Equal Status Act
Cases Discrimination by Association
DEC-S2003-040-041- Full Case Report
Cassidy & Wesemann v Eamonn & Paul Doherty
Mr Cassidy and Ms Wesemann referred claims 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 cases 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. Dispute
2.1. Introduction
This dispute concerns a claim by Mr Cassidy and Ms Wesemann that they were discriminated against by the respondents, contrary to the Equal Status Act 2000, on the grounds of gender and family status in that they were asked to leave their accommodation in the respondent’s premises shortly after Ms Wesemann moved in. The respondent does not deny that they were asked to leave, but that it was on grounds other than the complainants’ gender and family status.
2.2. Summary of the Complainant’s case
The complainants claimed that by being asked to leave, issued with a notice to quit they were discriminated against on the grounds of their gender and family status. They also Cassidy & Wesemann v Eamonn & Paul Doherty claimed that the respondents harassed and victimized them in terms of the Equal Status Act, 2000.
2.3. Summary of the Respondent’s Case
The respondents explained that the premises was suitable only for three people and had shared facilities, notably the bathroom. Ms Wesemann had moved in without any reference to the respondents. However, the complainants were still allowed a period to find other accommodation and move out. Despite having made agreements with his landlords, Mr Cassidy failed to honour them.
3. Evidence of the Parties
3.1. Complainants Evidence
Mr Gordon Cassidy, Complainant
Mr Cassidy took up residence as a tenant at the premises on 3/7/99. His landlord, Mr Doherty, is his brother-in-law, married to Mr Cassidy’s sister.
Mr Cassidy had a verbal contract and took up residence in a room at the rear of the premises. He was provided with a rent book. The other tenants were friends of Mr Dohertys.
At the end of February 2001 rent was paid to Mr Doherty and recorded in the rent book. The following evening Mr Doherty’s brother and co-owner of the premises delivered a letter (a notice to quit) which mentioned that Mr Cassidy had declined to pay rent.
This was a misunderstanding, since while Mr Cassidy had said he would not pay rent, he had meant that he would not pay rent for the new room until it was refurbished. (Mr Cassidy had requested the front bedroom which had been vacated and refurbished.)
Mr Cassidy never moved into the front room. This was all because of his partner and child.
Mr Cassidy was granted a deferral of the notice to quit, because, he maintains, the notice given was insufficient.
Mr Cassidy felt that he was discriminated against on the gender ground because he was residing in the property with a family and was unmarried.
He felt he has been victimized because he was constantly getting letters, because work was being done late at night in the premises and because the landlord was constantly entering the premises. This was during a period June to August 2001.
Mr. Cassidy had had to call the Gardaí in relation to the behaviour of one of the other tenants (name provided).
Tenants are entitled to peaceful occupation of their accommodation.
Ms Nadine Wesemann, Complainant
Ms Wesemann took up permanent residence with Mr Cassidy in November 2000. She was pregnant at that time. Her baby was born in January 2001.
On 25/3/01 both landlords were on the premises and said that they did not want a woman on the premises.
When she moved into the house she paid part of the bills. The individual units do not have separate supply lines. The bills were left in by the landlord and the tenants divided the amounts between them. They paid the required amounts directly to the service providers while the rent went to Mr Doherty.
In relation to gender discrimination Ms Wesemann stated that the landlords said that they did not want a woman in the house, and did not want her baby. They wanted a house with ‘lads’.
While she was on maternity leave Mr Doherty came into the house and said things like ‘why don’t you take her out’ referring to the baby. Ms Wesemann considered this inappropriate since it was raining at the time.
He suggested that they would have to pay more of the heating bill since she was there all day while the other tenants were not. Ms Wesemann stated that the other tenants had the heat on when they (Cassidy and Wesemann) were already asleep in the evenings.
Ms Wesemann felt that Mr Doherty’s question asking who would pay for the child guard for the stairs amounted to victimization as did his having repair work done in the house between 3pm and 8pm.
Ms Wesemann pointed out that while she was on maternity leave she was not working and could not therefore afford to move out. This would have involved finding a crèche and a new home. She estimated that this would have cost around €3000.
3.2. Respondent’s evidence
Mr Eamonn Doherty, Respondent
The premises in question has two bedrooms upstairs, and the old sitting room downstairs at the front is also a bedroom. The bathroom, kitchen and living room were shared by all tenants. There is one person per room.
Mr Doherty owned the premises since 1991, but he sold half to his brother in 1995.
They have always had three tenants.
The rooms had occasionally been rented to couples and there had been no problem once the bills were shared appropriately.
Mr. Cassidy moved into the back bedroom at £55 per week payable in advance. He was only asked to respect the other tenants and to share the bills equally.
The initial agreement with Mr Cassidy was that he should pay his rent in advance. However, when he expressed difficulties with this in summer 2000 he was allowed to pay in arrears. This was a facility only given to Mr. Cassidy and only because he had requested it. Mr Doherty expected that Mr. Cassidy would return to work, that he would inform him that he was working and could pay normally i.e. in advance.
Another tenant told Mr Doherty in September 2000 that Ms Wesemann was there, but he was never approached formally about MS Wesemann moving in. When he asked why she had moved in Mr. Cassidy told him they had nowhere to go. Mr Doherty gave them until the end of the year to leave
He was aware of her pregnancy. He did not seek any additional rent.
The baby was born in 2001 and another tenant (name provided) moved out. Mr. Cassidy asked if he could move into that tenant’s room as it was larger. Mr Doherty agreed to do up the front room, move Mr. Cassidy in at a rent of €100 per week and then work on the room downstairs.
He redecorated the room, including insulation, lights, carpet, and sockets. When it was nearly completed Mr. Cassidy asked for wardrobe space. Mr Doherty replied that he had to see how the money goes and asked if Mr. Cassidy could use the old wardrobes in the meantime. Mr. Cassidy lost his temper and said that he would not pay rent until new wardrobes were provided. This was the last Monday in February 2001.
Mr Doherty stated that he felt at this point that he had been doing his best only to be threatened with rent not being paid.
There had been no previous difficulties with rent, apart from the payment provisions made.
Mr. Cassidy was not getting on with the other tenants, he was a gardener and frequently entered the premises in very mucky boots, and he washed his dog in the communal shower.
There were constant rows between Mr. Cassidy and the other tenants, and constant difficulties and rows between Mr Cassidy and himself.
Rent was normally paid every Saturday. When asked for the rent Mr. Cassidy would reply “I’m thinking of paying it”.
When asked why he attempted to terminate Mr. Cassidy’s tenancy, Mr Doherty said he had just had enough of him. He was sick of him and had tried to do his best.
Mr. Cassidy had been served a notice to quit dated 1/3/01 with 31/3/01 as the final date to quit. Mr Doherty was expecting him to go and that Ms Wesemann and the baby would leave also. On 25/3/01 Mr. Cassidy asked why he and Ms Wesemann could not stay in the back room. Mr Doherty explained that it was unsuitable and too small. At end of March 01 Mr. Cassidy asked for more time. During this period there was contact between the parties as work was going on in the room downstairs.
The landlords agreed to extra time. One condition attached to this was that Mr. Cassidy should pay his rent in advance.
Mr. Cassidy did not pay the rent in advance and he did not move out at the end of July.
A civil summons (ejectment proceedings) was issued on 25 July 01 for a hearing date of 20/9/01. The landlords had previously booked holidays for this date and could not attend. Mr Cassidy’s father, (Mr Doherty’s father-in-law), asked Mr Doherty for a special arrangement for Mr Cassidy.
In response Mr Doherty agreed to meet Mr. Cassidy in a pub. They discussed what time Mr. Cassidy needed and offered to allow him to stay until the end of January 2002.
The complainant’s representative produced a Reference from Mr. Doherty attesting to the fact that Mr. Cassidy was an acceptable tenant. He asked Mr Doherty to reconcile this with his evidence as to the difficulties that Mr. Cassidy caused. Mr Doherty responded that he did not want to get in the way of Mr. Cassidy finding alternative accommodation.
It was suggested that the old wardrobe was mouldy, that the complainants offered to buy their own wardrobe after the event, that the cost of a wardrobe was minimal in comparison with the cost of the work being undertaken, and that the wardrobe issue was only a pretext for not having the complainants there. Mr Doherty replied that it may seem unreasonable to say he could not afford it but he did not want to run out of money until the major work was complete. Mr Doherty asked why they could not continue to use the old one for a month.
Mr Doherty was aware that Mr. Cassidy had had to call the Gardaí in relation to the other tenant. Mr. Cassidy, however, occasionally refused to allow people into the house, and caused difficulties also in relation to the phone and threatening behaviour.
Mr Doherty had lent Mr. Cassidy a car and had given him money for a car. He had generally tried to help him out.
Other tenants were permitted to move partners into the premises sharing their room. These arrangements were relatively short term and temporary before the couples moved to suitable accommodation.
Mr Doherty denies that he said that he did not want women in the premises. He denies also that he made any such references to babies.
Mr. Paul Doherty, respondent
Other tenants were being driven out by Mr. Cassidy’s behaviour.
He was concerned on hearing his brother’s report that Mr. Cassidy had threatened not to pay his rent.
When he went to speak to Mr. Cassidy he was very aggressive, so he gave Mr. Cassidy the letter (notice to quit) even though it was slightly incorrect in relation to the payment of rent.
However, rent was not the issue at the end of the day. There had been too many difficulties arising with the tenancy.
Mr Barrett, witness for the respondents
Mr Barrett was a tenant at the premises from April 1995 until May 2000.
the first week when Mr. Cassidy moved in went well, but from then on things deteriorated until he, Mr Barrett had to leave.
Mr. Cassidy’s general behaviour was unacceptable, he was unco-operative and inconsiderate.
Mr. Cassidy was allowed to have a dog on the understanding that it would not affect the other tenants. It did however and also affected the neighbours.
Mr Barrett felt that the dog led to confrontational situations over things which should not be an issue.
The dog was initially kept in the garden but neighbours complained. The dog was then moved to the sittingroom, but this led to situations among the tenants. The dog ultimately was kept in Mr. Cassidy’s bedroom. These moves show that at least Mr. Cassidy was attempting to address the complaints made.
When Mr Barrett found the dog shampoo in the shower that they all had to share he was upset.
After the third month of Mr. Cassidy’s tenancy money became a big issue with him in relation to the bills and this led to confrontations.
At one point Mr. Cassidy was working as a gardener and he would enter the house with his work boots still on leaving muck throughout the house and on the stairs. This caused problems in relation to the shared facilities including the bathroom.
The tenants raised the concerns with the landlord as they arose although Mr Barrett pointed out that all along he felt that as Mr. Cassidy was related to the landlord he would always be given preference.
Mr Barrett is a friend of Mr Dohertys.
In response to a question about the condition of the house and his room, Mr Barrett stated that the house was clean though the windows were draughty. These were to be fixed as part of the changes to be made.
The money for the bills was left on the mantelpiece and whoever was going to the post-office would pay them.
Mr Barrett purchased a house on leaving the tenancy. His partner did not stay there with him full time before he left.
4. Matters for consideration
The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) 3 (1)(b), 3 (2)(a), 3 (2)(c) and 3(2)(j)of the Equal Status Act 2000 in terms of Section 6 (1) and 11(5) of that Act.
3. — (1) For the purposes of this Act, discrimination shall be taken to occur where —
(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,
(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,
.
Section 3 (2) provides that: “As between any two persons, the discriminatory grounds …
are …
(a) that one is male and the other is not (the “gender ground”),… …
(c) that one has family status and the other one does not or that one
has a different family status from the other (the “family status ground”),
…
Victimisation , in terms of the Equal Status Act, 2000, is included as a ground and is defined in section 3(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”)”.
Section 6(1) of the Equal Status Act, 2000 is as follows:
“6. — (1) A person shall not discriminate in —
(a) disposing of any 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”
Section 11(5) is as follows:
“(5) Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the gender and the family status grounds).
(b) Evidence of specific treatment of the complainants by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone of a different gender, or who has no family status, or who has a different family status received, or 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5. Conclusions of the Equality Officer
5.1. Prima Facie Case
Admissability
According to Mr Doherty the request to leave was first mentioned to Mr. Cassidy around September 2000. Discrimination on the grounds of gender or family status by a service provider was not made illegal until October 2000 with the implementation of the Equal Status Act, 2000. While Mr. Cassidy did not contest this mention of September 2000 Ms Wesemann stated that she moved into the premises in November 2000 and around that time she discussed the payment of a contribution to the shared bills. Apparently, any sightings of Ms Wesemann in the house before November relate to short stay-overs. On the grounds of her gender Ms Wesemann differed from all of the other tenants in the house at the time. She was also pregnant and therefore had family status while none of the other tenants had family status in their own right. Since it was unlikely that Mr. Cassidy would have accepted without comment a request for the couple to leave if Ms Wesemann was not already living there, I find on the balance of probabilities that the first request to leave the house was made after Ms Wesemann moved in, that is after November 2000 and is therefore within the scope of the Equal Status Act, 2000.
Applicability of the grounds
Ms Wesemann differed from all of the other residents by her gender and, since she was also pregnant when she moved in, she also had family status. Mr Cassidy claims that he was treated less favourably by the respondent because of his gender. Since Mr. Cassidyadduced no evidence to show, nor did he suggest, that Mr Doherty treats women more favourably, Mr Cassidy’s claim on the gender ground appears to be on the basis of his association with Ms Wesemann. Mr. Cassidy attained family status on the birth of his baby. Prior to that date he had family status by association with his partner Ms Wesemann while she was pregnant. On that basis both the gender and family status grounds apply to Mr Cassidy Instances of specific treatment of the complainants by the respondent The incidents that the complainants allege were discriminatory occurred on 25/3/01 and previously on 28/2/01-1/3/01.
On 25/3/01 it is alleged that during a conversation the respondents said something to the effect that they did not want a woman or a baby on the premises, that it was a ‘lads’ house. The respondents deny this. Therefore the situation is that two people maintain that it was said while two maintain that it was not.
On 28/2/01 the complainants paid their rent and this was noted in the rent book. On 1/3/01 a notice to quit was issued to Mr. Cassidy. The covering letter stated that the Mr. Cassidy had “declined to discharge the rent due in respect of [his] occupation of part of the premises at….”. The Notice to Quit itself was addressed to:
‘Gordon Cassidy, Tenant
And all other persons in occupation’
in that part which he held as a monthly tenant. The Notice specifically mentions Mr. Cassidy and the reference to all other persons, in occupation of the same part of the house as Mr. Cassidy, appears to be a reference to Ms Wesemann and the couple’s baby. This is evidence of specific treatment of both complainants. Less favourable treatment In relation to 6(c) above it is now necessary to assess whether the treatment received by the complainants was discriminatory on the grounds cited. The respondent admits that after Ms Wesemann’s arrival he told the complainants that they should be out of the house by the end of the year (2000). Therefore the apparent trigger for asking them to leave was her arrival. It is clear from the evidence presented that the landlords felt that the ongoing difficulties experienced with Mr. Cassidy as a tenant were considerable. However, he was not issued with a notice to quit while he lived alone. The complainants’ baby was born in January 2001. At the end of February the couple were issued with a Notice to Quit the premises Since the request to leave was issued after Ms Wesemann moved in and the notice to Quit was issued the month after the birth of her baby, I am satisfied that an overall inference of discrimination on the gender and family status grounds arises, based on these actions taken by the respondents.
I find that the complainants have established a prima-facie case of discrimination on the gender and family status grounds.
5.2. Respondent’s Rebuttal
Request to leave & Notice to Quit
In their evidence, the respondents pointed out that the house normally accommodates three people, and so far these have been male. A number of facilities in the house are shared, including particularly the bathroom. On a number of occasions the respondents have allowed tenants to move their partners in for a period. One example given was where the couple was awaiting the readiness of new accommodation. This appears to have been by arrangement. Mr Cassidy did not approach the respondents to make any such arrangements. However when they approached him, Mr Cassidy said that they had nowhere else to go. They were asked to leave by the end of the year. This appears to be in keeping with the landlord’s normal practice, and not less favourable treatment. This request to leave was ignored as the complainants were still in situ after the New Year. Their baby was born in January and negotiations were entered into about the possibility of moving from the back room to the larger front room which was redecorated by that time. A discussion of wardrobes and the continued use of those already available appears to have become heated and confused. Mr Cassidy made a comment about not paying rent in the future. During the hearing Mr Cassidy maintained that this was a reference to the renting of the new room and not his accommodation at that time. Mr Eamonn Doherty perceived this as a threat not to pay in future at all. When Mr Paul Doherty heard of this discussion he suggested that it was time to take action. He contacted his solicitor and called to the complainants to discuss the matter. Again the discussion was not congenial. Mr Doherty stated that Mr Cassidy’s manner was very aggressive and so he gave him the Notice to Quit even though it was slightly incorrect. It was incorrect since it referred to the future non-payment of rent although the rent for that month had just been paid.
The respondents had informed the complainants that they were required to move since the accommodation was unsuitable. It appears to have been entirely out of the ordinary, and in the complainants’ favour, that the respondent entered into negotiations at all in respect of the larger front room for them as a family. Mr Cassidy failed to avail of this opportunity because of a dispute over wardrobes. In the light of all of the previous difficulties caused by Mr Cassidy, exacerbated by the difficulties encountered while trying to discuss the issues with him, I am satisfied that the respondent’s reason for the eviction was as stated. That is, they had tried unsuccessfully to come to an arrangement with him and had simply had enough.
I am satisfied that on the balance of probabilities the request to leave and the Notice to Quit were issued in accordance with the normal practice of allowing couples to stay short term by arrangement, even though no arrangements had been attempted on behalf of Ms Wesemann. This normal practice of allowing couples to stay short term is a facilitation which has been granted in spite of the size of the premises. I find therefore that the requests were not based on either of the discriminatory grounds alleged but that it was because it was normal practice and because of Mr Cassidy’s conduct and manner.
Harassment
On 23/3/01, during the period of notice relating to the eviction notice, another discussion took place and as mentioned above it is alleged that some discriminatory remarks were made. Unwelcome remarks which are based on a discriminatory ground constitute harassment in accordance with section 11 (5), quoted above.
It seems to me entirely possible that references to the presence of Ms Wesemann and her baby were made during the various discussions throughout the period as well as that on 23/3/01. However, it is not clear if these would have been simply because of her gender and family status, i.e. based on discriminatory grounds, or whether they would have been because she had moved in without arrangement and because her presence in addition to the arrival of her baby had increased the population of a house suitable for three people by 66%. Since there is a clear dispute as to what was said, it is not possible for me to arrive at a conclusion as to whether such comments were in fact made, and if so, whether or not they “could reasonably be regarded as offensive, humiliating or intimidating” to the complainants. Since I have not been satisfied on the balance of probabilities that such comments, if made, were so perceived, I find that the respondents did not harass the complainants in terms of section 11(5).
Subsequently agreement was reached that Mr Cassidy and his family could remain on the basis of rent being paid in advance1, provided he moved out by July. Mr Cassidy did not honour his agreement as he did not pay his rent in advance and did not move out as agreed. Mr Cassidy’s father, Mr Eamonn Doherty’s father-in-law, asked Mr Eamonn Doherty later in the year to make further provision for Mr Cassidy, which he did.
1 The facility to pay after the relevant period rather than in advance had been agreed to by the respondents who had expected it to last for a short period only.
Victimisation
At the hearing, Ms Wesemann stated that Mr Eamonn Doherty’s question about who would pay for the required child guard for the stairs that would be needed amounted to victimisation. She also suggested that the fact that repair work would be done between 3pm and 8pm in the house was victimisation. Mr Cassidy mentioned that they were constantly getting letters and that the respondents were entering the premises. When asked to clarify this Mr Cassidy confirmed that they only entered the shared areas.
The letters sent were as follows:
Notice to Quit, and covering letter, 1/3/01
Response to phone call from Mr. Cassidy 12/3/01
Granting of extension of time 19/4/01
Civil Summons, eviction notice, and covering letter 30/7/01
Notice of work to be carried out on Mr Cassidy’s room 3/8/01
Notice of timing of work 8/8/01
Victimisation is defined in Section 3(2)(j) of the Equal Status Act, 2000, and quoted above. None of the instances of alleged victimization appear to be direct reprisals on the complainants for any actions taken by the complainants in terms of sub-section 3 (2)(j).
I am satisfied that
The question about the cost of the child guard is a reasonable one.
It is not extraordinary that repair work should be carried out during the hours specified.
The number and content of letters produced to me are reasonable given the level of communication with the complainants.
The respondents were entitled to enter the premises in the manner described.
I find therefore that these actions of the respondent do not constitute discrimination on the victimization ground in terms of section 3(2)(j). Cassidy & Wesemann v Eamonn & Paul Doherty
6. Decision DEC-S2003-40
I find that the complainant, Mr Cassidy, was not discriminated against, victimized or harassed on either the gender ground or the family status ground in accordance with section 3 of the Equal Status Act, 2000, in terms of Sections 6 or 11
7. Decision DEC-S2003-41
I find that the complainant, MsWesemann, was not discriminated against, victimized or harassed on either the gender ground or the family status ground in accordance with section 3 of the Equal Status Act, 2000, in terms of Sections 6 or 11
Bernadette Treanor
Equality Officer
21 May 2003
DEC-S2009-014 – Full Case Report
Equal Status Acts 2000 to 2008
DECISION NO: DEC-S2009-0014
MacMahon v Department of Physical Education and Sport, UCC
File No. ES/2005/0056
Date of Issue 2 March 2009
Key words
Equal Status Acts, 2000 to 2004 – Section 7(2) – Gender ground – Direct discrimination, Section 3(2)(i) –Scholarship award – Section 7(4) – Sports – Athletics – Cork – Criteria for interview – Shortlisting process – Interview Process – Statistical evidence
1. Delegation under the relevant legislation
1.1. On 1 April, 2005, the complainant, Mr. Brian MacMahon, referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2007 and under the Equal Status Acts, 2000 to 2004, the Director delegated the case to me, Gary O’Doherty, an Equality Officer, for investigation, hearing and decision, and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2004. This delegation took place on 23rd November, 2007, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Cork on Thursday, 11th September, 2008. Both parties were in attendance at the hearing. The hearing had been adjourned twice at the request of each party. I requested further information from both parties and final correspondence was received on 19th November, 2008.
2. Dispute
2.1. The dispute concerns a complaint by Mr MacMahon that he was discriminated against by the respondent on the Gender ground contrary to the Equal Status Acts, 2000 to 2004, in terms of Sections 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004, and contrary to Section 7(2)(b) of the Acts in that he was treated less favourably than a person of another gender was, or would have been treated, in being refused access to a benefit, being the provision of a sports scholarship, by the respondent.
3. Case for the Complainant
3.1. The complaint concerns the application of the complainant, a track and field athlete, for a sports scholarship which was offered by the respondent in 2004. The complainant was informed on 27 October, 2004, that he had not been shortlisted for the scholarship. (His application had been sent in before 7 May 2004, the closing date for receipt of such applications). On 8 November following, he wrote to the respondent requesting it to reconsider his application. On foot of this letter, he was granted an interview, which took place on 23 November, and was conducted by three of the five members of the Sports Scholarship Committee. It was decided by the respondent to defer a final decision on the awarding of the scholarship to Mr MacMahon until after the National Senior Cross-Country Championships (hereinafter referred to as NSCC Championships), which were to be held later that week (on November 27/28), in order to provide him with an opportunity to demonstrate his abilities and/or potential. Shortly after his performance at these Championships, and in light of same, the complainant was advised that his application was being refused. He notified the respondent of his intention to make a complaint to the Equality Tribunal, in accordance with Section 21(2) of the Equal Status Acts, 2000 to 2004, and subsequently made a complaint as outlined at paragraph 1.1 above.
3.2. The substance of the complainant’s allegation is that it is more difficult for males to receive the scholarship in question, that there is a policy of gender balancing in the operation of the scholarship, and that the respondent engages in positive discrimination (in favour of females) in relation to it. He argued that he met the three criteria the respondent had set for receipt of the scholarship, and, on that basis, he should have been awarded it. The reason he was not, he alleged, was because he was male. The criteria in question were:
· the applicant has reached or has the potential to reach a very high level of performance in his or her chosen sport as indicated in performance levels (including times), representational honours, achievements and recommendations from coaches (hereinafter called Criterion 1)
· the recipient of the sports scholarship must be prepared to participate for UCC at all levels and as required (hereinafter called Criterion 2)
· the recipient must be a registered student pursuing an under graduate or post graduate programme in UCC (hereinafter called Criterion 3). It was agreed by the respondent that the complainant met the requirements of criterion 3.
3.3. With regard to Criterion 1, the complainant argued that his representational honours and times met its terms. As proof, he provided a detailed list of his athletic performances in general, including such honours and times. With regard to his performance at the NSCC Championships in question, he agreed that he had not performed well that day but argued that everyone is entitled to a bad day and pointed out that he still finished 4th in the U-23 champs on the same day and that, as he knew the scholarship “was on the line”, he was under added pressure, which had a negative impact on his performance. With regard to the element of “recommendations from coaches”, he stated that UCC ask for the recommendations, and, while females are coached by UCC coaches, males generally receive advice but not coaching from these coaches. He further stated that the respondent never spoke with the complainant’s own coaches to canvass their opinion. He said that UCC were more interested in applicants who were already coached by UCC coaches and that there was a serious lack of transparency in that regard. He added that this showed that his application was not properly researched.
3.4. As further evidence that he met criterion 1, the complainant argued that the scholarship application in question was superior to the one he presented for the same scholarship in 2003 (as his athletic performances were superior in 2004) and yet he had been shortlisted for interview on that previous occasion. He considered that he did not “stand a chance” when he initially applied in 2003, but was interviewed nonetheless. He did not consider appealing any aspect of the application procedure that year as he did not feel that there was discrimination against him at that time. However, he felt that he had a marked improvement in 2004 and that, on that basis, insufficient weight was given in the process to improved athletic performance.
3.5. With regard to Criterion 2, the complainant argued that he had gone out of his way to represent UCC, including by sitting one of his exams abroad to facilitate his participation in a representative event. He stated that the result of this exam was affected by the conditions involved and was his worst result of the year, so much so that it ultimately affected his overall result significantly. He argued that this was an example of his commitment to participation for UCC. He also said that he had been injured throughout the season and was unfairly treated as a result. Finally, in relation to Criterion 2, and in response to concerns expressed by the respondent in its submission, the complainant stated that his decision not to compete in an Intervarsity Road Relays (IRR) competition, which was to be held at the same time as he was seeking to have his application reconsidered, was made after receiving the letter informing him that he was not getting the scholarship (i.e. that it was his disappointment at that refusal that prompted his decision to withdraw from the competition).
3.6. As proof of the alleged discrimination on the gender ground, he referred to the application of a named female comparator, Ms A, and gave examples of their comparative performances to show that he was at least as entitled to a scholarship as her. He submitted that she was awarded one and he was not because of their respective genders. He also stated that he was adversely affected by having a smaller interview panel than others, including Ms A. His interview was carried out by Ms B, Mr C and Mr D, who was the Chairperson of the Committee, whereas Ms A and others received an interview including the other two members of the Committee. He did not consider that he was discriminated against in the course of the interview but believed that it was carried out as just an afterthought in order to appease him. He also provided a comparison between a named hurler and camogie player where he argued that the hurler, who he stated was more accomplished, did not get the scholarship in his first two years in the college.
3.7. In general, the complainant stated that “lower standards of athletic performance were applied for female athletes than were applied in my case”. He presented statistical evidence for this, including that in 2004/05, there were 93 applicants for the scholarship in question and that 55% of females were successful and 36% of males were successful[1]. He argued that those statistics indicated a clear bias in favour of women applicants, both by the University in relation to the Scholarship application, and in athletics generally in worldwide terms.
3.8. The complainant considered that the principal difference in 2004, as opposed to when he applied in 2003, was that there were less experienced personnel involved in the process. Finally, he believed that females were more favoured in the scholarship applications subsequent to the time when Ms B became involved in the process (Ms B became Acting Director of the Department of Physical Education and Sport in the respondent University in September, 2004).
4. Case for the Respondent
Outline of the process
4.1. The respondent confirmed that, throughout the process, the deciding factor in relation to the relevant application was the application form itself and how the information outlined in it fit the three criteria outlined at 3.2 above. The shortlisting process was carried out by a panel consisting of three members. One of these members was the Director of Physical Education and Sport (hereinafter referred to as the Director) at the University, who, at the beginning of the year in question, was Mr E. However, Mr E retired before the shortlisting process was completed, and was replaced on the panel by Ms B. The shortlisting panel also includes one other member of the main committee, (in 2004 it was Mr C), and the UCC coach for the sport for which the application is made. Thus, each sport has a different panel. The respondent also stated that, up to and including applications for the year 2004-2005, previous awardees (hereafter referred to as “re-awardees”) were not included in the normal application process. They met on an informal basis with the Director and were re-awarded the scholarship on that basis. There were no notes available relating to the shortlisting process.
4.2. The respondent stated that, in general, the interview, which is usually short (approx. 10 minutes), is designed primarily to revisit the relevant criteria and clarify any matters that arise from a study of the completed application forms. When all the applicants have been interviewed, the Sports Scholarship Committee meets to decide, by unanimous verdict, on what scholarships are to be awarded. The respondent stated that, in the first instance, the Committee goes through an alphabetical list of shortlisted candidates in order, eliminating weak candidates and accepting candidates about whom it is easy to agree. It then discusses the applications of the remaining candidates. The respondent said that the Committee may award any number of scholarships. There was a limit on the total monetary value of the scholarships that could be awarded, though the limit could be exceeded in certain circumstances. It refuted that the exercise was subjective, on the basis that there is a lot of experience on the interview board and the Director would talk to UCC’s coaches before concluding the shortlisting process. The respondent added that, prior to 2005, when a formal document was written which provided a framework for the process, there were no written rules for it other than the information provided to the candidates on application. It stated that factors unrelated to the present complaint were responsible for the decision to set out these new procedures. There were documents given to the interviewing committee which allowed room for the taking of notes, but these were not kept and were therefore not available to me.
Consideration of the application of the complainant
4.3. The respondent said that the reason why the complainant was not shortlisted for interview was because the shortlisting panel did not consider that he fit the criteria in question as well as others did. It said that it had reconsidered the complainant’s application and offered him an interview based on the contents of his letter of 8 November and said it did so in the interests of fairness. It confirmed that the Complainant was interviewed by a smaller panel, but said this was because it was not possible at short notice to organise a full interview panel.
4.4. In relation to Criterion 1, the Respondent said that the complainant may well have been the top performing male cross country and track and field athlete at the time in question, as he had argued. However, in assessing potential, the Respondent looked at the achievements of the individual applicant as it was described to it in the relevant application form. It said that improvements from year to year are not considered and the application from each individual applicant is considered in isolation. On that basis, it considered that the complainant had failed to meet the required standard for the year in question.
4.5. In relation to Criterion 2, the respondent considered that applicants must show willingness to represent UCC before it decided on its applications, except in the case of first years. In that regard, it expressed a number of concerns about the complainant’s commitment to participate for UCC. It said that, in the course of its interview with the complainant, it raised the issue of his failure to participate at the IRR Championships, as it considered that participation of all its athletes at this event was of key importance to it. It stated at the hearing that lots of people were disappointed about not receiving scholarships but still continued to represent UCC, in contrast to the complainant. Nonetheless, it informed the complainant at his interview that, as there was an important race the following weekend (the NSCC Championships), it would postpone its decision on his application until after that race, as the respondent considered that it would be a significant test of his ability and his performance at that race would, consequently, be a critical factor in deciding on his application. When this performance was not to the respondent’s satisfaction, the three members of the Committee who had interviewed the complainant, Ms B, Mr C and Mr D, made the decision to refuse his application. In doing so, they were also influenced by the complainant’s failure to participate at the IRR Championships. The respondent pointed out that the complainant himself admitted he wasn’t happy with his performances at the NSCC Championships. It also pointed to the fact that two other applicants for the scholarship were also reconsidered. It stated that the same, or a similar, procedure was followed in relation to these applicants, both of whom were males and both of whose applications were also ultimately refused.
4.6. The respondent considered the application of the comparator, Ms A, to be irrelevant to the complaint, as it did not compare men and women in any sport. Nonetheless, it stated that her application was considered in accordance with the normal procedures as outlined in par. 4.2 above and was accepted as being very favourable. It said that the recommendation of the coaches they consulted was critical to this decision. In that context, it said that it had consulted with the comparator’s coaches in relation to her application, but had not consulted with, or at least could not state with any certainty that it had consulted with, any of the complainant’s coaches.
4.7. The respondents also stated, in reply to the complainant’s submission with regard to his academic excellence, that academic progress was not a factor in relation to any aspect of the scholarship except where there was insufficient academic progress by an existing scholarship holder, in which case sanctions were imposed.
General arguments
Issues regarding the process and procedures
4.8. The respondent stated that best practice in relation to similar scholarships varied from jurisdiction to jurisdiction. For example, it said that some universities in Ireland offer a reduced Central Applications Office (CAO) Points system for high performing sportspeople. The respondent was of the view that, for the Scholarship application process in question, it was not possible to have any kind of points or scoring system, like the form of job selection process in which you could award points for particular skills, due to the difficulties associated with assessing the value of particular sporting achievements. It said that it was assessing the merits of applicants for different sports, so you were not comparing like with like. It drew a series of analogies to illustrate this point. For example, it stated how could you decide who was better, Usain Bolt or Michael Phelps? The respondent stated that it applies standards and comparisons only within the sport of relevance to the particular application. It argued that, as a result, it was not the kind of exercise you could compare with a job interview. Nonetheless, it drew an analogy with an academic promotion scheme. The respondent also refuted that the exercise was subjective, on the basis that there is a lot of experience on the interview board.
4.9. The respondent stated that the composition of the Sports Scholarship Committee does not change from year to year unless someone retires, and it includes at least one senior member of academic staff. Appointments to the Committee are made by the President of University College Cork, on a recommendation from Mr D.
4.10. The respondent also stated that, by agreeing to interview the Complainant, after initially rejecting his application, it was providing the equivalent of an appeal, particularly when it was taken into account that he did not participate in the IRR championships as already described.
Arguments regarding gender discrimination
4.11. The respondent submitted that the complainant’s case must fail as he had not shown that any of the allegations of discrimination on its part had a gender basis. Furthermore, the respondent submitted that it clearly does not discriminate on a gender basis as gender is not an issue in the decision-making process. It reiterated that it looks at each application on its own merits and does not compare male and female applicants.
4.12. The respondent agreed that, in general, there are more males than females competing in athletics. However, it argued that it was not fair to say that it was easier for a man than a woman as this meant, by definition, that there are different standards and different qualifying times for men and women. It added that this was the case worldwide and that these different standards did not necessarily make it easier.
4.13. The respondent refuted the allegation that it was engaged in a policy of gender balancing and said that it maintained standards across the board. It said that an example of this was the fact that the statistics on the gender of scholarship applicants etc. that are provided herein were initially compiled for the benefit of the Tribunal. It also refuted the Complainant’s suggestion that there was a sudden shift in ratios in favour of women after Ms B came on the shortlisting panel as it said she was already involved in the process through her role within the Department of Physical Education and Sport.
4.14. At my request, the respondent also provided statistical evidence of the breakdown of applicants for the 2004-05 scholarship, as well as for other years. Full statistics are not available for the years before 2003-2004. Taking from that year, and for the following three years, the following table (excluding the re-awardees mentioned at par. 4.1 above) outlines these statistics:
2003/2004[2] 2004/2005[3] 2005/2006[4]
TOTAL APPLICANTS 87 93 132
Male 61 73 96
Female 26 20 36
TOTAL SHORTLISTED 30 34 72
Male 16 24 58
Female 14 10 14
TOTAL SCHOLARSHIPS AWARDED 18 19 69
Male 11 15 56
Female 7 4 13
4.15. The respondent also provided a list of the gender and relevant sport of the scholarship recipients for a number of years, which I noted showed a variance in the number and gender of athletics scholarships awarded from year to year.
Legal Arguments
4.16. The respondent argued that it is exempted from the provisions of the Acts by Section 7(4) which states, inter alia, that subsection (2) does not apply:
“(b) in respect of differences in the treatment of students on the gender, age or disability ground in relation to the provision or organisation of sporting facilities or sporting events, to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events.”
It argued that, in this context, a sporting facility is a resource enabling you to progress and not just a physical structure. It said that it did not discriminate, but were it to do so, its actions would not be discriminatory under the Acts as s.7(4) covers what facilitates you need to be successful in your sport, and as money can be a facility if it makes you more able to participate in the sport, then it is covered by the exemption. In short, a facility is an opportunity to do something, of which the scholarship in question is an example.
5. Conclusions of the Equality Officer
5.1. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. Section 7 of the Equal Status Acts, 2000 to 2008 states, inter alia,
“(2) An educational establishment shall not discriminate in relation to –
(b) the access of a student to any course, facility or benefit provided by the establishment.”
In all the circumstances of this complaint, then, there are three key questions which must be answered in considering whether a prima facie case has been established by the complainant:
i) Was there anything about the shortlisting process that raises an inference of discrimination as outlined at 5.1 above?
ii) Was there anything about the interview process that was eventually carried out with the complainant that raises such an inference of discrimination?
iii) Was there anything else in the process and in the consequent final decision not to award him the scholarship that raises such an inference of discrimination?
If the answer to any of those questions is yes, then the complainant has established a prima facie case. If not, then his case fails.
Shortlisting process
5.3. In the present complaint, in relation to the shortlisting process, the onus is on the complainant to elicit facts which raise a presumption that unlawful discrimination on the basis of gender was carried out by the respondent against him. In all the circumstances of the present complaint, it is not enough for the complainant to establish unfairness in the procedures, or to prove that he was treated unfairly, if he cannot show that he was treated less favourably because of his gender. With this in mind, the key argument of the complainant in relation to the shortlisting process was, in my view, his argument that not having a UCC coach was a key factor in not being shortlisted tied in with his allegation that males whose chosen sport is athletics do not have UCC coaches, while their female counterparts do. I note that the respondent admitted that the view of the relevant coach was a key factor in the shortlisting process. I am not, however, convinced by the complainant’s arguments in this regard, particularly given that male applicants for the scholarship whose chosen sport was athletics obtained scholarships both in the year before and the year after the complainant’s application in question.
5.4. The other key allegations of the complainant in relation to the shortlisting process included, simply, that he met criterion 1 and 2 as well as Ms A, and therefore should have been given the scholarship, particularly as it could have been given to both of them. Again, however, the complainant has been unable to establish how the decision not to award him the scholarship is related to his gender on this basis. He also argued that the process and procedures adopted by the respondent were lacking in transparency, and were skewed in favour of women. I have noted the lack of transparency, in the context that it has not aided my investigation. In particular, I noted the distinct absence of any notes for any part of the process, and the absence of any written evidence of how the respondent came to a decision in relation to the scholarship at issue, except where such evidence was put together in retrospect at my request (e.g. the statistics provided). However, the complainant has failed to show how this lack of transparency was tied in with gender discrimination. He has also failed to prove, on the balance of probabilities, that the process was skewed in favour of women, as he alleged, or was otherwise discriminatory against him on the basis of his gender.
5.5. In relation to the shortlisting process, then, the complainant has failed to establish a prima facie case of gender discrimination as he has not proven facts on which he can rely in raising a presumption of such discrimination.
Interview process
5.6. I will now turn to consider the interview process. The complainant argued that he was discriminated against by having a different interview board to Ms A. However, I am not convinced that he was treated less favourably on the basis of his gender as a result of having a smaller interview panel than her. He was therefore not discriminated against on that basis.
5.7. The lack of transparency in relation to the shortlisting process, already referred to, was also evident in relation to the interview process. I am, nonetheless, satisfied that the decision not to award the complainant the scholarship following the interview was based solely on the view of the respondent that, at least in the time between the initial refusal of his application and the date when the interview took place, he failed to satisfy the two criteria which were at issue with regard to his application. In that context, I note the complainant’s performance at the NSCC Championships. I also note his failure to participate in an event of significant importance to the respondent (i.e. the IRR competition). I am satisfied that gender was not a factor in this decision. The complainant was therefore not discriminated against on the gender ground by the respondent in relation to the interview process, and has consequently failed to establish a prima facie case in relation to it.
Final decision/overall process
5.8. In general, the complainant pointed to statistical evidence which, he said, showed there was discrimination in favour of females. In relation to these, I must first note that the complainant’s statistical evidence[5] took into account the re-awardees. However, as these applicants were subject to a separate selection process, they must be excluded from any calculations. Hence, I have calculated the table outlined at 4.14 above which more accurately reflects the outcomes of the process at issue in this complaint. On the basis of these calculations, there would seem to be significant discrepancies in the gender balance, both from year to year and between the different stages of the selection process. However, these discrepancies sometimes favour males and sometimes favour females. For example, in 2003/2004, 54% of female applicants were shortlisted as opposed to 26% of Males while in 2005/2006, 59% of males who applied for the scholarships were ultimately successful but only 36% of females were. In any event, the success rate for both males and female applicants for the year in question, leaving out re-awardees, was approximately 20%.
5.9. The complainant also made a series of arguments surrounding his submission that the respondent discriminated against male applicants generally, extending these to argue that there was global discrimination against males in athletics. Quite aside from the fact that I have no jurisdiction to make any determination in relation to the latter, the evidence presented by the complainant in relation to the former is not convincing in this regard. The complainant has also made reference to the respondent’s selection of a particular camogie player, and failure to select a hurler who, in his view, better met the criteria at issue. However, I am not convinced that this decision was based on the gender of the applicants in question, in particular as other hurlers were given scholarships, some of whom would appear to be less qualified than the hurler referred to by the complainant, in the year in question and in other years. I am, therefore, satisfied, based on all the evidence presented to me in relation to this complaint, that the respondent does not generally discriminate against males in relation to the scholarship applications in question, within the meaning of the Acts.
Concluding remarks
5.10. The complainant has failed to establish a prima facie case of discrimination as I am not satisfied that there has been discrimination on the gender ground in relation to this complaint. However, in light of what I have said in paragraph 5.4 above, though bearing in mind that I can make no order in this regard, I would strongly recommend that the respondent further review its process for selection of scholarship applicants, particularly with a view to increasing the transparency of the process.
5.11. As the complainant has failed to establish a prima facie case, I do not need to consider the submission of the respondent with regard to the application of Section 7(4)(a) of the Acts, as outlined at paragraph 4.16 above.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, 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 less favourable treatment on the ground of gender in terms of sections 3(1)(a) and 3(2)(a) and Section 7(2)(b).
6.3. Accordingly, I conclude the investigation and find against the complainant.
_____________
Gary O’Doherty
Equality Officer
DEC-S2004-143/144 Full Case Report
Battles v The Killarney Heights Hotel,
1.1 This dispute concerns a complaint by Tom and Veronica Battles that they were discriminated against, contrary to the Equal Status Act 2000, by the management of the Killarney Heights Hotel, Killarney. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1), 3(1)(b) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 Veronica Battles, who is a member of the Traveller community, claims that, on 15 May 2003, she and her sister were refused a drink in the hotel by barstaff. However, after speaking with the bar manager, she says that she received an apology and a complimentary drink. Two days later, on 17 May 2003, Tom and Veronica Battles were refused admission to the hotel by the General Manager who refused to give them a reason. Veronica Battles believes that she was refused because she is a Traveller while her husband, Tom Battles, who is a non-Traveller, believes that he was discriminated against by association because of his marriage to a member of the Traveller community..
3. Summary of Respondent’s Case
3.1 The respondents denied that their actions constituted discrimination and said that the refusal took place because of a number of incidents involving Travellers which had occurred in the hotel, immediately prior to the incidents complained of.
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.
5.1 Evidence of Parties
On Thursday 15 May 2003, Veronica Battles and her sister Bridget Harrington visited the Killarney Heights Hotel for a drink which had been their custom for a number of years.
They were served one drink by barstaff but when Veronica Battles went to the bar to
order a second round, she says she was ignored by a barwoman. Eventually, the
barwoman told her that she could not serve her.
Mrs Battles said that she then demanded to see the barmanager and, having spoken to him for a few minutes, she received a verbal apology and a complimentary drink.
Later that evening, she noticed the hotel owner, Bernard Rearden on the premises and told him what had happened. She says that Mr Rearden told her that the hotel had had an incident involving Travellers a week before which may have led to the refusal of service but that she should have “no problem from now on”.
Bridget Harrington gave evidence at the Hearing on 15 September 2004 that she was with Veronica Battles on 15 May 2003 and confirmed that Mrs Battles had not been served at the bar. Mrs Harrington stated, however, that she had not heard the conversation between Mrs Battles and the barwoman nor had she heard her later conversation with Mr Rearden.
At the Hearing, Bernard Rearden said that he recalled Mrs Battles raising a matter with him on one occasion but said that he could not recall the exact details of their
conversation.
On Saturday 17 May 2003, Tom and Veronica Battles decided to meet another couple in the Killarney Heights Hotel.
On approaching the door, they say that they were met by the General Manager, Mr
Kieran O’Driscoll who said to them “Sorry Lads, not tonight”. He gave them no
explanation for his decision.
The couple then called the Gardai who told them that it was a civil matter and advised them to see their solicitor. Tom and Veronica Battles say that the Gardai spoke to Mr O’Driscoll while Mr O’Driscoll says that they did not speak to him and did not even get out of their police car.
At the Hearing, Mr O’Driscoll gave evidence that Mr and Mrs Battles had been regular visitors to the hotel over the years. He said that he knew they came from a Traveller background and said that he had personally served them himself a number of times. The Battles accepted that Mr O’Driscoll had served them previously.
Mr O’Driscoll also said that on a few occasions, he had had trouble persuading the
Battles to leave the premises after closing time. However, they had never been barred for this nor had they been guilty of any misconduct on those occasions.
In the weeks preceding 17 May 2003, Mr O’Driscoll said that two incidents had occurred in the hotel involving Travellers. On one occasion, a Traveller broke the lock on a bedroom door and was found trying to make phonecalls from the hotel phone. He was removed from the hotel but no prosecution was pursued. The damage to the door had to be repaired and the lock replaced.
On another occasion, four local Travellers “gatecrashed” a non-Traveller wedding. They were removed after a few minutes and no further action was taken. Mr O’Driscoll said that he was not aware of any connection between the Battles and the people involved in the two incidents.
On 17 May 2003, the hotel was very busy as it was a Saturday night. The hotel was also catering for a large wedding that day and some coach loads of tourists.
When Mr O’Driscoll saw the Battles approaching the door, he said that he decided that he was not going to admit them. He said that his job was to keep an orderly house and that his decision was influenced by the fact that other Travellers had caused trouble in the recent past, that there was already between 8 and 12 Travellers on the premises that night and that he had had trouble getting the Battles to leave the premises before.
Mr O’Driscoll accepts that neither complainant had drink taken that night
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. Section 3(1)(b) refers to discrimination by association. 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, Veronica Battles claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(1)(b), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service in the Killarney Heights Hotel on 15 and 17 May 2003. Tom Battles claims that he was discriminated against on 17 May 2003 because of his association with a member of the Traveller community contrary to Sections 3(1)(b) and 5(1) of the Equal Status Act, 2000
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it can be presumed that prohibited conduct has occurred. On establishment of these facts, 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.
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 complainants. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Existence of a discriminatory ground (e.g. the Traveller community ground)
(b) Establishment of facts to show that specific treatment occurred
(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.
7.2 With regard to (a) above, Veronica Battles has satisfied me that she is a member of the Traveller community and Tom Battles, her husband, has satisfied me that he is associated with a member of the Traveller community. In relation to (b), the evidence before me (from Mrs Battles, Mrs Harrington and Mr Rearden) supports Ms Battles’ claim that she was in the Killarney Heights Hotel on 15 May 2003 while, in relation to 17 May 2003, the respondents acknowledge that the complainants were refused admission on that date. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 15 and 17 May 2003 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.3 As I have stated earlier, in cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it can be presumed that prohibited conduct has occurred. n considering the alleged incident on 15 May 2003, I find, in the absence of any independent witnesses, that there is insufficient evidence before me to support Mrs Battle’s claim that the barwoman refused her service because of her membership of the Traveller community. For this reason, I consider that sufficient facts have not been established from which it could be inferred, on the balance of probabilities, that discrimination occurred that night. Accordingly, I find that Mrs Battles has not established a prima facie case in relation to the alleged incident on 15 May 2003.
7.4 With regard to Saturday 17 May 2003, there is no dispute over the fact that Mr and Mrs Battles were refused admission to the Hotel by Mr O’Driscoll. As this fact has been established, I consider that the burden of proof has shifted to the respondents who, in order to successfully defend their case, must show that their actions were driven by factors which were non-discriminatory. In order to decide whether the refusal constituted discriminatory treatment, I must consider the reasons given by Mr O’Driscoll for refusing admission to Mr and Mrs Battles on 17 May 2003.
7.5 Mr O’Driscoll has said that he was obliged to run an orderly house and that his decision to refuse admission to the Battles was influenced by the following:
(1) that other Travellers had caused trouble in the recent past,
(2) that there were between 8 and 12 Travellers already on the premises that night, and
(3) that he had had trouble getting the Battles to leave the premises previously.
In considering point (1), I note that Mr O’Driscoll has acknowledged that the Battles had no involvement in the two previous incidents involving Travellers but that these incidents influenced his decision to refuse them admission. A similar situation arose previously in the case of Delaney and others V The Harp Bar (DEC-S2002-053/56) where a publican refused service to a number of Travellers on account of the fact that other Travellers had caused trouble on his premises previously. In that case, the Equality Officer found that he could not accept that the publican was acting “in good faith” in refusing service to some Travellers on account of the actions of others and found that the publican’s actions constituted discrimination contrary to the provisions of the Equal Status Act 2000.
In considering point (2), I note that there are also similarities between this point and a 2001
decision, McDonagh v The Castle Inn (DEC-S2001-022) where the publican admitted that
he operated a “quota system” where no more than five Travellers were admitted to his pub at any one time. In that case, the Equality Officer found that it was discriminatory to operate a “quota system” where Travellers were concerned and found against the publican. In the case before me, Mr O’Driscoll has said that a number of Travellers were already on the premises on 17 May 2003 and he has acknowledged that his refusal was influenced by this fact. To put points (1) and (2) above into perspective, I think that it is appropriate to draw a comparison at this stage and ask the question as to whether it is conceivable that a respondent would have refused to admit two innocent non-Travellers on the basis that there were already eight non-Travellers on the premises, or on the basis that an unconnected group of non-Travellers had caused trouble the previous week? I consider that it is highly unlikely that this would have happened. In considering point (3), I find that I cannot accept that this was a major factor in the refusal as, while Mr O’Driscoll may have had problems in the past in getting the Battles to drink up, he has said himself that they never engaged in misconduct nor had they ever been barred for not leaving on time.
7.6 Having deliberated on the above points and on the totality of the evidence before me, I find, on the balance of probabilities, that the decision to refuse admission to Tom and Veronica Battles on 17 May 2003 was primarily influenced by the complainants’ Traveller background and only marginally influenced by other factors. I, therefore, find that the complainants have established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainants were discriminated against on 17 May 2003 contrary to the provisions of the Equal Status Act 2000.
8 Decision
8.1 I find that Veronica Battles has not established a prima facie case of discrimination on
the Traveller community ground in terms of sections 3(1), and 3(2)(i) of the Equal Status
Act 2000 in relation to the events of 15 May 2003. In relation to 17 May 2003, I find that Veronica Battles has established a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1), and 3(2)(i) of the Equal Status Act 2000 and that Tom Battles has established a prima facie case in terms of Section 3(1)(b) of the Act. I also find that the respondents have failed to rebut the allegation
8.2 In considering the level of redress to award, I am cognisant of the fact that the complainants were served previously on a regular basis in the Killarney Heights Hotel prior to the incident under consideration and I am satisfied, from the evidence before me, that other members of the Traveller community continue to be served in the hotel. I have also taken into account that the respondents have been open and frank in stating their reasons for the refusal on 17 May 2003. For the above reasons, I do not consider that a heavy penalty is warranted. Accordingly, I order that each complainant be paid redress of €650 for the hurt, humiliation and loss of amenity suffered on 17 May 2003. I also order that the respondents ensure that all staff are made fully aware of their obligations under the Equal Status Act 2000 to ensure that the same terms and conditions are applied to both Travellers and non-Travellers with regard to admission and service in the hotel.
Brian O’Byrne
Equality Officer
11 October 2004
DEC-S2007-038 – Full Case Report
Equal Status Acts 2000-2004
Decision DEC-S2007-038
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-S2006-042 – Full Case Report
Ward v Burkes Trading as Canavans Public House
Mr. Laurance Ward 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, 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.
Summary of the Complainant’s case
On 11/10/2002 Mr. Ward was in the respondent premises with his wife for the evening. At around 8pm on 12/10/2002 Mr. Ward entered the respondent premises alone and ordered a drink. He was told to come back in an hour. When he returned he spoke to Mr. Burke and was told that Mr. Burke had been threatened a few weeks before. A woman came out and told Mr. Burke that customers were waiting. Mr. Ward walked away saying they would hear from his solicitor. He spoke to the doorman later who told Mr. Ward that basically they did not want him in.
Summary of the Respondent’s Case
Ms. Burke, for the respondent, stated that she started work at 7pm on 11/10/2002 and that the Wards were there when she arrived. They were with another gentleman and both men were drinking alcohol. There was live music on that night which began around 10pm to 10:30pm. It was playing a while when Ms. Burke refused to serve the gentleman with the Wards, telling him they had had enough and she would not give them any more that night. On the 12/10/2002 she started work at 8pm. As she arrived Mr. Ward was shouting and using bad language to her husband at the door of the pub. He was very aggressive. He wanted to know why he had been refused the night before. She went past and entered the pub. The shouting got worse so she went out and asked him to move away, telling her husband that there were customers waiting. Mr. Ward said they were discriminating against him and that he was going to sue them. She was not aware of any interaction inside the pub earlier that night. This was the first incident involving Mr. Ward.
Conclusions of the Equality Officer
I am satisfied, and the respondent accepted, that the complainant is a member of the Traveller community. It is agreed that there was a refusal of service. What is in dispute is when this refusal took place and why. The complainant maintains it took place on 12/10/2002 and was unprompted. The respondent maintains it took place on 11/10/2002 and was based on a decision that the complainant and his companion had had enough to drink. Based on the evidence presented to me at the hearing, I find the respondent’s version of events more compelling and I am satisfied, on the balance of probabilities, that the refusal took place on 11/10/2002. I am also satisfied that the refusal was based on a decision that the complainant and his companion had had enough to drink. I am further satisfied that the respondent would have refused a non-Traveller in similar circumstances. Therefore I find that the complainant was not less favourably treated than a non-Traveller would have been in similar circumstances. The complainant has therefore failed to establish a prima facie case of discrimination on the Traveller ground.
Decision DEC-S2006-042
I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller ground. This decision is therefore in favour of the respondent.
Bernadette Treanor
Equality Officer
30th May 2006DEC-S2002-028