds
4.2 The complainant claims that she was discriminated against by the respondent on the gender, marital status and race grounds. In considering this issue, I am satisfied that I was not presented with any evidence from which I could conclude that the respondent’s refusal to allow the complainant’s daughter to be dropped off and collected from the premises by way of taxi was in any way attributable to her gender, marital status or race. I am satisfied that the respondent would not have permitted the parent/guardian of any of the children that attended its crèche to transport their child to and from the premises by means of such an arrangement regardless of their gender, marital status or race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the gender, marital status or race grounds.
Family Status Ground
4.3 The complainant also claims that she was discriminated against by the respondent on the family status ground. Section 2(1) of the Equal Status Acts, 2000 to 2008 defines family status, inter alia, as meaning:
“family status means being pregnant or having responsibility –
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, …”
In the present case, the complainant is the parent of a child under the age of 18 years who was enrolled at the respondent’s crèche and I am therefore satisfied that the family status ground is applicable to her in this case. However, I am also satisfied that all of the other parents/guardians who had a child enrolled at the crèche also had the same family status as the complainant i.e. they were also the parent or guardian of a child under the age of 18 years who were enrolled at the respondent’s crèche. As I have already stated, I am satisfied that the respondent would not have permitted the parent/guardian of any of the children that attended its crèche to transport their child to and from the premises by means of such an arrangement regardless of their family status. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.
Disability Ground
4.4 The complainant has also claimed that she was discriminated against by the respondent on the grounds of her disability. In the present case, it was not disputed that the complainant sustained serious neck injuries as a result of her involvement in a car accident in June, 2007 which rendered her incapable of driving her daughter to and from the respondent’s crèche (as was her normal practice). I am satisfied that the condition affecting the complainant at the time of the alleged incident of discrimination in June, 2007 constitutes a disability within the meaning of Section 2(1) of the Equal Status Acts, 2000 to 2008. It was accepted by both parties that the respondent would not permit the complainant to drop off and collect her daughter from the crèche by way of taxi following her involvement in this car accident and that this refusal ultimately resulted in the complainant’s daughter terminating her attendance at the crèche. However, in order for the complainant to establish a prima facie case of discrimination, she must show that the treatment she received was less favourable than that which would have been given to another parent/guardian who had a child enrolled at the crèche who either did not have a disability or who had a different disability. In considering this issue, I am satisfied that the respondent would not have permitted the parent/guardian of any of the children that attended its crèche to transport their child to and from the premises by means of such an arrangement irrespective of whether or not they had a disability. In the circumstances, I am satisfied that the complainant was not subjected to less favourable treatment on the grounds of her disability. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.
Reasonable Accommodation
4.5 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question …”.
The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a person with a disability in terms of its refusal to permit her daughter to be transported to and from the premises by means of the taxi arrangement the complainant had put in place following her involvement in a car accident.
4.6 In considering this issue, I note the undisputed evidence of the complainant that she was unable to drive for a period of time following her involvement in a car accident on 12 June, 2007. The complainant claims that she made arrangements to have her daughter transported to and from the crèche by way of taxi following this accident as she did not have any alternative means of doing so at that time. It was not disputed that the complainant contacted the crèche and informed the Acting Manager, Ms. B, that her daughter would be transported to and from the premises by way of taxi commencing on Monday, 18th June, 2007. However, it would appear that there was some confusion regarding the manner in which the arrangement would work in practice as the respondent claims that it was under the impression the complainant would accompany her daughter in the taxi on all occasions. I note that the complainant did, in fact, accompany her daughter in the taxi to the crèche on the Monday morning and that it was only when the taxi arrived at the crèche that evening (without the complainant) in order to collect her daughter that an issue arose regarding the appropriateness, or otherwise, of the arrangement. I accept that the members of staff working in the crèche had genuine concerns regarding the arrangement at this juncture and as a result of these concerns the matter was subsequently brought to the attention of the crèche manager, Ms. A, who in turn referred the matter to the proprietor of the crèche, Ms. Linda Mellon.
4.7 The respondent has claimed that it had never previously encountered a situation whereby a parent/guardian had requested their child to be transported unaccompanied in a taxi to and from its premises and it was submitted that such a request was in breach of its stated policy which the complainant had agreed to adhere to upon the enrolment of her daughter. I note that the policy which the crèche had in place at the time of enrolment of the complainant’s daughter in March, 2006 stated that “Should you have someone other than the parents collecting your child, please inform staff of the name and status of the collector”. I am satisfied that it was clearly stated within the respondent’s policy that there was a requirement on the parent of a child to inform the crèche of the name of an individual who would be collecting the child from the premises should the parent not be in a position to do so. It was not disputed by the complainant that she was made aware of this policy upon the enrolment of her daughter at the crèche. I accept that the complainant notified the respondent of the name of the taxi company that she had engaged to drop off and collect her daughter from the premises, however given the nature of the arrangement it was likely that her daughter would be transported to and from the premises on each occasion by a different taxi driver. Having regard to the foregoing, I am satisfied that this arrangement was not in compliance with the respondent’s stated policy regarding the dropping off and collection of children to and from the premises.
4.8 The respondent also submitted that it could not agree to the taxi arrangement which the complainant sought to put in place as it raised serious concerns regarding the safety and welfare of the child. I have taken note of the Child Care Act, 1991 (as amended) and the Child Care (Pre-School Services) Regulations, 1996 which make legislative provision for the operation of childcare facilities, such as the respondent’s crèche, and this legislation clearly places an obligation on the service provider to take all reasonable measures to safeguard the health, safety and welfare of children attending the service (Section 52 of the Child Care Act refers). It is also clear that any failure by a service provider such as the respondent to adhere to its obligations in this regard could have very serious consequences both for service provider in question and the children under its care. Having regard to these obligations, I am satisfied that it is incumbent on the provider of a childcare facility, such as the respondent, to exercise extreme diligence and caution in terms of the policy that it implements in relation to the dropping off and collection of children from its premises. I accept that the complainant had informed the respondent that she was satisfied the taxi company concerned was a reputable firm and that she would not have entrusted this firm with the safety and welfare of her daughter if she had any concerns in this regard. However, notwithstanding the complainant’s assurances, I am satisfied that the respondent’s refusal to permit the complainant to transport her daughter to and from its premises by way of the taxi arrangement was not unreasonable in the circumstances of this case especially in light of its obligations under the Child Care Act and the resultant duty of care that it had to protect the safety and welfare of the child in question. Having regard to the foregoing, I find that the respondent’s refusal to facilitate this taxi arrangement did not amount to a failure to do all that was reasonable to accommodate the needs of the complainant as a person with a disability within the meaning of Section 4 of the Equal Status Acts.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the gender, marital status, family status, disability and race grounds in terms of Sections 3(1), 3(2)(a), 3(2)(b), 3(2)(c), 3(2)(g), 3(2)(h) and 4(1) and of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
31st March, 2009
DEC-S2003-146/147 Full Case Report
Suzanne & Margaret Crawford v The Bootlegger Bar
1. Dispute
1.1 This dispute concerns a complaint by Suzanne Crawford and Margaret Crawford that they were discriminated against, contrary to the Equal Status Act 2000, by the management of the Bootlegger Bar, Limerick. The complainants maintain that they were discriminated against on the age ground in terms of sections 3(1), 3(2)(b) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which are generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainants’ Case
2.1 The complainants state that they were both refused admission to the Bootlegger Bar on Thursday 3 May 2001 by the doorstaff who informed them that they were “too old” and that the management wanted “younger women and older men” as customers. They were 29 and 36 years old at the time. The complainants claim that the refusal constituted discrimination on the grounds of their age.
3. Summary of Respondent’s Case
3.1 The respondents totally reject that they operate a discriminatory policy against anyone. They state that the premises is primarily a restaurant and that it would not be in their interests to refuse customers on the grounds of their age. They maintain that the alleged incident was investigated by management when the complaint was made but that staff had no recollection of such an incident occurring.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were 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 these complaints 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 Matters for Consideration
5.1 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 age as one of the grounds. Under Section 5(1) of the Act it are unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the manner in which they were refused admission to the Bootlegger Bar on 3 May 2001.
5.2 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend their case, must show that their actions were driven by factors which were non-discriminatory.
5.3 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 High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100)
6 Conclusions of the Equality Officer
6.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 complainants 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.
6.2 What constitutes “prima facie evidence’ and how a “prima facie case” is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
6.3 With regard to (a) above, the complainants have satisfied me that they were 29 and 36 years of age respectively on 3 May 2001. In relation to (b), the respondents state that their staff have no recollection of the alleged incident. To determine whether a prima facie case exists, I must, therefore, decide first whether the complainants have satisfied me, on the balance of probabilities, that the alleged incident occurred on 3 May 2001 and, if so, whether the alleged treatment was less favourable than the treatment persons of a different age would have received, in similar circumstances.
6.4 The principal pieces of evidence before me are as follows
The complainants were regular customers in the Bootlegger Bar up until 3 May 2001. The previous Sunday they had celebrated their mother’s birthday in the pub.
The complainants said that, on 3 May 2001, one of the doormen, who was a regular on the door, informed them that the management had brought in a new “younger women / older men” policy and that they could not be admitted.
Having pleaded with the other doorman, who they knew by name (who I shall refer to as Mr A), one of the complainants was allowed inside to inform her friends that she was not being admitted. While inside, she says that she informed the barman of the doorman’s comments but that he just “laughed at her” and told her that he could not over-rule the doorman’s decision
The complainants state that they found the incident so upsetting that Suzanne cancelled a Communion booking for the Bootlegger scheduled for the following weekend. Because of the incident, neither of the ladies have visited the pub since.
The respondents state that the bar is primarily a restaurant and that it is frequented by all age groups. It would not be in the manager’s interest to restrict people on the grounds of their age.
The bar engages a security firm to supply doorstaff. The firm is responsible for the training of staff on equality issues and Mr Enright, the owner, said at the Hearing that he believed that the doorstaff would have received all necessary training relating to the Equal Status Act 2000 from the company itself or from the head doorman.
When the Act came into force, weekly meetings were held with doorstaff who were told to ensure that customers were clearly told the reason for their refusal in order to avoid allegations of discrimination.
At the Hearing, Mr Enright, stated that it is normal practice for him to investigate all complaints when received. He believes that he would have investigated the incident on 3 May 2001, on receiving the solicitors letter three weeks after the alleged incident. However, Mr Enright cannot recall specifically talking to the doorstaff himself about the incident.
The Bootlegger Bar has a video surveillance system in operation which would have recorded the events at the door on 3 May 2001. Mr Enright believes that the videotape of 3 May 2001 would have been viewed as part of his investigation as tapes are normally retained for 6 months. Mr Enright cannot explain, however, why this videotape was not retained as evidence.
6.5 In deliberating on the case before me, I can find no reason why the complainants would have fabricated the incident on 3 May 2001. On their own admission, the complainants were regulars in the pub and were happy to use the premises for birthday celebrations and communions. In addition, neither party has referred to any form of trouble between them in the past which would appear to rule out any suspicion that the complainants may have had a grievance against the pub’s owner. The respondents, for their part, say that they investigated the complaint at the time but could find no evidence of the incident nor could they provide an explanation for what apparently happened on 3 May 2001. Mr Enright states that he also believes that the relevant videotapes were examined at the time but showed nothing. Of interest here is that Mr Enright has stated that, while it would be his normal practice to investigate such complaints, that he cannot say for certain that the doorstaff were interviewed or the videotapes examined in this instance. I also note that neither of the doorstaff on the night were brought to the Hearing to give evidence. Mr Enright said that he was unable to trace them as it seems that they no longer work for the security firm. The complainants, however, questioned this, saying that they knew where Mr A lived and that they often still see him around the area.
6.6 Section 42 of the Equal Status Act 2000 , which deals with the issue of vicarious liability, states that:
“(1) 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.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.”
6.7 On the basis of the evidence before me, I have formed the opinion, on the balance of probabilities, that Suzanne and Margaret Crawford were refused entry to the Bootlegger Bar on 3 May 2001 and that the explanation given to them was that they were “too old”. This to me calls into question the respondents assertion that proper training on the grounds covered by the Equal Status Act 2000 was actually provided to all staff. If it had been, I consider that the doorstaff would have known, from such training, that any refusal based solely on a person’s age could be deemed to constitute discrimination under the Equal Status Act 2000. I am also persuaded towards the view that proper training was not provided to staff by the complainant’s evidence that the barman, on being told about the age comment by the complainant, did not appear to appreciate the seriousness of the situation nor did he attempt to intervene. In the absence of any evidence from any of the staff who were involved, I find that I am not prepared to accept that the respondent had taken reasonable steps to prevent the discrimination, by providing sufficient training to staff on the provisions of the Equal Status Act 2000. Accordingly, I find that the respondent was vicariously liable for the actions of the doorman on 3 May 2001, under Section 42 of the Act.
6.8 Overall, I cannot see any legitimate reason as to why the complainants were told that they were “too old” and I can only presume that the comment was made in a jocular fashion. However, I am satisfied, on the balance of probabilities, that the remark was made, that it was a discriminatory remark and that it caused hurt and humiliation to the complainants. I also find that the respondents have not provided sufficient evidence to rebut the allegation nor to convince me that they should not be held vicariously liable for the actions of the doorstaff on the night in question. I, therefore, find that a prima facie case of discrimination on the age ground has been established and that the respondents have failed to rebut the allegation.
6.9 In deliberating on the case before me, I am conscious of the fact that the alleged comment by the doorman regarding ” younger women and older men” could also have been interpreted as discrimination on the gender ground. However, as the gender ground was not raised with the respondent at the hearing, I consider that it would not be in the interests of natural justice for me to make a finding as to whether discrimination on the gender ground occurred in this instance.
Decision
7.1 I find that a prima facie case of discrimination has been established by the complainants on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
In considering the level of redress to award, I am cognisant of the fact that, as a restaurateur, it would not be in the respondent’s interests, to discriminate against people on the grounds of their age. I also note that the respondents replied promptly to the notification of the complaint in 2001, stating that they were unaware of the circumstances under which the refusal was made and extending a “warm invitation” to the complainants to visit the premises again. For these reasons, I am prepared to accept that this was an isolated incident and that the Bootlegger Bar does not actively engage in discriminatory practices.
I have, however, found that discrimination did occur on the night of 3 May 2001 and that the complainants suffered hurt and humiliation as a result. Accordingly, I order that the respondents pay Suzanne and Margaret Crawford the sum of €300 each for the hurt, humiliation and loss of amenity suffered.
Brian O’Byrne
Equality Officer
15 December 2003
DEC-S2011-030- Full Case Report
The Equality Tribunal
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2011-030
Bisayeva v Westend Management Limited
File Ref: ES/2009/097
Date of Issue: 29 July 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 8 September 2009 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 26th November 2010 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 30 March 2011 and both parties were in attendance. Following the hearing, the complainant, who was unrepresented, requested the opportunity to make a written submission in response to the respondent’s submission. As a result, there were a number of exchanges of documents between the parties and this process was concluded on 1 June 2011.
1. Dispute
This dispute concerns a claim by the complainant, Ms Bisayeva (“the complainant”) that she was discriminated against by the Westend Management (hereafter “the respondent”) on the grounds of race in terms of Section 3(2)(h) of the Equal Status Acts, 2000-2008 in being refused a service, which is generally available to the public contrary to Section 6(1) of the Equal Status Acts, 2000-2008.
Summary of the Complainant’s Case
2.1 The complainant is a Muslim woman, originally from Chechnya. She wears a headscarf and traditional clothing in accordance with her cultural tradition. By way of background she stated that she is often subjected to less favourable treatment as a result of her attire, which she believes is often mistaken for Roma by Irish people.
2.2 On 20th March 2009, the complainant was trying on shoes in Pavers, which is a unit in the Westend Retail Centre in Blanchardstown. A security guard approached her and spoke to her in English. She did not fully understand what he was saying because her English is limited, so she phoned her son, who was browsing in a nearby shop. The security guard escorted her out of the shop. At this point the complainant’s son arrived and translated for her. He said that the security guard had been asked to tell her to leave. The security guard said that it was nothing to do with him and that he was just following orders. The security guard’s Supervisor arrived at that point. Her son asked why his mother was asked to leave and he was told by the Supervisor that she had been involved in a previous altercation with the Supervisor in the Westend centre. This alleged altercation involved her younger son accusing the security guards of racism, while his mother stood by talking on her mobile phone. The complainant and her son denied this allegation and insisted it never happened. She tried to explain why it could not have been her son, but the Supervisor kept interrupting her. The Supervisor threatened to call the Gardai and the complainant and her son said they would be welcome to do so. They waited for the Gardai outside the shop, but the security guards became agitated and walked away. They went back into the shop and waited a little longer but nothing happened and they went home shortly afterwards.
2.3 The complainant claims that the alleged previous incident with her younger son never took place, and in support of this, she submitted to the Tribunal evidence that her son was on a school work placement at the material time. She also submits that the security Supervisor gave a completely incorrect description of her son. She submits that the real reason that she was asked to leave, was due to her ethnicity and appearance. She submits that she wears the traditional attire of her country and is therefore visibly non-Irish and a member of a minority ethnic group. She claims that while she has never been involved in any incident before, she is regularly followed very closely around the Westend shops by security staff, on account of her appearance.
2.4 The complainant submits that she was extremely embarrassed and humiliated by being forced to leave a shop which she regularly frequents. She submits that this incident had a bad impact on her health and she suffered raised blood pressure and migraines as a result.
Witness for the complainant – Mr Bisayeva, the complainant’s son
2.5 The witness was in another store near Pavers when his mother called him, to say that there had been some sort of misunderstanding. She asked if he could come and help her sort it out. The witness arrived and spoke with the security guard. He said the security guard explained politely that his mother had been asked to leave because of a previous incident. The security guard said that he had been on holidays at the time of the earlier incident and couldn’t give any details. The security guard said that he was just following orders and it was nothing personal. The witness accepted this, but insisted that his mother should be given a proper reason for being asked to leave. The security guard said that his boss told him, so the witness asked to speak to his boss. The Supervisor arrived, but did not introduce himself. He pointed to the witness and told him to keep out of it, as it was nothing to do with him. He said that the complainant was “not wanted” in Westend and had to leave. The witness asked who gave him the authority to make such a decision. The Supervisor said that there had been a previous incident with the complainant and her other son. The witness asked his mother if it could be possible that his brother was involved in an incident with her. His mother said no and asked the Supervisor to describe the other son. The Supervisor gestured that the man involved in the incident was small, so the witness explained that there must have been a mistake, as his brother is considerably taller. The witness realised at that point that there must have been a mistake and thought the matter could be easily cleared up. However he submits that the Supervisor was rude and ignored him. He stated that he then became angry because of the false allegations against his mother and brother, but he was not aggressive. He told the Supervisor that his behaviour towards his mother was unlawful and that this would not be the end of the matter. He asked him to apologise to his mother, who was very upset and shaking. The Supervisor refused and the witness said that he would go to the Citizen’s Information Centre for advice. The Supervisor insisted that they should leave and the witness refused. The witness and his mother requested the names of the two security guards and these were provided. The Supervisor threatened to call the Gardai and the witness said that he would make the call himself, because he wanted the matter taken further. He understood that the Supervisor had called the Gardai, so he and his mother went back inside the shop to wait. Both Security guards left and the Gardai did not come. The witness and his mother left shortly afterwards.
Summary of the Respondent’s Case
3.1 The respondent made some preliminary submissions. Firstly they submit that they are not a service provider within the meaning of the Acts. Secondly the respondent argues that they are the incorrect respondents and states that the complainant should have taken her case against Pavers shop, as it was the manager of Pavers who requested that she should be removed from the premises. In support of this they submit that it is their standard operating procedure that individual shop staff are responsible for what occurs within the shop and the respondent is responsible for the common areas outside. They only enter retail units at the request of the local management. In cases such as this, they require that the local manager first requests the customer to leave and if the manager is unsuccessful, then they may call security. In this case, they submit that normal procedure was followed; a named manager from Pavers asked the complainant to leave, she appeared not to hear and so the manager called for assistance. Therefore they submit that they cannot be held responsible for the action.
3.2 In the alternative, the respondent claims that the security staff were correct to ask the complainants to leave the store and that they were correct in maintaining their position, once outside. This was because the complainant had been recently involved in an altercation with the Supervisor and they were therefore entitled to tell her to stay away, to ensure that good order was maintained in the area.
3.3 Witness for the Respondent – A named Security Guard
The Security Guard gave oral evidence that he was on duty on the evening of 20 March 2009, when he was told by his supervisor to go to the Pavers Shop to provide assistance. The duty manager in Pavers told him that she had asked the complainant to leave, but that the complainant did not. The Security Guard approached her and asked her to leave twice. It was his impression that the complainant did not fully understand. He then told her that she had been asked to leave three times and turned to leave, assuming she had enough understanding to follow him. She followed him out and phoned her son, who arrived when they were outside the shop. Her son asked why his mother had been told to leave and the witness explained that the decision was made by the store manager. He submits that the complainant’s son became very aggressive and angry, so he called his supervisor for back-up. His supervisor arrived and spoke to the group. The son asked for their names which they gave. His supervisor went back to the control room and he stayed out in the mall.
3.5 Witness for the Respondent – A named Security Supervisor
3.5.1 The Supervisor gave oral evidence that two weeks prior to the 20 March, another (named) retail unit had called him regarding the complainant. The security staff at this unit told him that there were two females in their store who appeared to be stealing items of clothing. The Supervisor went to this store, took a look round and then left. He waited outside for the women and observed them going into another shop, having left the previous shop without making a purchase. He went to the Security guard on duty in that shop and told him that there might be something suspicious about the women. While he was talking to this guard, a man approached him and asked why he was following his mother. The Supervisor responded that he was watching the whole mall, not any specific individual and that he had not accused the woman of anything. The man accused the Supervisor of mistreating his mother for racist reasons. The Supervisor said he would call the Gardai and the group left. He says the man must have been talking about the complainant, as she was the only one old enough to be his mother.
3.5.2 Regarding the incident of 20 March, the Supervisor was on duty in the control room of the retail park, when he received a call from Pavers. He submits that he sent the Security Guard down to deal with it and that he was called by him a few minutes later for help. He arrived, introduced himself by name and told the group that he was there at the request of Pavers. The man immediately began shouting at him and verbally abusing him, calling him a racist. He further submits that the complainant’s son then placed himself eye-to-eye with the Supervisor and said “I can tell you have never been in prison”. The Supervisor took this as an attempt to intimidate him. He threatened to call the Gardai. At this point the complainant stepped forward and he recognised her as the woman involved in the altercation from two weeks earlier. She also called him a racist. He was afraid there would be a physical altercation. Then things calmed down and he and his colleague gave their names to the complainant as requested. He went back to the office. The complainant and her son stayed in the shops a few more minutes and then left.
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 Preliminary Issues
4.2.1 It has been submitted that the named respondent does not provide a service to the public as defined under the Acts. I reject this argument on the basis that it is trite law that the Tribunal may hear cases on precisely this issue of security personnel preventing entry to or removing customers from the premises they are supervising.
4.2.2 Secondly they submit that the complainant is misconceived as against them. The submit that the correct respondent should be Pavers shop, as the security guards were only acting on orders received from the shop. However the Acts specifically cover this issue at Section 42(2), which defines vicarious liability:
“Anything done by a person as agent for another person, with the authority (whether express and implied and whether precedent and subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also (my emphasis) by that other person”.
The respondent in this case was acting on the orders of their client, Pavers and I find that they fall fully within the above definition. Therefore while it may well be argued that the respondent does not bear the full burden of responsibility for the alleged discrimination, they may still be held liable under the Acts for their part in the matter. A similar issue was addressed in the Equality Tribunal decision DEC-S2008-54 Jordan v Marsh, which concerned an outsourced administrative agent, who was found to have implemented discriminatory treatment, on behalf on an insurance company, as against a customer of the insurance company. The agent in question did not set the rules for the policy; they merely implemented them. However the fact that they were the agent, rather than the principal, was insufficient to absolve them of liability for the discrimination, although it was considered a mitigating factor in terms of the quantum of compensation. I find the instant case has many similarities and while it may be argued that the complainant should have also taken her case against the shop, she is not prevented from pursuing the respondent security company.
4.3 It is agreed between the parties that the complainant was asked to leave the shop. The first security guard presented as a relatively credible witness, whose account of the events mostly corresponded with that of the complainant’s son. I accept that he was requested by his boss, on foot of a call from Pavers to ask the complainant to leave the shop. When he was challenged by the complainant’s son, he called his Supervisor to explain the background to the issue.
4.4 The reason for the ejection is disputed between the parties. The complainant claims it is due to her ethnic appearance. The respondent claims it was the store management’s decision to eject her. They further submit that that they recognized her due to the alleged previous incident. The following has been submitted in support of this alleged incident:
– The oral evidence of the Supervisor, who said that the complainant’s son had previously accused him of being a racist. Initially he said the son was small and then he said that he was tall when the complainant explained that it could have not been her son. The Supervisor’s version of events during the oral hearing was inconsistent and lacked credibility.
– The oral evidence of the Supervisor that the complainant had been involved in a previous incident in another store, where she had been suspected of trying to steal children’s clothes. The hearing was the first time this incident was mentioned and it was not referred to in the earlier submissions or statements.
– The written statement from a security officer at another store in support of their claim that the complainant was involved in a previous incident. This statement is of no value to the investigation as provides no details (dates, names, descriptions, etc) to connect it in any way to the complainant or the incident in question and even the statement itself is undated.
Therefore, based on all of the above, I cannot accept that any previous incident with the complainant, as described by the Supervisor, ever took place. I also note that once the parties were outside, the security staff did not act in a manner consistent with their claims. If the Supervisor genuinely believed that the complainant’s son was behaving in a dangerous and threatening manner and that his mother was a potential shoplifter, I find it highly unlikely that he would allow them to re-enter the store and then just wander back to his office. I find it more likely that he realised his mistake and simply walked away without explanation to the complainant or her son. Overall I found that the complainant’s son gave the most convincing account of what happened.
4.5 Additionally I note that the respondent has offered no explanation as to why the shop manager initially wanted to eject the complainant. The complainant claims that the initial reason she was singled out for ejection was on account of her ethnic appearance. She claims that she was then further discriminated against by the Security Supervisor who insisted she was a trouble-maker, again purely on account of her appearance. In considering the matter, I have noted the Labour Court’s views expressed in Ntoko v Citibank EDA045. Here the court referred to the high level of protection offered by the Race Directive 2000/43/EC and it recognised that direct evidence of discrimination on grounds of race is often very elusive; therefore, when a claimant establishes facts from which discrimination may be inferred it is for the respondent to prove that there has been no infringement of the principle of equal treatment. This Labour Court decision refers to a case under the Employment Equality Acts,; however the Race Directive also covers goods and services and therefore I find the court’s reasoning both relevant and persuasive. In the instant case, it is clear that clear that the complainant’s attire distinguishes her as a member of an ethnic minority. The complainant also established as a matter of fact that she was subjected to less favourable treatment than other shoppers in the centre, by being asked to leave. The respondent has offered no convincing or credible explanation for either ejecting the complainant or for subsequently insisting that she was barred from the Westend Retail Centre. Therefore there remains only the discriminatory explanation; that the complainant was told to leave because she was clearly a foreign national who was wearing a headscarf associated with her ethnic background.
4.6 I therefore find that she has established a prima facie case of discrimination on the race ground and the respondent has failed to rebut it.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Complainant and award her €1,500 for upset and humiliation suffered as a result of the discrimination. The following factors have been taken into consideration in the value of the award:
– That the original action was that of an agent only (the respondent implemented, but did not make the decision to eject the complainant).
– That the Security Supervisor contributed to the discrimination by falsely accusing the complainant of being involved in an incident previously and by insisting that she was barred from the whole shopping centre.
Elaine Cassidy,
Equality Officer
29 July 2011
James v Eastleigh Borough Council
[1990] UKHL 6 [1990] IRLR 288, [1990] ICR 554, [1990] 2 AC 751, [1990] UKHL 6, [1990] 2 All ER 607, [1990] 3 WLR 55
Lord LowryOn reading section l(l)(a), it can be seen that the
discriminator does something to the victim, that is, he treats him
in a certain fashion, to wit, less favourably than he treats or
would treat a woman. And he treats him in that fashion on a
certain ground, namely, on the ground of his sex. These words, it
is scarcely necessary for me to point out, constitute an adverbial
phrase modifying the transitive verb “treats” in a clause of which
the discriminator is the subject and the victim is the object.
While anxious not to weary your Lordships with a grammatical
excursus, the point I wish to make is that the ground on which the
alleged discriminator treats the victim less favourably is
inescapably linked to the subject and the verb; it is the reason
which has caused him to act. The meaning of the vital words, in
the sentence where they occur, cannot be expressed by saying that
the victim receives treatment which on the ground of (his) sex is
less favourable to him than to a person of the opposite sex. The
structure of that sentence makes the words “on the ground of his
sex” easily capable of meaning “due to his sex” if the context so
requires or permits.
Mr. Beloff gave your Lordships a definition of “ground” from
the Oxford English Dictionary 2nd ed., vol vi, p. 876:
“a circumstance on which an opinion, inference, argument,
statement or claim is founded, or which has given rise to an
action, procedure or mental feeling; a reason, motive.
Often with additional implication: A valid reason, justifying
motive, or what is alleged as such.”
– 16 –
Mr. Lester conceded that in ordinary speech to ask on what
grounds a particular decision is taken invites consideration of the
mental processes of the decision-maker. And your Lordships are
only too familiar with the use in a legal context of the word
“grounds” as synonymous with reasons. It is also interesting to
note one dictionary definition of “discriminate” as “to make a
distinction, especially unjustly, on the grounds of race or colour or
sex.” As Mr. Beloff put it, section 1(1)(a) refers to the activities
of the discriminator: the words “on the ground of his sex” provide
the link between the alleged discriminator and his less favourable
treatment of another. They introduce a subjective element into
the analysis and pose here the question “Was the sex of the
appellant a consideration in the council’s decision?” Putting it
another way, a “ground” is a reason, in ordinary speech, for which
a person takes a certain course. He knows what he is doing and
why he has decided to do it. In the context of section l(l)(a) the
discriminator knows that he is treating the victim less favourably
and he also knows the ground on which he is doing so. In no case
are the discriminator’s thought processes immaterial.
In the Court of Appeal Sir Nicolas Brown-Wilkinson V.-C.
said [1990] Q.B. 61, 71:
“As the facts of this case demonstrate, there is no doubt
that the council’s policy has a discriminatory impact as
between men and women who are over the age of 60 but
under … 65. [Women] of that age enjoy the concession:
men of the same age do not. But not all conduct having a
discriminatory effect is unlawful: discriminatory behaviour
has to fall within the statutory definition of discrimination
and to have occurred in a context (e.g. in relation to
employment or the provision of facilities) in which the Act
renders such discrimination unlawful.”
Then (I am simply dealing with the construction point) he said, at
p. 74:
“Mr. Lester, for the plaintiff, forcefully submitted that
there is direct discrimination in this case. He submitted
that discrimination is ‘on the ground of sex within section
l(l)(a) if the sex of the plaintiff is a substantial cause of
the less favourable treatment. In this context, he says, the
correct question is ‘What would the position have been but
for the sex of the plaintiff?’ If the position would be
different if the plaintiffs sex were different, that is direct
discrimination.
“I do not accept that construction of section 1. In
my judgment section 1(1)(a) is looking to the case where,
subjectively, the defendant has treated the plaintiff less
favourably because of his or her sex. What is relevant is
the defendant’s reason for doing an act, not the causative
effect of the act done by the defendant. As Mr. Towler
for the council pointed out, section 1(1) is referring
throughout to the activities of the alleged descriminator. In
the case of direct discrimination ‘a person discriminates
against a [man] . . . if on the ground of [his] sex he treats
[him] less favourably . . . ‘ Those words indicate that one
is looking, not to the causative link between the defendant’s
– 17 –
behaviour and the detriment to the plaintiff, but to the
reason why the defendant treated the plaintiff less
favourably. The relevant question is ‘did the defendant act
on the ground of sex?’ not ‘did the less favourable
treatment result from the defendant’s actions?'”
I agree with and adopt those observations of the Vice-Chancellor,
which I consider to be entirely consistent with the decision
reached by your Lordships’ House in Birmingham City Council v.
Equal Opportunities Commission [1989] AC 1155, on which Mr.
Lester has so strongly relied and to which I must soon give my
attention.
While still on the construction point, I might mention,
Armagh District Council v. Fair Employment Agency [1983] N.I.
346, which was a decision of the Court of Appeal in Northern
Ireland on the Fair Employment (Northern Ireland) Act 1976.
Section 16(2) of the Act provided:
“For the purposes of this Act a person discriminates against
another person on the ground of religious belief or political
opinion if, on either of those grounds, he treats that other
person less favourably in any circumstances than he treats
or would treat any other person in those circumstances. . .
.”
The facts were concerned with the appointment of a wages clerk
by a district council and do not assist in the resolution of this
appeal, but perhaps I may be permitted to refer to a passage in
my judgment where I said, at pp. 354F-355:
“It must not be forgotten that when the Act uses the word
‘discrimination or ‘discriminate’ it is referring to an
employer who makes a choice between one candidate and
another on the ground of religious belief or political opinion;
it is not speaking of an incidental disadvantage which is due
to a difference between the religion of the employer and of
the candidate but of a deliberate, intentional action on the
part of the appointing body or individual.
“Here I must dispose of a misleading argument which
was raised before the learned county court judge but not
seriously pursued in this court. An action may be deliberate
without being malicious. Most acts of discrimination are
both, but the only essential quality is deliberation. If a
Protestant employer does not engage a Roman Catholic
applicant because he genuinely believes that the applicant
will not be able to get on with Protestant fellow workmen,
he is discriminating against the applicant on the ground of
his religious belief, although that employer’s motives may be
above reproach. If women are allowed to stop work five
minutes early in order to avoid being endangered when the
day’s work ends, it has been decided that the men in the
workforce are discriminated against on the ground that they
are men. The employer’s decision to keep the men at work
longer, though reached in good faith, was deliberately based
on the fact that they were men.
“Accordingly, it can be stated that, although malice
(while often present) is not essential, deliberate intention to
differentiate on the ground of religion, politics, sex, colour
– 18 –
or nationality (whatever is aimed at by the legislation) is an
indispensable element in the concept of discrimination. The
distinction is sometimes expressed as one between motive
and intention. In Peake v. Automotive Products Ltd. [1977]
Q.B. 780, the case about releasing women early from their
work, Phillips J. stated, at p. 787: ‘it seems to us that
[counsel] is confusing the motive or the purpose of the act
complained of with the factual nature of the act itself.
Section 1(1)(a) requires one to look to see what in fact is
done amounting to less favourable treatment and whether it
is done to the man or the woman because he, is, a man or
a woman. If so, it is of no relevance that it is done with
no discriminatory motive.’ This idea runs through all the
cases.”
The Peake decision was reversed on appeal [1978] Q.B. 233, but
has subsequently been recognised as correct: Ministry of Defence
v. Jeremiah [1980] Q.B. 87.
Section 66 of the Act deals with the enforcement of claims
under Part III, which includes the relevant section 29. Subsection
(3) provides:
“As respects an unlawful act of discrimination falling within
section 1(1)(b) (or, where this section is applied by section
65(1)(b), section 3(1)(b)) no award of damages shall be made
if the respondent proves that the requirement or condition
in question was not applied with the intention of treating
the claimant unfavourably on the ground of his sex or
marital status as the case may be.”
Damages may be awarded in respect of all acts of direct
discrimination and therefore, as Mr. Beloff persuasively contends,
the subjective construction of section 1(1)(a) would be consistent
with the principle of making damages available only in cases where
the discrimination has been intentional.
As I have said, and as the Vice-Chancellor stated in the
Court of Appeal, Mr. Lester espoused the causative construction of
the vital words which, as he submitted, has the virtue of
simplicity; it eliminates consideration of the discriminator’s mental
processes and of such protean and slippery concepts as intention,
purpose, motive, desire, animus, prejudice, malice and reason. The
basic difficulty of this approach, I consider, is that one has to
disregard or distort the phrase – “on the ground of his sex” in
order to make it work. Counsel argued that the subjective
construction “artificially confines the meaning of ‘ground'”. I must
disagree: the subjective construction uses “ground” in its natural
meaning, whereas the causative construction suppresses the natural
meaning. The phrase “on the ground of” does not mean “by reason
of”; moreover, “ground” must certainly not be confused with
“intention”.
Mr. Lester rightly submits that the policy of the Act is to
discourage discrimination and promote equality. But the Act
pursues that policy by means of the words which Parliament has
used. Some inequality may be justified (see section l(l)(b)(ii)) and
some is accepted (see sections 6(4) and 51 (now 51A as amended
by section 3 of the Employment Act 1989)). The phrase “on the
– 19 –
ground of his sex” does not, as alleged, constitute an exception to
the policy and therefore does not fall to be narrowly construed.
The words in question constitute an ingredient of unlawful
discrimination contrary to section 1(1)(a).
As I have said, the appellant relies strongly on the
Birmingham case. The relevant extracts from the speech of my
noble and learned friend, Lord Goff of Chieveley have already
been cited by him and by my noble and learned friend, Lord
Bridge of Harwich. Your Lordships will recall that Lord Goff of
Chieveley said, p. 1194:
“There is discrimination under the statute if there is less
favourable treatment on the ground of sex, in other words if
the relevant girl or girls would have received the same
treatment as the boys but for their sex. The intention or
motive of the defendant to discriminate, though it may be
relevant so far as remedies are concerned (see section 66(3)
of the Act of 1975), is not a necessary condition of
liability; it is perfectly possible to envisage cases where the
defendant had no such motive, and yet did in fact
discriminate on the ground of sex. Indeed, as Mr. Lester
pointed out in the course of his argument, if the council’s
submission were correct it would be a good defence for an
employer to show that he discriminated against women not
because he intended to do so but (for example) because of
customer preference, or to save money, or even to avoid
controversy. In the present case, whatever may have been
the intention or motive of the council, nevertheless it is
because of their sex that the girls in question receive less
favourable treatment than the boys, and so are the subject
of discrimination under the Act of 1975. This is well
established in a long line of authority: see, in particular,
Jenkins v. Kingsgate (Clothing Productions) Ltd. [1981] 1
W.L.R. 1485, 1494, per Browne-Wilkinson J., and Ex parte
Keating, per Taylor J., at p. 475; see also Ministry of
Defence v. Jeremiah [1980] Q.B. 87, 98, per Lord Denning
M.R. I can see no reason to depart from this established
view.”
My Lords, as my noble and learned friend said, the
Birmingham City Council did discriminate on the ground of sex. I
have no difficulty in applying to the facts the subjective
construction of section l(l)(a) and in appreciating on the basis of
that construction that the council treated the girls less favourably
on the ground of their sex. At the qualifying stage many more
places in the Birmingham grammar schools were available for boys
of the appropriate age than for girls. The pupils concerned took a
test and their performance was assessed in order to see which
pupils had qualified. Because there were fewer places available
for girls, they had to achieve higher marks than the boys and
accordingly the council, when considering the performance of a girl
in the test, was obliged to demand from her a higher mark than if
she had been a boy. In so doing the council treated that girl less
favourably than it treated a boy and did so on the ground of her
sex. Your Lordships followed a well-trodden path in holding that
the mere fact that the council had no prejudice against girls and
did not intend or desire to place them at a disadvantage and acted
as it did from necessity (the defence put up by the council) was
– 20 –
of no avail against the established fact that the council
deliberately discriminated against the girls in the way I have
described.
The appellant in this case, however, has relied , in favour
of the causative construction, on my noble and learned friend’s
statement that there is discrimination if the girls “would have
received the same treatment as the boys but for their sex” and, to
a lesser extent, on his further statement that “it is because of
their sex that the girls in question receive less favourable
treatment than the boys”.
I feel that I would have no difficulty in dealing with this
argument, but for the fact that it has commended itself to the
majority of your Lordships, including the author of the passage in
question. It is therefore with even more than the usual measure
of respect that I make the observations which follow. In their
context both of the statements which I have extracted are
perfectly correct statements of fact, but that does not mean that
they are a guide to the proper construction of section l(l)(a),
which I have considered above. The defence was not that the less
favourable treatment was a purely undesigned and adventitious
consequence of the council’s policy. It would have had to be
admitted that the council, however regretfully, knew it was
treating the girls less favourably than the boys and that owing to
the shortage of school places it had deliberately decided so to
treat them because they were girls. The defence, based on
absence of intention and motive, was rightly rejected and no other
defence was made or could have been made. Whichever
construction of section l(l)(a) had been applied, the council would
have lost, and no rival constructions of that provision were
discussed. It is, I consider, worth noting that the examples and
the cases which my noble and learned friend mentions are
consistent with the subjective construction. If a men’s hairdresser
dismisses the only woman on his staff because the customers
prefer to have their hair cut by a man, he may regret losing her
but he treats her less favourably because she is a woman, that is,
on the ground of her sex, having made a deliberate decision to do
so. If the foreman dismisses an efficient and co-operative black
road sweeper in order to avoid industrial action by the remaining
(white) members of the squad, he treats him less favourably on
racial grounds. If a decision is taken, for reasons which may seem
in other respects valid and sensible, not to employ a girl in a
group otherwise consisting entirely of men, the employer has
treated that girl less favourably than he would treat a man and he
has done so consciously on the ground (which he considers to be a
proper ground) that she is a woman. In none of these cases is a
defence provided by an excusable or even by a worthy motive.
It can thus be seen that the causative construction not only
gets rid of unessential and often irrelevant mental ingredients,
such as malice, prejudice, desire and motive, but also dispenses
with an essential ingredient, namely, the ground on which the
discriminator acts. The appellant’s construction relieves the
complainant of the need to prove anything except that A has done
an act which results in less favourable treatment for B by reason
of B’s sex, which reduces to insignificance the words “on the
ground of”. Thus the causative test is too wide and is
grammatically unsound, because it necessarily disregards the fact
– 21 –
that the less favourable treatment is meted out to the victim on
the ground of the victim’s sex.
I now turn to an aspect of the case which has caused me
greater difficulty, and that is the question whether, by adopting a
gender based discriminatory criterion as a test of free admission
to their swimming pool, the council have inevitably put themselves
in the position of treating men between 60 and 64 “less favourably
on the ground of their sex”. Without doubt the council have
treated men of that age-group less favourably than they have
treated women of the same age-group. But have they done so on
the ground of the men’s sex? There is a strong body of opinion in
favour of an affirmative answer. Three of your Lordships have
adopted it and a number of academic writers on the subject, who
know what they are talking about, have taken the same view.
This view is variously expressed. One way of putting it is
that the expression “persons who have reached state pension age”
is just a shorthand expression which denotes the age of 60 in a
woman and the age of 65 in a man. I hope it is not a mere
quibble to point out that shorthand is normally a substitute for the
original expression and not the original expression itself. Another
approach, mooted during argument, is that the council might as
well have put up a notice, “Admission 75p. Children under 3,
women over 60 and men over 65 admitted free.” The wording of
the second part of such a notice would be openly discriminatory,
but another way of describing that wording would be to call it a
spelling out of the council’s policy of granting free admission to
all persons who had reached state pension age. The same might
be said of age-related provisions about concessionary rail and bus
fares and free medical prescriptions. Yet another, and also a
logical, theory is that, if the council are bound to foresee that the
test which they have adopted inevitably leads to the result that
men of the 60-64 age-group will receive from the council less
favourable treatment than women of the same age-group, then the
council, without the need of further proof, are incontrovertibly
shown to have deliberately and knowingly treated those men
unfavourably on the ground of their sex.
I can see the force of this point. Indeed, when the hearing
concluded, it seemed to me likely to be decisive. But I have
come away from that view because, in my opinion, the
foreseeability, even the inevitability, of the result as viewed or
viewable by an alleged discriminator does not provide the
touchstone of liability: that is supplied by the ground on which he
has acted and the foreseeability test, adopted by analogy with the
criminal law as an indication of the intention of the accused, is
not the appropriate test for deciding on what ground, that is, for
what reason the person acted and, accordingly, whether there has
been direct discrimination contrary to section 1(1)(a).
Here I adopt the convincing argument of my noble and
learned friend, Lord Griffiths. The council were providing free
swimming for a certain group of people because they were of
pensionable age and not because they were men and women of
specific but different ages. Therefore the council did not use the
expression “persons who have reached the state pension age” as a
convenient way of describing women over 60 and men over 65.
The council refused to provide free swimming for the appellant,
– 22 –
not because he was a man under 65, but because he had not
reached the state pensionable age and therefore could fairly be
expected to pay the normal charge of 75p. The distinction drawn
by the council depended on the presence or absence of pensionable
status and not on sex. Apposite is Mr. Beloff’s suggestion that
the council’s policy would not change, even if the state pension
age were altered for either sex or for both sexes.
There is no suggestion that the council here were guilty of
bad faith in the shape of covert discrimination. They were, it
seems, adopting a time-honoured and rough and ready, if most
imperfect, means test which, right up to the present, has
continued to commend itself to the Government and to Parliament,
as the many statutory examples produced by learned counsel to
your Lordships have shown. In saying this, I do not indulge in a
vain attempt to defend the council by reference to its worthy
motives. I am simply concerned to point out that when primary
legislation permits, and subordinate legislation employs, the age
differential of 60 for women and 65 for men, that legislation
should not be taken as indicating an intention by Parliament to
place men at a disadvantage on the ground that they are men.
The conclusion I have come to provides an explanation for
the reluctance of the appellant’s very able and experienced leading
counsel to accept the subjective interpretation of the words “on
the ground of his sex” and for his unswerving adherence to the
causative “but for” test. If the subjective interpretation is
correct, the fact that a discriminatory result is foreseeable does
not offer the appellant a satisfactory solution of his problem,
because the foreseeable result does not show on what ground the
alleged discriminator acted. That involves a question of fact the
answer to which will depend on what is proved or admitted and on
what may be inferred from the evidence.
My Lords, there is just one other point which I would
mention. The appellant’s argument seemed to infer that the
council’s action, since it was not indirect discrimination under
section 1(1)(b), must be caught by section 1(1)(a) because it
involves less favourable treatment of men and ought not to escape
entirely from the purview of the Act. This suggested conclusion,
however, cannot prevail over the meaning of section l(l)(a) if that
meaning is clear. Furthermore, I would not, in the absence of
argument on both sides, be prepared to accept that the Vice-
Chancellor was wrong to contemplate the possibility of a claim of
indirect discrimination on the present facts. The key words in
section 1(1)(b) are “[if] he applies to her a requirement or
condition which he applies . . . equally to a man”, and not “…
which applies equally to a man”. A prospective employer may
apply equally to men and women alike a height or strength
requirement which is sexually neutral, but the overall result of
applying the requirement will be predictable. It seems to me, so
far as the point has any relevance, that it can be argued that the
council have applied equally to men and women the requirement of
their having reached state pension age, although the requirement
itself was discriminatory. By parity of reasoning, I would also
need to be convinced that the Vice-Chancellor acted inconsistently
when he rejected the test of the judge in the county court and
yet held section l(l)(b) to be relevant if relied upon. Your
Lordships will already have noted that the appellant, whose cause
– 23 –
was promoted throughout by the Equal Opportunities Commission,
expressly relied on section l(l)(a) of the Act to the exclusion of
section 1(1)(b).
For the reasons contained in the speech of my noble and
learned friend, Lord Griffiths and also for those which I have
given, I would dismiss the appeal.
– 24 –
DEC-E2010-189- Full Case Report
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2010-189
McKeever v Board of Management Knocktemple National School
& Minister for Education & Science
File reference: EE/2007/666
Date of issue: 1 October 2010
HEADNOTES: Employment Equality Acts – Sections 6 & 8 – Religion – Access to employment.
1. DISPUTE
1.1 This dispute concerns a claim by Ms McKeever that she was discriminated against by the Board of Management Knocktemple National School and the Minister for Education and Science on the grounds of religion contrary to section 6(2)(e) of the Employment Equality Acts in relation to access to employment in terms of section 8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 21 December 2007 under the Employment Equality Acts. On 25 November 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 26 May 2010 and final information was received on 5 July 2010.
2. COMPLAINANT’S SUBMISSION
2.1 The complainant submits that in May 2007 she applied for a permanent teaching post in Knocktemple National School. She was interviewed on 26 May and in late May or early June she was told that she was unsuccessful. On 28 June 2007 she received a phone call from the Principal who told her the school had a new post and offered her a permanent post. The complainant submits that she verbally accepted this offer. She received a letter dated 28 June 2007 from the Chair of the Board of Management confirming the appointment.
2.2 The complainant submits that on 5 July 2007 she received a call from the Chair of the Board of Management as the local priest had asked her to check a few things. She was asked if she had a Catholic religious certificate. The complainant said she did not have a certificate but she was familiar with and willing to teach the Alive-O religious programme. She also told the chair she was a member of the Church of Ireland and the Chair said it should not be a problem as she would be teaching 4th class which was not involved in Communion or Confirmation.
2.3 On 9 July 2007 the complainant wrote a letter accepting offer. On the same day she got a letter from the Chair stating that at a Board meeting “a question was raised regarding compliance with proper procedure for this appointment”. Unfortunately, as a result your appointment was not proposed or seconded. On 10 July 2007 the complainant submits that she spoke to the Chair expressing her disappointment and she referred to their conversation about her religion. The Chair said it did not matter to her what religion the complainant was but she had been asked to enquire about it by the parish priest. On 12 July 2007 the complainant received a letter from the Chair writing in a personal capacity and not as Chair. The letter stated “The dept. regulations stipulate that permanent teaching post must be advertised and only temporary or part time posts may be filled from a previous interviews people” (sic) and confirmed that her appointment was not proposed or seconded. The Chair said she was told by Board members that due process had not taken place and the post must be advertised. She also confirmed; “With regard to the question of religion. During the previous week to the meeting I was asked by my Parish Priest to seek clarification as to whether you had a religious education cert and as to your agreement to teach religious subjects. This apparently is also standard because a teacher may refuse to teach religion to a class.”
2.4 The post was subsequently re-advertised and the complainant submits that on 16 July 2007 she re-applied. In the same letter she requested clarification on the nature of the procedural error that led to the withdrawal of the offer of appointment. The complainant was called for interview but did not attend. On 26 July 2007 the complainant received a letter from the Chair of the Board of Management which stated that the Principal and herself offering the post “was a procedural error on my part as only the Board of Management has the right to appoint a teacher and in fact no meeting of the Board had taken place. At a subsequent Board meeting on Friday 6th where I informed the Board that I had written to you to confirm the post it was agreed by the Board that proper procedure was not in place.”
2.5 On 26 July 2007 an INTO representative contacted the Principal who confirmed that the procedural difficulty was that the Chair wrote in advance of sanction by the Board of Management.
2.6 On 27 July 2007 INTO wrote to the Board of Management pointing out Appendix D of the ‘Boards of Management of National Schools – Constitution of Boards and Rules of Procedure’ which states; “the advertisement may also state: … whether or not a list of suitable applicants may be set up from which suitable vacancies may be filled (valid for the four month period from the date of the advertisement. This particular list may only be compiled if it has been referred to in the advertisement.” INTO pointed out that the advertisement had stated that such a panel would be set up and therefore there was no reason why the complainant could not have been appointed. The Chair of the Board of Management replied on 15 August 2007 which confirmed there had been a fundamental failure to follow procedure in offering the appointment “without the knowledge, approval or decision of my board of Management.” INTO wrote again to the Board of Management on 23 October 2007 and to the Patron of the school on 30 November 207 he replied indicating that he had asked the Diocesan Education Secretary to set up a committee to investigate the matter but nothing further was heard.
2.7 INTO also wrote to the Department of Education and Science on 30 November 2007 regarding procedures in relation to appointments but got no reply.
2.8 The complainant submits that the failure to confirm her appointment occurred within 24 hours of the Chair’s enquiries regarding religion and that this amounts to a prima facie case of discrimination.
2.9 The complainant submits that the Department of Education and Science is involved in the appointment process of teachers as the procedures are set out in ‘Boards of Management of National Schools – Constitution of Boards and Rules of Procedure’ which is promulgated and issued by the Department. Also, the procedures specifically advise that the notification of a teacher who is appointed to a post should be accompanied by advice that the offer is “subject to the sanction of the Minister”. Furthermore, the complainant submits that the Department is a joint employer of teachers in National Schools as it is a party to the contract of employment. The complainant relies upon Labour Court Determinations DEP3/1987, Employment Equality Agency v Department of Education and DEE025 Sheils O’Donnell v Board of Management of St. Baithin’s N.S. and the Department of Education and Science.
FIRST NAMED RESPONDENT’S SUBMISSION
BOARD OF MANAGEMENT KNOCKTEMPLE NATIONAL SCHOOL
3.1 The first named respondent submits that a post arising from the creation of an Autism Unit in the school was advertised on 5 May 2007 and the advertisement stated that “a list of suitable applicants may be set up from which future vacancies may be filled within a four month period from the date of this advertisement”. The complainant applied for the post and was interviewed but was unsuccessful. The Principal subsequently rang the complainant offering her a new vacancy which was not anticipated by the respondent when the advertisement for the post in the Autism Unit was advertised. On 28 June 2007 the Chair sent the complainant a letter confirming she had been appointed to the post of mainstream teacher in Knocktemple National School.
3.2 The first named respondent submits that neither the Principal nor the Chair of the Board of Management had the authority to make such an offer to the complainant without their authority, the Board of Management of Knocktemple National School, as it is the statutory employer, pursuant to Section 24(3) of the Education Act, 1998. The procedures for appointing teachers are set out in Appendix D of ‘Boards of Management of National Schools – Constitution of Boards and Rules of Procedure’ and the High Court decision in Browne v Rathfarnham Parish National School found the application of these procedures to be mandatory.
3.3 The first named respondent submits that Section 2 of Appendix D provides that the advertisement may state that a list of suitable applicants may be set up from which future vacancies may be filled. It is clear that this is a discretionary power. It is accepted that the advertisement contained the discretionary option but it is clear that a decision of the Board of Management needs to be taken in order for this option to be exercised. The respondent submits that Section 5 of Appendix D deals with the procedures for interviews and appointments and these procedures were followed by the Board of Management. At no meeting did the Board of Management take a decision to exercise the discretionary function and set up a list of suitable applicants from which future vacancies may be filled.
3.4 The first named respondent submits that as no list was created it was not open to the Principal or the Chair of the Board of Management to offer the newly created post and when they did make the offer it amounted to a fundamental breach of procedures. When this was realised the Chair wrote to the complainant on 9 July 2007 rescinding the offer of employment.
3.5 The first named respondent submits that where. as in this case, there is a question mark as to whether there was a fundamental breach of procedures the prudent course of action is to re-advertise the post and relied on Equality Tribunal Decision DEC-E2004032, McGinn v The Board of Management St. Anthony’s Boys National School, Kilcoole, Co. Wicklow. The complainant was notified of the breach of procedures at the earliest opportunity, then the respondent re-advertised the post. The complainant applied for the post but declined to be interviewed.
3.6 The first named respondent submits that the Chair did make an informal enquiry as to whether the complainant had a Certificate in religious education. The complainant volunteered that she was a member of the Church of Ireland but she was not questioned about her religious affiliation or otherwise. The respondent denies that any discrimination occurred on the grounds of the complainant’s religion.
SECOND NAMED RESPONDENT’S SUBMISSION
Department of Education & Science
4.1 The second named respondent submits that they have no involvement in the recruitment of teachers and section 24(3) of the Education Act 1998 leaves no doubt that it is the Board of Management which has the responsibility for appointing “teachers and other staff” of a school. The second named respondent has no correspondence in relation to the complainant’s application for a teaching post in Knocktemple National School. There are agreed arrangements for the filling of teaching posts in national schools and it is the responsibility of the Board of Management to advertise for and recruit teachers. The procedures are set down in ‘Boards of Management of National Schools – Constitution of Boards and Rules of Procedure’ and are drawn up in consultation with the education partners.; school management authorities, teacher representatives and Department representatives. Appendix D of the procedures sets out that all appointments shall be made by the Board of Management, subject to the prior approval of the Patron of the school. Each teacher is employed under a contract of employment with the Board of Management and the respondent is not party to the contract.
4.2 The second named respondent’s role is confined to paying teacher’s salaries and superannuation benefits, determining the terms and conditions of employment and determining the required level of teacher qualifications.
4.3 The second named respondent has no role in the appointment of the Board of Management. Under section 14(1) of the Education Act 1998 this is the responsibility of the Patron of the school.
4.4 The second named respondent relies on Equality Tribunal Decision DEC-E2003-023, Bleach v Our Lady Immaculate Senior School to support their submission that they have no role in the recruitment of teachers.
5. CORRECT RESPONDENT
I must first consider if both respondents who are named by the complainant could be responsible for the alleged discrimination. The alleged discrimination revolves around the recruitment of the complainant as a teacher to Knocktemple National School. The Board of Management of Knocktemple National School have clear responsibility for the recruitment of teachers to Knocktemple National School and this is accepted by all parties to this claim. The complainant considers that the Minister for Education and Science is also responsible for two reasons:
– firstly, because the procedures for the recruitment of teachers to national schools are promulgated and issued by the Department of Education and Science. However, the Department contends that the procedures are drawn up in consultation with the education partners and they co-ordinate the drafting and publication of the procedures and they have no role in the recruitment of teachers. This is carried out by the Board of Management, who issue the contract of employment. I conclude there is a clarity in relation to the recruitment of teachers to national schools. The procedures are issued by the Department and are implemented by the Board of Management. This means that the Department has no direct role in the recruitment of teachers. Furthermore the complainant did not take issue with the procedures;
– secondly, because the complainant contends that the procedures specifically advise that the notification of a teacher who is appointed to a post should be accompanied by advice that the offer is subject to the sanction of the Minister. Section 6 of Appendix 4 of the Procedures states:
“(i) Having received approval in accordance with 5 (xii), the Board shall notify the teacher of his/her appointment. The successful candidate should be advised that the offer is subject to the sanction of the Minister, registration with the Teaching Council, and vetting clearance.
(ii) As soon as the Board of Management has received notification of the teacher’s acceptance of the post, all unsuccessful candidates shall be notified. Both the successful candidate and the Chairperson shall complete the relevant appointment form and forward it to the Primary Payments Section of the Department of Education and Science. If the post is warranted and the Chairperson of the Board certifies that the teacher has met the criteria and the appointment has been made in accordance with the procedures outlined in this appendix, the Minister for Education and Science will sanction the appointment.”
At the hearing the Department clarified that sanction would only be withheld if the post had not been sanctioned by the Department. I take this power to be an administrative tool and not one that is intended to have any role in the recruitment process.
This a claim of discrimination in relation to access to employment and I conclude that the second named respondent had no involvement in the recruitment process which led to this complaint. Therefore it is not a body which could be responsible for the alleged discrimination in relation to access to employment.
6. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
6.1 I must decide if the complainant was discriminated against in relation to access to employment on the grounds of religion by the first named respondent (Board of Management of Knocktemple National School). In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
6.2 The facts in this claim are that the complainant was interviewed for a position in the Autism Unit and was unsuccessful. Approximately one month later on 28 June 2007 she was contacted by the Principal and offered a new main stream teacher post that had arisen following the initial interviews. The complainant verbally accepted the offer and received a letter dated 28 June 2007 from the Chair of the Board of Management confirming the appointment. On 9 July 2007 the Chair wrote to the complainant withdrawing the offer as “a question was raised regarding compliance with proper procedure for this appointment.” On 12 July 2007 the Chair explained the reasons for withdrawing the appointment she advised the complainant, in what she described as a personal note, that “The dept. regulations stipulate that permanent teaching post must be advertised and only temporary or part time posts may be filled from a previous interviews people”. The post was then re-advertised and the complainant submitted an application but did not attend for interview.
6.3 The initial explanation given to the complainant was that only temporary or part time posts may be filled from people who have been previously interviewed. However this is not correct as the procedures pertaining at that time contained no such proviso. Subsequently, the respondent contended that as names had not been submitted for their approval from the initial interviews to make a panel for future vacancies then the Principal and the Chair of the Board of Management did not have the authority to offer the post to the complainant. They contend that this was a serious breach of procedures and meant they were unable to approve the appointment and the post had to be re-advertised.
6.4 Appendix D, section 5 of the Procedures states:
“(ix) Having interviewed such applicants as present themselves, the Selection Board shall submit a written report to the Board of Management, nominating the applicant whom it considers suitable for appointment.
(x) A list in order of merit of other candidates who are also deemed suitable shall be retained by the Selection Board for use in the event of the post not being filled by that nominee.
(xi) The Board of Management shall appoint the teacher so nominated unless it has good and sufficient reason not to do so, in which instance the matter shall be referred to the Patron, whose decision in this matter shall be accepted by the Board. When offering the successful applicant employment the Board should ensure that the applicant is vetted. School authorities shall ensure that vetting is only sought in respect of a person to whom it proposes to make an offer of appointment.”
The Principal gave evidence at the hearing that the complainant came second in the initial interviews for the post in the Autism Unit and would have been offered that post if the person who came first had turned down the offer. He also confirmed that no interview notes were available and no panel was drawn up for future appointments. It was also confirmed that the interview panel did not prepare a Report for the Board of Management to approve the complainant’s appointment but could give no explanation as to why it was not prepared. The respondent also contended that there was a difference between the two posts; the first being in the Autism Unit and the second being a main stream position teaching fourth class. This was shown by only five applicants being received for the first post and 35 for the second.
6.5 However, I must consider why the respondent considers the actions of the Chair to be such a fundamental breach of procedures. The minutes of the Board of Management of 5 July 2007 do not clarify the situation they state: “Staffing; Ratification of Michelle McKeever for main stream post. Post offered to her. Board affirmed/deferred their decision. Details sent to Patron for approval.” At the hearing the respondent contended that the minute read “deferred their decision” whilst the complainant contended it read “affirmed their decision”. There is no mention of the procedural error or the need to re-advertise the post. The minutes of the next meeting on 20 July 2007 state: “Discussions regarding Michelle McKeevers appointment for full time post. Michelles position appointment has been declined and re-advertised. Closing date for application is 26 July.” Given the respondent’s contention that they adhere to procedures it is surprising that major decisions made by the Board are not reflected in the minutes of their meetings.
6.6 Therefore I must look at the complainant’s contention that the matter of her religion became a factor that was taken into account at the meeting of the Board of Management on 5 July 2007. The complainant stated that the Chair rang her on 5 July 2007 as she said she had been requested to ask about the Certificate in Religious Education by the Parish Priest, who was on the Board of Management, and she re-affirmed this in a telephone conversation on 10 July 2007 and in her personal letter written on 12 July 2007. The Chair was not available to give evidence at the hearing but the Parish Priest gave evidence that he knew nothing about the complainant’s religious certificate before the Board meeting when her appointment was considered. He went on to say that it was usually on a candidate’s CV and they would be asked at interview. The Principal confirmed that the complainant was not asked at interview. The Parish Priest stated that he was unaware of the complainant’s religion until a long time after she was considered for the vacancy. However, another Board member stated at the hearing that the complainant’s religion was mentioned at the Board meeting but was not an issue for the school. This was confirmed at the hearing by the Principal who was also at the Board of Management meeting.
6.7 On the balance of evidence before me I conclude that the Board of Management meeting on 5 July 2007 was advised by the Chair that the complainant did not have a Catholic Religious Certificate but was familiar with and willing to teach the Alive-O programme and that she was a member of the Church of Ireland.
6.8 What is less clear is why this discussion took place and then the Board decided that there had been a fundamental breach of procedures. I would have expected the Board to discuss the procedure of appointment from the first set of interviews before considering an individual’s suitability. If they had seen a difficulty in confirming an appointment that had been offered without their approval I would expect that to have been clearly stated in the minutes of the meeting of 5 July 2007. Furthermore they could have accepted the proposal of the Chair and the Principal, who were both on the initial interview board and ratified the offer at that meeting, albeit retrospectively. However, given the different explanations provided by the then Chair, firstly that permanent appointments could not be made from previously interviewed people and secondly that the Principal did not have the authority to make an offer without the approval of the Board of Management, I conclude that not only was the complainant’s religion discussed but it influenced the Board of Management in withdrawing the offer that had been made. I therefore find that this amounts to discrimination on the grounds of religion.
7. REDRESS
7.1 Section 82(4) of the Acts states: “The maximum amount which may be ordered by the Director by way of compensation … where the complainant was in receipt of remuneration at the date of reference of the case …. shall be an amount equal to 104 times the amount of that remuneration, determined on a weekly basis … and in any other case be £10,000.” As this claim is in relation to access to employment then any redress ordered would be limited to £10,000 (€12,697) as the complainant was not in receipt of remuneration. The complainant argues that this level of redress awardable under the Employment Equality Acts is inadequate, ineffective and in breach of the Equal Treatment Directive 76/207/EEC and the Recast Directive 2006/54/EC. She relies on Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 which held that in order to ensure compensation awarded for sanction for the breach of prohibition of discrimination “is effective and has a deterrent effect” then that compensation “must in any event be adequate in relation to the damage sustained and must therefore amount to more than a purely nominal compensation.”
7.2 The first named respondent submits that the Directives and cases relied on by the complainant relate solely to the elimination of gender based discrimination and therefore have no role in relation to claims made on grounds other than gender, such as this. They also submit that the Recast Directive states: “Such compensation or reparation may not be restricted by the fixing of a prior upper limit, except in cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive is the refusal to take his/her job application into consideration.” This, they contend, clearly limits compensation in access to employment cases.
7.3 The Labour Court in Irish Aviation Authority v CPSU, ADE/06/6, determination no. EDA073 stated: “The supremacy of Community law over national law was established as long ago as the case of C-26/63 Van Gend en Loos [1963] ECR 1. National law must always give way to the Treaty Articles and Regulations provided they are sufficiently precise and unconditional…..It follows that where a provision of national law conflicts with the wording and purpose of the Directive and is in conflict with the aims expressed in the Treaty that provision cannot be regarded by the national Court charged with implementing the provisions of the Directive as having any validity.” I conclude that the Employment Equality Acts do not conflict with the EU Directives in relation to redress in access to employment claims. The maximum redress awardable is not nominal and this together with the power under section 82 (1) to make orders in my view satisfies what was stated by the European Court of Justice in the Von Colson & Kamann v Land Nordrhein-Westfalen case that the remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”.
DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to access to employment on the grounds of religion contrary to section 8 of the Acts and in accordance with section 82 of those Acts:
– I order the first named respondent to pay the complainant €12,697 in compensation for the discriminatory treatment suffered. This figure is the maximum award where a complainant was not in receipt of remuneration. It represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
– I order the first named respondent to follow good practice in relation to the recruitment of staff; by following the procedures laid down, by keeping adequate records of all interviews and decisions by the interview board. Also that all decisions of the Board of Management are properly recorded in their minutes.
____________________
Hugh Lonsdale
Equality Officer
1 October 2010
DEC-S2009-028 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-0028
Cleary v Dublin City Council
File Ref: ES/2007/0117
Date of Issue: 30th April, 2009
Keywords
Equal Status Acts 2000-2008 – section 3(1)(a) – Direct discrimination, section 3(2)(a) – Gender, section 3(2)(b) – Marital Status, section 3(2)(g) – Disability, section 3(2)(j) – Victimisation, section 6(1) – Disposal of premises and provision of accommodation
Delegation under the Equal Status Act 2000-2004
This complaint was referred to the Director of Equality Investigations under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director has delegated the complaint to me, James Kelly, 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 to 2008. The hearing of the case took place on 30th January 2009. Further information/submissions were received from the parties and the final submission was received on 20th March 2009.
1. Dispute
1.1 This dispute concerns a complaint by Mr. Cleary that he was discriminated against by Dublin City Council on the gender, marital status, disability and victimisationgrounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(j) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Sections 4(1) and 6(1) of the Equal Status Acts, 2000 to 2008.
2. Summary of the Complainant’s Case
2.1 The complainant, Mr. Cleary, is a single man who suffers from depression and panic attacks, and also has a congenital back problem. He initially made an application to the respondent for local authority housing on the 10th March 2005. During the period since making this application for housing Mr. Cleary’s General Practitioner wrote to the respondent regarding the severity of his illness and his urgent requirement for suitable local authority housing and on the 19th December 2006, as a consequence, Mr. Cleary was given an overall Medical Priority status. However, the complainant claims that the respondent discriminated against him on gender, marital status and disability grounds because he is a single male, incurring extreme hardship and the respondent is showing “blatant contempt” for his medical condition, while “housing countless thousands of healthy foreigners”, which have been facilitated by moving them ahead of him on the list for housing. Mr. Cleary states that there was a number of foreign nationals that he was aware of, who were not entitled to housing and they have been accommodated ahead of him.
2.2 The complainant has resided at different rented accommodation since making his application for housing with the respondent. He outlined that his current one bedroom rented accommodation, of two years, is inappropriate for a man of his condition. He has no cooking facilities, which means that he has to eat out for all of his meals and he has very little storage space, which means he has to make alternative arrangements to store his belongings. However, despite these issues he has never been offered any housing by the respondent. The complainant claims that the discriminatory manner in which his housing application has been dealt with by the respondent has contributed significantly towards the deterioration of his mental health.
2.3 The complainant has in the past requested statistical information from the respondent by means of an application under the Freedom of Information Act 1997 (as amended). He claims that the respondent would not provide him with much of the statistical information he had requested, including a breakdown of all the accommodation allocated to applicants by reference to the applicants’ nationality. He claims that the reason for this was because it was hiding information from him, as it was involved in a ‘blatant cover-up’. The complainant maintains that the information he was provided with is contrary to the information he was able to extract from the respondent’s website himself. He produced a letter from the respondent where it mentions the difficulty it has in collecting some of the statistical information requested, as it does not keep information of that nature, however the letter did provide some raw statistical data for a 12 month period up to September 2007. Mr. Cleary then produced a print down from the respondent’s website, entitled Local Authority Programme 2007 Capital Allocations and he claims that by comparing the statistics in this document with those contained in the respondent’s letter to him, that there are substantial differences and this substantiates his theory that the respondent is withholding the truth.
2.4 The complainant maintains that he has also tried on occasion to access the respondent’s information via its website, in particular, information in relation to Dublin City Council’s scheme of letting priorities. He maintains that the web pages he tried to access were blocked from him and he maintains that was deliberate on the part of the respondent. Mr. Cleary produced a print down of an error message he claims that he encountered while trying to access the respondent’s website. He contends that this is part of the cover-up that the respondent is presiding over and claims that the respondent is housing countless healthy foreign nationals, many of whom should not qualify for accommodation, and have been moved to the top of the housing list. He maintains that all of this amounts to victimisation by the respondent.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complainant on any of the grounds as alleged. Mr. A, from the Housing Allocations Department with the respondent, informed the Tribunal of the procedures for making an application for local authority housing with Dublin City Council. He outlined that there are different categories of applicants that may apply for housing, namely Irish Citizens residing within the environs of Dublin City Council, EU citizens residing within the environs of the Dublin City Council, and other persons who have authorisation to reside in the State, such as foreign nationals with a Green card – stamp 4[1]. He went on to state that once an applicant has established eligibility to receive the State services and can show they are in need of housing and do not have the provision to provide for same, they are accepted on to the housing list. After such time all applicants are treated equally irrelevant of their nationality, citizenship, ethnic origin or cultural background and such information is of no interest to the respondent for its own records or for the allocation of housing. Each applicant is visited by a Housing Officer to assess their particular housing conditions and they are accordingly awarded points based on the scheme of letting priority according to their housing needs. Accordingly, an applicant’s points determine where they are placed on the housing list. A detailed document outlining how points are awarded was submitted in the evidence presented. The respondent also explained that if an applicant can demonstrate a medical priority because of a medical complaint/condition, which is assessed by a Chief Medical Officer, they are subsequently placed on a list for Overall Medical Priority and their position on this list is determined by the date they were accepted as a medical priority applicant. Mr. A, outlined that Dublin City Council operates a system for the allocation of housing dwellings on the basis that ¼ of it’s housing resources are set aside for applicants on the general priority letting housing list, ¼ is set aside for applicants wishing to transfer within it’s area, ¼ goes to emergency cases/homeless persons and ¼ for the Overall Medical Priority List. As accommodation becomes available for allocation, it is allocated to the next applicant on the appropriate list based on this system.
3.2 The respondent claims that Mr. Cleary applied for and was accepted for housing on the 10th March 2005, after an assessment was carried out on his housing needs by a housing officer. Mr. Cleary nominated three specific areas in the city where he wished to be housed. On the 19th January 2006 Mr. Cleary was later accepted onto the Overall Medical Priority list following a decision by the Chief Medical Officer after consideration was given to a letter from Mr. Cleary’s GP detailing Mr. Cleary’s living and health conditions and outlining his specific needs for suitable accommodation.
3.3 The respondent was able to provide the Tribunal with the most up-to-date statistical information in relation to its housing transactions and it also provided a list of applicants with Overall Medical Priority divided between the three areas of the city where Mr. Cleary had identified he wished to live. The statistics clearly show that there is substantially many more applicants requesting housing than there are resources available each year. The medical priority list for the three areas of the city in question show that all the applicants are chronologically placed by reference to the effective date that they were awarded Overall Medical Priority status, which is claimed, is in line with the respondent’s policy. The documents identify that Mr. Cleary is placed 14, 14 and 17 on these lists respectively. The respondent stated that it does not keep records of its applicants’ nationality as it not a piece of information of interest to the respondent once an applicant qualifies for housing and that is the reason that they could not provide Mr. Cleary with exact information in relation to the nationality of applicants, when he had requested it.
3.4 The respondent said that it does not operate a system where it prevents certain people from accessing its website, it suggested that the difficulty Mr. Cleary had in accessing its website would appear to be a technical problem that occurs from time to time with the Internet for all users. Mr. A also referred to the document produced by Dublin City Council and presented by Mr. Cleary at the hearing entitled “Local Authority Programme 2007 Capital Allocation”. He said that this document shows the Capital investment allocation in monetary terms for 2007, and it is clearly not the number of applicants housed by the City Council for 2007, as Mr. Cleary had claimed.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has beenestablished 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. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
4.2 Therefore, the question that I must decide upon is whether the respondent discriminated against the complainant on the gender, marital status, disability and victimisation grounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(j) of the Equal Status Acts 2000- 2008.
Gender and Marital Status Grounds
4.3 The complainant, who is male and single, claims that the respondent has discriminated against him on the grounds of his gender and marital status by virtue of not being offered accommodation since he was placed on Dublin City Council’s Housing List. I note from evidence presented that Mr. Cleary made his application for housing with the respondent and was visited by a Housing Officer who made an assessment of his housing needs in accordance with its Scheme of Letting Priorities which is subject to the provision of the Housing Acts 1966 to 1992. It is clear from the evidence adduced that Mr. Cleary was originally placed on the respondent’s housing list based on the points awarded to him in March 2005, following assessment. I note from the respondent’s statistics that at any given time the amount of applicants waiting to be housed far exceeds the amount of housing units available. A rough calculation shows that less than 20% of those waiting for housing are accommodated each year due to scarcity of resources. I am satisfied that the lack of housing resources prevents the respondent from meeting the needs of all its applicants immediately. I have taken note of the system used by the respondent to manage the allocation of its housing resources, namely, the Scheme of Letting Priorities and in particular the medical priority status and I am satisfied that it appears fair and transparent.
4.4 Mr. Cleary states that there was a number of foreign nationals that he was aware of, who were not entitled to housing and they have been accommodated ahead of him. However, I was not provided with any evidence to substantiate this claim. The complainant has not produced any evidence to show that such persons exist; he claims that there is anecdotal evidence of countless people across the country offered local authority housing to which they are not entitled. Again no evidence was presented to substantiate this claim and I can not make a comparison based on anecdotes alone. I accept the respondent assesses the eligibility of all its applicants and based on the lack of resources available to it. I am not of the opinion, and no evidence has been presented to persuade me otherwise, that persons not entitled to State services are capriciously placed on the housing list and then expedited on an impulse by the respondent. Therefore, I must proceed on the basis that all applicants on the housing list are entitled to housing.
4.5 In considering cases in relation to the provision of Local Authority Housing, I am mindful that I must consider the appropriate sections of the legislation, namely section 6 and in particular section 6(6) of the Equal Status Acts, 2000 to 2008, which states, inter alia,
(1) A person shall not discriminate in –
(a) disposing of an estate or interest in premises
(b) terminating any tenancy or other interest in premises, or
(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities
…………….
(6) Nothing in subsection (1) shall be construed as prohibiting –
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992
from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.
Having considered the provisions of Section 6(6) of the Equal Status Acts I am satisfied that they facilitate a housing authority to prioritise in favour of the categories of persons identified therein and that such prioritisation does not constitute discrimination.
4.6 I note that Mr. Cleary was accepted on the Overall Medical Priory list in January 2006, some 10 months after making his original application for housing and shortly after his GP wrote to the respondent. I note that the points system operated by the respondent allows an applicant to move up or down the general housing list based on the assessments made by the Housing Officer and the award of points made. From the statistical evidence presented to me I note that in 2007 alone approximately 37% of all housing was provided for single persons male or female without dependants whereas, another 31% single male or female persons with dependants, amounting to nearly 70% of all housing provided for that year. In the present case, I find that the complainant has failed to provide any evidence of discrimination to establish a prima facie case under the grounds of his gender or marital status. I am satisfied that the respondent was acting in accordance with the provisions of Section 6(6) of the Act, and I find, therefore, that it did not treat the complainant less favourably on these grounds.
Disability Ground and Reasonable Accommodation
4.7 The complainant has been diagnosed as suffering from depression, panic attacks and has a congenital back problem and I am satisfied that this constitutes a disability within the meaning of the legislation the Equal Status Acts. The complainant claims that he has not been afforded housing and that he is being subjected to discriminatory treatment on the basis of his disability. The respondent claims that it has recognised the complainant’s disability and it denies that it has discriminated against the complainant on the grounds of his disability. It claims that his housing application has been assessed in accordance with the same objective criteria as all other applications. It contends that the only reason the complainant has not been allocated local authority housing is that there are far more applicants than resources available to it. Mr. Cleary was placed on the Overall Medical Priority List and would have to wait until his name is reached on this list.
4.8 I note that the respondent, when carrying out an assessment of the housing needs of applicants, is obliged to consider each individual application in accordance with the list of priorities that are identified in its Scheme of Letting Priorities. The Scheme that has been adopted by the respondent makes provision for the prioritisation of applications by persons who are in need of housing on medical grounds and applicants who are deemed to fit into this category are placed on a medical priority list which has access to ¼ of the respondent’s resources. I note that the Medical Priority list is a significantly shorter list as compared to the general local authority housing list. I also note that the actual assessment of the housing applications made to the respondent is carried out by the Housing Officer and is further assessed by the Chief Medical Officer, if medical priority is sought. I am therefore satisfied that this procedure facilitates an objective assessment of applications based on the criteria identified in the Scheme of Letting Priorities which includes objective consideration on medical grounds.
4.9 Having regard to the evidence presented, I am satisfied that the respondent was fully aware of the precise nature of the complainant’s disability, and furthermore, I am satisfied that this disability was taken into consideration as part of the overall assessment of his application for housing. I am satisfied that the reason the complainant has not been allocated housing by the respondent is not in any way attributable to his disability but rather is as a result of the number of applicants for housing whose needs were made known to the respondent prior to Mr. Cleary’s assessment. Accordingly, I find that the complainant has failed to establish that the treatment he was afforded was less favourable than the treatment that would be afforded to another person, in similar circumstances, who was not disabled or had a different disability.
4.10 In the case of disability, in considering whether discrimination has occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:
“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
I am now going to examine if the respondent did all that was reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities. In considering the obligations that are placed upon a housing authority to provide reasonable accommodation to a disabled person in terms of an application for housing, I have taken cognisance of the judgement of Hunt J. in the Deans[2] case where it is stated that:
The housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities. It undoubtedly enjoys a substantial and generous measure of appreciation in dealing with individual applications for reasonable accommodation. All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it, which, of course, would be wrong, because its primary consideration is to the community as a whole and to the community of homeless persons or persons requiring accommodation. Consequently, in my opinion it cannot be forced to make more than a modest or nominal departure from its carefully constructed allocation scheme to meet the needs of any particular individual and its obligations to the disabled must be seen in that context, that they involve no more than a nominal cost and a reasonable approach to the solution of the problems posed by the needs of a disabled person”
4.11 Having regard to the findings of Hunt J. in the foregoing case, I am satisfied that a housing authority is not exempt from the obligation to provide reasonable accommodation to a person with a disability, however in doing so it must also have regard to the Scheme of Letting Priorities that has been adopted. In the present case, I note that the complainant submitted medical evidence to the respondent from his General Practitioner outlining the nature of his disability. I am of the view that the provision of special treatment or facilities in the context of section 4 of the Acts, in the present case, would have placed an obligation on the respondent to give due consideration to the complainant’s disability as part of the overall assessment of his application. Having regard to the evidence adduced, I am satisfied that all of the medical evidence regarding the complainant’s disability was made available to the respondent and was assessed by the Chief Medical Officer and that this information was taken into consideration in the assessment of his application for housing, where he was subsequently given an overall Medical Priority Status. Therefore, he was placed on a priority list which is a much shorter list with access to the same proportion of resources (¼) as those applicants on the general housing list. In doing so, I am satisfied that the respondent has provided reasonable accommodation in its assessment and consideration of the complainant’s application for housing. In the circumstances, I find it is reasonable to conclude that the only reason the complainant has not been allocated housing by the respondent is as a consequence of the number of applicants for housing on the overall medical priority list that predate his application.
Victimisation
4.12 The complainant claims that the respondent operated a policy of victimisation against him; he claims the respondent was reluctant to provide him with statistical information and when it did provide some information, it was no more than “bogus and fabricated in the extreme”. He also claims that the information he extracted himself from a document on the respondent’s Internet website was totally different to the information he obtained from the respondent by letter and finally, that the respondent targeted him by refusing him access to its website. Mr. A explained the difference between the information contained in the document Mr. Cleary produced from the respondent’s website as compared to the information contained in the respondent’s letter and I accept that explanation. The figure Mr. Cleary refers to in the document entitled “Local Authority Housing Programme 2007 Capital Allocation” under Total Housing Allocation is 190,340,000 and this surely cannot be taken to mean the number of people housed, as suggested by Mr. Cleary. Accordingly, I am satisfied that the figure referred to relates to capital investment rather than to numbers of applicants housed.
4.13 I also note that Mr. Cleary presented a printout of a computer error he had encountered while he claims he was trying to access the respondent’s website. I am not satisfied that this amounts to an orchestrated policy by the respondent to stifle or prevent Mr. Cleary accessing its website. Having regard to the evidence presented, I am satisfied that the complainant has failed to adduce any evidence to substantiate the claims that there has been an orchestrated campaign of victimisation directed against him by the respondent within the meaning of section 3(2)(j) of the Acts.
5. Decision
5.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the gender, marital status, disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(j) of the Equal Status Acts, and accordingly, I find in favour of the respondent in the matter.
James Kelly
Equality Officer
30th April 2009
[1]Issued to spouses and dependents of EEA nationals, spouses of Irish nationals/parents of Irish citizens who have been granted permission to remain in the State on that basis, persons granted refugee status under the terms of the 1951 Geneva Convention, former asylum seekers granted humanitarian leave to remain and Programme refugees. Holders of this Stamp do not require a work permit or business permission. This Stamp is also issued to holders of Work Authorisations or Working Visas.
[2]Circuit Court judgement delivered by Judge Hunt on 15th April, 2008 in the case of Dublin City Council –v- Grace Deans
DEC-S2003-071 Full Case Report
Collins v Campions Public House
Delegation under the Equal Status Act, 2000
The complainant, Bridget Collins referred a complaint 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 the Director has delegated the investigation hearing and decision of this case and the exercise of other relevant functions of the Director under part III of the Equal Status Act 2000 to me Mary O’Callaghan an Equality Officer. The hearing of the case commenced on Wednesday 21st May 2003 and was reconvened on Thursday 17th July 2003 to hear the evidence of a witness who was out of the jurisdiction on the first day of the hearing. The hearing concluded with the evidence of this witness.
1. Dispute
1.1 This dispute concerns a complaint by Ms. Bridget Collins that she was victimised contrary to Section 3 (2) (j) of the Equal Status Act 2000 by Mr. David Campion at Campions Pub on the grounds of giving notice of her intention to take a complaint of discrimination on the Traveller Community ground contrary to Section 3(1) and Section 3 (2) (i) of the Equal Status Act, to the Director of Equality Investigations.
1.2 The complainant maintains that on asking her if she was the person who had a complaint against the pub and then refusing her service, the respondent victimised her as a result of her notifying him of her intention to take a complaint of discrimination to the Director of Equality Investigations.
2. Background
2.1 Mrs. Collins notified Campions Pub of her intention to make a complaint of discrimination to the Director of Equality Investigations on 10th April 2001. On the 26th June she was in Campion’s pub with a funeral group following a funeral when she was approached by Mr. David Campion who asked for her name and then asked if she was the same Bridget Collins who had a claim “up with a Solicitor.” When Mrs. Collins confirmed this, Mr. Campion told her she would have to leave. Mrs. Collins alleges that this action amounts to victimisation under Section 3 (2)(j) of the Equal Status Act, 2000.
2.2 Mr. Campion accepts that he asked Mrs. Collins if she was the person with a claim against the pub but he said he had only done so as a means of identifying her as the Bridget Collins who was barred from the pub as a result of a previous incident where counterfeit money had been passed in the pub.
3. Summary of the Complainants case
3.1 The complainant says that she went to Campions bar on 26th June 2001 after attending the funeral of a friend of hers. She went there on the invitation of the bereaved family and during her time in the pub was asked by the owner if she had a claim in against the pub. When she confirmed that she had, she was told she would have to leave the premises.
4. Summary of the Respondent’s Case
4.1 The respondents say that the complainant was barred from the pub as a result of an incident in February 2001 and had been told of her barring by one of the owners when she went to the pub in April 2001 and by letter from the respondent’s solicitor in May 2001. They say in a written submission that when she was pointed out on the premises on the 26th June 2001 by a member of staff, the question of whether she was the person who had a complaint against the pub was just asked to confirm her identity as an individual who was barred from the premises.
5. Evidence of the Parties
5.1 Evidence of Bridget Collins (Complainant)
Mrs. Collins went to Campions Public House on June 26th 2001 on the invitation of the family of a deceased friend of hers whose funeral she had attended that day. She said that she had not been to Campions very often before that but had celebrated her child’s Christening in the function room of the pub the previous February, had visited the pub to retrieve her deposit for that booking shortly thereafter and had gone there on one other occasion in April 2001.
In relation to her first visit, Mrs. Collins said she had booked the function room with the help of a friend of hers prior to the Christening and had gone to the pub with that friend to pay over the deposit. Mrs. Collins said that on the night of the Christening about 80 people attended the party and that at some point in the night a number of uninvited guests who were known to her and her husband as “not good people” arrived at the party. Her husband became aware that they may have been passing counterfeit “fraud” money and she told him to inform the barman, who, she said, thanked her husband for the information. She said that her husband did not specifically identify those who were passing the “fraud money” to the bar staff but indicated that there was a likelihood that such money would be used to purchase drink.
Mrs. Collins said that on the following day she went with her husband to collect the deposit they had paid on the function room and to collect the Christening cake from the pub. They met Mr. Fabian Campion who told them the pub was down £60 in takings due to the counterfeit money being used. Mr. Collins said that he had warned the staff to watch out for such money but he offered to make good the loss. Mr. Campion then handed over the counterfeit money to the Collins’s. Mrs. Collins says that she wasn’t told she was barred from the pub on that occasion.
A number of weeks later she went to Campions with her husband and her husband went to the bar and ordered drinks from a boy who approached them. She said that the boy told him that Mr. Campion had said they were not to be served. She says they were told they could have the two drinks they had ordered and then leave. They were told that they wouldn’t be served because of their friends and because of what had happened at the Christening.
Mrs. Collins said that she didn’t return to the pub after that until the 26th June 2001 when she was asked to go there after the funeral of her friend Mrs. O’Shea, by the deceased woman’s family. (By that time she had notified the respondent of her intention to refer a complaint to the Director of Equality Investigations. Mrs. Collins later decided not to pursue the complaint of discrimination.) She said that Mrs. O’Shea’s daughter was her brother’s girlfriend and that they were good friends. She said that many members of her family also attended the funeral and went to the pub and that many of these had also attended the Christening on the previous February. She said that her mother, father, brother and sister had attended both events.
Mrs. Collins said that she was sitting near the door in close proximity to some others in the group but a little apart as she had a baby in a buggy with her. After about 15 minutes a man (Mr. David Campion) came over to her and asked if her name was Bridget Collins and she confirmed this. He then said “are you the Bridget Collins that has the pub up with the solicitor” and she also confirmed this. Mrs. Collins said that Mr. Campion then said I am asking you to leave. She said that Mr. Campion spoke to no one else in the group. She also said that she didn’t remember Mr. Campion from the night of the Christening.
On examination by her representative Mrs. Collins said she had been asked by a member of the deceased woman’s family not to leave after this but that she was upset and went to get her husband and they both left with the baby, Mrs. Collins said her husband returned to the pub later to rejoin the funeral group.
On cross examination by the respondents’ representative Mrs. Collins confirmed that the time she placed the deposit for the Christening party was the first time she had been in Campions She said that she thought she had entered the pub together with Ann Daly a colleague from her place of work. She didn’t remember seeing any of the Campion brothers on that occasion but remembers placing her deposit with Eoin the bar manager.
Mrs. Collins was asked on cross examination about how guests came to be at the Christening party and she said that she had gone from house to house inviting people she knew. She said that although she knew those who had passed the counterfeit money, they had not been invited to the party but arrived unexpectedly. She was asked why she hadn’t identified them to the bar staff and said that she felt that by advising the barman about what was going on she had done enough.
During cross examination Mrs. Collins was asked if she was aware that it was a criminal offence to pass or receive counterfeit money and if she felt she was validly barred and she said that she still believed the barring was discrimination although she has since withdrawn her complaint. She decided to make a complaint of discrimination after beingtold she was barred in April 2001 and notified the respondents accordingly. She acknowledged she received a letter from the respondents representative on the 10th May 2001 saying that all of the group were barred because of what had happened on the night of the Christening.
Regarding the incident under investigation, Mrs. Collins disputed that checking, if she was the person who had a complaint with the solicitor, was the only way to identify her as the person who was barred. Mrs. Collins said that although she was at a separate seat from the others in her group on that day she wasn’t separate from the group and was just sitting there because of her baby.
5.2 Evidence of Fabian and David Campion (Respondents)
Mr. David Campion said that the pub had a capacity of 300-400 customers and had been in his family for 3 generations approaching 100 years. The upstairs function room had a capacity of about 100.
He said that a number of Travellers were regulars in the pub.
Mr. Fabian Campion said that the Collins Christening party was booked for 7 p.m. on the night of the 17th February 2001 but that Mrs. Collins came in at about 6-6.30 p.m.. He said that the original booking was for 50 to 60 people but more than that came and he thought that about 85 to 100 people had come.
He said that it was brought to Eoin, the bar manager’s attention that “dud money” was being passed. One of the staff indicated someone, who denied at first that he was passing bad money but then admitted it. He then reimbursed a proportion of the money and offered to buy back the remainder at £10 per £20 note sterling. Mr. Campion refused and a decision was taken not to accept any more sterling cash that night. Mr. Campion understood that Mr. Paddy Collins the complainant’s husband had mentioned to the bar staff about the possibility of counterfeit money being passed in the pub that evening but this was already after the bar staff were aware of the problem.
He had never met the Collins’s before the 17th February 2001.
Mr. Fabian Campion said that he was working in the bar -moving between the various bar areas on the night of the Christening. He said he identified only one of those who was passing counterfeit sterling at the party. He said it was usually a matter for the family to make a decision on whether customers should be barred, as the pub was a family business, although it was possible to do so himself. Mr. Campion said that the family would discuss incidents in the bar and make a decision based on the outcome of those discussions. There was, however, no particular policy in relation to the barring of a customer but in general it tended to be a life ban. He said that he didn’t know any of the attendance at Christening party and that he may not be able to recognise all of them. Everyone at the Christening was barred and he made it clear to the Collins’s in April why they were barred.
Mr. Campion said that Mrs. Collins and her husband came back to the pub on the 18th February and asked for their cake and the return of their deposit. Mr. Campion told them about the counterfeit money which was passed and he said that Mr. Collins told him that he was not responsible. Mr. Campion said he described the one person he identified who had passed the counterfeit money and Mr. Collins said ” I know who you are talking about. I’ll sort it out.” Mr. Campion said he believed that the issue would be sorted out with the Gardai. He said that Mr. Collins agreed to a deduction of the amount of money outstanding from the deposit and the bad sterling was given back. He said that Mr. Collins asked if it would be all right to come back to the pub and Mr. Campion said that he would make a decision on that and phone him. He took a phone number from the Collins’s. Mr. Campion said once a decision had been taken to bar the party group he phoned the number he had three to four times but was unable to get through.
Mr. Campion said he was working in the bar again on the 7th April 2001 when the Collins’s came in and when he spotted Mr. Collins he told him to leave. He also told Mrs. Collins that she was barred.
Mr. David Campion who is a brother of Fabian Campion said he was not working in the bar on either the date of the Christening or the other occasions the Collins’s were in the pub prior to the 26th June 2001. He knew of the incident involving the counterfeit money but he wasn’t working that night.
On the 26th June 2001 he was working in the bar and there was a booking for a funeral group in the bar. The booking was made by John O’Shea a customer who was known to him and whose wife had died. Campions pub is situated across the road from Balgriffin Cemetery and is a popular venue among funeral attendees for tea and refreshments following a funeral.
Mr. Campion said that a member of the bar staff approached him and indicated Mrs. Collins to him and said “that’s Bridget Collins She was barred over the dud money.” Mr. Campion said that he went over to Mrs. Collins and asked her if she was Bridget Collins and if she was the person who had been dealing with his solicitor (about the complaint). He said that when she confirmed that she was he asked her to leave. He then went to Mr. O’ Shea and told him that there was someone in the premises who was barred and would have to leave. Mr. Campion said he wasn’t aware of any connection between the two families.
Mr. Campion said that he believed that Bridget Collins was on her own and not in company. He considered her to be sitting apart from the funeral group as there was a narrow passage between where Mrs. Collins was sitting and where the remainder of the group were. He said he didn’t recognise anyone as her husband. He said that the day of this hearing was the first time he had seen her husband. Mr. Campion said that on the 26th June 2001 he was not aware of the presence of anyone who had been at the Christening party in February and that he didn’t attempt to find out.
On cross examination Mr. Fabian Campion said that he didn’t contact the Gardaí about the counterfeit money because it would cause embarrassment and he thought it was for the best. He was asked by the complainant’s representative if he agreed that the Collins’s had done what they thought was best in relation to the money. He said that he didn’t know what the Collins’s had done with the money.
Mr. David Campion said on cross examination that the staff member who pointed Mrs. Collins out to him was on duty both on the night of Christening and on the day of the funeral and she recognised Mrs. Collins as someone Fabian Campion had refused some weeks earlier. It was put to Mr. Campion that it was not necessary to refer to the complaint lodged against the pub in order to identify Mrs. Collins and Mr. Campion maintained that he was merely trying to ensure that she was the same woman who was barred from the pub.
When asked if he made sure that Mrs. Collins left, Mr. Campion said the video showed it. He said he didn’t consider it a serious incident. He also said that he didn’t recall who Mrs. Collins left with apart from the baby in a buggy.
Mr. Fabian Campion was asked by his representative if he recalled what time he identifed the passer of counterfeit notes. He said it was about 10 p.m. which was 31/2 to 4 hours after Mrs. Collins came to the pub for the Christening. He said that he relied on people who booked the function room to make sure they didn’t bring unwelcome guests.
6. Evidence of Complainants Witnesses
6.1 Evidence of Ms. Joan O’Shea
Ms O’ Shea said that she attended both the Christening party and the funeral. It was her mothers funeral and she had invited the Collins’s to the pub after the funeral as she regarded them as good friends. She said that she was not a regular at Campions pub.
Ms. O’ Shea said that she was not aware of anything unusual occurring at the Christening party but had found out afterwards from her husband about the counterfeit money incident. She was not aware that Mrs. Collins was barred from the pub.
On the 26th June she said that she was sitting with her father when she noticed a man approach Bridget (Mrs. Collins) and ask her if she was the one who had the pub up with the solicitor. She then heard the man ask Mrs. Collins to leave. The man then came to her father and told him that someone here is barred and will have to leave. Ms. O’ Shea said that she asked Mrs. Collins not to leave because of the day that it was but Mr. and Mrs. Collins and the baby left. Ms. O’Shea said she was aware of about 15 people who had been at both the Christening and the funeral and that Mrs. Collins was the only one asked to leave.
6.2 Evidence of Mr. Paddy Collins
Mr. Collins is the complainant’s husband and was with her on the various occasions she attended Campions pub including the Christening and the funeral. He said that on the night of the Christening he went to the bar manager and told him of his suspicions about the passing of counterfeit money and he recalled that the bar manager said thanks. He said he had mentioned the problem to his mother in law before he approached the barman. He said that he didn’t ask those passing the counterfeit money to leave in case there was a row.
Mr. Collins said that on the following day he went with his wife to collect the deposit and the cake and he met with Fabian Campion. He ordered a drink. Mr. Campion came down with the cake and said he was down money. Mr. Collins said he told Mr. Campion to take it out of the deposit. He was refused drink. He said he was told that this was because his friends might follow him down. Mr. Collins asked if he would be served in the pub again and he was told that they would phone him about this. He said he never got the phone call but he was told he was barred when he went to the pub on the 7th April 2001.
On the day of the funeral Mr. Collins was sitting in the bar drinking. He saw his wife talking to the O’Shea family. He said he didn’t remember any conversation between Mr. O’Shea and Mr. Campion. He remembers his wife coming to him upset and saying she had to leave. He said no one from the bar approached him. Mr. Collins said he went home with his wife and child.
Mr. Collins was asked by his representative what he did with the counterfeit money given to him by Mr. Campion and he said that he tore it up.
On cross examination Mr. Collins said that he did not hear the conversation between his wife and Mr. David Campion on the day of the funeral and that he did not recognise Mr. Campion.
6.3 Evidence of Ann Daly
Ms. Daly said that she was a Community Development Worker with the Northside Travellers Development Group at the time of the Christening in 2001 but that she left that post shortly afterwards to work with the Eastern Regional Health Authority as a social worker and now works as a freelance mediator based in the midlands.
Ms. Daly said that she assisted Mrs. Collins with the booking of the Christening and went with her to pay over the deposit. She attended the Christening but was not aware of anything strange happening until Bridget Collins told her afterwards that she was aware that someone had passed bad money.
Ms. Daly said that she believed that Mrs. Collins and her husband would have taken on the responsibility for reimbursing the £60 to the pub because that’s the sort of responsible people they are.
She said that she believed she was told by Mrs. Collins the day after the Christening that the entire attendance at the Christening party were barred. She said that she believed herself to be barred.
Ms. Daly said that by a matter of coincidence she decided to check out the situation regarding the barring on 25th June 2001 and went to Campions on her own to see if she would be served. She said that she was served without any difficulty. She asked for a receipt and then left. She said she was curious to see if the fact that she wasn’t a traveller would make a difference to whether she was served. She said she had decided to do this shortly after she knew she was barred but it was some months before she actually got an opportunity to do so.
7. Evidence of Respondents’ Witnesses
7.1 Evidence of Eoin Byrne
Mr. Byrne is the manager of Campions bar and was in charge of the function room bar on the night of the Christening. He was also on duty in the pub on the day of the funeral.
Mr. Byrne said that on the night of the Christening it was brought to his attention by a staff member at about 10 p.m. that sterling was being used to buy drink, Mr. Byrne checked and discovered that the money was fake. He consulted with Mr. Campion who was in the main bar and the decision was taken not to accept any more sterling transactions that night. He remembered Mr. Collins coming to him at some stage to tell him about his fears about the use of counterfeit money but he said that by that point counterfeit transactions had already occurred.
Mr. Byrne said that one of the bar staff on duty was able to point out one of the parties who had passed over the counterfeit money and they were able to recoup £40 when he was confronted. That person was asked to finish his drink and leave.
Mr. Byrne said that following this event, the management of the bar discussed the incident and decided to bar everyone who attended the christening party. He said the reason for the barring of the whole group was the fact the they could not identify the exact people who were using counterfeit money. He recalled Mr. Fabian Campion phoning the Collins’s but not getting any response.
Mr. Byrne said that on the day of the funeral on 26th June he noticed Mrs. Collins sitting inside the door of the pub. He asked another member of the bar staff – a senior bar person – if David Campion was aware that Mrs. Collins was in the bar and The bar person, Ms. Anthea Dunne, told him that she had already said it to Mr. Campion and that he was going to tackle it.
Mr. Byrne said that because of the proximity of the pub to a cemetery, barred persons often requested permission to come on the premises on the occasion of a funeral they were attending and the management of the bar were inclined on these occasions to allow them in provided they were not served alcohol.
Mr. Byrne was asked why, when he noticed Mrs. Collins, did he not check to see if any more of the Christening group were there and in particular if Mrs. Collins’s husband was there. He said it didn’t occur to him to look.
7.2 Evidence of Ms. Anthea Dunne
Ms. Dunne said that she is a bar person in Campions Pub and has been working there for five and half years.
Ms. Dunne said that she would know most of the regular customers and that a number of them are travellers.
She said that she did not know the Collins’s prior to the Christening and that she had been the person who admitted Mrs. Collins to the function room on the night of the Christening in February 2001.
Ms Dunne said that she was on duty all of that day from 10:30 a.m. to about 2 a.m. the following morning. She had two breaks of one and a half hours duration from 1-2.30 p.m. and from 6-7.30 p.m. She said she admitted Mrs. Collins to the function room at about 7 p.m. as she returned from her break early.
Ms. Dunne said she was serving in the function room for the night and served a number of drinks to Mrs. Collins.
Ms. Dunne said that at about 10.30 p.m. Eoin Byrne the manager came to empty the tills and when he checked the takings he discovered a number of sterling notes which were fake. She said that Mr. Byrne asked the staff to identify who had passed the money and she said that she identified two people. She said that Eoin dealt with it after that and that she continued working along with the other bar staff on duty.
She said that she believed that Eoin Byrne spoke with Mr. Collins about the counterfeit money. She said that if something was to be said to customers they would be taken aside to avoid any embarrassment.
Ms. Dunne said that no more sterling was accepted that night and that apart from this incident there were no problems at the party. She said a decision was taken some days later to bar the entire attendance at the party.
Ms. Dunne said that she believed she would recognise Mrs. Collins and that she believed that she would also recognise Mr. Paddy Collins.
Ms. Dunne said that the next time she saw Mrs. Collins in the Pub was in June with the funeral group. She said that as she was serving Mrs. Collins soup and sandwiches she recognised her as someone who was barred. She said she decided to tell Mr. David Campion this and when she told him she went about her work and left Mr. Campion to deal with it.
Ms. Dunne said that what she said to Mr. Campion was that ” that women was barred.”
She said she had no further dealings with Mr. Campion on the matter and she continued working throughout the bar.
Ms. Dunne said that she believed that she spoke to no one else about Mrs. Collins but said that if there was evidence from Mr. Byrne that she did she accepted that.
Ms. Dunne said that if Mr. Collins was there she didn’t see him and that she didn’t think of checking if he was there as she was busy.
Ms. Dunne was asked if she felt that those working in the pub on the night of the Christening would recognise those barred that night more readily and she agreed that they would.
When asked where Mrs. Collins was sitting, Ms. Dunne said that that she was sitting with a buggy on her own.
It was put to Ms. Dunne that given the seriousness with which the passing of counterfeit money was regarded by Campions was it not surprising that no one appeared to have checked to see if others of the group were there that day. Ms. Dunne responded that the pub was very busy.
8. Matters for consideration
8.1 Section 3 (1) 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.
8.2 Section 3 (2) (j) deals with the victimisation ground which arises if one has in good faith applied for any determination or redress under the Act…………..has opposed by lawful means an act which is unlawful under the Act or has given notice of an intention to take any of the actions specified.
8.3 In this particular case the complainant states that she was victimised for having given notice of her intention to take a complaint of discrimination on the Traveller Community ground to the Director of Equality Investigations when the respondent asked her if she was the person who had made the complaint. Upon confirming that she was, she was told to leave Campions pub. In such cases the burden of proof initially lies with the complainant to show that a prima facie case exists. If a prima facie case is established, the burden of proof then shifts to the respondent.
9. Conclusions of the Equality Officer
9.1 I must first consider whether the complainant has succeeded in establishing the existence of a prima facie case. The following elements must be established to show that a prima facie case exists The complainant must show:
a) that she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied section 3(2)(j).
b) that she was subjected to specific acts of treatment by the respondent after she did so.
c) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at a) above.
Once these elements have been established the burden of proof shifts to the respondent and the there is an assumption of victimisation that the respondent must rebut if his actions are not to be deemed victimisation under the Equal Status Act, 2000.
9.2 Having considered all of the evidence before me I am satisfied that Mrs. Collins, the complainant, has satisfied criterion a) above in that she notified the respondent in April 2001 of her intention to take a complaint of discrimination against him on the Traveller Community ground and lodged a complaint with the Director of Equality Investigations shortly thereafter. The fact that she subsequently withdrew her discrimination complaint could possibly be interpreted as an indication that the complaint was not taken in good faith. I consider, however, that there are a number of reasons why she may have chosen to withdraw this complaint, for example, she may be convinced that there was discrimination but has no means of proving it to the standard necessary. In fact Mrs. Collins, in her evidence has stated that she still believes that she was discriminated against. There is uncontested evidence that the complainant was questioned by the respondent as to whether she was the same Bridget Collins who had a claim against the pub, and that following confirmation of who she was, was told to leave. This illustrates that she was subjected to specific treatment by the respondent and therefore criterion b) above is satisfied. The evidence shows that a number of people, including the complainant’s husband, who were barred as a result of the same incident, which resulted in the complainant being barred from the respondents premises, were present and within close proximity to the complainant at the time of the incident complained of here. None of these people were approached by the respondent and none asked to leave. The only difference between the complainant and these people, and particularly her husband, is the fact that she had notified the respondent of her intention to take a claim to the Director of Equality Investigations. Therefore I am satisfied that criterion c) has been met and that a prima facie case has been established by the complainant. The burden of proof is on the respondent, therefore, to show that his actions were not due to the notification by the complainant regarding the taking of a complaint of discrimination to the Director of Equality Investigations.
9.3 The respondents deny that their actions towards the complainant occurred due to them identifying her as the person who had notified a complaint of discrimination against them. They maintain that this fact was just utilised as a means of identifying the complainant as abarred person who was to be refused service because of her involvement in an incident at the premises in February. I consider it peculiar that this question was used as a means of identifying her as a barred person since given the circumstances of her barring there were many alternative ways of identifying her. The fact that Mrs. Collins had a young baby with her could have allowed Mr. Campion an opportunity to check if she was the person who had had the Christening party at the pub in February. Confirmation of this would have allowed him to confirm her identity without referring to the complaint of discrimination against the respondent. He could have asked if she was a person who was barred from the premises. There is no evidence that the matter of the complaint was put in his mind by Ms. Dunne when she informed him of Mrs. Collins’s presence, yet this was the question he asked her on establishing that her name was Bridget Collins.
9.4 Despite the large attendance of people who were barred subsequent to the Christening party, at the event of the 26th June 2001, the respondent only approached Mrs. Collins and didn’t even attempt to determine if other barred patrons were present. Given the central role of her husband in the events leading up to the barring, I consider it unlikely that he would have been any more difficult to recognise than the complainant herself and was obviously part of the funeral group. It is useful to note that Mrs. Collins never went to Campions on her own and was accompanied by her husband on the night of the Christening and on all occasions when she visited the pub subsequently. The respondent or his staff, however, focused on Mrs. Collins particularly. I believe, therefore, that in singling out Mrs. Collins for specific attention the respondent gave less favourable treatment to the complainant than to the others present, including many who were barred as a result of the incident at the Christening some months earlier.
10. Decision
10.1 On the 26th June the complainant Bridget Collins was in Campions pub as part of a funeral group when she was approached by Mr. David Campion of the respondents who on identifying her as Bridget Collins sought to find out if she was the person who had made complaint of discrimination against the pub. Upon finding out that she was, he then proceeded to ask her and her alone, to leave the pub and made no attempt to ask any other members of the group to leave.
10.2 I believe that Mr. Campion in talking to the bereaved husband Mr. O’Shea about his decision to get Mrs. Collins to leave, had ample opportunity to ascertain the presence of other members of the group who were also barred but he made no effort to do so. This leads me to the conclusion that Mr. Campion’s actions were motivated by the fact Mrs. Collins had notified him of her intention to take a complaint to the Director of Equality Investigations rather than by the fact she was barred. This action constitutes victimisation as outlined in Section 3 (2) (j) of the equal Status Act 2000 and I therefore find that Bridget Collins was victimised by the respondent at Campions public house on 26th June 2001.
11. Redress
11.1 In determining the amount of redress appropriate in this case I am conscious of the fact that the complainant was one of a group of people who were barred from the premises at,the time of this incident. The reasons for the groups barring could have exposed the respondent to charges of breaching the Licensing Acts, in that criminal activity, i.e. in this case the use of counterfeit money to purchase drink, had taken place on the premises on the night of the Christening party. I do accept, however, that the complainant was not directly involved in this activity and that neither she nor her husband passed counterfeit money that night.
11.2 It is an undisputed fact between the parties that the complainant had been informed of her barring from the premises and that of the other attendees at the Christening party both verbally by the respondent in April 2001 and again by letter from the respondent’s solicitor, following her notification of discrimination, in May 2001 so she would have been clearly aware that her presence on the premises could be problematic. It appears that the complainant made no attempt to make herself known to the respondents which could possibly have resulted in a temporary exemption in her barred status for the duration of the funeral.
11.3 In the light of these facts and the finding that Bridget Collins was victimised by Campions Public House, I award the sum of € 65 (sixty five Euro) for the effects of the victimisation and order that the respondent pay over to the complainant the said sum of €65 (sixty five Euro).
Mary O’Callaghan
Equality Officer
15th August 2003
Equal Status Act 2000
Equality Officer Decision
DEC-S2001-023
Griffin v Mary B. Public House
Headnotes
Equal Status Act, 2000 – Date of discrimination – Direct discrimination, section 3(1) –
Membership of the Traveller community, section 3(2)(i) – Victimisation ground, section
3(2)(j) – Supply of goods and services, section 5(1) – Service in pubs – Risk of criminal and
disorderly conduct, section 15(1) – Action taken in good faith, section 15(2)
Background
This dispute concerns a claim by Mr. Dan Griffin that he was discriminated against
by the Mary B. Public House contrary to the Equal Status Act, 2000, on the grounds that
he is a member of the Traveller Community. The complainant alleges that the respondent
discriminated against him in terms of Section 3(1)(a), and 3(2)(i) in that he was not provided
with a service which is generally available to the public, contrary to Section 5(1) of the Act.
He also alleges that he was discriminated against contrary to Section 3(2)(j) of the Equal
Status Act, 2000, in that he was victimised for taking a complaint under the Act.
The respondent submitted firstly that the incident of alleged discrimination took
place before the Act came into operation on 25 October, 2000. Secondly he denied that
the complainant was discriminated against and submitted that he was entitled to bar him as
he associated with another group of Travellers, which made it impossible for him to run an
orderly house, and which was in breach of the rules of the pub.
Conclusions of the Equality Officer
The Equality Officer found that the complainant established a prima facie case of
discrimination. The Equality Officer also found that there was no evidence, to substantiate
the claim by the respondent, that by serving the complainant there was a substantial risk of
criminal or disorderly conduct or behaviour, and concluded that the respondent’s actions by
imposing an indefinite bar on the complainant from service in the pub constituted
discrimination on the grounds of membership of the Traveller community. The Equality
Officer also found that the complainant was victimised by the respondent for making a
complaint of discrimination under the Act
Decision
The Equality Officer concluded that the respondent discriminated against the complainant on
the grounds of his membership of the Traveller community and awarded him £2,000 (2,539
Euro) compensation and victimised him for applying for a determination under the Act and
awarded him £1,500 (1905 Euro)
1 Dispute
1.1 This dispute concerns a claim by Mr. Dan Griffin that he was discriminated against
by the Mary B. Public House contrary to the Equal Status Act, 2000, on the grounds that
he is a member of the Traveller Community. The complainant alleges that the respondent
discriminated against him in terms of Section 3(1)(a), and 3(2)(i) and 3(2)(j) of the Equal
Status Act, 2000,
2 Background
2.1 The complainant, Mr. Dan Griffin alleges that he was discriminated against by
the Mary B. contrary to the Equal Status Act, 2000 when he was refused service and
barred by the respondent. He contends this occurred because he is a member of the
Traveller community
2.2 The respondent submitted firstly that the incident of alleged discrimination took
place before the Act came into operation on 25 October, 2000. Secondly he denied that
the complainant was discriminated against and submitted that he was entitled to bar him as
he associated with another group of Travellers, which made it impossible for him to run an
orderly house, and which was in breach of the rules of the pub.
4 Summary of the complainant’s Case
The complainant case is that he is a member of the Traveller community living in
Wicklow and was a regular customer (about 2 nights per week) in the respondent’s
pub in Arklow from May/June 2000 until November, 2000.
The complainant gave the following evidence:
In late October/early November, 2000 he went into the pub in the company of Mr.
Michael O’Connor, his brother-in-law, and his wife’s two uncles and was refused
service.
He spoke to the proprietor, Mr. McGuinness outside the door to find out the
reason for the refusal and was told there were too many Travellers in the pub.
Mr. McGuinness then changed his mind and told him he was welcome to come
back into the pub, but if any more Travellers arrived he would refuse to serve them
and they would have to leave.
The complainant and his friends went back into the pub and were served.
About an hour and a half later more Travellers came in. Mr. McGuinness then
approached the complainant and his companions and said that he would have to
stop serving them because more Travellers came into the pub.
The complainant protested that the other Travellers were not in his company and he
only knew one of them.
He contended that they were hassled about 2 or 3 times by Mr. McGuinness and
told they would have to keep the rules of the pub,
he left before closing time because of the hassle.
He said as far as he could see he was not breaking any rules if other Travellers
came in it had nothing to do with him. As far as he knew there were 4 or 5 other
Travellers in the pub but his group did not join them.
He said that they were many groups of about 6 to 7 people who were non
Travellers served without any hassle.
The complainant visited the pub on his own the following day and he was refused
service by the barman. The barman told him that it was the bosses orders to refuse
him service.
The complainant said that he couldn’t understand why he was refused as he had
never been drunk or disorderly on the premises.
In November, 200 he visited Mr McGuinness in the off license and asked him why
he would no longer serve him in the bar. He said that Mr Mc Guinness told him that
there were too many Travellers in the bar, it was fine to serve him if there were only
2 to 3 Travellers, but 6 or 7 was too many in the pub.
The complainant sent a notification in writing of his complaint of discrimination to the
respondent on 24 November, 2000 and the respondent replied in writing stating
that because of the complaint the complainant would be no longer welcome in the
premises.
5 Summary of the Respondent’s case
5.1 The respondent submitted that he disputes that the complainant was discriminated
against and in any event any acts of discrimination alleged by the complainant
occurred before the 25 October, 2000 and the date the Equal Status Act, 2000
came into operation.
He stated the following to support his case:
the complainant was a regular in the pub from June, 2000 until the end of October,
2000.
He caused no problem on the premises and that he always found Mr. Griffin to be a
gentleman. However on several occasions he told him he didn’t want large groups
of Travellers congregating in the pub. He warned him to abide by the rules or if he
didn’t it would be “the straw which broke the camel’s back.”
He said that he could not recall the night in late October early November, 2000
referred to by the complainant in his evidence. He said that he was on holidays
from 22 October until 3 November and was not on duty on 4 November.
He said that he can recollect a specific night sometime in early October 2000, when
a large group of about 10 to 12 people gathered in the pub, some played pool and
did not pay for it, another got sick and some were aggressive. The respondent said
that the group were Travellers
He was unsure if the complainant was with this group on the night in early October,
2000, or if he was in the pub.
He said that the complainant associates with group. He was very anxious while the
group were in the pub but they all left peacefully.
He decided he would not serve that group in the future after that night. He didn’t tell them
on the night as he would never do that as a matter of form.
He thought that the incident on the night in late October early November, 2000, referred to
by the complainant in his evidence, occurred around June, 2000, the time he first met the
complainant. The complainant entered the pub with 2 uncles. Mr. McGuinness refused to
serve them because he considered they had drink taken. He said that he knew they were
Travellers. They left the pub disgruntled and he followed them out and after speaking to
them he considered they had not much drink taken and he invited them back in. He told
them that they were welcome in the pub provided they stayed in a small group. He stated
he didn’t say this to them because they were Travellers but because he does not like large
groups on the premises.
After Mr. McGuinness’s holidays in early November 2000, the complainant came into the
off licence. He asked why he had not been served in the pub, he complained about
discrimination because he is a Traveller and said he was going to take it further. Mr.
McGuinness said that he told the complainant he would not be served in future in the pub
because he was part of that large group of Travellers who had caused trouble in October.
The respondent stated that the Travellers tended to come into the pub in groups of
3 to 4 people and they would then all associate together. He said that he still serves
Travellers in the pub but he will not serve large groups. He makes exceptions on
occasions and had a Traveller wedding in the pub in the recent past.
The pub was associated with a football club and he stopped sponsoring them
because he was not happy with the members behaviour in the pub. He said that
horseplay occurs with large groups. He does not allow stag or hen parties. The
football group have not been barred and continue to drink in the pub in smaller
groups. He will serve these customers individually but not as part of a large group.
He would not serve the Traveller group again as they have been barred individually
including the complainant because of their behaviour.
Mr. McGuinness agreed that there was usually a large group of people in the pub
on a Saturday night as it is busy. He said that if he knows the groups he is dealing
with there is unlikely to be a breach of security.
In all the respondent said that he has about 200 people barred from his pub, but he
has not got a greater percentage of Travellers barred than settled people. He
usually bars people who misbehave. When he bars someone they are barred for
life. He has made exceptions to this rule and allowed people back in including one
Traveller.
Mr. McGuinness said that he was angry and upset over being accused of
discrimination. In response to the complainant’s notification to him of the complaint
he responded by letter telling him he was refused service because he was in a party
of 12 people which made it impossible for him to run an orderly house and this was
the reason he was refused service subsequently. He also informed him that in view
of the outrageous allegations he would no longer be welcome on the premises.
6 Rebuttal by the complainant of the respondent’s case
6.1 The complainant, in relation to the date of discrimination, said that the alleged
discriminatory acts occurred in late October, 2000 or early November as a result of
which he was refused service. He said that he went to Tipperary on 23 October,
2000 and returned about 9 days later and on the Friday or Saturday following his
return he went to the pub with his brother-in-law Mr. Michael O’Connor and his
wife’s 2 uncles. It was either 3 or 4 November and he alleges it was on this
occasion he was at first refused service by Mr. McGuinness, then allowed service
on condition that no more Travellers came into the pub. Mr. O’Connor gave
evidence that this incident of alleged discrimination occurred around Halloween.
The complainant said that he went into the bar on the Sunday morning following the
above incident in late October or early November and was refused service. The
barman told him that said he had orders not to serve him and he got his orders from
the boss.
The complainant denied that he drinks in large groups. He said that normally he
was
with his brother-in-law Mr. Michael O’Connor or in a small group of 3 to 4 people.
He knew only one other Traveller in the pub on the night in October or early
November. He lives in Wicklow and does not know many Travellers in Arklow
where the respondent’s pub is situated. He said that when other Travellers came
into the pub Mr McGuinness did not like it and he tended to hassle him.
7 Conclusions of the Equality Officer
7.1 The date that the alleged act of discrimination is in dispute between the parties.
Therefore the first matter for decision is the date on which the alleged discrimination
occurred. The Equal Status Act, 2000 came into operation on the 25 October, 2000 and
only applies to alleged discriminatory treatment occurring on or after that date.
There was conflicting evidence in relation to the dates, but I find that the
complainants
recollection of the precise dates of the acts of alleged discrimination in
October/early November, 2000 to be unreliable. On the complainants own
recollection the incident to which he referred in his evidence at the end of October
or early November could not have taken place on the last Friday or Saturday in
October, 2000 as the complainant was in Carrick-on-Suir and the respondent was
on holidays. Neither could it have taken place on either the 3rd or 4th of
November as the respondent was on holidays and the respondent was present in
the pub when a group of 10 to 12 Travellers misbehaved. I find on the facts that all
the incidents of alleged discriminatory treatment occurred before the Act came into
operation on 25 October, 2000 except for the following two incidents:
(i) the conversation between the complainant and the respondent in the
off-licence in November, and
(ii) the undated letter, subsequent to 24 November, 2000, by the respondent
to
the complainant in response to his notification of the complaint of
discrimination.
I find therefore that I have jurisdiction to hear the case.
7.2 I would like to point out that any acts of alleged discriminatory treatment occurring
before 25 October, 2000 were not unlawful. However I can examine incidents
which occurred before that date in the context of deciding whether the treatment of
the complainant after the Act came into operation amounted to unlawful
discrimination prohibited by the Equal Status Act, 2000.
7.3 The matter referred for investigation turns upon whether or not the complainant was directly
discriminated against contrary to Section 3(1)(a), 3(2)(i) and 3(2)(j) of the Equal Status Act
and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account
all the submissions, both oral and written, made to me by the parties in the course of my
investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
On any of the grounds specified… (in this case the Traveller community ground)…. A
person is treated less favourably than another person is, has been or would be
treated. Section 3(2)(i) provides that: As between any two persons, the discriminatory
grounds … are …
that one is a member of the Traveller community and the other is not.
I am satisfied that the complainant is a Traveller as defined by the Act and that the
respondent knew the complainant as a Traveller
7.4 A person making an allegation of discrimination under the Equal Status Act, 2000
must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence
has been described by an Equality Officer as:
“Evidence which in the absence of any convincing contradicting evidence by the
employer would lead any reasonable person to conclude that discrimination had
probably occurred.”1
Once a prima facie case of discrimination has been established by the complainant, the
burden of proof then shifts to the respondent to rebut the presumption of discrimination.
The Northern Ireland Court of Appeal, in an employment discrimination case, stated that:
1 Dublin Corporation v. Gibney EE5/1986
“Once the evidential burden has shifted …….., the question then is whether there is any
evidence to justify the conclusion that the evidential burden has been discharged by
the respondent.”
2
In more recent employment discrimination cases the Labour Court has applied the test and
stated:
“The first question the Court has to decide is whether the claimant has established a
prima facie case of discrimination”.3
And in another case stated:
“…the claimant must first prove as a fact one or more of the assertions on which her
complaint of discrimination is based. A prima facie case of discrimination can only
arise if the claimant succeeds in discharging that evidential burden. If she does, the
respondent must prove that she was not discriminated against on grounds of her sex.
If she does not, her case cannot succeed.”4
7.5 The complainant claims that he was discriminated against on the Traveller
community ground when he was refused service and barred by the respondent. The
respondent’s case is that the complainant was not entitled to service because he was part of
a large group of Travellers who misbehaved on the premises. I have identified the three key
issues for decision as follows:
-in what circumstances was the complainant refused service by the respondent in
November, 2000
-whether this amounted to being treated, because he is a Traveller, less
favourably than a person who is not a Traveller would have been treated
in the same circumstances.
– was the complainant penalised for making a complaint under the Equal Status Act,
2000?
7.6 I am now going to examine the first two issues I have identified above and consider
whether the complainant has established a prima facie case. I have dealt with the third issue
identified at No. 8 below. The first question I am going to consider is why Mr. McGuinness
told the complainant in circa mid November, 2000 he was no longer going to serve him in
his public house. The respondents case is that he was entitled to refuse to serve him as he
was barred because he was part of a large group of Travellers who misbehaved on his
4 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011
3 The Rotunda Hospital v. Noreen Gleeson DEE003/2000
2 Wallace v. South Eastern Education and Library Board (NI Court of Appeal) 1980 IRLR 193
premises in early October, 2000. The complainant denied he was part of a large group of
Travellers in the pub on the night referred to by the respondent in early October. He agreed
he was in the pub and said he only knew one other Traveller in the pub on that occasion
apart from the three Travellers in his company. Mr Michael O’Connor who was with the
complainant supported the complainant’s version of the events. I note that during the
course of the hearing Mr. McGuinness said that he was unsure if the complainant was with
the group or even if he was in the bar on that particular night in early October, 2000,
following which he took the decision to bar all the group including the complainant. He said
that the complainant tends to congregate with groups and that he had warned him on a
number of occasions he was breaking the rules of the pub.
I note that the respondent did not produce any evidence he warned other groups of non
Traveller customers that they were breaking the rules of the pub by associating with other
non Travellers. The respondent said that he barred a group of non Traveller customers
collectively because they were boisterous but he did not barred them individually and they
continue to drink in the pub. I note that the respondent has not submitted anything other that
a satisfactory report in relation to the complainants behaviour in the pub and that he has not
produced any evidence to support his contention that it was reasonable for him to bar the
complaint because he associated with other Travellers in the pub. I find that the complaint
was barred from the premises because the respondent believed he associated with a group
of other Travellers who came into the pub. The fact that the complainant was barred from
the pub for associating with a group of Travellers, in circumstances where the respondent
was unsure whether he was present or not, whereas non Traveller customers in similar
circumstances were not barred, in my opinion raises a strong inference of discrimination.
For the foregoing reasons I find therefore, that the complainant has established a prima facie
case of discrimination. As I have stated above once a prima facie has been established the
burden of proof falls to the respondent to rebut the presumption of discrimination.
7.7 In deciding whether the respondent was justified in making the decision to refuse
service to the complainant in November, 2000 I have looked at the relationship between the
complainant and respondent prior to 25 October, 2000. The respondents evidence is that
he never had any trouble with the complainant and that he always behaved himself when he
was on the premises and he regarded him as a gentleman. However, he said that he had to
warn him on a number of occasions about breaking the rules i.e. associating with other
Travellers who came into the premises. The complainant said that he had a good
relationship with Mr. McGuinness but when other Travellers came in Mr. McGuinness
hassled him, but he had no control over whether other Travellers came into the premises.
It was accepted that the complainant was barred from the pub and the respondent
evidence was that he took the decision following an incident in October 2000. I am going
to examine this incident to see if the respondent was justified in barring him. The respondent
stated that a large group of Travellers 10 – 12 people congregated on his premises and that
they misbehaved. He said that he bars people who misbehave as he is obliged to run an
orderly pub. He also said that he was unsure if the complainant was with the group on the
night in question but he associates him with that group. He barred this group individually
and collectively and because the complainant associated with this group he was also barred.
The complainant accepted that he was in the pub together with three other Traveller
relations. He denies he was in the company of a large Traveller group or that he associated
with the group who misbehaved. The respondent has given no other reason for barring the
complaint apart from saying he associates with other Travellers and by doing so he has
broken the rules of the pub. The respondent has provided no evidence that he bars non
Travellers customers in similar circumstances. He did say he barred a non Traveller football
group collectively because they were boisterous but they continue to drink in the pub
individually. During the hearing the respondent stated that if he knows the group he is
dealing with he knows that it is not likely that there will be a breach of security. The
respondent knew the complainant for a number of months and he has provided no evidence
that he was responsible for, or likely to be involved in any breach of security. To me the
respondents treatment of the complainant in the off-licence in November, 2000 and his
decision to bar him indefinitely from his pub constituted discriminatory treatment and
demonstrates that held a prejudicial attitude towards Travellers. I find that the respondent
has not discharged the burden of proof to rebut the inference of discrimination raised by the
complainant. I find on the balance of probabilities that the respondent treated the
complainant less favourably on the Traveller community ground than non Travellers in
November, 2000 when he told him he would be no longer served and that he did unlawfully
discriminate against him on that occasion.
7.8 It was submitted on the respondents behalf that it was reasonable for the respondent to take
into account the complainants behaviour in accordance with Section 15(1) of the Equal
Status Act, 2000. He submitted that Section 15(1) was an objective measure of the
decision taken by the respondent. The respondent discourages large groups irrespective of
who they are. He submitted that the respondent applied a fair and reasonable criteria, but
the complainant by associating with other Traveller groups in the pub was in contravention of
that rule, there was a risk of disorderly conduct or damage to property and the respondent
was entitled to take the complainant’s conduct into account under Section 15(1) of the
Equal Status Act 2000. It was further submitted that the decision to bar the complainant
was an act taken in good faith by the respondent in accordance with Section 15 (2) of the
Act. The respondent representative further stated that as long as the respondent is acting
reasonably or believes he is acting reasonably he is entitled to take the decision he took and
that no discrimination could have occurred because he was acting in good faith. The
respondent agreed that the complainant never caused any difficulty on the premises nor had
he been involved in any rows there.
7.9 Section 15(1) of the Equal Status Act, 2000 Act, provides that: “nothing in this Act
prohibiting discrimination shall be construed as requiring a person to provide services
in circumstances which would lead a reasonable individual having the responsibility,
knowledge and experience of the person to the belief, on grounds other than the
discriminatory grounds, that the provision of the services to the customer would
produce a substantial risk of criminal or disorderly conduct or behaviour or damage
to property at or in the vicinity of the place in which the services are sought.”
To invoke this Section the respondent must show that there was a substantial risk of criminal
or disorderly conduct or behaviour if the complainant was served. This is quite a heavy test
and I am of the view that the respondent has not established that it was reasonable for him
to hold such a view. This is because the complainant was well known to him, he was a
regular in the pub for a number of months and he has provided no evidence of any criminal
or disorderly conduct engaged in by the complainant, in fact he has stated the complainant
was of exemplary behaviour. In relation to the misbehiour in the pub of a group of
Travellers in October, as a result of which he was barred, the respondents evidence was
that he was unable to say if the complainant was present. I find therefore that the
respondent has not provided any evidence to justify his contention that by continuing to
serve the complainant there was a substantial risk of criminal or disorderly conduct or
behaviour or that he was entitled to refuse service to the complainant under Section 15(1)
of the Equal Status Act.
7.10 The licensing laws requires publicans to keep an orderly house and Section 15 (2) provides
that:
“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.”
This doesn’t require a substantial degree of risk so the test under this Section is less severe
but I am of the view that the respondent has not passed it in this case for a number of
reasons. I have found above the complainant was barred from the respondent’s pub
because he is a Traveller. I cannot hold therefore that his action to refuse the complainant
was taken in good faith. In order to take an action in good faith it has to be free from any
discriminatory motivation and in this case, I am of the view that the fact the complainant was
a member of the Traveller community had a major influence on the respondents decision to
refuse refuse him service in the bar. In view of the respondents knowledge of the
complainant and his personal experience of dealing with him and given that he had never
caused any trouble on his premises, I am not satisfied therefore that the decision of the
respondent to refuse service was taken in good faith.
8 Victimisation
8.1 Following the notification to the complainant of the respondents decision to bar him
the complainant notified the respondent under Section 21 (2) (a) and (b) of the Equal
Status Act, 2000 of his complaint of alleged discrimination. He used form ODEI 5 (a form
prepared by this Office) to notify the respondent of his complaint. In response to this form
to the complainant’s solicitor the respondent stated:
“ In view of your outrages allegation that you have been the subject of an action of
discrimination on my part you are hereby advised that you will no longer be
welcome on my premises and you will not henceforth be served on my premises.”
The solicitor for the complainant submitted that the complainant was subject to victimisation
when he was endeavouring to address discrimination. The respondent’s representative
submitted that the letter was intemperate and written in haste. The respondent stated that he
was upset and angry to have been accused of discrimination. He said that he is an ex
member of Amnesty and he abhors discrimination of any kind. He said that the letter was
written in anger.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified… (in this case victimisation ground)…. A person is
treated less favourably than another person is, has been or would be treated. Section
3(2)(j) provides that: that one
(i) has in good faith applied for any determination or redress provided for in
Part 11 or 111,”
The complainant has clearly provided written evidence of the respondent’s intention to
penalise him for making a complaint in good faith under the Equal Status Act, 2000. The
respondent said that the letter was written in anger but he made no attempt to withdraw it at
any time to date.
I have considered the respondent’s defence under Section 15(1) and 15(2) in the context of
the victimisation complaint. For the reasons stated above at 7.8 and 7.9 I am not satisfied
that Section 15(1) or 15(2) provides a defence to the victimisation claim. I find that the
complainant has established a case of victimisation which the respondent has failed to rebut.
I also find that the application by the complainant for a determination and redress under the
Act was made in good faith.
9 Decision
9.1 On the basis of the foregoing, I am satisfied that the respondent has failed to rebut
The complainant’s claims of discrimination and victimisation. I find on the balance of
probability that the complainant was unlawfully discriminated against contrary to the
provisions of Section 3(1) and 3(2)(i) and 3(2)(j)(i) of the Equal Status Act and in terms of
section 5(1) of that Act.
9.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a
finding is in favour of the complainant. 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.”
Under the above Section the maximum amount of compensation I can award is £5,000
(6,349 euro). I order Mr. Brendan McGuinness, Mary B Public House, to pay to the
complainant, Mr. Dan Griffin, the sum of £2,000 (2,539 euro) to compensate him for the
effects of the discriminatory treatment under Section 3(2)(i) and the sum of £1,500 (1,905
Euro) for penalising him for applying for a determination for redress under Section 3(2)(j)(i)
of the Act.
I also order Mr McGuinness to put in place a clear and transparent code of practice which
should apply to all customers. The code should include the rules which apply to all
customers seeking service, the code of behaviour expected from customers and the redress
which may apply in the event of a breach. All the staff and customers should be informed in
an appropriate manner of the contents of the code.
______________
Marian Duffy
Equality Officer
December, 2001
DEC-S2009-043 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 043
A Post-Leaving Certificate Student v An Educational Institution
File Reference: ES/2007/003
Date of Issue: 30 June 2009
Key words
Equal Status Acts 2000-2004 – Section 3(2)(g), disability ground – Section 3(2)(j), Victimisation Ground – Section 7(2) –discrimination – reasonable accommodation – access to education – Asberger’s Syndrome – removal from course – disruptive behaviour – Dramatherapy – removal from class – Section 7(4)(a) – Section 4(4) – victimisation – grievance and disciplinary procedures – jurisdiction to consider victimisation – duty of care – post-leaving certificate students – Section 25(1A) – Section 27(1)(b)
1. Delegation under the relevant legislation
1.1. On 5th January, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts 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. This delegation took place on 26th September, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 10th February, 2009. Further information was requested from and provided by both parties and final correspondence was received on 30th April, 2009.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts (hereinafter referred to as “the Acts”) in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Acts and contrary to Section 7(2) of the Acts, in that the respondent discriminated against him generally and, in particular, by removing him from the course he was following with the respondent. The complainant also made an allegation that the respondent victimised him in terms of Section 3(2)(j) of the Acts.
3. Case for the Complainant
3.1. The complainant stated that he has a mild form of Asberger’s Syndrome, as a result of which he has certain difficulties with his social skills. He applied, and was accepted for, the respondent’s course in Performing Arts, which he began in September 2005. The complainant said he told the respondent of his disability at that time and told it that he did not have any special needs, though stating that he may have needed a little bit of help. He said that he told the respondent that if it had any questions about his condition, it should contact Ms A, who was co-ordinator for a local autism society. The complainant alleges that he has been prevented from fully participating in a course which, by right, he should be allowed to attend on a full time basis. The basis of this allegation is that, in September 2006, he states that he was unlawfully removed from the course in question by Ms B, the co-ordinator of the course, when she informed him he could not continue to participate in it. He said he was shocked by this as, while he acknowledges that he “wasn’t an angel”, he felt that he had done nothing to warrant being thrown off the course. He said that, when he asked Ms B why he was being thrown off the course, she replied that it was because of his Asberger’s and she said that, if they had known about his disability in the beginning, he would not have been allowed on the course. Even though Ms B told him that he would eventually be reintegrated into the class, he said that, from then on, he received only two hours a week tuition with a Dramatherapy teacher, although he was allowed back into stage management class two months later.
3.2. The complainant said he did not know anything about the problems his behaviour was causing prior to September 2006 as it was not mentioned to him previously, either verbally or in written form. He said he wasn’t aggressive and the respondent was exaggerating his behaviour in that regard. He said that, while he had arguments with certain teachers, he would never harm anyone and categorically denied that he had ever threatened, assaulted or been abusive to any teacher. He had been removed from Mr C’s class prior to September 2005, as a result of a dispute he had with him, but claimed that Mr C had refused to let him participate in class, partly because of his disability. He said that the reason he was not allowed to return to Mr. C’s class was because he had made a complaint against this behaviour on the part of Mr C and denied that he did any of the actions mentioned by Mr C (see par. 4.3 below).
3.3. The complainant did not wish to make any comment on the respondent’s allegations that he had a violent history or that past medical complaints might be relevant to my investigation, except to say that he was prescribed medication for depression since March 06, and was taking it since then. He said that it was clear his disability was the issue and that he was being discriminated against on the basis of his disability by being arbitrarily dismissed. He said this was demonstrated by the fact that, if his behaviour was the issue and not his disability, he would have received a written warning in line with the normal disciplinary procedure applied by the respondent. He said that if he had assaulted someone, he would have been treated more fairly, adding that none of the students had a problem with him. He denied that he ever said to the respondent that he was just looking for money, though he considered that it would be appropriate for me to award redress in order to provide him with justice at this stage. He said that he did not receive any assistance or any form of reasonable accommodation from the respondent, as it alleged, and denied that Ms B had done her best to facilitate him.
Allegation of Victimisation
3.4. The complainant said that he had originally made a complaint to the Tribunal in December 2006, but withdrew that complaint under pressure from the respondent, who, he submitted, told him, inter alia, that if he did not withdraw the complaint, he would be removed from the course. He submitted that it also presented him with an ultimatum to that effect. The complainant said he then wrote to the Tribunal in January 2007, enclosing a new complaint form, and also wrote to the Tribunal in July 2007.
4. Case for the Respondent
4.1. The respondent confirmed that the complainant had begun the course in question with it in September 2005. However, Ms B, who was present at the hearing, said that she had no knowledge of the complainant’s disability prior to receiving a phone call from Ms A in October 2005. Ms B said she did not receive any written complaints about his behaviour at that time and said that, because she was in contact with Ms A, she was erring on the side of taking a sympathetic approach to the complainant’s situation. She said, however, that she subsequently received a number of reports of concern about his behaviour, particularly from teachers, some of whom became unable to cope with it.
4.2. Mr Q, the head of the institution, described the behaviour in question, saying that the complainant had been abusive towards Ms B, that teachers had spoken of intimidation from the complainant and that he had used abusive language towards staff. Ms B said that she personally witnessed aspects of this behaviour, although she said that the complainant was not aggressive towards her. The respondent also presented in evidence a series of letters written by teachers in November/December 2008 which describe the behaviour in question. It said that one particular teacher, Ms Y, had, in February 2006, made an allegation that she felt afraid of the complainant, although she did not feel physically threatened by him. The complainant described this as a complaint of physical intimidation. Ms Y also said that she felt there had been inappropriate conduct by the complainant when discussing anatomical issues. However, the respondent said that these allegations were not communicated to the complainant at the time.
4.3. The respondent also had as a witness Mr. C, whose evidence sought to reiterate the contents of his letter which was undated, but which he thought was written sometime in Autumn 2008. The letter makes a number of allegations regarding the complainant’s behaviour, including that he walked out of the room for no appropriate reason, laughed uncontrollably during sensitive teaching times, and banged his head against a wall. Mr C also said that he did not know that the complainant had a disability. Ms B believed that the complainant’s continuing difficulties with Mr. C were the result of a misunderstanding about his method of teaching but she took action by removing the complainant from Mr C’s class when she learned of the serious nature of those difficulties. However, Mr Z, who had recently joined the staff as a dramatherapy and acting teacher, thereafter worked directly with the complainant on a one-to-one curriculum that was essentially the same as that of Mr C.
4.4. Ms B said she was in continual contact with Ms A in an effort to work on the complainant’s inappropriate behaviour. However, she said that the complainant did not understand the impact that behaviour was having on the class and she felt progressively concerned about the other students, and said that she communicated with the complainant directly each time there was an incident. The respondent said that it did not record or write down the complaints made about the complainant by the students and did not remember who had complained. It said that those complaints were informal and were handled by Ms B but no student asked for any specific action to be taken. Nonetheless, Ms B said that, by the end of that academic year, there had been a lot of complaints about the complainant’s behaviour and that his tutors could not continue to take abuse from him.
4.5. Ms B explained that the course the complainant was attending was a three-year programme, but had two separate elements to it. Ms B said that the complainant had a good academic standard but the difficulty was his behaviour and his acting ability and so he had not successfully completed the necessary modules to qualify for the more advanced element of the programme in his second year. However, at the time in question, second year also involved courses in the basic elements and so the complainant was welcomed back to complete those. Ms B said she explained this to the complainant when she spoke with him in summer 2006 and that she then spoke with him in September 2006, though she denied making the allegedly discriminatory statements referred to in par.3.2. Instead, she said she told the complainant that none of his teachers were able to cope with his behaviour, and that he then met with Mr Z in September 2006, with whom he agreed to develop a dramatherapy programme for the year. Ms B said she hoped to reintegrate him into the class through this programme, in which another student also participated on a voluntary basis in order to assist the complainant. She said that the complainant’s behaviour improved as a result of this programme to the extent that he was reintegrated into two mainstream classes. However, she said he still couldn’t understand the effect he was having on the class and so was not fully reintegrated by November 2006.
4.6. Ms B said that, on 24 November 2006, the complainant requested a meeting with her. A series of meetings followed at which the issue of the proposed mediation, and the proposed withdrawal of the complainant’s complaint to the Tribunal, were raised (the complainant issued the notification letter, required by Section 21(2) of the Acts, on 29 November, 2006). Ms B outlined the tone of those meetings, describing the complainant’s behaviour in them as aggressive and that she had to withdraw from one of those meetings because of that behaviour, and Mr Q added that the complainant used abusive language to his secretarial staff. The outcome of these meetings was that the complainant was presented with an agreement that he abide by certain conditions if he wanted to continue on the course. Ms B said that this was intended as a speedy intervention to keep him in the college as Mr Q said he would have to leave the college if he did not sign up to the agreement. A copy of the agreement was provided to the Tribunal at my request. It stated that the complainant could continue on the course provided he adhered to the regulations of the respondent and that he accepted certain conditions including:
– That he accepted the special tuition plan put in place by Ms B;
– That he undertook to withdraw his complaint;
– That he accepted the right of Ms B to alter or change the programme as she feels necessary for his good and the good of his other classmates.
Other conditions related to specific behaviours, such as that he remains calm and refrains from angry tantrums. The complainant signed the agreement on 14 December, 2006, but on the 8 January following, Ms B received a letter from him informing her that he would be proceeding with his complaint to the Tribunal and, as the complainant did not come into the college himself after that, his participation in the programme ceased.
4.7. The respondent submitted that it did not prevent the complainant from participating on the course. Rather, it had taken action to facilitate his continuation on it given his level of difficulties by putting an alternative programme in place for him to continue with his studies, a programme that was devised with expert help and supervision, in particular from Ms A and the autism society she represented, as well as the local VEC, and appropriate third level institutions. It submitted that, even were I to find that there was less favourable treatment of the complainant, it was seeking to avail of the exemption provided under s.7(4) of the Acts which states that Section 7(2) does not apply “…… to the extent that compliance with any of its provisions in relation to a student with a disability would, by virtue of the disability, make impossible, or have a seriously detrimental effect on, the provision by an educational establishment of its services to other students.”. It claimed that it had a duty of care to its staff and students and, as the complainant displayed progressively more hostile behaviour, it had to remove him because of this behaviour. It added that it had sought advice from Ms A about removing him from the class and that she had agreed with the proposal.
4.8. The respondent also outlined its procedure for disciplinary action, saying that it involved two written warnings being given, followed by an appearance before the Academic Council. It said that the reason that it had taken so long to tell the complainant there was a problem was because the Academic Council did not want to take the issue of his disability into account, but sought to achieve consensus and agreement with the complainant. However, it also said that the complainant was meeting with Ms A and so was aware of the problems. Later, in its post-hearing correspondence, it said that the student disciplinary procedure outlined by the complainant was not in place at the time and that even today it would not always be appropriate for dealing with students who have behavioural difficulties. The respondent also submitted that it did not treat the complainant as if he had a disability as, because it was never told directly by the complainant of his disability, it respected his right to be dealt with irrespective of it. It said that, in general, it always treated the complainant with respect and did its best to support him.
4.9. At the oral hearing, the respondent added that Ms A had told it that the complainant had a violent history, although she said he was no longer violent. It said it also had some concerns about his medical history and that the complainant himself had admitted that his disruptive behaviour was due to severe depression. Mr Q also alleged that the complainant had made a “pre-emptive move for compensation” by saying that “if I only had some money, these problems would be solved”. It also said that the complainant had a problem getting a job because of his disability.
Reasonable Accommodation
4.10. The respondent submitted that it had attempted to provide reasonable accommodation for the complainant, including by availing of the services of a therapist, providing additional tuition, and obtaining a laptop. It also provided him with the assistance of Mr Z who had started to work with him on a one-to-one basis, even prior to September 2006. Ms B also added a character to the play “The Plough and the Stars”, held in February 2006, to allow the complainant to participate in the play.
Victimisation
4.11. In relation to the issue of victimisation, the respondent submitted that I did not have jurisdiction to consider the issue of victimisation as the complainant did not specifically raise the issue in his original complaint form and did not tick the relevant box. It also submitted that it was unaware prior to the oral hearing of any issue of victimisation, and is consequently prejudiced by my consideration of the matter. In any event, it denied the claim and said that the meetings in December 2006 and the agreement that emerged from those meetings were intended to assist the complainant in returning to the mainstream class, rather than to victimise him.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts, 2000 to 2004 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. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The respondent is an educational institution which, inter alia, provides post-leaving certificate courses to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2008 which states that
“(2) An educational establishment shall not discriminate in relation to –
(a) the admission or the terms or conditions of admission of a person as a student to the establishment
(b) the access of a student to any course, facility or benefit provided by the establishment.
(c) any other term or condition of participation in the establishment by a student
(d) the explusion of a student from the establishment or any other sanction against the student”
As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I must consider. Firstly, whether the complainant has been discriminated against because of his disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 7(2) as already described. Secondly, I must look, in accordance with Section 4(1), at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “ifwithout such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” If necessary, I must then consider Section 4(2) and whether the respondent has not failed to provide reasonable accommodation if to do so would “give rise to a cost, other than a nominal cost”.
5.3. There are a number of elements to the complainants case which I will consider in turn with a view to establishing whether he has established a prima facie case of discrimination in relation to each element:
i. that the complainant was discriminated against generally by the respondent, in particular in that he was treated in a discriminatory manner directly by Ms B and Mr C;
ii. that the complainant was, within the meaning of the Acts, unlawfully removed from at least parts of the course in September 2004, and was unlawfully denied access to the course he had registered for, contrary to the Acts;
iii. that the respondent failed to provide the complainant with reasonable accommodation as required by the Acts;
iv. that the complainant was victimised by the respondent in December 2006 by being told he had to withdraw his complaint or face removal from the course so that, partly as a consequence of this victimisation, the complainant was forced to withdraw from the course (and was thereby effectively expelled from it) in January 2007.
General discrimination
5.4. The complainant made a number of allegations that he was treated in a discriminatory manner generally by the respondent. In particular, he alleged that Mr C treated him less favourably because of his disability and that Ms B allegedly made discriminatory statements in the course of the complainant’s meeting with her in September 2006. In relation to Mr C, I find that there is no substance to the complainant’s allegation. In relation to the allegedly discriminatory statements made by Ms B, I find her evidence to be more compelling than the complainant’s in this regard and I therefore do not believe that she made any discriminatory statement in the course of the meeting in question.
Allegations regarding unlawful removal from course
5.5. The other allegations made by the complainant, aside from the issue of victimisation, which I will deal with separately, ultimately relate to his removal from the bulk of the course in question, and will therefore be dealt with under this heading, as will the issue of whether he was provided with reasonable accommodation. The respondent submitted that it could not have discriminated as it never treated the complainant as someone with a disability, as he had never told them directly that he had a disability and so it assumed he did not wish to be considered as having one. However, this was clearly not the case as not only did the respondent make efforts to provide the complainant with special treatment or facilities (as described in par. 4.10), it also liaised with Ms A in general in relation to its treatment of the complainant. I am satisfied, therefore, that, in general, the respondent did treat the complainant as someone with a disability by treating him differently to other students. Equally, while the complainant may not have told the respondent directly that he had a disability, he was aware that it knew he had one and raised no objections to being treated on that basis.
5.6. It is clear, then, that Ms B took what was, as she described, a sympathetic approach to the situation. I can see that she faced a difficult dilemma: she had a duty of care to her staff and students, but she had to balance that against the particular needs of the complainant. In that context, I am not in any doubt that the complainant was disruptive and I believe that, prior to September 2006, the respondent, and in particular Ms B, went out of its way to facilitate him. Indeed, in my view, it did more than it was obliged to do under the Acts up to that point and did all that was reasonable to accommodate him by providing special treatment and facilities.
5.7. However, I believe that the treatment it provided to the complainant became less favourable after September 2006. It is clear that the complainant had not made sufficient progress in some of the courses in his previous year to allow progression in some of the relevant modules. However, it is also clear that he was denied access to certain courses by being placed on the individualised programme that was arranged by the respondent in that month. He was therefore treated less favourably as he was put at a disadvantage vis-à-vis all the other students on the course, particularly given that the tuition he was to receive on the individualised programme was only two hours per week in duration. This decision was clearly influenced by the complainant’s disability, as I am satisfied that, if he did not have a disability, or had a different disability, he would have been given access to whatever disciplinary procedures (or grievance, appeal or other relevant procedures) were available to other students. This is particularly true in light of the serious consequence the respondent’s actions had on the complainant. The dispute as to what disciplinary procedures were in place at the time is irrelevant; the important point is that it was clear that he was not afforded access to any of these procedures.
5.8. The respondent argued that the inclusion of the complainant in the programme in question was voluntary and he could have returned to the class at any time. I accept that the complainant did initially agree to the dramatherapy programme, but he did so only because he felt he had no choice in the matter. In any event, his removal from the mainstream class was clearly not voluntary as, when he stated his desire to return to the class unconditionally, this request was refused. I do not accept either that the matter was purely a disciplinary one. It is clear to me that when Ms B met with the complainant in September 2006, he had no idea that the respondent had any intention of taking disciplinary action, as, by its own admission, it had not taken any up to that point. In those circumstances, I do not believe that any other student whose discipline was at issue would have been immediately and arbitrarily removed from the class. In taking this view, I note that Ms B had spoken with the complainant at certain times about certain aspects of his behaviour, and the complainant had been removed from Mr C’s class. However, I am satisfied that neither of those actions were intended as disciplinary measures.
5.9. There is, therefore, a clear and indisputable nexus between the complainant’s disability and his removal to a separate individual programme that denied him the same access to other modules that persons without a disability, or with different disabilities, had and would have had in the same or similar circumstances. As it is well established in this Tribunal and elsewhere that discrimination includes the application of different rules to comparable situations[1] (or the same rule to different situations), and as it is clear that the complainant was treated less favourably by the respondent on the basis of his disability, he was discriminated against on that basis.
Respondent’s defence
Section 7(4)(b)
5.10. The respondent argued that it did not discriminate, but that even if it did it was entitled to do so under Section 7(4)(b) of the Acts. As instruments of social legislation, the Equal Status Acts must be interpreted in a purposive way. That is to say that, in the current context, any exemptions must be construed narrowly in light of the purposes of the Acts, whose primary purpose is the prevention of discrimination. In order to avail of the exemption provided in Section 7(4)(b), then, in all the circumstances of the present case, the onus is on the respondent to show that the complainant’s disability had such a detrimental impact on the ability of the institution to provide educational services to the students affected that it was left with no choice but to treat the complainant less favourably by removing him at least temporarily from the mainstream class.
5.11. The respondent’s argument in favour of applying this exemption is that the complainant’s teachers could not continue to teach him. Its principal evidence in that regard was:
a) its statement that Ms Y felt physically intimidated by the complainant;
b) a series of letters from teachers outlining the nature of the complainant’s behaviour;
c) the direct evidence of Mr C with regard to the complainant’s alleged behaviour;
d) a report by Mr Z of the circumstances and issues at stake in relation to the complainant’s behaviour;
e) the evidence of Ms B.
In relation to the allegations made by Ms Y, not only did the respondent take no action at the time, it did not even inform the complainant about those allegations. In those circumstances, I find it difficult to believe that Ms Y was so physically intimidated by the complainant as the respondent said she was. The letters from the teachers that were presented in evidence to the Tribunal were all written after the complaint was made. In the absence of the direct evidence of those teachers (with the exception of Mr. C), these letters are of limited value, particularly given the level of seriousness which the respondent seeks to attach to the complainant’s behaviour. Mr C’s letter was also not contemporaneous with the allegations he made regarding the complainant’s behaviour as it was written almost a year after the complaint was made. In oral evidence, he was unable to provide any further detail in relation to his allegations regarding the complainant’s behaviour, despite being afforded every opportunity to do so. His evidence was thereby, and otherwise, unconvincing. I therefore find the complainant’s evidence, in relation to the specific allegations of Mr C regarding his behaviour, to be more compelling. The report of Mr Z provided no direct evidence of any incidents, only reports he received from Ms B and other teachers, and he was not present at the hearing either. While I found Ms B to be a very credible witness, most of her evidence in relation to the behaviour of the complainant was indirect and the behaviour that she did witness directly could not, by any stretch of the imagination, be interpreted as being of sufficient seriousness to warrant the complainant’s removal from the class in the circumstances already outlined.
5.12. The respondent has therefore been unable to provide any convincing evidence that the complainant’s behaviour was so serious and was having such a detrimental impact on the education of other students that it was obliged to take the discriminatory action that it did in the context of this complaint. In addition, I note that no student made a formal complaint against the complainant, and any informal comments that were made to Ms B were not taken any further. In that context, I also note that the students in question were post-leaving certificate students, who no doubt could have taken appropriate action if they considered their education to be so seriously affected by the complainant as the respondent made out. As the onus is on the respondent to show that it was left with no choice but to avail of the provisions of Section 7(4)(b), it has therefore failed in that regard.
Section 4(4)
5.13. In relation to the disability ground, Section 4(4) of the Acts provides that “… where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.” While it did not refer specifically to this provision, the respondent submitted that this issue also arises. In that context, the onus is on the respondent to show that i) it had reasonably formed the opinion that the complainant could cause harm to himself or others; ii) the cause of the prospect of such harm was the complainant’s disability; iii) the actions it took to prevent such harm were reasonable and necessary. The only evidence it presented that might have sufficient significance in relation to i) was Mr Q’s allegation that the complainant banged his head against the wall, evidence which, as already stated, was unconvincing. In any event, the delay between this incident and the removal of the complainant from the mainstream class would indicate that the respondent did not consider there to be any significant danger of harm being caused to anyone. Otherwise, any reasonable person would have acted immediately. I am therefore not convinced that there was a sufficient risk of harm being caused that, in terms of Section 4(4), justified any different treatment, and do not need to consider the matter any further.
Allegation of victimisation
Issue of jurisdiction
5.14. The respondent submitted that I did not have jurisdiction to consider the issue of victimisation as the complainant did not specifically raise the issue in his original complaint form and did not tick the relevant box.In all the circumstances of the present complaint, I am satisfied that it is lawful under the Acts for me to address any issue, including that of victimisation, which appears to me on the facts to fall within the scope of the Acts. The Equal Status Acts are acts “…to prohibit types of discrimination….and…to provide for investigating and remedying certain discrimination and other unlawful activities”[2] and Section 25 of the Acts requires me to investigate the complaint. In so doing, my jurisdiction is not limited by the same rules and procedures as the District, Circuit or Superior Courts. It is wider than that, particularly where a party is unrepresented, and cannot be restricted by the complainant’s failure to tick a box on a non-statutory form. As Clarke, J stated in the recent case of Calor Teoranta –v Michael McCarthy[3], an investigative body, such as the Tribunal, “must be afforded a significant degree of autonomy as to the manner in which it conducts its proceedings.” Furthermore, I note that in Byrne –v Association of Irish Racecourses,[4] the Equality Officer found that he had a right to consider cases before him under provisions of the relevant legislation once it appears from the evidence that those provisions should be applied to the case at hand.
5.15. The rights of the respondent in relation to answering the case that has been put before it by this complaint, then, are protected by the principles of natural justice. In that regard the respondent also alleged that it was, in any event, unaware prior to the oral hearing of any issue of victimisation, and is consequently prejudiced by my consideration of the matter. However, I am satisfied that the respondent was aware of the victimisation allegation well in advance of the oral hearing. Indeed, the complainant stated in his letter accompanying the complaint form and addressed to the respondent, that “over the course of the Christmas holidays I have had the opportunity to re-evaluate the way that I have been treated by you”. It is clear to me that the complainant was referring in this letter to the issues that arose in December 2006 which gave rise to his claim of victimisation and I am satisfied that the respondent well knew that this was the case, particularly given that it did not deny those issues arose, submitting, rather, that there was no victimisation involved. In any event, the precise details of the incidents surrounding the allegation were set out in a letter to the Tribunal of 18 July 2007, which was copied to the respondent on 16 August 2007. I am satisfied that it was abundantly clear in that letter that the complainant was complaining of victimisation. I am therefore satisfied that the respondent had more than adequate notice of the allegation.
5.16. At the oral hearing of the matter, I flagged the issue of, and asked detailed questions of both sides about, the specific allegation of victimisation. Both parties were provided with opportunities to make oral submissions in this regard. The respondent was also given a period of time subsequent to the hearing to make any further written submissions, including specifically in relation to this allegation. I am therefore also satisfied that both parties were provided with sufficient time and opportunity to address the allegation of victimisation against the respondent. I will now consider the issue in the following paragraphs.
Substantive Issue
5.17. Section 3 states, in relation to the definition of the victimisation ground, that discrimination includes, as between any two persons,
(j) that one –
(i) has in good faith applied for any determination or redress (under the Acts)
………
(v) has given notice of an intention to take any of the actions specified…
and the other has not (the “victimisation ground”)
The complainant submitted that he was victimised by the respondent in December 2006 following his submission of a complaint to the Tribunal. He had issued the notification of his complaint on 29 November, 2006. It is clear that this was the catalyst for a series of meetings between the complainant and the respondent that culminated in it presenting to him what he described as an ultimatum for his continued participation on the course. He submitted that this was victimisation. The respondent, however, argued that it did not victimise him and was only acting in the best interests of all parties.
5.18. I find, however, that, in all the circumstances of the present complaint, the evidence very clearly shows that the respondent did treat the complainant less favourably than it would have if he had not given notice of his intention to take a complaint on the disability ground. It therefore victimised him. I do not accept the respondent’s submissions or its bona fides in this regard. Indeed, I believe that, in the case of Mr Q at least, this treatment was both conscious and deliberate. In particular, I note that the respondent said that the complainant was “not asked to withdraw any complaint addressed to the Equality Tribunal” whereas the term of the agreement in question states quite clearly that “the complainant undertakes to withdraw his letter, which claims discrimination and refers to possible intervention by the Equality Agency (sic.).” The inclusion of such a term as a prerequisite for the complainant’s continuation on the course is, in itself, an act of victimisation and had absolutely no place in the agreement in question.
5.19. Furthermore, and contrary to the respondents assertions in this regard, it is clear to me that the attitudes and behaviours expressed by the respondent in general, and Mr Q in particular, clearly indicate that it did not act in the best interests of the complainant. Mr Q had, by his own admission, formed the view that, in making his complaint to the Tribunal, the complainant was merely making a “pre-emptive move for compensation”. It is clear that he therefore proceeded to put pressure on the complainant to withdraw his complaint, in particular by threatening that he would be removed from the course entirely if he did not. In fact, the force of Mr Q’s actions were such that he was successful in getting the complainant to withdraw his complaint in the first instance. However, the complainant then changed his mind and made the present complaint in terms which met the requirements of the Acts.
Further comments by the respondent
5.20. In the latter stages of the oral hearing, the respondent made a number of allegations concerning the personal circumstances of the complainant, including allegations of past violent behaviour. These allegations are outlined at paragraph 4.9 and do not need to be repeated here. However, I cannot see how, in all the circumstances of the present complaint, any of these arguments are relevant to the present case and I therefore do not propose to consider them any further.
Final Comments
5.21. The less favourable treatment in this case was not that the complainant was provided with a separate individualised programme, but that he was denied access to other elements of the course, ultimately against his will, and without recourse to the same appeal and/or grievance and disciplinary procedures that any other student would have had access to. I do not doubt that the complainant’s behaviour was disruptive, but the respondent should not have dealt with it in a way that resulted in less favourable treatment as I am not satisfied that the disruption was of such a serious nature as to warrant the invoking of Section 7(4)(a). The result was that the complainant was denied access to education. While this is a serious matter, in awarding redress in relation to the discrimination on the disability ground I have also taken into account the following mitigating factors:
– Prior to September 2006, the respondent, and in particular Ms B, went out of its way to facilitate the complainant, who was undoubtedly disruptive;
– It was reasonable for the respondent to conclude it needed to take some sort of action in September 2006 to deal with that disruption;
– The complainant had already failed to qualify for much of the course, and so the portion of the course he missed out on was not huge, and it seems likely that he could have caught up on it with relative ease;
– I believe that the act of discrimination was not what led to his effective dismissal from the course; it was the victimisation that had this result. If the victimisation had not occurred, and a different approach had been taken by the respondent to the events of December 2006, the effect of the complainant’s temporary removal from the class might have been considerably lessened.
5.22. Section 25(1A) of the Acts provides that where there is discrimination on the victimisation ground, it must be the subject of a separate decision and award. In that context, I consider that the more serious matter was the victimisation. Even while the complainant was in the separate programme, and the discrimination on the disability ground had taken place, it is clear that the respondent displayed a genuine concern for the interests of the complainant, even if it had acted unlawfully in doing so. However, once the respondent became aware of the complainant’s intention to refer the matter to the Tribunal, there followed a complete “volte face” in its approach, and the respondent tried to force the complainant to withdraw his complaint to the Tribunal. The respondent sought to justify this behaviour by saying that the complainant was aggressive and abusive and sought only to obtain compensation. Even if true, neither are sufficient grounds for justifying victimisation, the result of which was that the complainant was effectively dismissed from the course by the respondent. In all the circumstances of this complaint, then, I have taken a very serious view of this matter and consider that my award in this case must be dissuasive. The redress I am awarding in relation to the victimisation is reflective of this.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment on the disability ground, in terms of sections 3(1), 3(2)(g) and 7(2) of the Acts, and I find that the respondent has failed to rebut this prima facie case.
6.3. The complainant has established a prima facie case of less favourable treatment on the victimisation ground, in terms of sections 3(1), 3(2)(j) and 7(2) of the Acts, and I find that the respondent has failed to rebut this prima facie case.
6.4. In accordance with Section 27(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €1,000 as redress for the discrimination on the ground of disability.
6.5. In accordance with Sections 27(a) and Section 25(1A) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €3,000 as redress for the discrimination on the ground of victimisation and for the hurt, upset and humiliation caused to the complainant as a result.
6.6. In accordance with Section 27(1)(b) of the Equal Status Acts, I also make the following order: that, in consultation with an appropriate person or organisation expert in the area of the protection of the rights and entitlements of persons with disabilities, the respondent carry out a review of its grievance and disciplinary procedures to ensure that students with disabilities are provided with suitable and appropriate access to those procedures. This review must result in the publication of a written document in that regard (which, at the respondent’s discretion, may or may not also relate to students without disabilities) to be made available to all staff and students of the respondent within twelve months of the date of this decision.
_____________
Gary O’Doherty
Equality Officer
30 June 2009
[1]See the European Court of Justice decision in Finanzamt Köln-Altstadt v Roland Schumacker (C-279/93) and the Labour Court decision in Campbell Catering –v- Aderonke Rasaq (Determination No. EED048).
[2]Long Title of Equal Status Act, 2000
[3]Unreported High Court , 19 March 2009, at par. 7.4
[4]DEC-E2008-008
DEC-S2007-003 – Full Case Report
Mrs. A on behalf of her son B v A Primary School
Headnotes
Equal Status Act, 2000 – Direct discrimination, Section 3(1)(a) – Educational Establishments, Section 7 – Victimisation, Section 3(2)(j) – Disability ground, Section 3(2)(g) – Traveller ground, Section 3(2)(i) – Reasonable Accommodation, Section 4 – Refusal to enrol in primary school.
1. Dispute
1.1 This dispute concerns a claim by Mrs. A, on behalf of her son, B, that her son was discriminated against and victimised by the respondent, contrary to the Equal Status Act, 2000, on the grounds of disability and membership of the Traveller community when the respondent refused to enrol her son in the school and notified Mrs. A of this (by letter dated 28 February, 2002) in March 2002 (i.e date letter received by Mrs. A).
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. The final Hearing of this complaint took place on Monday, 11 December 2006 in the Equality Tribunal.
2 Complainant’s Case.
2.1 The complainant states that her son, Brien, who is a member of the Traveller community and suffers from A Disability, had previously been in attendance at another (named) school. As a consequence of matters arising there Mrs. A had lodged a complaint under the Equal Status Act against the school in question and in December 2001 had informed the Principal of that school that her son would not be returning to the school.
2.2 The Visiting Teacher for the area had subsequently set about making enquiries at the respondent school about the enrolment of B. Initially she received a favourable response from the Principal to her enquiries and arranged for Mrs A and B to meet with the Principal to further discuss the enrolment.
2.3 The Principal of the respondent school had informed the Visiting Teacher that he would have to get the approval of the Board of Management for the enrolment as issues relating to resources and class numbers arose.
2.4 Subsequent to the Board meeting at which the enrolment was to be discussed the Visiting Teacher contacted the Principal and was informed that the Board had decided to refuse the enrolment application of B. The Principal stated that the Chairman of the Board had indicated that B was still enrolled at the previous school and that there was a “gentlemen’s agreement” that schools would not enrol students who were enrolled elsewhere.
2.5 The complainant states that the refusal to enrol B was based on B’s membership of the Traveller community and his disability. The complainant further states that the refusal of the Board of Management to enrol B was victimisation under the Equal Status Act 2000 as the Chairman of the Board of Management was also Chairman of the Board of Management of the school which B had previously attended and against which a formal complaint under the Equal Status Act 2000 had been lodged by Mrs. A.
3. Respondent’s Case
3.1 The respondent accepts that the Visiting Teacher’s recollection of events in this matter is accurate but denies that discrimination and victimisation occurred in relation to the enrolment application for B.
3.2 The respondent states that the enrolment application was turned down because the Visiting Teacher had not submitted certain reports regarding the resources which would be required by B and because class numbers were at capacity and additional resources would not be available to meet B needs.
4 Conclusions of the Equality Officer.
4.1 It is accepted by both parties to this complaint that a formal complaint under the Equal Status Act 2000 had been lodged by Mrs. A in relation to matters arising at the school previously attended by her son.
4.2 It is also accepted by both parties that the initial contacts between Mrs. A and the Principal of the respondent school were very positive, to the extent that the Visiting Teacher was satisfied that the enrolment of B in the school would proceed. It is also clear from evidence provided that the Principal had clearly indicated to the Visiting Teacher at their initial meeting that the final decision in relation to B enrolment would have to be made by the Board of Management.
4.3 It is clear from all of the evidence provided that the decision to refuse B’s enrolment application was made by the Board of Management of the respondent school. It is accepted by the respondent that the Chairman of the Board of the respondent school at the time was also Chairman of the Board of the previous school attended by B against which a complaint under the Equal Status Act 2000 had been lodged by Mrs. A.
4.4 The Principal of the respondent school and the Visiting Teacher stated in evidence that the Chairman of the Board had made certain comments relating to B’s continuing enrolment at the previous school. While the comments in question are open to interpretation, are not derogatory in nature and do not refer to B’s Traveller status or disability, they do refer to matters arising at the previous school.
4.5 The Chairman of the Board actively participated in the decision process leading to the refusal of B’s enrolment application. I am satisfied that the Chairman of the Board would have been influential in arriving at that decision. I am further satisfied that the Chairman was open to being, and was, influenced, whether consciously or otherwise, by events arising in the previous school.
4.6 The Principal of the respondent school stated in evidence that, following initial contacts with the complainant, he had, as was customary, contacted the Principal of the previous school to discuss the enrolment of B, but he was unclear as to the nature of discussions about B and does not recall whether the complaint against the other school was discussed. The Principal also stated that he had had some discussions with the Chairman of the Board of Management about the proposed enrolment.
4.7 While both parties gave evidence to the effect that B’s Traveller status and disability were referred to in the course of ongoing discussions about his proposed enrolment in the respondent school there is insufficient evidence to indicate that the references by staff of the respondent school were not made in relation to the genuine and objective requirements of B with regard to each, particularly as B’s Traveller status and disability were specifically raised by the Visiting Teacher on a number of occasions.
4.8 I am satisfied, having carefully considered all of the evidence provided in this matter, that the Chairman of the Board of Management of the respondent school based his decision to refuse the enrolment of B on matters arising and ongoing at that time in the school at which B had previously attended.
In the circumstances I am satisfied that the enrolment decision making process in relation to B was flawed and was not in accordance with fair procedures or natural justice in that the decision to refuse B’s enrolment was not clearly and transparently arrived at based on objective criteria which were unconnected with B’s complaint against the previous school.
I am also satisfied, based on the feedback provided to the complainant and the Visiting Teacher by the Principal and the Chairman of the Board of Management of the respondent school that resources and class numbers were not material to the decision to refuse the enrolment application and that resources in the school, combined with those available to the Visiting Teacher from the Department of Education, would have been sufficient to meet the needs of B.
I am satisfied that the Principal was acting in the course of his duties at all times and that the ultimate decision to refuse B’s enrolment was made by the Board of Management. Thus I am satisfied that the Board of Management is the correct respondent in this matter.
5 Decision
5.1 Discrimination – Traveller Ground
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has failed to establish a prima facie case of direct discrimination on the Traveller ground.
5.2 Discrimination – Disability Ground
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has failed to establish a prima facie case of direct discrimination on the disability ground.
5.3 Reasonable Accommodation
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has failed to establish that the respondent failed to provide reasonable accommodation in relation to the complainant’s disability.
5.4 Victimisation
I am satisfied, having carefully considered all of the evidence in this case, that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.
6 Redress
6.1 In accordance with Section 27 (1) of the Equal Status Act I hereby order that the respondent, the Board of Management of Scoil Lios Teilic, pay to the complainant, Mrs. A, who is acting on behalf of her son B, the sum of €6,350 for the effects of the victimisation, which include the irreversible loss to B of the opportunity to avail of a primary education in a school of his/his mother’s choosing, and the consequent distress caused to B.
__________________________
Dolores Kavanagh
Equality Officer
19 January, 2007
DEC-S2004-164 Full Case Report
Curran v Total Fitness, Dublin
Mr. Curran referred a claim of gender discrimination and victimisation 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, the Director then delegated the case to me, Bernadette Treanor, 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 the Complainant’s case
The complainant was a member of a gym, Total Fitness, and he had encouraged corporate membership with his colleagues. He enjoyed attending the gym and the most suitable time for him was early evening, a peak time. As membership of the club grew, Mr.
Curran found the increasing delays in getting to equipment irritating. He asked why there was a area of the gym reserved for women only, even though women could also use the equipment in the main gym. Mr. Curran indicated that he was told it was there to prevent embarrassment of women exercising in the same area as men, but that the ladies gym was in full view of all members, having a glass front and offering no privacy. Mr. Curran raised this issue with the respondent company on three occasions, culminating in a conversation with a director the company Mr. Willers. Mr. Curran is adamant that he never stated an intention to use the Ladies only areas. Some days after this conversation Mr. Curran’s membership was unexpectedly terminated. Mr. Curran referred a claim of File Ref: ES/2001/735 DEC-S2004-164 discrimination on the gender ground and victimisation to the Tribunal. He subsequently withdrew the claim of gender discrimination.
3. Summary of the Respondent’s Case
When the complainant contacted the director Mr. Willers, he stated an intention to use the Ladies Only Gym (LOG). Mr. Willers found this request very peculiar and asked if he wanted to use the ladies changing rooms and toilets also. Mr. Willers stated that he was unaware of the Equal Status Act, 2000 before this phone call. As the complainant had indicated that he intended to use the LOG, Mr. Willers decided to terminate his membership. Mr. Willers accepted that Mr. Curran referred to the Equal Status Act, 2000 and that when he, Mr. WIllers, confirmed that he would be restrained from using the LOG, Mr. Curran thanked him for confirming that. Mr. Willers stated that the idea for a LOG came from Market research in South Africa and that they employed it in all their gyms in the UK.
4. Prima Facie Case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. The criteria to be satisfied in order to establish a prima facie case of victimisation under the Equal Status Act, 2000 were set out in Equality Officer’s decision DEC-S2003-071, Collins v Campion’s Public House1, as follows: “The following elements must be established to show that a prima facie case exists. The complainant must show:
a) that she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied section 3(2)(j).
b) that she was subjected to specific acts of treatment by the respondent after she did so.
c) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at a) above.”
1 See also Legal Review 2003, The Equality Tribunal, page 75
I am happy to endorse these criteria in respect of this case. If and when these criteria are satisfied, the complainant has established a prima facie case and 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.
4.1. Section 3(2)(j) The victimisation ground
The Equal Status Act, 2000 provides for victimisation as follows: (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:……
(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”).
The respondent argued that the victimisation ground did not apply to the complainant and that therefore this complaint was invalid. On the basis of arguments and evidence presented at the hearing, the victimisation subsections which may apply in this case are 3(2)(j)(iv) and 3(2)(j)(v).
4.2. Section 3(2)(j)(iv)
This section applies where a person has been treated less favourably than another because that person opposed by lawful means an act which is unlawful under the Equal Status Act, 2000. The section is clearly designed to protect those to whom it refers and the
section, as worded, was also included in the Employment Equality Act 1998 at Section 74(2). The ordinary meaning of the section is unclear in relation to what was intended by ‘unlawful’. The respondent argued that the section means that the original act complained of must have been found to be unlawful by the Tribunal, the Courts, or other body. The section in the Act which refers to situations where a person has applied for a determination is 3(2)(j)(i). To insist that subsection (iv) can only refer to situations where the action by the service provider must have been decided to be unlawful is to suggest that subsection (iv) is only a logical subset of subsection(i) and yet 3(2)(j)(iv) is of equal standing to 3(2)(j)(i). Looking back at the inception of this wording in the Employment Equality Act, those whose protection may have been intended by this wording might include union representatives. If they, the union representatives, were to be afforded protection only when a case was decided in their client’s favour, the operation of trade union business in respect of equality would be seriously hampered. Another example would be the victimisation of representatives assisting complainants under the Equal Status Act, 2000, particularly at local level. A respondent could resolve a complaint with the complainant, be they employee or person availing of a service, and then treat the representative less favourably with impunity because of the assistance rendered by them in opposing what was perceived to be an unlawful act. To suggest that these, and others, are only afforded protection when they have successfully represented a complainant in a case under either of the Acts is, in my view, an unacceptable diminution of the spirit of the Acts. I am satisfied, given the construction of the subsection, that the intention was not to restrict protection but to afford it and therefore that the act complained of need not be found unlawful for the subsection to apply. I am satisfied that it would apply in situations where a person, given the gender equality provisions, would reasonably consider the act unlawful. The respondent argued that Sections 5(2)(f) and 5(2)(g) provided protection for the provision of the LOG and therefore the act being complained of was not unlawful in any
event. The sections mentioned are defences under the Act and would be examined by an Equality Officer only where a prima facie of discrimination had been established. I am precluded from looking at these issues in respect of this case since the complaint of discrimination on the gender ground was withdrawn and therefore any defences relating to the gender issue in this case are not relevant. I am satisfied that these were not drawn to the attention of the complainant at any time during his verbal complaints and that he would not have been aware that the company might rely on them. Indeed since the company was of the opinion that the Equal Status Act, 2000 did not apply to them it is unlikely that they themselves were aware of any possible defences at the time of their interaction with Mr. Curran. Since it is moot whether these defences would have applied in this case and since there is no caselaw highlighting similar situations where such defences were successful, I am satisfied that it cannot be stated with any certainty that they would indeed apply or be successful as defences. Therefore, while it is moot whether the act complained of is, in fact, lawful or unlawful, I am satisfied that Mr. Curran believed it to be unlawful. In addition, while good faith is not required by the subsection, I am satisfied that this belief was held in good faith. Finally, did Mr. Curran use lawful means when opposing an act he considered to be unlawful? Both parties agree that no difficulties had arisen between them before the LOG was discussed. He raised the issue informally with a member of staff at the centre initially. He subsequently raised it more formally in a meeting with the manager of the centre, in the manager’s office. The complainant stated that the manager’s response was that if it is okay in the UK it is okay here, although he did provide the phone number of a director. Finally the complainant called this director of the company, Mr. Willers. The respondent alleges that during that phone call the complainant asserted that he was going to enter the LOG. He asked the complainant if he also wanted to use the ladies toilets and dressing rooms. Mr. Curran was upset and annoyed at this since it suggested to him that Mr. Willers considered him in that light. He indicated that he did not want to use these areas and asked for confirmation as to what would happen if he did attempt to use the LOG. The respondent confirmed to the complainant that the complainant could not use any of these and the complainant responded “Thank you very much for confirming that”. I am satisfied that regardless of how Mr. Curran phrased his question about using the LOG, his intention was to establish the company’s position in relation to men using the LOG to facilitate the pursuance of his complaint under the Equal Status Act, 2000. On the basis of the evidence presented, I am satisfied that the phone call was relatively short and tense, and that the director did not consider the complaint a valid or reasonable one and did not address it as such. The complainant attended the gym four more times before becoming aware that his membership had been terminated2. During these four visits he did not break any of the rules of the club. Therefore the complainant’s membership was terminated on the basis of one person’s assertion that the complainant had stated an intention to do something which that person considered would break one of the rules. I find the complainant’s evidence more compelling and I find that he did not state an intention to use the LOG, but rather asked what would happen if he did.
Even where one accepts that the rules were still valid in the light of the Equal Status Act,
2000, the complainant did not actually break any. Therefore his actions were lawful.
In a case taken under the Employment Equality Act 1998 relating to a similar matter the
Equality Officer considered the matter as follows: “I must therefore consider whether the claimant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. Sexual harassment is expressly prohibited by section 23 of the Employment Equality Act, 1998. In making her complaint, the complainant was
seeking to oppose by lawful means something which is clearly unlawful under the 1998 Act. In the light of the manner in which the investigation was conducted as 2 The club allows a period of grace before refusing admission in order to ensure that the letter of termination reaches the member before an actual refusal takes place without warning. detailed at paragraphs 5.13 – 5.17 above, I find that the complainant was penalised by the manner in which the investigation was carried out and that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. On the balance of probability, I find that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut.”3 In that case, the complainant also sought redress for sexual harassment and even though this was successful, this was not used by the Equality Officer to qualify the legality or otherwise of the act complained of. The victimisation complaint was based only on the lawful opposition of something which is unlawful in the Employment Equality Act. In the instant case, in summary, Mr. Curran lawfully opposed what he considered to be discrimination on the gender ground, which is clearly unlawful under the Act. I find that Section 3(2)(j)(iv) applies to the complainant in this case.
4.3. Section 3(2)(j)(v)
The complainant also raised his difficulties with the LOG with the respondent, both with the manager of the centre and with the Director, he maintains that he mentioned the Equal Status Act, 2000 and that the LOG was in breach of the Act. He asserts that he also mentioned that he intended to make a complaint in accordance with the Act and that he was in contact with the Equality Authority. He also asserts that the manager stated that he should contact the Director before going ahead with the complaint. The manager did not attend the hearing, but Mr. Willers agreed that Mr. Curran, while on the phone, mentioned the Act, that the LOG was in breach of the Act and that he was in contact with the Equality Authority. It is not accepted that the complainant informed Mr. Willers of his intention to make a complaint under the Equal Status Act, 2000, although it should be borne in mind that Mr. Willers was not aware of the Equal Status Act, 2000 and therefore may not have distinguished such an assertion. I am satisfied that the complainant mentioned his intention to make a complaint to the manager and I find his evidence 3 DEC-E2003-027 compelling that he mentioned it to Mr. Willers also. On the balance of probabilities, I am
satisfied that the complainant mentioned making a complaint under the Equal Status Act,
2000 twice to the respondent. Therefore I find that Section 3(2)(j)(v) also applies to the
complainant in this case.
4.4. Equality Officer’s Conclusions
The findings that Sections 3(2)(j)(iv) and 3(2)(j)(v) apply in this case satisfy (a) above. It is common case that Mr. Curran was a member of the respondent’s club and that his membership was terminated, satisfying (b) above. In respect of (c) above was Mr. Curran’s membership terminated because he objected to the LOG or is there another reasonable explanation for the termination? The reason presented by the respondent was that the complainant’s stated intention to use the LOG was something they took very seriously, something they felt would be difficult to police and that they felt would amount to disruptive behavior. The respondent company has on average from 70,000 to 150,000 members. Since 1996 there have been 30 terminations of membership in total in the UK and Ireland. In Ireland there were 8 terminations of membership in total resulting from abusive and/or threatening language or behaviour, inappropriate clothing, persistent refusal to leave at closing time and abuse of the use of the sauna. All but those relating to abusive or threatening language or behaviour received a warning about the behaviour. It is clear that, given the membership numbers, the company do not ordinarily terminate a membership lightly. In comparison to the 8 terminations described by the respondent, Mr. Curran’s behaviour had been acceptable and he had not broken any rules. Therefore, in comparison with those whose membership had been terminated, he had not behaved in a manner that would have included him in that group. Alternatively, in comparison to those whose membership was not prematurely terminated, the only thing that singles Mr. Curran out from the members of that group is his complaint in respect of the LOG. This is so since Mr. Willers was unaware of the Equal Status Act, 2000 before his conversation with Mr. Curran and therefore no other member had raised it with him. In other words, but for his discussions relating to his complaint, Mr. Curran would not have had his membership terminated. Since Mr. Curran had not indulged in behaviour that would normally be associated with termination of membership, since there were no enquiries into his behaviour generally and since he was given no warning, I am satisfied that his treatment was unusual, and unreasonable, in the overall circumstances. In the absence of a reasonable explanation for the termination of his membership, I am satisfied that an inference of victimisation arises. I find that the complainant has established a prima facie case of victimisation.
4.5. Rebuttal
The respondent’s arguments have focused entirely on the contention that a prima facie case could not be established in this case based on the circumstances. No defences were presented other than those already mentioned. I find that the respondent has failed to rebut the prima facie case of victimisation of the complainant.
5. Decision DEC-S2004-164
I find that the complainant, M. Curran, was victimised as a result of his complaint to the respondent when his membership to the respondent club was terminated.
6. Vicariously liability
The Equal Status Act, 2000, in section 42, provides that anything done by a person in the course of his or her employment shall be treated as done also by that person’s employer. Therefore I find that the actions taken by Mr. Willers, the manager of the centre and others, in respect of the treatment of Mr. Curran’s complaint and the termination of his membership were actions done also by their employer. I find that Centre Operators Limited, owned by Mardown Limited and trading as Total Fitness is vicariously liable for the victimisation of Mr. Curran.
7. Redress
I hereby order the respondent Total Fitness:
To pay Mr. Curran €3000 for the effects of the victimisation.
To review all of their Irish-based clubs, or other publicly used premises, and policies to ensure compliance with the Equal Status Act, 2000.
To provide for comprehensive training of all staff in the Equal Status Act, 2000.
This should apply to any and all staff who will at any time work in an Irish based premises of the respondent, regardless of where that staff-member’s primary work base is and should deal with all aspects of their operation as a service provider.
Bernadette Treanor
Equality Officer
5th November 2004
DEC-S2009-079 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 079
PARTIES
Twomey v Aer Lingus
File Reference: ES/2006/0024
Date of Issue:10th November, 2009
Key words
Equal Status Acts 2000-2008 – Direct discrimination, section 3(1)(a) – Family Status ground, section 3(2)(c) – Disability ground, section 3(2)(g) – Victimisation ground, section 3(2)(j) – Reasonable accommodation, section 4 – Disposal of goods and provision of services, section 5(1) – Health & Safety information and procedures on board aircraft- bulkhead seats
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 14th February 2006. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts on the 21st July 2008. The hearing of the case took place on the 26th May 2009 and the final correspondence was received on the 19th August 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Ms. Siobhan Twomey, that she was discriminated against by the respondent, on the family status, disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(c), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Acts, and contrary to sections 5(1) of the Equal Status Acts by failing to provide her with a ‘bulkhead’ seat on board a flight to Chicago, also by failing to supply her with appropriate health and safety information and by victimisation in seating her in an inappropriate seat at the back of the aircraft and in doing so treated her less favourably than passengers without her disability.
3. Background to the case
3.1 The complainant, Ms. Siobhan Twomey, is a paraplegic and accordingly is a wheelchair user. In early 2005 she booked a flight with the respondent to Chicago to travel on the 27th October 2005. She claims that she travelled with the respondent to the United States of America on many occasions in the past and was unhappy with the respondent’s seating policy for disabled people. As a consequence she engaged in a series of correspondence with the respondent, where she complained about the seating policy for disabled passengers on board the respondent’s A330 aircraft on long haul flights. She also made some suggestions to the respondent which she felt would help solve those problems and she sought reassurance that she would be accommodated prior to her trip in October 2005. The problems she had encountered predominately centred around the unavailability of the bulkhead seats for her, a disabled person. The tone of Ms. Twomey’s letters became quite forceful, as she felt that the respondent’s policy was discriminatory against her, a disabled person, and she put Aer Lingus on notice that she may have to take the matter further.
3.2 The bulkhead seats are the seats situated immediately after the physical partition on board an aircraft that in effect divides the aircraft cabin into different compartments. The aircraft of concern was the Airbus A330, which is designed with seating at the left, right and centre of the plane. Ms Twomey wanted to book and avail of the bulkhead seats position at the centre of the aircraft, at Row 31. There are two emergency exit doors on Row 31, one positioned by the bulkhead seats at the left hand side and one on the right hand side. The centre bulkheads seats are where the bassinets for passengers with infants are located, where young infants may be placed so as to give respite to the parent/minder while the aircraft is air bound on long haul flights.
4. Summary of the Complainant’s case
4.1 The complainant, Ms. Twomey, claims that she was refused a bulkhead seat on a flight to Chicago on the 27th October 2005. The complainant stated that she asked to be seated in one of the four seats at the centre of the plane at the bulkhead, Row 31, so she could avail of the more spacious seats and have easier access to the disabled toilets. She claims that she was not looking for a seat adjacent to the exit doors at the left or right side of the aircraft on that row. She claims that she was refused on the basis that she was a person with reduced mobility and that she was told the allocation of such seats to persons of reduced mobility was prohibited under the respondent’s seating policy. The complainant maintains that the four centre seats in the bulkhead should not be classified as “exit” seats.
4.2 Ms Twomey claims that she had travelled with the airline to the United States on many occasions in the past and was able to secure seating at the bulkhead. However, as she was unable to definitively secure these seats at the time of booking, either online or over the phone, she decided to write to the respondent outlining her difficulty with its seating/booking policy and asking for the policy to be reviewed in light of the points she had raised. She also requested permission to get a bulkhead seat for her flight on the 27th October 2005. Ms. Twomey claims she engaged in lengthy correspondence with the respondent and that she became very distressed and unhappy with how Aer Lingus dealt with her concerns.
4.3 The complainant claims that when she arrived at the check-in desk on the day of her flight she was astonished to find that not only had the respondent not provided her with a seat in Row 31, her preferred choice, she was assigned a centre seat further down the plane in Row 38, which would have required two transfers- up and over the armrest and then across the adjacent seat- for her to use the toilet facilities or, if required, to evacuate the plane in the case of an emergency. Ms. Twomey claims that she asked the Aer Lingus representative at the check-in desk to be seated at the bulkhead who replied that she was told not to assign Ms. Twomey a seat in Row 31. The complainant could not remember the full extent of the conversation with the passing of time and was unsure whether the refusal was aimed at her specifically or if it was a general reference that persons of reduced mobility were not allowed to be seated in bulkhead seats. However, at the time she felt that it was addressed to her personally.
4.4 The complainant claims that she is always anxious in the days leading up to a flight, and that she has to arrive in the airport well in advance of her flight to ensure she is top of the queue to try to book the most appropriate seat. She outlined the difficulty she encounters on long haul flights, particularly when she does not get to sit in appropriate seating close to the disabled toilets. She said that for her to visit the toilet she has to be lifted up over the armrest and then over the seats on to an aisle wheelchair disturbing all the passengers around her, which is very awkward, embarrassing and distressing. She claims that the airline discriminated against her by not having a proper seating policy for disabled persons and if bulkhead seating was not available to disabled passengers then aisle seats with movable armrests that lift up should at least be made available. Ms. Twomey claims that when she boarded the plane she asked the cabin crew if there were any seats with movable armrests available. A number of the cabin crew inspected the seats in that section of the plane, however none of the armrests could be moved. Ms. Twomey’s husband also appeared as a witness and confirmed the same.
4.5 The complainant claims that she has in the past been able to negotiate a bulkhead seat with the check-in staff, including her return trip from Chicago to Dublin in 2005. The complainant claims that she felt she was victimised by the respondent in its decision to place her in a wholly inappropriate seat towards the back of the plane and this she believes was because she wrote and complained to Aer Lingus about its policies and stated that she may take further action. The complainant also said that in all the years that she had been in correspondence with Aer Lingus she was never notified that it had changed its policy in 2007 to allow disabled passengers in a centre bulkhead seats and that it was possible to pre-book one of the bulkhead seat by contacting the airline at a specific telephone number. This information, she claims, was only brought to her attention on the day of the hearing.
4.6 The complainant also stated that on previous trips with the respondent she was allowed to sit in the bulkhead seats while accompanied by her daughter when her daughter was under the age of two years of age. However, now that her daughter is over that age they are not allowed to sit in the bulkhead seats. Accordingly, the complainant maintains that the respondent is discriminating against her on the family status ground.
4.7 The complainant also claims that the airline discriminated against her in relation to the health and safety information provided by the respondent. She claims that there is no reference in the health and safety demonstration or information of the procedures in place for the evacuation of disabled passengers at the time emergency. Ms. Twomey claims that the health and safety presentation prior to takeoff and all the other documents related to able-bodied passengers. The complainant referred to a recent EC Regulation concerning the rights of disabled persons and persons with reduced mobility when traveling by air. The complainant outlined that this places a legal onus on the air carrier to ensure, inter alia, that safety information is publicly available on the carriage for disabled persons.
5. Summary of the Respondent’s case
5.1 The respondent refuses to accept that it has discriminated against the complainant. The respondent admits that the complainant was in contact with its customer service department in relation to the use of the bulkhead seats however, it had informed her that unfortunately as these seats constitute part of the “exit row” it was not in a position to offer those seats to a person with reduced mobility as per company policy at the time. The respondent claims that its seating policy was developed on the premise that all the seats on the row where the exits were located were classified as not suitable for passengers who may impede the evacuation of all passengers at the time of an emergency.
5.2 The respondent claims that seats were not allocated until check-in and passengers with infants were given priority to the bulkhead seats, as this is where the bassinettes were situated for passengers with young children. The respondent claims that as a European carrier, it is subject to the requirement of the binding joint aviation regulations. The respondents claim that all its policies comply with all the applicable air safety requirements, Joint Aviation Regulations (Jar-Ops), and that its policies are approved by the Joint Aviation Authority, including the seating policy at that time. It referred to the regulations from where it established its seating policy, namely, “an operator shall ensure that [people with reduced mobility] are not allocated, nor occupy, seats where their presence could; (1) impede the crew in their duties; (2) obstruct access to emergency equipment; or (3) impede the emergency evacuation of the aeroplane”.
5.3 The respondent totally refutes the claim made by the complainant that the check-in staff that Ms. Twomey dealt with were primed by the respondent to target her personally and prevent her from taking a seat in one of the bulkhead seats because she was involved in a series of written complaints against it. The respondent claims that it does not engage in such tactics and the message Ms. Twomey received was the general message in relation to its seating policy at the time. It pointed to the evidence from Ms. Twomey where she stated that when she asked to be moved closer to the toilet, to Row 32, she was accommodated without difficulty and this highlights its efforts to accommodate passengers and not to target or victimise them.
5.4 In addition, the respondent claims that that particular aircraft, Airbus A330, has a number of seats with movable armrests that would be suitable for disabled persons. It claims that it had in fact up to 14 seats with movable armrests, none of which however were in the section of the aircraft that Ms. Twomey was assigned a seat and that would explain as to why it was not possible to move any of the armrests that were tried by the air craft staff.
5.5 With regard to the health and safety presentation and information the respondent claims that it has to be careful with the information it releases due to security concerns in the current climate. The respondent claims it was fully aware of the safety requirements set out in the Jar-Ops regulations and that its health and safety information was fully compliant. The respondent claims that it is aware that it must provide basic information of such a nature under Regulation (EC) No 1107/02006 which came into operation in July 2008, which is a date after this complaint was made. The respondent claims that in the case of an emergency, cabin crew will provide a full demonstration of the procedures to be adopted during an evacuation. Also it claims that the health and safety demonstration at the beginning of each flight is set out in Jar-Ops and each and every Aer Lingus safety demonstration complies with these regulations.
6. Conclusions of the Equality Officer
6.1 Section 38(A) of the Equal Status Acts, 2000 to 2004 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.
Discriminatory Treatment – Disability Ground
6.2 Ms. Twomey is a paraplegic and a wheelchair user and I am satisfied therefore that she is a person with a disability within the meaning of the Equal Status Acts. I am satisfied that the incident complained of actually occurred in that the complainant was refused permission to sit in the bulkhead seats on her flight to Chicago on the 27th October 2005. Therefore, the first question that I must address in the present case is whether or not that refusal constitutes discrimination on the disability ground within the meaning of the Equal Status Acts. In order for the complainant to establish a prima facie case of discrimination she must show that the treatment she received was less favourable than that which would have been given to another person, in similar circumstances, who either did not have a disability or had a different disability. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.
6.3 I have noted that the respondent has claimed that its policy at the time was not to allow persons with restricted mobility to sit in one of the bulkhead seats, as all the seats in this row were classified as an “exit row”. Its reasoning being that at a time of an emergency the persons seated in this row should not impede a speedy evacuation. The complainant has made it quite clear that she did not request to sit in a seat adjacent to the exit doors but instead in one of the four seats at the centre aisle of the bulkhead. I also note that these bulkhead seats are where the bassinettes for passengers with infants are located and priority was given to such passengers for these seats. I also note the complainant’s evidence that she was able to secure a bulkhead centre aisle seat on many other occasions, including her return flight from Chicago in 2005, which would appear contrary to the seating policy deployed by Aer Lingus at the time.
6.4 I am satisfied that the reasons for the refusal by the respondent to allow Ms. Twomey to sit in the bulkhead is based on its assertion that all the seats at the bulkhead formed part of the exit row and that persons seated at the exit row should not impede the crew at a time of an unplanned evacuation. I can understand the reasons why certain persons are prevented from sitting adjacent to the emergency exits in line with safety regulations . This policy seems logically based and in line with best international practice. However, I am somewhat concerned as to the classification of the seating in the centre row of the bulkhead, which the airline itself has since reviewed and changed on foot of this complaint. It is not contested that the respondent’s policy was that disabled passengers were prevented from sitting there, as they may impede a speedy evacuation, whereas passengers with small infants were given priority to occupy these seats because the facility of the bassinette is located there. I am satisfied that had the respondent made a comparison between the passengers it was giving priority to sit at these seats, as opposed to the passengers it prevented from sitting there, namely passengers with a disability such as the complainant, surely the conclusion reached would be that both would cause similar levels of obstruction to staff at the time of evacuation and therefore, I am satisfied that the policy is inconsistent at best.
6.5 It is my opinion that the centre bulkhead seats were not adjacent to the exit doors and that those seated there would not unduly hinder an evacuation. This would also appear to be the conclusion that the respondent reached once it reviewed its policy on foot on this complaint. I am also satisfied that these seats would be the most appropriate seating for a person with a disability who may require additional space and who required assistance to visit the disabled toilets on a long haul flight. Accordingly, I am satisfied that the respondent had an incoherent seating policy that directly discriminated against Ms. Twomey, a disabled person, unfairly and without necessity. Therefore, I find that the complainant has succeeded in establishing a prima facie case of direct discrimination on the disability ground and that the respondent has failed to successfully rebut the inference of direct discrimination in relation to its seating policy.
6.6 In relation to the health and safety in-flight presentation and information, I am satisfied that the respondent provided all passengers on the flight to Chicago on the 27th October 2005 with the same set of instructions and information, or at least no evidence was presented to show the contrary. I note that the complainant felt that the information provided did not include her, a person with a disability and accordingly, she felt that the respondent discriminated against her because the information was not clear on the procedures that the airline had in place for the evacuation of a person with a disability. I have examined the relevant legal regulations and I am satisfied that the respondent has met its requirement under those provisions.
6.7 I note that most recent regulations came into existence in 2008, a number of years after this complaint was referred. I therefore have no jurisdiction to comment on the respondents obligations in relation to the most recent regulations when considering the case at hand. Accordingly, I am satisfied that the complainant was not treated less favourably in relation to the health and safety presentation and information provided by the respondent at the time.
Reasonable Accommodation
6.8 The parties have also made submissions, both in writing and at the oral hearing of the complaint regarding the issue as to whether or not the seating policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, and the fact that I have already found that the respondent has directly discriminated against the complainant on the disability ground under Section 3(2)(g), I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present case. Accordingly, I am satisfied that it is not necessary for me to consider this complaint in the context of section 4 of the Acts any further.
Discriminatory Treatment – Family Status Ground
6.9 The complainant claims that when she travelled with the respondent with her child of up to the age of two, she was given permission to sit in one of the bulkhead seats. However, once her daughter passed that age she was prevented from doing so. Accordingly, she claims that the respondent has discriminated against her on the basis of her family status. I note that section 3(2)(c) of the Acts provides that “For the purpose of this Act, discrimination shall be taken to occur …”, “…where a person is treated less favourably than another …”, where, “…one has family status and the other does not or that one has a different family status from the other”. I note the definition of family status under section 2 of the acts states – “”family status” means being pregnant or having responsibility-
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis…”
6.10 Having regard to the provisions above, I note that Ms. Twomey’s family status, as defined by the legislation, is the same now as it was when she was afforded access to these bulkhead seats in the past. No evidence was presented to me at the hearing or otherwise to show that the complainant was refused access to this seating on the basis of her family status. The evidence adduced at the hearing was that priority for the bulkhead seats was given to passengers with young infants and that persons with a disability were prevented from sitting there. In the circumstances I am not satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7. Victimisation Ground
7.1 The complainant has claimed that she was subjected to discrimination under the victimisation ground. The specific terms of that ground are set out in Section 3(2)(j) subsections (i) to (v), namely,
“(j) that one –
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,”
(ii) has attended as a witness before the Authority, the Director or a court in connection with any enquiry 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”).”
I have noted that the complainant engaged in correspondence with the respondent which commenced with a recommendation by her to Aer Lingus regarding how it could provide disabled persons with a more dignified and comfortable experience on board its aircraft. During the course of the exchange of correspondence the complainant became increasingly displeased and incensed with the respondent. I note that she twice wrote to the respondent prior to taking her trip in October 2005 and mentioned that she was not happy with their response and that she felt the respondent was discriminating against her, a person with disability, and that she would be taking the matter further. I note in these letters and from the respondent’s reply that it was fully advised and aware that the complainant was travelling with it to Chicago on the 27th October 2005. I am also satisfied that Aer Lingus was fully aware that the complainant had a disability and was looking to be seated in the most appropriate seat for her needs, which in the complainant’s opinion were the bulkhead seats.
7.2 I am satisfied that when Ms. Twomey arrived at check-in on the day of the flight she was refused permission to take a bulkhead seat and she was informed that this was because of company policy. The evidence shows that she was assigned a seat in Row 38, towards the back of the airplane. I note the respondent states that seats not pre-assigned prior to check-in are matched with passengers who have not selected a seat on a random basis throughout the aircraft to balance out the plane. However, I note that the seats pre-assigned, in Row 38, to Ms. Twomey and then later assigned to her at check-in namely, Row 32, were not the seats that the respondent claimed to be the most appropriate for persons with a disability, namely the seats with movable armrests. The respondent claims that it does not have a copy of her booking however, it does have the full suite of letters from her outlining the difficulties she faces as a disabled passenger on long haul flights. I note that the respondent said that she did not contact the booking office to pre-select her seat, however she engaged in lengthy correspondence to the same company albeit a different department, the customer service department, who was aware of her plight and needs. I am satisfied that she was assigned an inappropriate seat, in Row 38, and when she asked to move, she was allowed to move but again to a seat that was not the most appropriate to her needs.
7.3 I am also aware that there were a number of other seats that would also allow for a more comfortable travelling experience, namely those seats with movable armrests, also located close to the toilets in the other compartment of the aircraft. I am surprised that when Ms. Twomey contacted the respondent about her request for suitable seating for long haul flights that she was not informed about the movable armrest options available on the aircraft. I am also surprised that when Ms. Twomey presented herself at the check-in desk that her seat allocation, firstly at row 38 and subsequently at row 32, were seats that did not have movable armrests. I note from the respondents evidence that it was of the opinion that seats with movable armrests were the most appropriate seating for persons with a disability, such as Ms. Twomey. I also note that Aer Lingus strictly applied its policy by refusing Ms. Twomey access to a bulkhead seat whereas it did not follow on and provide her with what it deemed the most suitable seating to meet her needs. I have also considered Ms. Twomey’s evidence where she felt that the Aer lingus representative at the check-in who refused to give her a bulkhead seat was directed at her personally (see paragraph 4.3 above). Accordingly, on the balance of probabilities, I am satisfied that the complainant has raised an inference that there was less favourable treatment of her by the respondent on the victimisation ground under section 3(2)(j), which the respondent has failed to rebut.
8. Decision
8.1 In accordance with section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
8.2 I find that, further to section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground section 3(1) and 3(2)(g) by treating her less favourably than someone with a different disability would have been treated in the same or similar circumstances, contrary to section 5(1) of the Acts. I also find that the complainant suffered victimisation contrary to section (3)(2)(j) of the Equal Status Acts.
8.3 In accordance with Section 27(1)(a) of the Equal Status Acts,
– I award the complainant the sum of €1,000 in compensation for the inconvenience caused and for the upset experienced by the respondent in respect of the discrimination suffered.
– I award the complainant be paid an additional sum of €3,000 in respect of the victimisation suffered.
8.4 In accordance with Section 27(1)(b) of the Equal Status Acts,
– I order that the respondent immediately review the communication procedures between the Customer Services department and other departments within the company to ensure that should complaints of a similar nature be received in the future, that they are dealt with in collaboration with other appropriate departments.
– I order that the respondent immediately review its training programmes for all front line staff with responsibility for dealing with passengers with a disability. The training programmes and material therein should include the most up to date information relating to Aer Lingus’ policies.
_____________
James Kelly
Equality Officer
10th November, 2009
DEC-E2003-013 Full Case Report
Moriarty v Dúchas – The Heritage Service
1. DISPUTE
1.1 This dispute concerns a claim by Ms Michelle Moriarty that she was discriminated against by Dúchas – The Heritage Service on the grounds of marital status and age contrary to the provisions of the Employment Equality Act, 1998 when an unadvertised position of seasonal guide in Kilkenny Castle was offered to a less experienced person who was single and younger than the complainant. The complainant also asserted that she had been victimised by the respondent.
1.2 SIPTU, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 25 January 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 12 February 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The complainant later engaged legal representation from Thomas A Walsh & Co, Solicitors. Submissions were sought from both parties and a joint hearing was held on 8 November 2002. Subsequent correspondence with the parties concluded on 5 February 2003.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant started work as a seasonal guide in Kilkenny Castle in May 1999. Her contract was due to expire at the end of September but she and Ms A – also in her first season – were offered an extension to 10 October. The complainant and Ms A started a second season in March 2000. During the interim, Ms B and Ms C, both in their second seasons in the Castle, had been offered long term temporary contracts.
2.2 In July 2000 an internal advertisement appeared offering a permanent position at the Castle, with eligibility restricted to persons who had worked at least two seasons. The complainant said she did not apply as she felt Ms B by virtue of her seniority as a seasonal guide had qualified for the permanent position. Five people applied for the permanent position, and the complainant said that the successful candidates were all single and younger than she was. She pointed out that the advertisement did not state that more than one position would be filled, but said that two candidates were offered permanent positions, one was placed on a panel and one was given a seasonal contract.
2.3 The complainant hoped that she would be given an extended contract for that year, as had happened previously with Ms B and Ms C. Her contract was due to conclude on 29 October, and four days beforehand she was offered an extension to the end of November.
The complainant said she was devastated by how short the offered extension was. Her husband had started a new business and she felt that finishing work in early December might make it difficult to get work for Christmas. She declined the contract extension.
2.4 On 28 October, the day before the complainant was due to finish work, she discovered that Ms D, a guide in her first season who had worked for one or two weekends in October, had been asked to fill in the diary with the dates she would be available until the end of December. This guide was also single and younger than the complainant. The complainant was unable to understand why she had not been offered this potential extra work.
2.5 She pointed out that Ms A, who started work at the same time as the complainant, was contacted in January 2001 and offered a permanent contract. The complainant said that Ms A had not completed her seasonal contract at the end of 2000, having obtained another job. In answer to a Parliamentary Question (PQ), also in January 2001, the complainant learned that the staffing of the Castle was five permanent and one seasonal guide. This seasonal guide was Ms D, and the complainant said the position had never been advertised. As the longest serving seasonal guide, she should have been offered this extended contract. Another younger single woman was employed as a seasonal guide in the Castle in April 2001, having applied two months after the official closing date for applications.
2.6 The complainant pointed out that she herself was never contacted by the respondent to fill any sort of position: short-term, temporary or permanent. The only differences she could identify between herself and the others who were offered either permanent positions or long-term temporary contracts was that she was older and also married.
2.7 The complainant based her allegation of victimisation on an incident that had occurred during the 2000 season. She had discovered an anomaly in the rostering arrangements and realised that certain members of staff were due arrears of pay as they were actually working longer hours than contracted. The matter was brought to the attention of the respondent’s head office, and the complainant suggested that she was being penalised for
embarrassing her supervisor.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent said that the complainant chose not to apply for the permanent positions advertised in July 2000. There were five applicants, who were aged between 21 and 36. Marital status was not requested or declared on the applications. Following interview, two applicants were offered permanent positions, one was placed on a panel and two were deemed unsuitable.
3.2 By letters dated 24 October and 15 November 2000, the complainant notified the respondent’s management division, Education and Visitor Service (E&VS) that she felt she had been discriminated against on the grounds of her “status as a married woman”. An officer from E&VS spoke to the complainant by telephone and replied in writing on 7 December, in effect pointing out that the complainant had not applied for the permanent position and therefore could not have been considered. The complainant was invited to supply any relevant details which would substantiate her claim of discrimination. This invitation was not taken up and the respondent was notified by the Equality Tribunal on 12 February 2001 that a claim of discrimination on the grounds of age and marital status had been referred.
3.3 The respondent agreed that the advertisement for the Kilkenny Castle positions did not specify the number of vacancies, nor did it mention that a panel would be established. The respondent said the reason for this was because it was difficult to gauge from week to week the number of vacancies which may arise at any of its 130 work locations, and in its staff of over 2,000 people. The logistics of running recruitment and promotion competitions were described as forbidding, and the respondent said that reserve panels are always established where management felt they may be required. Panels were not established where there were insufficient suitable candidates, nor where there was little likelihood they would be required.
3.4 The respondent pointed out that the complainant had a longer contract in her second season than in her first, even without the declined extension, and it said no greater expectations were given. The complainant rejected the extension, as was her right, and left the respondent’s employment on completion of her contract. The respondent said that it could only conclude that she was not interested in further work that season. A need for casual staffing arose subsequently, and Ms D was asked to indicate the days she would be available, as she had already applied in writing for consideration for such work. The respondent said this may not have arisen if the complainant had accepted the extension, and in any case Ms D worked just five days from November 2000 to the end of February 2001.
3.5 Regarding the offer of a permanent position to Ms A, the respondent said that she had been a successful candidate in the July 2000 competition, and had been placed on a panel for permanent posts. The panel was still in effect when such a post became vacant in January 2001 and Ms A was naturally offered the position. The fact that she had not completed her seasonal contract during the previous year was immaterial.
3.6 The respondent agreed that a late applicant was employed in a seasonal position in the Castle in April 2001. The vacancy had come about because of the Foot and Mouth crisis, which had meant a delay in taking on seasonal staff already interviewed and placed on a panel. As a result, many panel members had taken up alternative employment and no one was available to work in April. On that basis, the respondent considered late applications and it pointed out that by that time the complainant was not in its employment and had not applied for a position for the 2001 season.
3.7 The respondent denied that the complainant had been victimised because she had raised the issue of the roster anomaly in 2000. The complainant was correct in the issue she raised, the matter had been processed by the union and the arrears of pay were refunded to the affected staff. The respondent said that the complainant was held in high regard, and would have been offered extra work except that it was clear she did not want it. The respondent said it could only conclude that the complainant may have regretted her failure to apply for the permanent positions in 2000 after witnessing other guides receiving subsequent offers of employment. The respondent said that this may be a cause of grievance on her part, but that it could not constitute discrimination on the grounds of age or marital status.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against her on the grounds of marital status and age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include marital status and age. Section 8 provides that
(1)In relation to-
(a) access to employment…
(b) conditions of employment…
(d) promotion or re-grading…
an employer shall not discriminate against an employee or prospective employee…
4.3 The complainant also claimed she was victimised by the respondent. Section 74 of the 1998 Act provides
(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith —
(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
The complainant of discrimination
4.4 The traditional approach taken to complaints of discrimination on the original ground of sex in the case law of the European Court of Justice, and sex and marital status in the caselaw of the Labour Court and Equality Officers, has been that once a complainant establishes a prima facie case of discrimination, the onus then moves to the respondent to rebut the presumption of discrimination. This common law approach has become the statutory requirement in complaints of gender discrimination in employment following the ransposition of Council Directive 97/80/EC into Irish law on 18 July 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001). The Regulations provide that
[w]here in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.
4.5 The Employment Equality Act, 1998 introduced seven new grounds of discrimination, not drawn directly from European Union Directives or European Court of Justice case law. The Council Directive and the Regulations mentioned above are not directly applicable to grounds other than gender, but this approach appears to me to be fully consistent with the development of discrimination case law. It was the approach of the Labour Court in the case Revenue Commissioners and O’Mahony & others (EDA033) on the age ground, and I intend to apply it in this claim.
4.6 The first requirement, therefore, is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him or her. In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) (AEE/99/8), the Labour Court said “…this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging this evidential burden. If she does, the respondent must prove she was not discriminated against on grounds of her gender. If she does not, her case cannot succeed.”
4.7 In her initial referral, the complainant asserted that the last occurrence of the allegedly discriminatory act was October 2000. During the course of the investigation however she also cited as evidence of discriminatory treatment the fact that Ms A was offered a permanent position in January 2001, that she had discovered that Ms D was employed as a seasonal guide in January 2001, and the employment of a seasonal guide in April 2001, two months after the closing date for applications. As the complainant wrote to the respondent in the first instance alleging discrimination on 24 October, it would appear that the October 2000 date was the starting point of her belief that discrimination had occurred. However, the respondent was on notice of the other issues, and provided its responses to them, so I will consider each of the incidents.
October 2000
4.8 The incident that had taken place on 24 October was the offer to the complainant of an extension of her contract to end-November. In her submission, she described her reaction to this offer as “To say I was devastated was an understatement – my whole world crashed”. It is clear that the complainant had expected or hoped for a much longer contract. In the previous year, Ms B – in her second season – had been offered a one year contract to fill a career break vacancy. Ms C had concluded her first season at the end of October 1999, but was asked to work from January 2000 to fill Ms B’s position. The complainant and Ms A were now the most senior seasonal guides and naturally expected that they would be offered such opportunities as they arose.
4.9 The respondent pointed out that the complainant had been given a contract from 1 March to 29 October 2000, some three and a half months longer than her 1999 contract. It said that no other expectation was given. The contract extension offered to the complainant was the best estimate of staffing requirements that could be made at the time, taking into account financial considerations and known factors such as holidays.
4.10 For the complainant to establish a prima facie case of discrimination in relation to the contract extension, it would be necessary for her to show that opportunites such as in 1999 arose for a longer contract extension and that she had not been given the opportuinity that other younger single guides had been. There is no evidence available of such opportunities. No staff member went on career break, and so there was at the time of the extension offer no long-term vacancy as had arisen in 1999. In the circumstances, I am satisfied that the complainant has failed to establish a prima facie case of discrimination.
The offer of a permanent position to Ms A 4.11 Ms A had been a candidate for the July 2000 competition, and was placed on a panel following a successful interview. The offer of a position in January 2001 came about because a permanent vacancy arose. It is clear that the complainant could not have been offered this position, as she was not on the panel, having chosen not to apply for the competition. I cannot find that the offer of this position to Ms A constituted prima facie evidence of discrimination against the complainant.
Ms D’s employment as a seasonal guide
4.12 At the point where Ms D was asked to fill in the diary with the dates she would be available, the complainant had already refused the contract extension. What she had been offered was one month’s full-time employment, whereas Ms D was being offered the prospect of casual work during the period November to December. She was subsequently offered casual work during January to February 2001. In the event, she worked just five days during the period November 2000 to February 2001. I consider it is reasonable for an employer to assume that a person who has refused full-time employment for a guaranteed period would not be interested in the sort of casual work that was envisaged for Ms D. I am satisfied that the offer of such work to Ms D did not constitute prima facie evidence of discrimination against the complainant.
The late employment of a seasonal guide in April 2001
4.13 The seasonal guide was a late applicant for the position, which the respondent explained arose because of the Foot and Mouth crisis. It must be a matter for an employer to determine its staffing needs at any particular time, and to decide when it has an immediate vacancy which must be filled at short notice. The complainant had not applied for employment for the 2001 season. She could not therefore be offered the position, and I cannot find that the late employment of the seasonal guide constituted prima facie evidence of discrimination against her.
The claim of victimisation
4.14 Although the respondent denied this, the complainant asserted that she was victimised because she must have embarrassed her supervisor who was responsible for the management of the disputed roster. The dictionary definition of victimise is “to punish or discriminate against selectively or unfairly” (Collins English Dictionary). However, it will be seen from 4.3 above, the definition of victimisation in the 1998 Act is quite different and very specific. It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of.
4.15 In this claim, no such connection can be demonstrated. I am satisfied that there is no evidence that the complainant was mistreated because she raised the roster issue, but even if there was such evidence, the matter could not constitute victimisation as envisaged by the Act. I must therefore find that the complainant was not victimised by the respondent.
5. DECISION
5.1 Based on the foregoing, I find that Dúchas – The Heritage Service did not discriminate against Ms Moriarty on the grounds of marital status and age, contrary to the provisions of the Employment Equality Act, 1998, when the position of seasonal guide in Kilkenny Castle was given to a less experienced person who was single and younger than the complainant. I also find that the complainant was not victimised by the respondent contrary to the provisions of the Act.
_____________________
Anne-Marie Lynch
Equality Officer
20 March 2003DEC-S2007-038 – Full Case Report
Equal Status Acts 2000-2004
Decision DEC-S2007-038
John, Michael & Jimmy O’Brien v Dunnes Stores, Tralee
(represented by Harrison O Dowd, Solicitors)
Key words
Equal Status Act 2000 – Direct discrimination, section 3(1)(a) – Victimisation, section 3(2)(j) – Membership of the Traveller community, section 3(2)(i) – Supply of goods and services, section 5(1) – Refusal of service in a store.
Delegation under the Equal Status Acts, 2000 – 2004
These complaints were referred to the Director of Equality Investigations under the Equal Status Acts, 2000 – 2004. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated these complaints 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 Acts, 2000 – 2004.
Dispute
At the Hearing on 31 January 2007, Michael and Jimmy O’Brien explained that they were brothers and said that on 1 June 2001 they had entered Dunnes Stores, Bridge St, Tralee with their cousin John O’Brien who wanted to buy children’s clothes. John O’Brien himself was not able to attend the Hearing as he is currently living in England.
When they went upstairs in Dunnes Stores, Michael O’Brien was approached by a female manager, who informed him that he was barred. Mr O’Brien stated that he believed that he and his two colleagues were being discriminated against because of their membership of the Traveller community. He said that he had never been involved in any trouble previously in the Bridge Street store although there had been one occasion previously where he had been asked to stay out of another Dunnes Stores outlet in Tralee.
Michael O’Brien stated that he then asked for the Gardai to be called and the manager did so. Soon after, he said that Garda Nora Brazil arrived and she took a statement from him. He said, however, that the Dunnes Stores staff would not give her a reason for the refusal.
Shortly afterwards, two security men arrived from the Dunnes Stores branch in North Circular Road. Michael O’Brien said that he recognised one of them as the man who had barred him from the NCR branch. The two men ran straight over to him and one of them kicked him on the shin. He believes that Garda Brazil would have seen this but she did not take any action. The three men then left the store.
Jimmy O’Brien also gave evidence at the Hearing supporting his brother’s story. He also referred to an incident some weeks later when he returned to Dunnes Stores in Bridge Street and was refused entry by a doorman who gave his name as John Murphy. Mr O’Brien said that the doorman told him he was being refused “because his brother was taking a case to the court”. Mr O’Brien said that he believed that the doorman was referring to the equality complaint notification form that Michael O’Brien had just sent to Dunnes Stores. In reply, the respondents said that they were unaware of this alleged incident and undertook to check their staff files to see if a John Murphy was employed by them in June 2001.
The respondents were represented at the Hearing by Mr Pat Guiney, Head of Security and Ms Susan Sharkey, who was a Manager in the Bridge Street branch at the time. Ms Sharkey said that she would have known Michael O’Brien at the time and that she would have been aware from her contacts with managers and security in other branches, that his ” right to shop in Dunnes Stores” had been withdrawn because of a previous incident in the NCR branch.
Ms Sharkey gave evidence that on 1 June 2001 another member of staff had brought it to her attention that Michael O’Brien had entered the shop. She immediately went out to him and informed him that he would have to leave. At no time did she ask either of the other gentlemen who were with him to leave as she had no issue with them. She said that she called the Gardai at Mr O’Brien’s request. When the Garda arrived she told her that Mr O’Brien’s right to shop had been withdrawn.
Pat Guiney gave evidence that he had got a call from Ms Sharkey asking for support on 1 June 2001. When he arrived in Bridge Street from the NCR store, he recognised Michael O’Brien as someone he had personally refused service to previously in the NCR branch. As soon as he approached Michael O’Brien, the three gentlemen decided to leave. He said that at no point did he or the other security man with him kick Michael O’Brien.
At the Hearing, the respondents produced cctv footage of the incident on 1 June 2001. The three gentlemen are seen coming up to the first floor and separating. Michael O’Brien is then seen in discussion with Ms Sharkey and after a short time he goes over to the other 2 men and the three return to the ground floor. Michael O’Brien remains on the premises, but is partly hidden from camera, while the other two go in and out of the store.
After 15 minutes, a female Garda is seen arriving but the footage does not show her speaking directly to anyone. Mr Guiney is then seen arriving with another security man and heading towards the area off-camera where Michael O’Brien is waiting. Almost immediately, Michael O’Brien and his colleagues come back into view and leave the premises. There is no evidence on the footage of a kick being aimed at anyone.
Note At the conclusion of the Hearing, I indicated that I would contact the Gardai in Tralee to establish whether Garda Brazil could be contacted with a view to obtaining a written statement from her as to the events of 1 June 2001.
ASubsequent to the Hearing, I wrote to the Garda Superintendent in Tralee and received a reply that the Gardai were unable to trace a record of a Garda Brazil working in Tralee in 2001. I also received documentation from Dunnes Stores stating that they could only locate a list of management staff employed by the company in 2000 and 2001. There was no record of a John Murphy on the list.
Conclusions of the Equality Officer
From the evidence before me, I am satisfied that Michael O’Brien had been refused admission to a Dunnes Stores branch in Tralee previously. I am also satisfied that Dunnes Stores operate a practice of keeping their security staff in all 3 stores informed of incidents in other stores. For this reason, I am satisfied that Ms Sharkey would have had knowledge of a previous incident involving Michael O’Brien and was acting in accordance with Dunnes Stores practice in asking him to leave the Bridge Street store on 1 June 2001. For this reason, I consider that Michael O’Brien was not discriminated against on 1 June 2001.
With regard to the other two gentlemen, there is no evidence before me to indicate that they were refused service in their own right and the cctv footage would appear to support this view in so far as their is no evidence of staff directly approaching either of the other two gentlemen. Accordingly, I also find that neither John or Jimmy O’Brien were discriminated against on 1 June 2001.
However, the evidence provided by Jimmy O’Brien in relation to his alleged refusal on 27 June 2001, does, in my opinion, raise a question as to whether his refusal on that date constituted victimisation by association under the Equal Status Acts.
The evidence before me indicates that Jimmy O’Brien sent a notification form to the respondents on 9 July 2001 (almost 4 weeks after his brother Michael had done) and in this form he specifically states:
“On June 27th last, I returned to the same Dunnes Stores on Bridge Street. The security man, whose name is John Murphy, stopped me at the door. He said I couldn’t come in. I asked him was I barred. He said that all of us were being stopped because my brother was taking a case to the court (Equality Authority).”
When I consider Jimmy O’Brien’s account of what allegedly happened on 27 June 2001, I can see little reason for him “making it up” if in fact it not actually happen. Also, if this was a false accusation and no John Murphy was employed by Dunnes Stores at the time, I cannot understand why the company did not highlight this fact in its reply to Jimmy O’Brien on 17 August 2001.
In considering this point further, I have also noted the fact that Dunnes Stores have been unable to provide me with the names of the security staff who were employed in 2001 (apart from the witness Paul Hourigan who was employed in Bridge Street but whose name, like John Murphy’s, does not appear on the management list).
Having deliberated on the above points and on the totality of the evidence before me, I find, on the balance of probabilities, that I am prepared to accept that Jimmy O’Brien was refused admission to Dunnes Stores on 27 June 2001 and that the reason given on the day was that his brother had lodged an equality complaint. I also consider that this action constituted victimisation by association against Jimmy O’Brien on the basis that he was associated with a person, Michael O’Brien, to whom the victimisation ground would have applied if he himself had been refused entry. Accordingly, I consider that Jimmy O’Brien suffered victimisation by asssociation on 27 June 2001 contrary to the provisions of Section 3 (1)(b) and 3(2)(j) of the Equal Status Acts.
Decision
By not appearing at the Hearing to give direct evidence in her own right, I consider that Mr John O’Brien has failed to establish a prima facie case of discrimination.
Also, based on the evidence before me, I find that Michael and Jimmy O’Brien have also not established a prima facie case of discrimination on the Traveller community ground in relation to the events of 1 June 2001.
I do, however, find that Jimmy O’Brien has established a prima facie case of victimisation by association in relation to 27 June 2001 and that the respondents have failed to rebut the allegation.
Bearing in mind the full circumstances of these complaints, I do not consider that awarding monetary compensation to Mr Jimmy O’Brien is appropriate in this instance. Instead, I order that the respondents send a personal letter to Mr Jimmy O’Brien acknowledging that he may have been wrongly refused entry to their store on 27 June 2001 and offering him an apology for any hurt experienced by him on the day.
Brian O’Byrne
Equality Officer
30 March 2007
DEC-S2009-051 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC–S2009-051
PARTIES
Mrs. Cr v The Minister for Education & Science
File Reference: ES/2008/0074
Date of Issue: 5th August, 2009
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Indirect Discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1) – Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 30th June, 2008 under the Equal Status Acts, 2000 to 2004. On 31st October, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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 on 31st March, 2009 and 1st April, 2009. Final correspondence with the parties following the hearing took place on 21st May, 2009.
1. Dispute
1.1 The complainant claims that she has been discriminated against by the respondent on the grounds of her disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Sections 5(1) and 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the respondent’s policy which requires students attending special schools to leave the school that they are attending at the end of the school year in which they reach their eighteenth birthday.
2. Summary of the Complainants’ Case
2.1 The complainant, Miss. Cr, who is aged 13 years, has a learning disability and attends a special needs school. This school caters for children with mild learning disorders and provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students. The complainant commenced her primary education in mainstream school when she was aged 5 years but she experienced serious difficulties because of her learning disability. Following an assessment by a clinical psychologist whilst in senior infants the complainant was transferred to the special needs school in March, 2003 at the age of 7 years. She has made significant progress during her time at the special needs school and is currently exceeding all expectations. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday.
2.2 The complainant is currently following a Holistic Life Skills Educational Programme. However, her full educational potential has not been assessed and it remains an open question as to whether she has the ability to complete the Junior Certificate and/or Leaving Certificate Applied programmes. Given the strides that she has made, active consideration is being given as to how to maximise her potential at the school by the time she is eighteen years of age and it has been made clear that for her to participate in a formal programme of education (such as the Junior Certificate/Leaving Certificate Applied) to conclusion, she will be required to skip parts of the normal curriculum in order to make up time. In light of the implications of the current policy, it was decided in September, 2008 to fast track the complainant into first year of the senior cycle programme (i.e. secondary level) although educationally she would have benefited from another two years following the primary school programme. It has been necessary to follow this course of action to ensure that the complainant will have the benefit of five years in the senior cycle before she is required to leave the special school upon attaining the age of eighteen years.
2.3 The complainant’s mother claimed that her daughter needs the maximum amount of time available in the special school and that she will not be ready to leave the school by the time she has reached eighteen years of age. It was submitted that she would benefit greatly from having the option of spending an additional or repeat year in the senior cycle. However, the option of an additional year is not automatically available to her as would be the case of a student in mainstream education because of the respondent’s requirement that she transfer to adult services upon reaching the age of eighteen years.
Submissions made on behalf of the Complainant
2.4 The complainant also put forward a number of submissions, both in the form of written submissions and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:
· It was submitted that the anomalous position arising from this policy is that children in mainstream schools who are older by reason of staying back a year or completing a transition year, who seek to repeat their final examinations notwithstanding that they are over 18 years of age, are automatically eligible to do so without permission or approval from the Department of Education & Science whereas a student in a special school is only entitled to remain in the school until the end of the school year in which he/she reaches the age of 18 years and may only continue in education with the permission of the Department, irrespective of whether the student has sat their Leaving Certificate or not.
· It was submitted that education is an area in which there has been significant and relevant recent legislative activity and the relevant legislation governing schools and the provision of education is the Equal Status Acts, 2000 to 2008, the Education Act, 1998, the Education (Welfare) Act, 2000, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. The complainant submitted that the respondent has not identified any statutory requirement within the aforementioned legislation for the restriction implemented by it on access to educational services of children in special needs schools as compared to these in mainstream schools. Accordingly, it appears that the difference in treatment complained of in this case is based on policy and not on a statutory provision. It was submitted that as a non-statutory policy relating to the provision of a service, it falls subject to scrutiny under the provisions of the Equal Status Acts and the fact that there may be no positive duty to compel the State to provide free education to young adults above the age of eighteen years, does not absolve the State through its agents from a duty not to discriminate.
· It was submitted that the provision of education is a service for which the respondent bears overall responsibility and it is clearly a service that comes within the scope of the Equal Status Acts, 2000 to 2008. When governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from those services[1]. It is quite clear that these steps have not been taken in this jurisdiction in light of the policy which is applied to students in special needs schools and not to students in mainstream schools.
· Whilst there are additional obligations on service providers and educational establishments to provide reasonable accommodation to person’s with a disability within the meaning of Section 4 of the Equal Status Acts, it was submitted that the complainant in the present case is being treated less favourably because of disability rather than her special needs being accommodated and accordingly, the reverse of reasonable accommodation is taking place.
· It was submitted that the implementation of this policy does not and cannot affect students who do not have a disability. The complainant claimed that it is an inevitable consequence of the fact that a child who attends a special needs school has a disability and the only way that these pupils would be granted admission to a special needs school is on foot of a psychological report having been carried out. It was submitted therefore that the implementation of this policy only affects students with a disability who attend a special needs school.
· It was submitted that the alleged discrimination in the present case is a clear case of direct discrimination within the meaning of Section 3 of the Equal Status Acts as the policy in question only affects students with disabilities who attend special needs schools. The complainant submitted that it is not sufficient to get around the prohibition on discrimination (that is provided for in section 3 of the Acts) to argue that students with disabilities who attend mainstream schools are not subjected to the requirement that they leave the school at the end of the year in which they have reached their eighteenth birthday.
· It was also submitted that the policy in question constitutes indirect discrimination against the complainant within the meaning of section 3(1)(c) of the Equal Status Acts. The complainant claims that there is sufficient evidence before the Tribunal to enable it to make a finding that she has been subjected to both direct and indirect discrimination.
3. Summary of the Respondent’s Case
3.1 The respondent stated that special schools are classified by the Department of Education and Science as primary schools and are intended to cater for children and young persons with special educational needs from the age of four years until the end of the school year in which the student reaches his/her eighteenth birthday. Following their departure from the special school the Department of Health and Children/Health Services Executive assumes direct responsibility for young adults with special educational needs who are over the age of eighteen years. The respondent may and does provide funding in respect of the education component of such provision, which generally occurs through the Vocational Educational Committees. The policy that pupils in special schools should transition to adult placement when they reach eighteen years of age is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. These considerations include the appropriateness of adults being educated in an environment with young children and associated child protection issues. The respondent stated that it is important to note the fact that if adults were not in general required to leave special schools, they may block places which would otherwise be available to children with educational needs. It was submitted that the resource implications of this would be that the Minister would have to provide additional special schools or special school placements.
3.2 The Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen years and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/Health Services Executive. This policy permits pupils to remain in the special school beyond their eighteenth birthday on the application of the school. It was submitted that the respondent simply restated this policy by way of letter to all special schools early in 2008 as it had become aware that schools were retaining pupils beyond the age of eighteen years without prior approval from the Department. The types of situations where such an application is made and granted are where the relevant pupil is pursuing a course of study for an examination or qualification and same will not be completed before the end of the school year in which the pupil reaches their eighteenth birthday. The issues which are considered by the respondent upon receipt of whether the retention of the pupil on the school will hinder enrolment of a younger pupil; whether the pupil is pursuing a course such as FETAC/Leaving Certificate Applied; whether the pupil will transfer to adult services after completion of their additional year in school and finally, whether a transition programme will be implemented by the school during the school year to ensure a successful transition. Other issues which may be considered by the Department’s Inspectorate include the age and peer appropriateness of the pupil remaining in the school; whether there is space in the school; whether permitting the pupil to remain in the school would deprive another child of a place in the school and whether the educational benefit to the pupil remaining in the school outweighs the benefit to the pupil of transferring to a post-school placement. When an application is approved the pupil remains in the school on an ex-quota basis meaning that the school does not receive additional resources for the pupil. However, in reality and practice that has no impact on the level and quality of education of the pupil. In recent years due to the emphasis on inclusion and the greater number of children with special educational needs attending mainstream schools the numbers attending special schools have fallen. The respondent has not withdrawn or reduced staffing resources in the special schools notwithstanding this decrease in number and in effect, some special schools are now staffed and resourced over and above the levels of support originally envisaged.
Submissions made on behalf of the Respondent
3.3 The respondent also put forward a number of submissions, both in its written submission and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:
· The respondent submitted that students with the same type or category of disability as the complainant attend mainstream schools. It was submitted that the same rules and policy that apply to non-disabled students in mainstream schools also apply to the disabled students that attend a mainstream school i.e. students with a disability in a mainstream school are automatically permitted to remain in school beyond the year of their eighteenth birthday. It was therefore submitted that the students in special needs schools are not being treated differently because of their disability but rather because of the type of school they attend, which is subject to the election or choice of their parents.
· The respondent submitted that the complainant has not demonstrated that her disability is different in nature than that of somebody with an equivalent mild intellectual disability who is attending a mainstream school. It was submitted that the complainant has not adduced sufficient evidence (i.e. expert psychological evidence) to establish that her disability is of such a nature that would prevent her from being educated in a mainstream school with the appropriate supports. Accordingly, it was submitted that the complainant has failed to meet the essential requirement within Section 3(2)(g) of the Equal Status Acts i.e. that she is a person with a different disability than a person with a mild intellectual disability who attends a mainstream school.
· It was submitted that it is not sufficient in order to succeed in a claim under the Equal Status Acts to show that the complainant is being treated differently than another person even if that difference of treatment arises from one of the grounds enumerated in the Acts, and this is particularly so in the field of education. The mere fact that a complainant is being treated differently or that provision for education is made in a different way does not mean that the complainant is being treated unfavourably. In the area of special educational needs, provision must be differentiated according to the specific needs of each individual[2].
· It was submitted that the test in the education field is whether provision is being made for an appropriate education for the individual and not whether that provision is the same as other pupils. Thus, it would only be if the complainant could establish that the provision which was being made for the appropriate comparator pupils in mainstream schools was appropriate and that the provision which was being made for complainant’s education was not appropriate that she could succeed in establishing discrimination.
· It was also submitted that even if the complainant’s case was that by reason of the Departmental policy of which complaint is made, provision is not being made for an appropriate education, that issue is one to be litigated as an alleged breach of the respondent’s duties under the Constitution, the Education Act, 1998, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. It was submitted that it would be strange if the Oireachtas had enacted detailed and considered educational legislation which could in fact be circumvented by bring a complaint before the Tribunal under the Equal Status Acts.
· The respondent denies that the policy in question is either directly discriminatory against the complainant within the meaning of section 3(1)(a) of the Acts or that it is indirectly discriminatory against the complainant within the meaning of section 3(1)(c) of the Acts.
4. Issues of Jurisdiction
4.1 The respondent also raised a number of issues, both in its written submission and at the hearing of the complaint, regarding the jurisdiction of the Tribunal to investigate the present complaint under the Equal Status Acts, 2000 to 2008. The submissions made on behalf of both parties in relation to the issues of jurisdiction can be summarised as follows:
Issue regarding the locus standi of the complainant to refer a complaint under the Equal Status Acts
Respondent’s submission
4.2 The respondent submitted that the complainant does not have the locus standi to refer a complaint under the provisions of the Equal Status Acts. It submitted that the complainant has based her complaint on a policy that does not currently affect her and even if the Tribunal were to find that the policy amounts to discrimination within the meaning of the Acts, it does not affect the complainant until she is required to leave school or such requirement is imminent. It was submitted that the present complaint is premature, in that the complainant is currently in school and is being provided with an education, and therefore, there is, at this point in time, no discriminatory act or otherwise which affects her. In addition to the complaint being premature in time there is nothing to suggest that the complainant will not be permitted to remain in school when the time comes and an application is made by their school in this regard.
4.3 The respondent submitted that the definition of discrimination in section 3(1)(a) of the Equal Status Acts does not incorporate a situation of apprehended discrimination or an act of discrimination that may occur at some point in the future. It was submitted that, in the present case, the Tribunal is being asked to address a hypothetical situation in relation to what may or may not occur by reference to what the position may or may not be in law when the complainant has reached her eighteenth birthday. The respondent submitted it is well established that the Courts do not entertain hypothetical situations, nor should the Tribunal, for issues which are at this point in time, mute. It was submitted that the Equal Status Acts effectively prohibits discriminatory acts and permits complaints to be made where it is alleged that discriminatory acts have occurred. However, there is nothing in the text of the Acts which would suggest that complaints can be made where discriminatory acts are apprehended or anticipated on a contingent basis. The respondent submitted that it would be a revolutionary proposition if the Equal Status Acts were capable of addressing apprehended discrimination, and if this had been the intention of the Oireachtas, in enacting the legislation, the provision for such a contingency would have made explicitly clear in the wording of the Acts.
Complainant’s submission
4.4 It was submitted that the complainant, does in fact, have the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2008 on the basis that she is already suffering the effects of the policy. In light of the implications of the current policy, it was decided in September, 2008 to fast track the complainant into first year of the senior cycle programme (i.e. secondary level), although educationally she would have benefited from another two years following the primary school programme. It has been necessary for the complainant to follow this course of action in order to ensure that she will have the benefit of five years in the senior cycle before she is required to leave the special school upon attaining the age of eighteen years. It was submitted that the requirements of the policy have placed the complainant in a situation whereby she has been moved prematurely from primary education into the senior cycle in order to maximise her ability by the time that she will be required to leave the special school she is attending.
4.5 It was submitted that the wording contained within the definition of discrimination in section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. It was submitted that this section of the Acts has a very wide scope in combating discrimination and it applies to the situation in question in the present case i.e. an apprehended refusal of permission to remain in the school when the complainant has attained the age of 18 years. It was submitted that this argument is supported by the language used in the definition of discrimination at section 3(1)(a)(iii) where the wording “may exist in the future” is used in relation to the discriminatory grounds. The complainant submitted that the wording within this section is drafted with the intention that it have a very wide scope in combating discrimination, and it was submitted that it applies to the situation that pertains in the present case, where we are dealing with an apprehended refusal of permission for the complainant to remain at the school following the year in which she has reached her eighteenth birthday.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
Respondent’s submission
4.6 The respondent submitted that the Department of Education & Science is not a “service provider” as defined by the Equal Status Acts and it claimed that the Department was not a provider of education but rather that its role was to provide for education. The respondent submitted that section 7 is the only provision within the Equal Status Acts which governs discrimination in the education sphere and therefore, in order to succeed in the present case, the complainant must bring her claim within this section of the Acts and demonstrate that the respondent, in exercising its functions in relation to education falls within section 7 of the Acts. It was submitted that in order to do so, the complainant must show that the respondent is an “educational establishment” within the meaning of section 7(1) of the Acts and that it is discriminating against her in one or more of the areas set out in section 7(2) of the Acts. It was submitted that the respondent is not and cannot be regarded as an “educational establishment” and does not fall within the definition of same which is provided for by section 7(1) of the Acts. In light of that fact, the respondent submits that it cannot be guilty of discrimination in relation to access to an educational establishment within the meaning of the Equal Status Acts.
4.7 The respondent does not own, manage or govern the school which is being attended by the complainant and which actually delivers the education which is complained of in this complaint. Instead, it claims that the Education Act, 1998 makes it entirely clear that it is the Board of Management of a school which is obliged to fulfil these functions, and indeed has a specific and recognised right to manage its own affairs in doing so. The respondent referred to the Crowley case[3] in which the relationship between a national school, its teachers and the Department of Education and Science was considered by the Supreme Court. There it was noted that the obligation of the State under Article 42.4 of the Constitution was “to provide for” free primary education and not to supply it directly. It was submitted that the respondent does provide funding to the schools which are delivering the complainants’ education in order to provide for that education but that does not constitute the provision of a service within the meaning of the Equal Status Acts or render the respondent an educational establishment within the meaning of the Acts.
4.8 Even if it is incorrect in its submission that section 7 of the Equal Status Acts is the sole provision governing discrimination in education, the respondent does not fall within any of the remaining meanings of “provider of a service” contained within section 4(6) of the Acts. The respondent does not provide education, so even if the delivery of education constitutes the provision of a service (other than in the sense of section 4(6)(e) of the Acts) this is not one that is provided by the respondent. The respondent is, therefore, not providing a service within the meaning of section 5(1) and is not “a provider of a service” within the meaning of section 4(5) of the Acts. It was therefore submitted that the present complaint against the respondent is fundamentally misconceived and that the Minister is not the appropriate respondent to this complaint.
Complainant’s submission
4.9 The complainant accepts that the respondent is not an “educational establishment” within the meaning of section 7 of the Equal Status Acts, 2000 to 2008. However, it was submitted that the provision of education services within the meaning of the Equal Status Acts is not strictly confined to those services that are provided by “educational establishments” within the meaning of section 7 of the Acts. The complainant submitted that the role of the respondent as a service provider within the education sphere is clearly defined in the Education Act, 1998[4] and it was contended that the Minister has a very important role in the control and management on a day to day basis of the school that the complainant attends, which includes, for example, the responsibility for the employment and payment of teachers, the examination and certification system, the evaluation of schools and regulation of school activities through the issue and dissemination of Departmental circulars.
4.10 The complainant submitted that the definition of the word “service” in section 2 of the Equal Status Acts is extremely broad and the Tribunal should give this provision as wide an interpretation as possible in order to achieve the aim and purpose of the legislation i.e. as a social and remedial statute to promote equality and prohibit discrimination[5]. The complainant also submitted that it is clear from the wording included in the long title of the Equal Status Acts that it is remedial legislation that was adopted to address social injustice and consequently, it should be interpreted in a broad manner. Accordingly, it was submitted that the Minister for Education & Science is clearly a service provider in the education sphere within the meaning of section 5 of the Equal Status Acts.
5. Conclusions of the Equality Officer in relation to the issues of jurisdiction
5.1 Firstly, I will first consider the issues of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaint.
Locus standiof the Complainant to refer a complaint under the Equal Status Acts
5.2 In considering this issue, I note that the complainant transferred from mainstream education to the special school which she is presently attending in March, 2003 at the age of seven years having completed junior and senior infants in the mainstream school. The complainant moved from the primary cycle to the secondary cycle of her education in September, 2008 when she 12 years of age. The complainant’s evidence was that a decision was taken (by her parents in consultation with her teachers and School Principal) that she should be fast tracked prematurely into the secondary/senior cycle in order to ensure that she would have the maximum amount of time available in secondary education before she was required to leave the school in compliance with the requirements of the policy. I have also taken note of the complainant’s mother’s evidence that she felt there was no option but to take this decision despite the fact that her daughter (because of her disability) would have benefited from spending more time in the primary cycle.
5.3 Based on the evidence presented, I am satisfied that the effects of the policy have already had an impact on the education of the complainant in terms of the period of time within which she has been afforded in the primary cycle of her education. I accept the complainant’s evidence that it would have been more beneficial for her to have spent a further period of time in the primary cycle of her education. I am satisfied that the reason the decision was taken to truncate her primary education was as a direct consequence of the requirement of the policy which dictates that she will have to leave the special school which she is attending at the end of the year in which she reaches her eighteenth birthday.
5.4 I have also noted the complainant’s submission that the definition of discrimination within section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. As I have found that the policy in question has already had a direct impact on the complainant in terms of her education, I am therefore not required to consider the merits or otherwise of this argument any further in order to decide the substantive issue in question in the present cases. Accordingly, I find that the complainant does have the locus standi to refer a complaint under the Equal Status Acts, 2000 to 2008.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
5.5 The question that I must address in relation to this issue is whether or not the Minister for Education & Science falls into the category of a “service provider” as defined under the Equal Status Acts, 2000 to 2008. I note that the respondent has submitted that the Minister for Education & Science is not a “service provider” as defined under the Equal Status Acts and that his role is to “provide for education” rather than being the a provider of education. In considering this issue, I have taken cognisance of the Education Act, 1998, including the provisions at section 7(1)(c) which state that “each of the following shall be a function of the Minister; to plan and co-ordinate (i) the provision of education in recognised schools and centres for education and, (ii) support services” and the provisions of section 7(2)(b) which states that it “shall be a function of the Ministerto monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education”. I am of the view that these provisions clearly indicate that the Minister has a pivotal role to play in planning and co-ordinating the provision of education in recognised schools and centres for education.
5.6 I accept the respondent’s argument that it is not an educational establishment within the meaning of section 7 of the Equal Status Acts, however, I cannot accept that the type of services which it provides in the educational sphere (in accordance with its obligations under the Education Act) do not constitute a service within the meaning of section 2 of the Equal Status Acts. “Service” is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”. I am satisfied that the types of services provided by the respondent in the educational sphere are covered by the broad definition of “service” within the meaning of the Equal Status Acts. Furthermore, I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts.
5.7 I have also taken note of the decision of the Equality Officer in the case of Anastasia Lyamina –v- The Department of Education & Science[6] in which this very issue was decided upon. In this case the Equality Officer took into consideration, as part of his deliberations on this matter, the role and functions of the Minister as provided for in the Education Acts. 1998 and he also had regard to a number of publications by the Department of Education & Science regarding its role in the provision of education within the State. I note that the Equality Officer stated in his findings that “having taken the contents of the Education Act into consideration in addition to the aforementioned publications (Mission Statement, Customer Service Charter and Statement of Strategy of the Department of Education & Science), I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2008” . In considering this matter, I fully concur with the findings of the Equality Officer on this issue in the aforementioned case. Having regard to the foregoing, I therefore find that respondent is a “service provider” within the meaning of the Equal Status Acts, 2000 to 2008.
5.8 Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegation of discrimination that has been made by the complainant in the present case.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
6.2 In the present case, it was not disputed that the complainant has a learning disability and I am therefore satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. Therefore, the question that I must address in the present case in whether or not the requirement that is imposed upon the complainant, as a student who attends a special school, to leave the school in the year in which she will reach her eighteenth birthday constitutes discrimination on the disability ground within the meaning of the Equal Status Acts.
6.3 In order for me to determine whether the complainant in the present case has been subjected to less favourable treatment within the meaning of the Equal Status Acts, in terms of the implementation of the policy in question, it is necessary to make the appropriate comparison between the complainant and that of her counterparts in mainstream education. It is also necessary for me to decide whether the alleged discriminatory nature of the policy constitutes direct discrimination within the meaning of section 3(1)(a) or indirect discrimination within the meaning of section 3(1)(c) of the Acts. In considering this issue I note that the “disability ground” is defined in section 3(2)(g) of the Equal Status Acts as “that one is a person with a disability and the other either (my emphasis) is not or is a person with a different disability”. I am of the view that the appropriate comparator in this case is either a student without a disability or a student with a different disability than the complainant who attends a mainstream secondary school.
6.4 I do not accept the respondent’s argument that the complainant in the present case fails to satisfy the requirements of section 3(2)(g) of the Acts on the basis she cannot demonstrate that she has a different disability than a person with a mild learning disability who attends a mainstream secondary school. I am of the view that it is absolutely irrelevant, when deciding upon the appropriate comparator in this case, that there are also students who attend mainstream schools who have learning disabilities similar or identical to that of the complainant. I am satisfied that the reason the complainant attends a special school is as a direct consequence of the special educational requirements that arise because of her disability. It is clearly the case that a special school will cater only for students who have a disability and who have been professionally assessed as requiring the services of such a school. Therefore, the policy in question in the present case only affects students with a disability who attend special schools and it does not affect either student’s without a disability or with a different disability to the complainant that attend mainstream schools.
6.5 I have noted that the complainant has also made a supplemental argument that the policy in question is both directly and indirectly discriminatory against her within the meaning of sections 3(1)(a) and 3(1)(c) of the Acts. As I have already stated, I am satisfied that the policy only affects students with a disability who attend special schools and that it does not affect students attending mainstream schools. I am therefore satisfied that the terms of the policy i.e. the requirement for students attending special schools to leave the school at the end of the year in which they reach eighteen does not constitute “an apparently neutral provision” within the meaning of section 3(1)(c) of the Acts but rather it is a provision which directly affects a specific category of persons, namely disabled students who attend special schools. I therefore find that the issue as to whether or not the policy in question is discriminatory falls to be decided within the provisions of section 3(1)(a) of the Equal Status Acts i.e. direct discrimination.
6.6 In making the apposite comparison in this case, it is not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education (i.e. three years to complete the Junior Certificate, two years to complete the Leaving Certificate/Leaving Certificate Applied with the option of a transition year). I am also satisfied that a student who is participating in mainstream secondary education is not required to have completed his/her secondary education by the end of the year in which he/she has reached their eighteenth birthday. Having regard to the foregoing, I am satisfied that the implementation of the policy which requires the complainant to leave the special school she is attending at the end of the year in which she reaches her eighteen birthday, in circumstances where no such requirement is enforced upon a student attending mainstream secondary education, is sufficient to raise an inference of less favourable treatment on the grounds of her disability within the meaning of the Equal Status Acts. In such circumstances, the burden of proof shifts and the onus rests with the respondent to rebut the allegation of discrimination if its defence is to succeed.
Respondent’s Rebuttal
6.7 In considering whether the implementation of this policy upon the complainant, as a student who attends a special school, amounts to discrimination on the grounds of her disability, it is important to take into consideration the nature of the educational services that are provided by special schools to its students in comparison to the services that are provided by mainstream secondary schools. In this regard, I note that special schools are classified by the Department of Education & Science as primary schools and they provide a wide range of holistic educational programmes that are designed to meet the individual needs of students and that these schools do not focus exclusively on preparing students to acquire certification in terms of State examinations. The special school which is attended by the complainant caters for children with mild learning disorders, and in addition to the provision of Holistic Educational Programmes, it also provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students. This is in contrast to the services which are provided by secondary schools operating in the mainstream educational sphere whose primary objective is to prepare students to acquire accreditation in terms of state examinations such as the Junior Certificate, Leaving Certificate/Leaving Certificate Applied.
6.8 I would make an important distinction between students who are pursuing a programme of education leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied/FETAC) and those who are not in terms of deciding whether the application of the policy in question is discriminatory against students who attend special schools. It was not disputed that the Junior Certificate curriculum normally takes a period of three years to complete and the Leaving Certificate/Leaving Certificate Applied curriculum takes a further period of two years to complete irrespective of whether a student is attending a mainstream secondary school or a special school. Based on the evidence presented, it would appear to be the norm that students who are attending special schools (as a result of their disability) would normally commence secondary education at a more advanced age than their counterparts in mainstream education. It is therefore highly unlikely that such a student will have completed a programme of education leading to certification (e.g. the Leaving Certificate Applied) by the time he/she has reached the age of eighteen years and thereby placing these students at a disadvantage when compared to their counterparts in mainstream education. I am of the view that all students who are pursuing such accredited courses, irrespective of whether or not they are attending mainstream education or special schools, should be afforded similar facilities in terms of the duration of time that is made available to them to complete these accredited courses.
6.9 However, in considering this issue further, I have also taken into consideration that a student (such as the complainant) who attends a special school and who participates in a non-accredited course of education is not subjected to the same requirements in terms of having to complete an accredited curriculum or course of education within a defined period of time. In the present case, the complainant commenced the secondary/senior cycle of her education in September, 2008 and she is currently participating in a Holistic Life Skills Education Programme which has been specifically tailored to cater for her individual educational requirements. Based on the evidence presented, I am satisfied that this programme of education has been and will continue to be reviewed and updated on a regular basis (by means of her Individual Education Plan) until she is required to leave the special school at the end of the year in which she reaches her eighteenth birthday and thereby providing her with an education to meet her individual needs.
6.10 The respondent’s evidence was that the policy which requires the complainant to leave the special school at this juncture is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. I have also noted that the Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/HSE. I accept that this policy may be entirely appropriate in the situation of a student at a special school who has reached the age of eighteen years and who is not pursuing an accredited course of education such as the Leaving Certificate Applied. In such cases it may well be beneficial and in the best interests of that particular student (depending on their individual circumstances) to transfer from the special school to adult services at the end of the year in which he/she has reached the age of eighteen years.
6.11 Having regard to the foregoing, I am satisfied that the requirement for the complainant to leave the special school at this juncture will not by necessity result in the termination of her education as it is the case that appropriate measures and facilities have been put in place to accommodate the further educational requirements of such students after they have completed their educational programmes at the special school. In the present case, I have not been presented with any expert or professional evidence from which I could reasonably conclude that it will not be in the best interests of the complainant to transfer to adult services at the end of the year in which she has reached her eighteenth birthday. In the circumstances, I find that the implementation of the policy which requires the complainant to leave the secondary school at the end of the year in which she reaches her eighteenth birthday does not amount to discriminatory treatment on the grounds of her disability within the meaning of the Equal Status Acts. Accordingly, I am satisfied that the respondent has successfully rebutted the inference of discrimination against the complainant on the grounds of her disability.
Reasonable Accommodation
6.12 The parties also made submissions, both in writing and at the oral hearing of the complaint regarding the issue as to whether or not the policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present case. Accordingly, I am satisfied that it is not necessary for me to consider this complaint in the context of section 4 of the Acts.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and that the respondent has succeeded in rebutting the inference of discrimination. Accordingly, I find in favour of the respondent in the present case.
Enda Murphy
Equality Officer
5th August, 2009
[1]The complainant referred to the case of Eldridge –v- British Columbia (Attorney General) [1997] 3 SCR 624 in support of its submissions in relation to this point
[2]The Respondent referred to the case of the Board of Education of Hendrick Hudson Central School –v- Rowley (in which the Supreme Court of the United States of America commented on the meaning of the phrase “free appropriate public education”).
[3]Crowley -v- Ireland [1980] IR 102 at page 126
[4]Sections 2 and 7 of the Education Act, 1998 refers
[5]The complainant referred to the Supreme Court judgement of McGuinness J. in Western Health Board –v- K.M. (S.C. No. 103 of 2001)
[6]Equality Officer Decision No. DEC-S2009-016 refers
DEC-S2009-050 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC–S2009-050
PARTIES
Mrs. Kn (on behalf of her son Mr. Kn) and others v he Minister for Education & Science
Date of Issue: 5th August, 2009
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Indirect Discrimination, Section 3(1)(c) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1) – Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000 to 2008
These complaints were referred to the Director of the Equality Tribunal on 8th January, 2007 and 14th April, 2008 (in the case of Mr. Kn) and on 30th June, 2008 (in the cases of Mr. Kr, Mr. Kh and Miss. Hy) under the Equal Status Acts, 2000 to 2004. On 31st October, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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 on 31st March, 2009 and 1st April, 2009. Final correspondence with the parties following the hearing took place on 21st May, 2009.
1. Dispute
1.1 The complainants claim that they have been discriminated against by the respondent on the grounds of their disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Sections 5(1) and 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the respondent’s policy which requires students attending special schools to leave the school that they are attending at the end of the school year in which they reach their eighteenth birthday.
2. Summary of the Complainants’ Case
Complaint of Mrs. Kn (on behalf of her son Mr. Kn) – Case Ref. Nos. ES/2007/0005 and ES/2008/0049
2.1 The complainant, Mr. Kn, who is aged 16 years, has a learning disability and a language disorder and attends a special needs school. This school caters for children with mild learning disorders and provides a full curriculum to Leaving Certificate and offers the Leaving Certificate Applied to its students. The complainant has a twin sister who attends a mainstream school and both children started primary school on the same day. However, it became apparent at an early stage that the complainant had special needs and he was transferred to a special school in September, 2003 where he has made significant progress. In November, 2005 the complainant’s mother became aware that special schools had received a communication from the Department of Education & Science to the effect that children who reach the age of 18 years should be obliged to leave the school at the end of that school year (referred to hereinafter as the “policy”). The implications of this policy for the complainant were immediately apparent for his mother. Although it was intended that both her children would follow a secondary school curriculum to Leaving Certificate standard, the complainant was facing the challenge that he would not be permitted to return to his school in the academic year following his eighteenth birthday, notwithstanding that he may have reached the final year of a Leaving Certificate programme. Whereas his twin sister, attending a mainstream school, would be permitted to complete her Leaving Certificate cycle without restriction.
2.2 The complainant commenced first year in the senior cycle (i.e. secondary level education) in September, 2007. However, as a result of the policy, it was decided that he would have to complete his Junior Certificate in a two year period rather than the normal period of three years and consequently, he was due to sit his Junior Certificate examinations in June, 2009. This course of action was deemed necessary to ensure that the complainant will have completed his Leaving Certificate Applied Programme in the year in which he reaches his eighteenth birthday. Accordingly, notwithstanding that the complainant may wish to repeat his Leaving Certificate or complete the programme he will be treated differently to his sister in identical circumstances because as a student in a mainstream school she will have the option of remaining on in school. It was submitted that the complainant, who has a disability, has been subjected to a less favourable educational experience while his sister, who has no disability, will be permitted without any impediment to complete her Leaving Certificate in the year in which she is nineteen. It was submitted that the decision to truncate the complainant’s education has proved very challenging and upsetting for him but the school and his parents have no alternative but to pursue this course to guarantee that he will be permitted to remain in school until the year in which he sits his Leaving Certificate Applied in light of the respondent’s policy.
Complaint of Mrs. Kh (on behalf of her son Mr. Kh) – Case Ref: ES/2008/0071
2.3 The complainant, Mr. Kh, who is aged 14 years, has dyspraxia and also attends a special needs school. The complainant commenced education in his local mainstream school but encountered significant difficulties and consequently, lost time in completing the primary school programme as he was required to stay back whilst in mainstream education. The complainant transferred to a special school in September, 2006 following a psychological assessment and is due to commence his secondary education in September, 2009. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday. As a result of this policy, the complainant will be required to skip a year in the secondary school cycle in order to complete the cycle by the year in which he will be eighteen years of age.
2.4 The view of the complainant’s teachers and parents is that he will be forced to enter the senior cycle before he is ready, if he is to be assured the possibility of sitting his Applied Leaving Certificate which it is felt that he has the potential to successfully complete. Because of the implications of the policy, it is planned that the complainant will move from sixth class in primary education directly into second year of the secondary school cycle. The consensus between the complainant’s parents and teachers however, is that to equip him for employment and independent living in accordance with his real potential, he must complete the Leaving Certificate Applied Programme. The stark reality is that he would benefit from extra time, not less, to enable him to achieve his potential within the education system and successfully complete his Leaving Certificate. The consequence of the current policy is that achievements made in building his self-esteem will be lost and he will be subjected to pressure over and above that which should be acceptable. The complainant’s sister, who is 20 months younger, is also due to commence her secondary education in September, 2009 in a mainstream school. It was submitted that she will have the option of completing her secondary cycle in six years whereas the complainant, who has a disability and would benefit from more and not less time, will be obliged to complete his secondary cycle in four years as a result of the respondent’s policy.
Complaint of Mr. Kr (on behalf of his son Mr. Kr) – Case Ref No. ES/2008/0072
2.5 The complainant, Mr. Kr, who is aged 17 years, has learning disabilities and also attends a special needs school. The complainant commenced his primary education in mainstream school but it quickly became apparent that he was struggling and he fell behind and required assistance. He attended a special education facility for a number of years whilst at primary school before transferring back to his local mainstream school where he completed sixth class. Due to the delay in completing the primary cycle where he was required to stay back, he commenced his secondary education at the special needs school at the age of 14 in September, 2006. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday. As a result of this policy, the complainant was forced to skip first year in secondary school and commence immediately in second year. This caused him to be subjected to pressure over and above the normal pressures for a disabled student who has learning difficulties. However, despite this the complainant successfully completed his Junior Certificate in two years and is now following the Leaving Certificate Applied curriculum.
2.6 The complainant was caused to skip first year in the secondary cycle as this was the only conceivable way of enabling him to complete the Leaving Certificate cycle by the year in which he reaches his eighteenth birthday. It was submitted that it is the shared and emphatic view of his teachers and parents alike, that if the complainant is to achieve his potential of employment and independent living, he must complete his Leaving Certificate Applied programme. The considered view of the professionals working with the complainant is that he has the ability to complete the programme and having completed the programme he will be in a position to confirm that he has the standard minimum educational qualification for most employment in the State. It was submitted that the respondent’s policy has a present and serious impact on the complainant and that he has been subjected to additional pressures as a result of this policy.
Complaint of Mr. & Mrs. Hy(on behalf of their daughter Miss. Hy) – Case Ref No. ES/2008/0073
2.7 The complainant, Miss. Hy, who is aged 18 years, has a mild learning disability and attends a special needs school. She commenced education in her local mainstream school but encountered significant difficulties in terms of her education and consequently, she transferred to a special school in September, 2001 (having completed third class in a mainstream primary school). The complainant has made significant progress in terms of her education in the time that she has attended the special school and she is currently following the Leaving Certificate Applied Programme, having completed the Junior Certificate Programme in three years. The complainant is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete the programme she will be nineteen before she can sit the Leaving Certificate Applied examination. The present complaint is based on the respondent’s policy which requires that children attending special schools should be obliged to leave the school at the end of the school year in which they reach their eighteenth birthday. As a result of the respondent’s policy she lingers under the very significant apprehension that she will not be allowed to return to the special school that she attends to complete the Leaving Certificate Applied Programme. This is very disruptive to her studies and causes anxiety and heightened insecurity.
2.8 It was submitted that the complainant is a student with the capacity to complete the Programme and she has the potential to successfully sit her Leaving Certificate Applied. It was further submitted that if the complainant is deprived of an opportunity to do so, or is undermined in her ability to do so by the respondent’s policy, the lifelong implications for her and her ability to live independently and secure employment may be compromised. The complainant submitted that the respondent has indicated in correspondence to the complainant’s representative dated 19 June, 2008 that it will be necessary for her to transfer to adult services at the age of eighteen years. It was submitted that a formal application has been made to the respondent on behalf of the complainant for permission to remain at the special school for the school year 2009/10 in order to complete her Leaving Certificate Applied. However, she is still awaiting formal confirmation as to whether this permission will be granted. It was acknowledged that the respondent has indicated in its written submissions (in relation to the present complaint) that the complainant would be granted permission to remain at the school beyond her eighteenth birthday, however the respondent has not formally communicated this decision to her.
Submissions made on behalf of the Complainants
2.9 The complainants also put forward a number of submissions, both in the form of written submissions and at the hearing of the complaint, regarding the substantive issue which can be summarised as follows:
· It was submitted that the anomalous position arising from this policy is that children in mainstream schools who are older by reason of staying back a year or completing a transition year, who seek to repeat their final examinations notwithstanding that they are over 18 years of age, are automatically eligible to do so without permission or approval from the Department of Education & Science whereas a student in a special school is only entitled to remain in the school until the end of the school year in which he/she reaches the age of 18 years and may only continue in education with the permission of the Department, irrespective of whether the student has sat their Leaving Certificate or not.
· It was submitted that education is an area in which there has been significant and relevant recent legislative activity and the relevant legislation governing schools and the provision of education is the Equal Status Acts, 2000 to 2008, the Education Act, 1998, the Education (Welfare) Act, 2000, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. The complainants submitted that the respondent has not identified any statutory requirement within the aforementioned legislation for the restriction implemented by it on access to educational services of children in special needs schools as compared to these in mainstream schools. Accordingly, it appears that the difference in treatment complained of in this case is based on policy and not on a statutory provision. It was submitted that as a non-statutory policy relating to the provision of a service, it falls subject to scrutiny under the provisions of the Equal Status Acts and the fact that there may be no positive duty to compel the State to provide free education to young adults above the age of eighteen years, does not absolve the State through its agents from a duty not to discriminate.
· It was submitted that the provision of education is a service for which the respondent bears overall responsibility and it is clearly a service that comes within the scope of the Equal Status Acts, 2000 to 2008. When governments provide benefits to the general population, they have an obligation to take positive steps to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from those services[1]. It is quite clear that these steps have not been taken in this jurisdiction in light of the policy which is applied to students in special needs schools and not to students in mainstream schools.
· Whilst there are additional obligations on service providers and educational establishments to provide reasonable accommodation to person’s with a disability within the meaning of Section 4 of the Equal Status Acts, it was submitted that the complainants in the present cases are being treated less favourably because of disability rather than their special needs being accommodated and accordingly, the reverse of reasonable accommodation is taking place.
· It was submitted that the implementation of this policy does not and cannot affect students who do not have a disability. The complainants claimed that it is an inevitable consequence of the fact that a child who attends a special needs school has a disability and the only way that these pupils would be granted admission to a special needs school is on foot of a psychological report having been carried out. It was submitted therefore that the implementation of this policy only affects students with a disability who attend a special needs school.
· It was submitted that the alleged discrimination in the present case is a clear case of direct discrimination within the meaning of Section 3 of the Equal Status Acts as the policy in question only affects students with disabilities who attend special needs schools. The complainants submitted that it is not sufficient to get around the prohibition on discrimination (that is provided for in section 3 of the Acts) to argue that students with disabilities who attend mainstream schools are not subjected to the requirement that they leave the school at the end of the year in which they have reached their eighteenth birthday.
· It was also submitted that the policy in question constitutes indirect discrimination against the complainants within the meaning of section 3(1)(c) of the Equal Status Acts. The complainants claim that there is sufficient evidence before the Tribunal to enable it to make a finding that the complainants have been subjected to both direct and indirect discrimination.
3. Summary of the Respondent’s Case
3.1 The respondent stated that special schools are classified by the Department of Education and Science as primary schools and are intended to cater for children and young persons with special educational needs from the age of four years until the end of the school year in which the student reaches his/her eighteenth birthday. Following their departure from the special school the Department of Health and Children/Health Services Executive assumes direct responsibility for young adults with special educational needs who are over the age of eighteen years. The respondent may and does provide funding in respect of the education component of such provision, which generally occurs through the Vocational Educational Committees. The policy that pupils in special schools should transition to adult placement when they reach eighteen years of age is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. These considerations include the appropriateness of adults being educated in an environment with young children and associated child protection issues. The respondent stated that it is important to note the fact that if adults were not in general required to leave special schools, they may block places which would otherwise be available to children with educational needs. It was submitted that the resource implications of this would be that the Minister would have to provide additional special schools or special school placements.
3.2 The Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen years and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/Health Services Executive. This policy permits pupils to remain in the special school beyond their eighteenth birthday on the application of the school. It was submitted that the respondent simply restated this policy by way of letter to all special schools early in 2008 as it had become aware that schools were retaining pupils beyond the age of eighteen years without prior approval from the Department. The types of situations where such an application is made and granted are where the relevant pupil is pursuing a course of study for an examination or qualification and same will not be completed before the end of the school year in which the pupil reaches their eighteenth birthday. The issues which are considered by the respondent upon receipt of whether the retention of the pupil on the school will hinder enrolment of a younger pupil; whether the pupil is pursuing a course such as FETAC/Leaving Certificate Applied; whether the pupil will transfer to adult services after completion of their additional year in school and finally, whether a transition programme will be implemented by the school during the school year to ensure a successful transition. Other issues which may be considered by the Department’s Inspectorate include the age and peer appropriateness of the pupil remaining in the school; whether there is space in the school; whether permitting the pupil to remain in the school would deprive another child of a place in the school and whether the educational benefit to the pupil remaining in the school outweighs the benefit to the pupil of transferring to a post-school placement.
3.3 When an application is approved the pupil remains in the school on an ex-quota basis meaning that the school does not receive additional resources for the pupil. However, in reality and practice that has no impact on the level and quality of education of the pupil. In recent years due to the emphasis on inclusion and the greater number of children with special educational needs attending mainstream schools the numbers attending special schools have fallen. The respondent has not withdrawn or reduced staffing resources in the special schools notwithstanding this decrease in number and in effect, some special schools are now staffed and resourced over and above the levels of support originally envisaged.
Submissions made on behalf of the Respondent
3.4 The respondent also put forward a number of submissions, both in its written submission and at the hearing of the complaints, regarding the substantive issue which can be summarised as follows:
· The respondent submitted that students with the same type or categories of disabilities as the complainants attend mainstream schools. It was submitted that the same rules and policy that apply to non-disabled students in mainstream schools also apply to the disabled students that attend a mainstream school i.e. students with a disability in a mainstream school are automatically permitted to remain in school beyond the year of their eighteenth birthday. It was therefore submitted that the students in special needs schools are not being treated differently because of their disability but rather because of the type of school they attend, which is subject to the election or choice of their parents.
· The respondent submitted that the complainants have not demonstrated that their respective disabilities are different in nature than that of somebody with an equivalent mild intellectual disability who is attending a mainstream school. It was submitted that the complainants have not adduced sufficient evidence (i.e. expert psychological evidence) to establish that their disabilities are of such a nature that would prevent them from being educated in a mainstream school with the appropriate supports. Accordingly, it was submitted that the complainants have failed to meet the essential requirement within Section 3(2)(g) of the Equal Status Acts i.e. that they are persons with a different disability than a person with a mild intellectual disability who attends a mainstream school.
· It was submitted that it is not sufficient in order to succeed in a claim under the Equal Status Acts to show that the complainant is being treated differently than another person even if that difference of treatment arises from one of the grounds enumerated in the Acts, and this is particularly so in the field of education. The mere fact that a complainant is being treated differently or that provision for education is made in a different way does not mean that the complainant is being treated unfavourably. In the area of special educational needs, provision must be differentiated according to the specific needs of each individual[2].
· It was submitted that the test in the education field is whether provision is being made for an appropriate education for the individual and not whether that provision is the same as other pupils. Thus, it would only be if the complainants could establish that the provision which was being made for the appropriate comparator pupils in mainstream schools was appropriate and that the provision which was being made for complainants’ education was not appropriate that they could succeed in establishing discrimination.
· It was also submitted that even if the complainants’ case was that by reason of the Departmental policy of which complaint is made, provision is not being made for an appropriate education, that issue is one to be litigated as an alleged breach of the respondent’s duties under the Constitution, the Education Act, 1998, the Education for Persons with Special Needs Act, 2004 and the Disability Act, 2005. It was submitted that it would be strange if the Oireachtas had enacted detailed and considered educational legislation which could in fact be circumvented by bringing a complaint before the Tribunal under the Equal Status Acts.
· The respondent denies that the policy in question is either directly discriminatory against the complainants within the meaning of section 3(1)(a) of the Acts or that it is indirectly discriminatory against the complainants within the meaning of section 3(1)(c) of the Acts.
4. Issues of Jurisdiction
4.1 The respondent also raised a number of issues, both in its written submission and at the hearing of the complaints, regarding the jurisdiction of the Tribunal to investigate the present complaints under the Equal Status Acts, 2000 to 2008. The submissions made on behalf of both parties in relation to the issues of jurisdiction can be summarised as follows:
Issue of locus standi of the complainants to refer complaints under the Equal Status Acts
Respondent’s submission
4.2 The respondent submitted that the complainants do not have the locus standi to refer a complaint under the provisions of the Equal Status Acts. It submitted that the complainants have based their complaints on a policy that does not currently affect them and even if the Tribunal were to find that the policy amounts to discrimination within the meaning of the Acts, it does not affect the complainants until they are required to leave school or such requirement is imminent. It was submitted that the complaints are premature, in that the complainants are currently in school and are being provided with an education, and therefore, there is, at this point in time, no discriminatory act or otherwise which affects them. In addition to the complaints being premature in time there is nothing to suggest that the complainants will not be permitted to remain in school when the time comes and an application is made by their school in this regard.
4.3 The respondent submitted that the definition of discrimination in section 3(1)(a) of the Equal Status Acts does not incorporate a situation of apprehended discrimination or an act of discrimination that may occur at some point in the future. It was submitted that, in the present cases, the Tribunal is being asked to address a hypothetical situation in relation to what may or may not occur by reference to what the position may or may not be in law when the complainant has reached his eighteenth birthday. The respondent submitted it is well established that the Courts do not entertain hypothetical situations, nor should the Tribunal, for issues which are at this point in time, mute. It was submitted that the Equal Status Acts effectively prohibits discriminatory acts and permits complaints to be made where it is alleged that discriminatory acts have occurred, however there is nothing in the text of the Acts which would suggest that complaints can be made where discriminatory acts are apprehended or anticipated on a contingent basis. The respondent submitted that it would be a revolutionary proposition if the Equal Status Acts were capable of addressing apprehended discrimination, and if this had been the intention of the Oireachtas, in enacting the legislation, the provision for such a contingency would have made explicitly clear in the wording of the Acts.
Complainant’s submission
4.4 It was submitted that the complainants, do in fact, have the locus standi to refer a complaint under the provisions of the Equal Status Acts, 2000 to 2008 on the basis that they are already suffering the effects of this policy. Both Mr. Kn and Mr. Kr have been placed in a situation whereby they are obliged to complete their secondary education in a truncated period of time as compared to students who are attending mainstream school. As the policy dictates that the complainants must leave the school in the year in which they reach their eighteenth birthday, the school and their parents have taken steps to truncate their programme with the result that they have been caused to skip a year of their secondary education. As a result, both of the complainants find themselves in a position whereby they must complete the Leaving Certificate Programme in a shorter time frame than a student who attends a mainstream school i.e. the complainants have only four years in the senior cycle to complete their Leaving Certificate whereas a student who attends a mainstream secondary school, has six years. The decision to truncate their education has proved very challenging and upsetting for the complainants, who have special needs and therefore would benefit from more time rather than less in completing the programme, but the school and their parents have no alternative but to pursue this course to guarantee that they will be permitted to remain in school until the year in which he sits his Leaving Certificate.
4.5 In the case of Miss Hy, she is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete the programme she will be nineteen before she can sit her final examinations. It was submitted that a formal application has been made to the respondent on her behalf for permission to remain at the special school for the school year 2009/10 in order to complete her Leaving Certificate Applied. However, she is still awaiting formal confirmation as to whether this permission will be granted. It was submitted that the policy has already had a negative impact upon her in terms of the stress and anxiety to which she has been subjected as a result of the uncertainty as to whether or not she will be allowed to remain at the school in order to complete her Applied Leaving Certificate.
4.6 In the case of Mr. Kh, he is due to commence his secondary education in September, 2009 at the age of 14 years. It was submitted that he will be forced to enter the senior cycle (i.e. secondary education) before he is ready and if he is to be assured of the possibility of sitting his Leaving Certificate Applied which it is felt that he will have the potential to successfully complete. Because of the implications of the policy, it is planned that the complainant will have to move from sixth class in primary education directly into second year of the secondary school cycle (as he will have only four years available to him in the secondary cycle before he is required to leave the special school). It was submitted that the policy has already had an impact on his education in terms of the plans that have to be put in place in order to ensure that the complainant will be allowed to complete his Leaving Certificate Applied by the end of the school year in which he reaches his eighteenth birthday.
4.7 It was submitted that the wording contained within the definition of discrimination in section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. This section of the Acts has a very wide scope in combating discrimination and it applies to the situation in question in the present cases i.e. an apprehended refusal of permission to remain in the school when the complainants have attained the age of 18 years. It was submitted that this argument is supported by the language used in the definition of discrimination at section 3(1)(a)(iii) where the wording “may exist in the future” is used in relation to the discriminatory grounds. The complainants submitted that the wording within this section is drafted with the intention that it have a very wide scope in combating discrimination, and it was submitted that it applies to the situation that pertains in the present cases, where we are dealing with an apprehended refusal of permission for the complainant to remain at the school following the year in which he has reached his eighteenth birthday.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
Respondent’s submission
4.8 The respondent submitted that the Department of Education & Science is not a “service provider” as defined by the Equal Status Acts and it claimed that the Department was not a provider of education but rather that its role was to provide for education. The respondent submitted that section 7 is the only provision within the Equal Status Acts which governs discrimination in the education sphere and therefore, in order to succeed in the present cases, the complainants must bring their claims within this section of the Acts and demonstrate that the respondent, in exercising its functions in relation to education falls within section 7 of the Acts. It was submitted that in order to do so, the complainants must show that the respondent is an “educational establishment” within the meaning of section 7(1) of the Acts and that it is discriminating against the complainant in one or more of the areas set out in section 7(2) of the Acts. It was submitted that the respondent is not and cannot be regarded as an “educational establishment” and does not fall within the definition of same which is provided for by section 7(1) of the Acts. In light of that fact, the respondent submits that it cannot be guilty of discrimination in relation to access to an educational establishment within the meaning of the Equal Status Acts.
4.9 The respondent does not own, manage or govern the school which is being attended by the complainants and which actually delivers the education which is complained of in these complaints. Instead, it claims that the Education Act, 1998 makes it entirely clear that it is the Board of Management of a school which is obliged to fulfil these functions, and indeed has a specific and recognised right to manage its own affairs in doing so. The respondent referred to the Crowley case[3] in which the relationship between a national school, its teachers and the Department of Education and Science was considered by the Supreme Court. There it was noted that the obligation of the State under Article 42.4 of the Constitution was “to provide for” free primary education and not to supply it directly. It was submitted that the respondent does provide funding to the schools which are delivering the complainants’ education in order to provide for that education but that does not constitute the provision of a service within the meaning of the Equal Status Acts or render the respondent an educational establishment within the meaning of the Acts.
4.10 Even if it is incorrect in its submission that section 7 of the Equal Status Acts is the sole provision governing discrimination in education, the respondent does not fall within any of the remaining meanings of “provider of a service” contained within section 4(6) of the Acts. The respondent does not provide education, so even if the delivery of education constitutes the provision of a service (other than in the sense of section 4(6)(e) of the Acts) this is not one that is provided by the respondent. The respondent is, therefore, not providing a service within the meaning of section 5(1) and is not “a provider of a service” within the meaning of section 4(5) of the Acts. It was therefore submitted that the present complaints against the respondent are fundamentally misconceived and that the Minister is not the appropriate respondent to this complaint.
Complainant’s submission
4.11 The complainants accept that the respondent is not an “educational establishment” within the meaning of section 7 of the Equal Status Acts, 2000 to 2008. However, it was submitted that the provision of education services within the meaning of the Equal Status Acts is not strictly confined to those services that are provided by “educational establishments” within the meaning of section 7 of the Acts. The complainants submitted that the role of the respondent as a service provider within the education sphere is clearly defined in the Education Act, 1998[4] and it was contended that the Minister has a very important role in the control and management on a day to day basis of the school that the complainants attend, which includes, for example, the responsibility for the employment and payment of teachers, the examination and certification system, the evaluation of schools and regulation of school activities through the issue and dissemination of Departmental circulars.
4.12 The complainants submitted that the definition of the word “service” in section 2 of the Equal Status Acts is extremely broad and the Tribunal should give this provision as wide an interpretation as possible in order to achieve the aim and purpose of the legislation i.e. as a social and remedial statute to promote equality and prohibit discrimination[5]. The complainants also submitted that it is clear from the wording included in the long title of the Equal Status Acts that it is remedial legislation that was adopted to address social injustice and consequently, it should be interpreted in a broad manner. Accordingly, it was submitted that the Minister for Education & Science is clearly a service provider in the education sphere within the meaning of section 5 of the Equal Status Acts.
5. Conclusions of the Equality Officer in relation to the issues of jurisdiction
5.1 Firstly, I will first consider the issues of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issues, I am therefore precluded from considering the substantive complaints.
Locus standiof the Complainants to refer a complaint under the Equal Status Acts
5.2 In considering this issue, it was not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education i.e. three years at Junior Certificate level (with the option of completing a transition year) and a further two years at Leaving Certificate level. In the present cases, it was decided that both Mr. Kn and Mr. Kr would have to complete their secondary education in a four year period rather than the normal period of five years to ensure that they would have completed the Leaving Certificate Applied Programme in the year in which they have reached their eighteenth birthday (i.e. in order to comply with the requirements of the policy).
5.3 Having regard to the foregoing, I am satisfied that the effects of the policy have already had an impact on the education of both Mr. Kn and Mr. Kr in terms of the period of time within which they will be afforded in order to complete their secondary education. I accept that the complainants, in effect, will not have to apply to the Minister for permission to remain in the school until they have reached their eighteenth birthday. However, it is clear that the uncertainty as to whether or not they would be allowed to remain at the special school in order to complete the Applied Leaving Certificate, if such an application were necessary at that juncture, has resulted in the decision to skip a year in order to ensure that their secondary education will be completed in compliance with the age requirements of the policy. I am therefore satisfied that the policy has already had a direct impact on both Mr. Kn and Mr. Kr in terms of the duration of time which they have been afforded in order to complete their secondary education.
5.4 In the case of Miss Hy, I note that she is currently in the first year of the Leaving Certificate Applied Programme and if she takes two years to complete this programme she will be aged 19 years before she is due to sit her Leaving Certificate Applied examinations. It was not disputed that students are in general afforded a two year period to complete the Leaving Certificate Applied/Leaving Certificate curriculum irrespective of whether they are attending a special school or a mainstream school. Having regard to the terms of the policy, it is clear that the complainant, upon commencing the Leaving Certificate Applied Programme in September, 2008, would have done so in the absence of any assurance or guarantee that she would be permitted to remain in the school in order to complete this course of education. I am satisfied that the terms of the policy had been clearly communicated to her (by virtue of correspondence received from the respondent) prior to her commencement of this programme of education. I am therefore satisfied that the effects of the policy had a direct impact upon the complainant at that juncture and that it continues to do so on an ongoing basis as it is clearly the case that she will have to apply for permission to remain at the school in order to complete her Leaving Certificate Applied Programme.
5.5 In the case of Mr. Kh, I note that he is due to commence his secondary education in September, 2009 at the age of 14 years. It is planned that the complainant will commence the Junior Certificate Programme at this juncture. I am satisfied that I have not been presented with any evidence from which I could conclude that he will not be in a position to commence the Junior Certificate Programme at this juncture. It is clear that the complainant will be 19 years of age by the time he has completed the five year cycle of education that is normally afforded to students within which to complete the Junior Certificate and Leaving Certificate Applied Programmes. Having regard to the implications of the policy, I am therefore satisfied that the complainant can say with certainty at the present point in time that he will not be afforded the normal period of five years within which to complete the Junior Certificate/ Leaving Certificate Applied Programmes.
5.6 As a consequence of this situation, I accept the complainant’s evidence that it has been necessary to make a decision that he will have to move from sixth class in primary education directly into second year of the secondary cycle in order to ensure that he will have completed the Leaving Certificate Applied by the end of the year in which he will reach his eighteenth birthday. I also accept the complainant’s evidence that it has been necessary to make this decision at the present juncture despite the fact that he would benefit from an additional year of education in the primary cycle. Based on the foregoing, I am satisfied that the requirements of the policy have already had an impact on the complainant’s education both in terms of the duration of time that he has been afforded in the primary cycle and the duration of time which he will be afforded in the secondary cycle.
5.7 I have also noted the complainants’ submission that the definition of discrimination within section 3(1)(a) of the Equal Status Acts incorporates a situation of apprehended discrimination or discrimination which may occur at some stage in the future. As I have found that the policy in question has already had a direct impact on the complainants in terms of their education, I am therefore not required to consider the merits or otherwise of this argument any further in order to decide the substantive issue in question in the present cases. Accordingly, I find that all of the complainants do have the locus standi to refer a complaint under the Equal Status Acts, 2000 to 2008.
Issue as to whether the Department of Education & Science is a “service provider” within the meaning of the Equal Status Acts
5.8 The question that I must address in relation to this issue is whether or not the Minister for Education & Science falls into the category of a “service provider” as defined under the Equal Status Acts, 2000 to 2008. I note that the respondent has submitted that the Minister for Education & Science is not a “service provider” as defined under the Equal Status Acts and that his role is to “provide for education” rather than being a provider of education. In considering this issue, I have taken cognisance of the Education Act, 1998, including the provisions at section 7(1)(c) which state that “each of the following shall be a function of the Minister; to plan and co-ordinate (i) the provision of education in recognised schools and centres for education and, (ii) support services” and section 7(2)(b) which provides that it “shall be a function of the Ministerto monitor and assess the quality, economy, efficiency and effectiveness of the education system provided in the State by recognised schools and centres for education”. I am of the view that these provisions clearly indicate that the Minister has a pivotal role to play in planning and co-ordinating the provision of education in recognised schools and centres for education.
5.9 I accept the respondent’s argument that it is not an educational establishment within the meaning of section 7 of the Equal Status Acts, however, I cannot accept that the type of services which it provides in the educational sphere (in accordance with its obligations under the Education Act) do not constitute a service within the meaning of section 2 of the Equal Status Acts. “Service” is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”. I am satisfied that the types of services provided by the respondent in the educational sphere are covered by the broad definition of “service” within the meaning of the Equal Status Acts. Furthermore, I am of the view that it could not have been the intention of the legislature that such services would be excluded from the remit of the Equal Status Acts.
5.10 I have also taken note of the decision of the Equality Officer in the case of Anastasia Lyamina –v- The Department of Education & Science[6] in which this very issue was decided upon. In this case the Equality Officer took into consideration, as part of his deliberations on this matter, the role and functions of the Minister as provided for in the Education Acts. 1998 and he also had regard to a number of publications by the Department of Education & Science regarding its role in the provision of education within the State. I note that the Equality Officer stated in his findings that “having taken the contents of the Education Act into consideration in addition to the aforementioned publications (Mission Statement, Customer Service Charter and Statement of Strategy of the Department of Education & Science), I have formed the opinion that the Department of Education and Science does fall into the category of a provider of a “service” as defined in the Equal Status Acts, 2000 to 2008” . In considering this matter, I fully concur with the findings of the Equality Officer on this issue in the aforementioned case. Accordingly, I therefore find that respondent is a “service provider” within the meaning of the Equal Status Acts, 2000 to 2008.
5.11 Furthermore, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainants in the present cases.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
6.2 In the present case, it was not disputed that all of the complainants have learning disabilities and I am therefore satisfied that they are persons with a disability within the meaning of section 2(1) of the Equal Status Acts. Therefore, the question that I must address in the present case in whether or not the requirement that is imposed upon the complainants, as students who attend a special school, to leave the school in the year in which they reach their eighteenth birthday constitutes discrimination on the disability ground within the meaning of the Equal Status Acts.
6.3 In considering this issue, I am of the view that it is important to take into consideration the nature of the educational services that are provided by special schools to its students in comparison to the services that are provided by mainstream secondary schools. In this regard, I note that special schools are classified by the Department of Education & Science as primary schools and they provide a wide range of holistic educational programmes that are designed to meet the individual needs of the students and that these schools do not focus exclusively on preparing students to acquire certification in terms of State examinations. The special school which is attended by the complainants caters for children with mild learning disorders, and in addition to the provision of holistic educational programmes, it also provides a full curriculum to Leaving Certificate and offers the Junior Certificate/Leaving Certificate Applied to its students. However, the decision as to whether or not a particular student pursues a curriculum that leads to certification is very much dependent on the individual ability of the particular student and it is therefore the case that a certain proportion of students who attend special schools will be deemed not to have the requisite academic ability to pursue such a course. This is in contrast to the services which are provided by secondary schools operating in the mainstream educational sphere whose primary objective is to prepare students to acquire accreditation in terms of state examinations such as the Junior Certificate, Leaving Certificate/Leaving Certificate Applied.
6.4 I have taken note of the evidence of Mr. A, the School Principal (of the special needs school that the complainants attend) that the issue of preparing students to acquire certification in terms of accredited State examinations came into effect for special schools following the introduction of the Leaving Certificate Applied curriculum in 1995. It is clear that the introduction of courses leading to accreditation, such as the Junior Certificate/Leaving Certificate Applied, to the post-primary curricula of special schools at that juncture made it possible for students attending these schools to pursue courses that were also available to students attending mainstream secondary schools. I am of the view that the introduction of such accredited courses to the secondary level curricula of special schools at that juncture would have resulted in the emanation of two different categories of students in terms of their ultimate secondary level educational objectives, firstly, those students who pursue an accredited course of education (such as the Junior Certificate/Leaving Certificate Applied) and secondly, those students who pursue non-accredited individual programmes of education.
6.5 I am of the view that it is important to note that Mr. Kn, Mr. Kr and Miss Hy are all currently pursuing an accredited course of education, i.e. the Junior Certificate/Leaving Certificate Applied at the special school which they attend. In the case of Mr. Kh, he will be commencing the Junior Certificate Programme at the special school which he attends in September, 2009. I would therefore make an important distinction between the two aforementioned categories of students who attend special schools in terms of deciding whether the application of the policy in question in the present cases is discriminatory. I believe that it is necessary to make such a distinction as the implications of the policy will potentially have different consequences for both of these categories of students.
6.6 Based on the evidence presented, it would appear to be the norm that students who are attending special schools (as a result of their disability) would normally commence their secondary education at a more advanced age than their counterparts in mainstream education. It is therefore highly unlikely that such a student will have completed a five year programme of education leading to certification (e.g. the Junior Certificate and Leaving Certificate Applied) by the time he/she has reached the age of eighteen years. This is in contrast to the situation that pertains in the case of a student who attends a special school and who is pursuing a non-accredited programme of education. This category of student would normally pursue an individually tailored course of education and is therefore not subjected to the same requirements in terms of having to complete an accredited curriculum within a defined period of time in order to comply with the requirements of the policy.
6.7 In the present cases, it was not disputed that the school (which the complainants attend) was aware of the terms of the policy upon the introduction of accredited courses. However, it would appear that it did not strictly adhere to the requirement to apply for permission to retain a student after he/she had reached eighteen years of age and a certain amount of discretion was exercised by the school in terms of the application of this policy. I note that it was only when the terms of the policy were re-stated in a Tuairisc Scoile (a School Report carried out by the Department of Education & Science) in May, 2005 that the implications of the policy were formally brought to the attention of the Parents Association by the School Principal, Mr. A. I am satisfied that the potential implications of the policy came more acutely into focus for the parents/teachers of students who were pursuing or intending to pursue accredited secondary level educational courses (such as the Applied Leaving Certificate) at this juncture and following the receipt of subsequent correspondence from the Department of Education & Science which outlined the requirement of schools to comply with the policy.
6.8 I am satisfied that this increased level of awareness of the policy and the uncertainty as to whether any extension to remain in the special school would be granted, if requested, resulted in decisions been taken which resulted in both Mr. Kn and Mr. Kr skipping a year of their secondary education in order to ensure that they will have completed their respective courses of education by the end of the year in which they reached the age of eighteen years and thereby comply with the requirements of the policy. In the case of Mr. Kh, it has also resulted in a decision that it will be necessary for him to move from sixth class in the primary cycle directly into second year of his secondary education in order to ensure that he will have completed his accredited course of education by the end of the year in which he reaches the age of eighteen years. I fully accept that the policy provides the facility whereby students can apply for permission to remain at the school for a further year in order to complete their respective courses and the evidence adduced confirms that the respondent has not to date refused any such application on behalf of a student who was pursuing a course of education leading to certification.
6.9 However, I am satisfied that the option of applying for an extension was of little reassurance to the complainants when decisions were being taken as to when they should commence their respective accredited courses of education given that the permission to grant any such extension was entirely at the discretion of the Department of Education & Science and there was no guarantee that any such application would be acceded to, if it were to be made at some stage in the future. Having regard to the foregoing, and taking into consideration that the complainants have a learning disability and the respective ages at which they commenced or will commence their secondary education, I am satisfied that the requirement to leave the school at the end of the year in which they will have reached their eighteenth birthday puts them at a distinct disadvantage and presents serious, if not insurmountable, difficulties in terms of their ability to complete a course of education leading to a certification (such as the Junior Certificate/Leaving Certificate Applied) by the time they have reached this age.
6.10 In order for me to determine whether the aforementioned disadvantage to which the complainants have been subjected in terms of the implementation of the policy in question constitutes discriminatory treatment within the meaning of the Equal Status Acts, it is necessary to make the appropriate comparison between the complainants and that of their counterparts in mainstream education. It is also necessary for me to decide whether the alleged discriminatory nature of the policy constitutes direct discrimination within the meaning of section 3(1)(a) or indirect discrimination within the meaning of section 3(1)(c) of the Acts. In considering this issue I note that the “disability ground” is defined in section 3(2)(g) of the Equal Status Acts as “that one is a person with a disability and the other either (my emphasis) is not or is a person with a different disability”. I am of the view that the appropriate comparator in this case is either a student without a disability or a student with a different disability than the complainants who attends a mainstream secondary school. Given the nature of the educational services that are provided by mainstream secondary schools it is the case that the comparator will also be a student who is pursuing a course of education leading to accreditation (i.e. the Junior Certificate or the Leaving Certificate/Applied Leaving Certificate).
6.11 I do not accept the respondent’s argument that the complainants in the present cases fail to satisfy the requirements of section 3(2)(g) of the Acts on the basis that they cannot demonstrate they have a different disability than a person with a mild learning disability who attends a mainstream secondary school. I am of the view that it is absolutely irrelevant, when deciding upon the appropriate comparator in this case, that there are also students who attend mainstream schools who have learning disabilities similar or identical to that of the complainants. I am satisfied that the reason the complainants attend a special school is as a direct consequence of the special educational requirements that arise because of their respective disabilities. It is clearly the case that a special school will cater only for students who have a disability and who have been professionally assessed as requiring the services of such a school. Therefore, the policy in question in the present case only affects students with a disability who attend special schools and it does not affect either student’s without a disability or with a different disability to the complainants that attend mainstream schools.
6.12 I have noted that the complainant has also made a supplemental argument that the policy in question is both directly and indirectly discriminatory against the complainants within the meaning of sections 3(1)(a) and 3(1)(c) of the Acts. As I have already stated, I am satisfied that the policy only affects students with a disability who attend special schools and that it does not affect students attending mainstream schools. I am therefore satisfied that the terms of the policy i.e. the requirement for students attending special schools to leave the school at the end of the year in which they reach eighteen, does not constitute “an apparently neutral provision” within the meaning of section 3(1)(c) of the Acts, rather it is a provision which directly affects a specific category of persons, namely disabled students who attend special schools. I therefore find that the issue as to whether or not the policy in question is discriminatory falls to be decided within the provisions of section 3(1)(a) of the Equal Status Acts i.e. direct discrimination.
6.13 In making the apposite comparison in this case, it is not disputed that a student who attends a mainstream secondary school will be afforded at least a six year period within which to complete their secondary education i.e. three years at Junior Certificate level with the option of completing a transition year and a further two years at Leaving Certificate level (in some cases the student will be also be facilitated in repeating the final year of the Leaving Certificate programme). It is also the case that a student in mainstream education is not required to have completed his/her secondary education by the end of the year in which he/she has reached their eighteenth birthday. I accept that the Leaving Certificate Applied may not be available in every mainstream secondary school. However, in the mainstream schools where it is, the students who pursue this course are automatically entitled to avail of the same facilities in terms of the duration of time allowable to complete their studies, as those students who pursue the standard Leaving Certificate programme. Having regard to the foregoing, I am satisfied that the policy which requires the complainants (as students who are pursuing or intend to pursue an accredited course which is also available in mainstream secondary education) to leave the special school at the end of the year in which they reach their eighteen birthday, in circumstances where no such requirement is enforced upon students who attend mainstream secondary education, clearly amounts to less favourable treatment on the grounds of their disability within the meaning of the Equal Status Acts.
6.14 I have carefully considered the respondent’s evidence that the implementation of the policy is based on sound, reasonable and rational considerations involving the interests of the pupil, the other pupils in the special schools, other children with special educational needs and resource implications. I have also taken into consideration that the Minister has determined that the most appropriate and efficient way to use resources is to provide for education in special schools up to the age of eighteen and then to provide for ongoing education, if necessary or appropriate, through the Department of Health and Children/HSE. In considering this defence, I accept that the policy may be entirely appropriate in the situation of a student at a special school who has reached the age of eighteen years and who is not pursuing an accredited course of education such as the Leaving Certificate Applied. In such cases it may well be beneficial and in the best interests of that particular student (depending on their individual circumstances) to transfer from the special school to adult services at the end of the year in which he/she has reached the age of eighteen years. However, I cannot accept that the policy serves the best educational or developmental interests of students, such as the complainants, who are pursuing an accredited course of education at a special school. I cannot see any merit in a policy that could preclude such a student from completing an accredited programme of education in the school environment which has developed their ability and confidence to complete such a programme.
6.15 Based on the evidence presented, it is clear that the policy at issue in the present cases had been in existence for a considerable period of time prior to the introduction within special schools of courses leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied). I am of the view that the indiscriminate application of this policy for all students who were attending special schools became untenable at that juncture and it should have been reviewed in order to ensure that students in special schools who were completing courses leading to accreditation were afforded similar facilities to their counterparts in mainstream education in terms of the duration of time that they are allowed to complete these courses. In the circumstances, I find that the complainants have been subjected to less favourable treatment than their counterparts in mainstream education on the grounds of their disability in terms of the requirement that they should leave the special school at the end of the year in which they have reached their eighteenth birthday. Accordingly, I find that the complainants have succeeded in establishing a prima facie case of discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination.
Reasonable Accommodation
6.16 The parties also made submissions, both in writing and at the oral hearing of the complaints regarding the issue as to whether or not the policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present cases. Accordingly, I am satisfied that it is not necessary for me to consider these complaints in the context of section 4 of the Acts.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainants have established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts in terms of the requirement that is imposed upon them by the respondent to leave the special school at the end of the year in which they have reached their eighteenth birthday and that the respondent has failed to rebut the inference of discrimination.
7.2 I hereby make the following order in accordance with section 27(1)(a) of the Equal Status Acts:
· The respondent is hereby directed to pay both Mr. Kn (Case Ref. Nos. ES/2007/0005 and ES/2008/0049) and Mr. Kr (Case Ref No. ES/2008/0072) the sum of €4,000 and to pay Miss Hy (Case Ref No. ES/2008/0073) the sum of €2,000 for the effects of the discriminatory treatment in this case. In the case of Mr. Kh (Case Ref. No. ES/2008/0071), I do not consider an order for compensation to be appropriate. In making this decision, I have taken into consideration that Mr. Kh is due to commence his secondary education in September, 2009 and having regard to the order which I have made in paragraph 7.3, I am satisfied that it will result in him being afforded the same duration of time to complete the Junior Certificate/Leaving Certificate Applied Programmes as his counterparts in mainstream education.
· In deciding upon the quantum of the awards in the cases of Mr. Kn, Mr. Kr and Miss Hy, I have taken into consideration that Miss Hy’s period of education in the secondary cycle has not been truncated to date and she has not been forced to skip a year out of the normal cycle that is afforded to a student who is pursuing the Leaving Certificate Applied Programme. However, I am satisfied that the policy in question has resulted in a great deal of stress and anxiety to her in terms of the uncertainty as to whether she will be allowed to complete this programme of education in the special school which she presently attends. This is in contrast to the situation that pertains in the cases of Mr. Kn and Mr. Kr, both of whom have been forced to skip a year of their education in the secondary cycle in order to ensure that they will have completed the Leaving Certificate Applied Programme in compliance with the respondent’s policy. I am of the view that this course of action has had a serious impact on their education, especially in light of the fact that they are students with a disability who would benefit with being afforded a longer period of time to complete their respective courses of education than their counterparts in mainstream education; however, the policy in question has resulted in a situation whereby they have been forced to complete their secondary education in a truncated period of time.
7.3 In accordance with the provisions of section 27(1)(b) of the Equal Status Acts, the respondent is hereby directed to review the policy that requires students who are attending special schools to leave the school at the end of the year in which they reach their eighteenth birthday with a view to ensuring that students in special schools who are pursuing courses leading to accreditation (such as the Junior Certificate/Leaving Certificate Applied) be afforded the same duration of time to complete these courses as their counterparts in mainstream education.
Enda Murphy
Equality Officer
5th August, 2009
[1]The complainants referred to the case of Eldridge –v- British Columbia (Attorney General) [1997] 3 SCR 624 in support of its submissions in relation to this point
[2]The Respondent referred to the case of the Board of Education of Hendrick Hudson Central School –v- Rowley (in which the Supreme Court of the United States of America commented on the meaning of the phrase “free appropriate public education”).
[3]Crowley -v- Ireland [1980] IR 102 at page 126
[4]Sections 2 and 7 of the Education Act, 1998 refers
[5]The complainant referred to the Supreme Court judgement of McGuinness J. in Western Health Board –v- K.M. (S.C. No. 103 of 2001)
[6]Equality Officer Decision No. DEC-S2009-016 refers