General Exemptions
Cases
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 1998-2008
Decision No. DEC – S2009- 021
PARTIES
Gahan v Valour Investments T/A Shell Mulhuddart
File Reference: ES/2006/0064
Date of Issue: 3 April 2009
Key words
Equal Status Acts 2000-2004 – Section 3(2)(f), age ground – alleged prohibited conduct – refusal of service – access to petrol pump – pre-pay – Shell – Clonsilla – Mulhuddart – request for ID – implied request for ID – Section 14(1) –Dangerous Substances (Retail and Private Petroleum Stores) Regulations, 1979 – Health and Safety Authority – warning letter – threat to licence – anti social behaviour – notice in prominent place
1. Delegation under the relevant legislation
1.1. On 20 June, 2006, the complainant, Mr Philip Gahan, 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 2008 and under the Equal Status Acts, 2000 to 2008, 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 2008. This delegation took place on 29 July, 2008, 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 Dublin on Wednesday, 4th February, 2009. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by Mr Gahan that he was discriminated against by the respondent on the Age ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a) and 3(2)(f) of the Equal Status Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, particularly in that he was discriminated by the respondent in being refused access to the respondent’s petrol pumps and to the petrol contained therein.
3. Case for the Complainant
3.1. The Complainant stated that, on 13th April 2006, at which time he was 18 years of age, he drove onto the respondent’s premises to obtain petrol for his car, but found that the particular pump he went to was not switched on. The complainant said he then entered the shop and was told by the shop assistant that the relevant pump was a pre-pay pump. He noticed that a person at another pump had taken petrol before paying, so, when that person moved away, the complainant took his place. He tried to obtain petrol at this pump, but found that it was not turning on either. He said that he then went back into the shop and questioned the assistant about this. He said that the assistant again said the pump was pre-pay, to which the complainant responded by asking why he was being singled out. The respondent’s reply was “your face, you look too young” at which point the complainant left the premises. The complainant added that the assistant refused to give his name or the name of the Manager and that at no stage in the shop was he asked for ID.
3.2. Though it did not form part of his complaint, the complainant also referred to another similar incident at Shell Clonsilla sometime after the aforementioned incident. He said that, aside from this, on no other occasion had he been refused access to a petrol pump without being asked for ID. He said that he was driving a car at the petrol station, in which case he could not have been a minor. He also refuted that the statement “you look too young” was an implied request for ID and said that if he had been asked for ID, he would have produced it. In short, the complainant stated that he was discriminated against on the grounds of his age because people of other ages were getting a fill of petrol without difficulty. He submitted that the reason why young people were being “singled out” by the respondent was because there was anti-social behaviour in the area.
4. Case for the Respondent
4.1. The Respondent, Valour Investments Ltd., has, since May 2004, operated the Shell petrol station in Mulhuddart in which the alleged incident of discrimination took place, and also operates the Shell petrol station in Clonsilla to which the complainant also referred.
4.2. Mr Adeola Ogunsina, who was present at the hearing on behalf of the respondent, is a Director of the respondent company. He acknowledged that the incident in question did take place, although he did not witness it and the shop assistant involved was not available to give evidence. However, he disputed elements of the description of the incident that was given by the complainant. In particular, Mr Ogunsina said that the shop assistant had made the statement “you look too young”, but had then asked the complainant for identification, which the complainant had refused to provide. In any event, Mr Ogunsina submitted that this statement implied that the complainant should produce ID to prove his age. He said that the shop assistant refused to give his name or the name of manager because the complainant had been “a little bit” abusive, though the respondent understood that this had arisen from Mr Gahan’s frustration at the situation.
4.3. It is the respondent’s policy that the staff of its stations do not authorise fuel pumps to persons under the age of 15. It was submitted by the respondent that this policy is carried out in accordance with its obligations under the Dangerous Substances Act, 1972 and the Dangerous Substances (Retail and Private Petrol) Stores Regulations, 1979, and is clearly stated in notices which appear on all islands on the forecourt. This notices states that “no persons under 15 years of age may dispense petroleum”. The respondent has trained its staff to challenge anybody they think is under age in those terms and believes it has the right to ask for proof of age in circumstances like the one in question as it could only judge age by asking for ID. It considers that the onus is on customers to show proof of age in those circumstances. By way of background to this policy, the respondent stated that, in 2004, an investigation of its premises had been carried out by the Health and Safety Authority (HSA) on foot of complaints received by it. It issued a warning letter on foot of this inspection, in which, inter alia, the respondent was informed that it should review and update staff training in relation to compliance with the aforementioned statutory instruments. The respondent stated that its licence would have been revoked if it had not complied with these instructions.It added that the incident involving the complainant that had taken place at its premises in Clonsilla was proof that this policy was applied consistently at all its premises.
4.4. In relating this policy to the incident in question, Mr Ogunsina said that the shop assistant believed that the complainant was under the age of 15 at the time. Having inspected CCTV footage of the incident, Mr Ogunsina did not dispute that the complainant had been driving the car, although he could not say whether either of the two staff members on duty at the time had seen him getting out of the driver’s side. In any event, he queried why, if the complainant was over-age, he did not prove his age, and said that if he had done so, the shop assistant would have served him. He said that, though the complainant might not have seen the notice about the Regulation, it was there. He denied that anti-social behaviour was a factor in applying the policy in question, although he said he did have to install state-of-the-art CCTV for security reasons.
4.5. In summary, the respondent said it had a duty to comply with the law and did not see how it could do so, in all the circumstances of the complaint, without refusing service to the complainant until he produced satisfactory proof of age. It was the same in complying with any other legislation involving minors, including in relation to the sale of tobacco. In short, the complainant was refused service because he refused to provide ID.
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.
5.2. In making this decision I have taken cognisance of all the oral and written submissions made by the parties. The complainant’s case is that the respondent treated him less favourably by refusing him access to petrol and thereby denying him a service, because of his age, when others, of different ages to the complainant, were served petrol. The essence of the respondent’s submission is that, while the complainant was refused access to the pump initially, it was obliged to do so, at least in the absence of satisfactory proof of age, because it was complying with its legal obligations under the Dangerous Substances Act, 1972 and the Dangerous Substances (Retail and Private Petroleum Stores) Regulations, 1979, the latter of which states, inter alia, that “A person under 15 years of age shall not be permitted to carry out any work or operation in connection with the conveyance, dispensing or storage of petroleum Class I at a retail store or a private store[1]”. In order to ensure compliance with this Regulation, the respondent has applied a strict policy whereby its staff have been instructed to ask for identification if in any doubt about the age of the relevant customer who seeks to dispense petrol. In that context, the key elements to the respondent’s submission are its claim that the shop assistant who refused service to the complainant did so because he believed him to be under 15 years of age and its submission that the complainant would have been served if he had been able to produce sufficient proof of his age. As proof that it was applying the policy in question in a consistent manner, it pointed to the refusal of service to the complainant, on the same basis, at a different petrol station under its auspices.
5.3. In seeking to discharge the burden of proof, the onus is on the complainant in this case to prove that prohibited conduct occurred in relation to him on the ground of age. In that context, I note that Section 14(1) of the Acts states, inter alia, that:
“Nothing in this Act shall be construed as prohibiting –
(a) the taking of any action that is required by or under –
(i) any enactment or order of a court…”
Therefore, I must first consider whether the respondent was required by the relevant Regulation to refuse the complainant access to petrol in the absence of sufficient proof of age. For if it was, then it was not engaging in prohibited conduct by doing so.
5.4. I accept that the complainant was, relatively, much older than the minimum age in question and I would be surprised if, in the normal course of events, he was confused with a 14 year old. In that regard, I note that he had been driving the vehicle, a car, and therefore would have had to be no younger than 17, if he was doing so lawfully. I also agree with the complainant’s contention that the level of caution exercised by the respondent on this issue would not be the norm in petrol stations generally and was relatively strict. However, it is clear that the respondent believed, in good faith, that there was a threat to the continuation of its licence, and thereby its livelihood, if it did not apply the policy in the manner that it did. It is also the case that the respondent provided a clear instruction to all its staff in all its petrol stations to request identification from customers who they thought might be minors within the meaning of the Regulation in question. The policy in question was therefore applied in a consistent manner in all the petrol stations under the respondent’s control and was implemented because the respondent believed its licence to be under threat. In that context, and taking into account all the other circumstances of the present complaint, I consider that, on balance, the respondent was acting in a bona fides manner and was seeking to comply with the relevant enactment by refusing to allow the complainant dispense petrol, in the absence of satisfactory proof of age. It was therefore entitled to do so under Section 14(1) of the Equal Status Acts.
5.5. The complainant further contends, however, that in implementing this policy, the respondent should have made an explicit request for identification and its failure to do so raises an inference of discrimination as defined by Section 38A. While the respondent submitted that it did make an explicit request, I find that, on balance, the evidence of the complainant is more compelling in this regard. It may be that the staff member involved intended on asking for identification but the complainant left before he had an opportunity to. In any event, I do not believe the complainant was explicity asked to produce identification.
5.6. On the other hand, it is accepted by both sides that the staff member involved stated “your face, you look too young” and the respondent contends that this was an implicit request for identification. I accept the respondent’s submission that the complainant would have been served if he had produced identification showing he was over the age of 15. I also note that there was a notice in a prominent place in the respondent’s premises stating its obligations under the Regulation. Taking these factors into account, and once it had been indicated to him that he was being refused service because the respondent considered that he was “too young”, I am satisfied that it should have been clear to the complainant that the reason for the refusal was because the respondent was seeking to comply with the relevant Regulation. Given that the onus is on the complainant to show that there was prohibited conduct, I am not satisfied that, in all these circumstances, the respondent’s failure to then make an explicit request for identification is sufficient to shift the burden of proof to it and away from the complainant.
5.7. As the complainant has failed to show that respondent engaged in prohibited conduct in refusing him access to petrol in the absence of sufficient proof of age, and in the absence of any other evidence of prohibited conduct by the respondent, the complainant has failed to established a prima facie case and has failed to shift the burden of proof to the respondent. His complaint therefore fails.
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. I find that the complainant has failed to establish a prima facie case of less favourable treatment on the ground of age in terms of sections 3(1)(a) and 3(2)(f) and Section 5(1) as, further to Section 38A of the Equal Status Acts, 2000 to 2004, he has not established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to him.
6.3. Accordingly, I conclude the investigation and find against the complainant.
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Gary O’Doherty
Equality Officer
3 April 2009
[1]Regulation 27
DEC-S2009-024 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC–S2009-024
PARTIES
Chawla v Irish Wheelchair Association
File References: ES/2007/0055
and ES/2007/0107
Date of Issue: 15th April, 2009
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Family Status, Section 3(2)(c) – Race Ground, Section 3(2)(h) – Victimisation Ground, Section 3(2)(j) – Harassment, Section 11(5) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
These complaints were referred to the Director of the Equality Tribunal on 5th June, 2007 and 9th October, 2007 under the Equal Status Acts, 2000 to 2004. On 18th November, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, 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 to 2008. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 12thMarch, 2009.
1. Dispute
1.1 This dispute concerns a complaint by the complainant, Dr. Raymond Chawla, that he was discriminated against by the respondent, the Irish Wheelchair Association, on the Family Status and Race grounds in terms of Sections 3(1)(a), 3(2)(c) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 in terms of the manner in which the respondent processed his request for information under the Freedom of Information Act, 1997 (as amended) (hereinafter referred to as the FOI Acts). The complainant also claims that he was subjected to victimisation and harassment by the respondent in terms of Sections 3(2)(j) and 11(5) of the Equal Status Acts, 2000 to 2008.
2. Summary of the Complainant’s Case
2.1 The complainant’s mother suffered from Multiple Sclerosis and she was in receipt of the care services that were provided by the respondent. The complainant, Dr. Raymond Chawla, sent a request to the respondent under the FOI Acts on 12 October, 2006 for information that it held on its files in relation to both himself and his mother. The complainant did not receive the information requested and he subsequently contacted the respondent by e-mail on 13 November, 2006 seeking an internal review in relation to his initial request. The complainant received a response from the respondent on 16 November, 2006 which included the information he had requested in relation to himself; however, the respondent indicated that it could not provide any information in relation to his mother as this request related to information belonging to another individual who was not the requester. The complainant submitted that the respondent was fully aware that his mother could not sign the request for information pertaining to herself as a result of her disability and he claims that the respondent should have released the information to him as he was acting in the capacity as her resident primary carer. The complainant claims that the respondent was acting in breach of its obligations under the FOI Acts and he submitted that it should have contacted his mother in order to obtain her consent to the release of the information that he had sought on her behalf. The complainant claims that the reason the respondent refused to provide the information he had requested under the FOI Acts in relation to his mother was motivated by discrimination on the grounds of his family status and race.
2.2 The complainant also claims that he was subjected to victimisation and harassment as a result of correspondence that he received from the respondent subsequent to the referral of the present complaint to the Tribunal. The complainant received a letter from the respondent on 31 July, 2007 in which reference was made to a voicemail message he had left on the mobile phone of one of the respondent’s employees and this letter contained an instruction that he desist from any further communication with any of the respondent’s employees. This letter also contained a reference to a previous letter which the respondent claims was sent to him on 27 July, 2007 and which referred to a threatening voicemail message which it was alleged the complainant left on the mobile phone of another of the respondent’s employees. The letter of 27 July, 2007 included instructions that any further communications which the complainant wished to engage in with the respondent should be directed to its Human Resources Manager, Mr. A. The complainant stated that he did not receive the initial letter of 27 July and therefore, when he left the second voicemail he was not aware of the respondent’s initial instruction that he should desist from contacting its employees. The complainant stated that the voicemail message he left on the second occasion was in no way threatening or abusive and he claims that the respondent was fully aware he hadn’t received the first letter when it issued the subsequent letter on 31 July, 2007. The complainant also claims that he was subjected to further harassment and victimisation by the respondent when it omitted to address him by his correct title i.e. Dr. Chawla in further correspondence that was exchanged between the parties.
3. Summary of the Respondent’s Case
3.1 The respondent accepts that it received a request from the complainant on 12 October, 2006 for information under the FOI Acts pertaining to both himself and his mother. The complainant sent this initial request by e-mail to Ms. X, Assisted Living Co-ordinator, who had responsibility for providing care services to the complainant’s mother. The complainant’s request for information was acknowledged by Ms. X who instructed him that the request was being forwarded to the respondent’s Human Resources Department to be processed. Ms. X did not have any role within the organisation in relation to requests for information under the FOI Acts. The respondent received a further e-mail from the complainant on 13 November, 2006 in which he requested an internal review as he had not received a decision in relation to his initial request. The respondent responded to this e-mail the following day and sought certain details from the complainant regarding the request.
3.2 The respondent’s Freedom of Information Officer, Ms. Y, wrote to the complainant on 16 November, 2006 enclosing a copy of the records he had sought in relation to himself. The complainant was also informed that access to records in relation to his mother was denied on the basis that the respondent was prohibited from providing information in relation to an individual who was not the requester. The respondent stated that it was not made aware that the complainant’s mother was unable to make such a request on her own behalf nor was it furnished with her consent to release the requested information to the complainant. The respondent stated that its Code of Practice in respect of assisted living conditions (i.e. the service which it was providing to the complainant’s mother) operates on the principle of respecting the individual’s independence and dignity and treating all personal information in the strictest confidence. The respondent submitted that in light of the Association’s obligations under its own Code of Conduct in relation to personal information and by virtue of its statutory obligations under the FOI Acts that it was not in a position to release the records which the complainant was seeking in relation to his mother. The respondent submitted that the complainant’s request was dealt with in accordance with its normal procedures and in compliance with its obligations under the FOI Acts. The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of his race or family status in terms of the manner in which it dealt with his request for information under the FOI Acts.
3.3 The respondent wrote a letter to the complainant on 27 July, 2007 in response to a voicemail message which he had left on the mobile phone of one of its employees, Ms. X, on 25 July, 2007. Ms. X stated that she was extremely upset and distressed with the content of this message and consequently, the respondent informed the complainant in this letter that any further communications he may wish to have with the Association should be made in writing and addressed to its Human Resources Director, Mr. A. This letter was delivered to the complainant’s address by courier on 27 July, 2007 and the respondent claims that it has no reason to believe that this letter was not delivered to the complainant. The respondent stated that the complainant subsequently left a further voicemail message on the mobile phone of another of its employees, and in response the respondent wrote a further letter to the complainant on 31 July, 2007 and requested him to immediately desist from making any further direct contact with any of its employees. The respondent also referred to the previous letter of 27 July, 2007 and reminded the complainant that any further communications he wished to have with the Association should be directed to the HR Director. The respondent submitted that it has a duty to protect its employees and it does not accept that its actions in writing, the aforementioned letters to the complainant, constitute victimisation or harassment. The respondent submitted that the aforementioned letters were sent to the complainant in response to the inappropriate contact that he had initiated with its employees and it has adopted a similar approach on previous occasions when its employees have received inappropriate communications from an individual.
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. 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.
4.2 I also wish to note at this juncture that the complainant made a number of allegations during the course of written correspondence and at the hearing of this complaint regarding the manner in which the care services that the respondent provided for his mother were discharged. I am satisfied that these issues are entirely outside of the scope of the present complaint under the Equal Status Acts and accordingly, I do not have jurisdiction to investigate any such matters which do not fall within the remit of the Acts. I must make it clear from the outset that the only jurisdiction I have in this matter is to decide whether or not the complainant was subjected to less favourable treatment by the respondent, in the circumstances of this case, within the meaning of the Equal Status Acts, 2000 to 2008.
Discrimination on the Family Status and Race Grounds
4.3 In the present case, the complainant claims that he has been subjected to discrimination by the respondent on the grounds of his family status and race in terms of the manner in which the respondent processed his request for information under the FOI Acts. The respondent denies that it discriminated against the complainant on either of the grounds claimed and it states that the complainant’s request was dealt with in accordance with its normal procedures and in compliance with its obligations under the FOI Acts. Therefore, the question that I must decide in the present case is whether the complainant’s request for information under the FOI Acts was dealt with in a discriminatory manner by the respondent on the grounds of his family status and/or race.
4.4 In considering this issue, I am satisfied that the complainant is covered by both the race and family status grounds within the meaning of the Equal Status Acts i.e. that he is of a different ethnic origin than a white Irish person and that he was the resident primary carer of a person over the age of 18 years with a disability (namely his mother). I note that the complainant sought information from the respondent under the FOI Acts in relation to both himself and his mother. It was not disputed by the parties that following the processing of this request the respondent released the information to the complainant which related to himself but refused to release the information relating to his mother. I note the respondent claims that it refused to release the information to the complainant in relation to his mother on the basis that it was prohibited from doing so in accordance with its obligations under its own Code of Conduct in relation to personal information and in compliance with its statutory obligations under the FOI Acts (i.e. it was prohibited from releasing personal information about an individual who is not the requester).
4.5 It is clear that a public body such as the respondent is obliged to act in accordance with the provisions of the FOI Acts in terms of the manner in which it deals with such a request (i.e. to that made by the complainant) for information under those Acts. In considering this issue I have taken cognisance of sections 28(1) and 28(2)(b) of the Freedom of Information Acts which provide that:
“28 (1) – Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)”
“28(2) – Subsection (1) does not apply if –
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure”
Having regard to the foregoing provisions, I am satisfied that the respondent was prohibited from releasing the information to the complainant that he had sought in relation to his mother and I also accept the respondent’s evidence that it had not been furnished with her consent to release the requested information to the complainant. Having regard to the provisions of Section 14(1)(a)(i) of the Equal Status Acts, it is clear that the taking of an action required under an enactment shall not be construed as being prohibited conduct. I accept the respondent’s evidence that it dealt with the complainant’s request for information (both in relation to himself and his mother) in the normal manner and in accordance with it obligations under the FOI Acts. I am satisfied that I have not been presented with any evidence from which I could conclude that the respondent acted in a discriminatory manner in terms of the way that it dealt with complainant’s request for information under the FOI Acts. Having regard to the foregoing, I am satisfied that the complainant was not subjected to less favourable treatment by the respondent on the grounds of his family status or race in terms of the manner in which it dealt with his request for information under the FOI Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status and race grounds.
5. Harassment
5.1 The complainant claims that he was subjected to harassment by the respondent contrary to the provisions of Section 11(5) of the Equal Status Acts, 2000 to 2008. I note the complainant claims that the alleged harassment arose on the basis of correspondence he received from the respondent subsequent to the referral of the present complaint to the Tribunal. The complainant claims that the respondent sent him two letters (on 27 July, 2007 and 31 July, 2007) in which he was instructed to desist from contacting employees of the Association as a result of two separate messages that he had left on the telephone voicemail of the individual employees. The complainant claims that he did not receive the first letter on 27 July and therefore, when he left the second voicemail he was not aware of the respondent’s initial instruction that he should desist from contacting its employees. The respondent claims that it issued these letters to the complainant in response to the inappropriate contact that he had initiated with two of its employees. The respondent submitted that the initial letter of 27 July was delivered to the complainant’s residence by courier and the second letter was issued on 31 July after it appeared that the complainant had disregarded the instruction (contained in the initial letter) to desist from further communications with its employees.
5.2 In considering this issue, I have taken note of the evidence of Ms. X who stated that she was very upset and distressed by the voicemail message she received from the complainant and that she subsequently reported this matter to her supervisor. I am satisfied that the respondent issued the first letter to the complainant (on 27 July) in response to this contact which he had made with Ms. X and I note that this letter contained clear instructions that any further communication the complainant wished to engage in with the respondent should be addressed to its HR Director. I am satisfied that the respondent issued the second letter on 31 July in the belief that the complainant had disregarded this instruction and had subsequently engaged in further direct contact with another of its employees. Having regard to the evidence adduced, I am satisfied that the actions of the respondent were reasonable in the circumstances, especially in light of the distress which the complainant’s initial contact caused to Ms. X and the resultant obligation that it had to protect the welfare of its employees. Accordingly, I find that the respondent’s actions did not amount to harassment of the complainant within the meaning of Section 11(5) of the Equal Status Acts, 2000 to 2008.
6. Victimisation
6.1 The complainant has also claimed that he was subjected to victimisation as a result of the aforementioned correspondence he received from the respondent subsequent to the referral of the present complaint to the Tribunal. Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts, 2000 to 2008. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
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 failed to establish a prima facie case of discrimination on the family status, race and victimisation grounds in terms of Sections 3(1), 3(2)(c), 3(2)(h) and 3(2)(f) of the Equal Status Acts, 2000 to 2008. I also find that the complainant has failed to establish a prima facie case of harassment contrary to Section 11(5) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
DEC-S2008-013 – Full Case Report
A Complainant v Department of Social and Family Affairs
(Represented by Sinéad McMullen BL)
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1) – Age ground, section 3(2)(f) – Certain measures and activities not prohibited, section 14(1)(a)(i) – Social Welfare Consolidation Act 2005, section 108(3) – Qualification for Old Age (contributory) Pension
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. A complainant 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 Act, 1998, 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 Act.
2. Dispute
2.1. The dispute concerns the Department of Social and Family Affairs (henceforth the Department) refusal to take notice of the complainant’s years spent in childcare duties for the purposes of calculating the yearly average number of PRSI contributions on the basis of the Old Age (Contributory) Pension payable to her on reaching 66 years of age. The complainant maintains that the fact that the Department’s Homemaker Scheme only applies to persons who cared for their dependants on or after 6 April 1994 creates a situation where she, on the age ground, is less favourably treated contrary to section 5(1) of the Acts. She asserts that in a case of a person in similar circumstances, including having a similar number of PRSI contributions, but of a younger age, such that the years spent in the care of her children occurred on or after 6 April 1994, those years are disregarded, increasing the calculated yearly average number of PRSI contributions, with the result that the pension payable is substantially greater than what will be paid to her.
3. Preliminary issue
3.1. While the Homemaker’s Scheme was initially introduced as a statutory instrument in 1994 (S.I. 235/94) it has since been replaced by Section 24 the Social Welfare Act 1996. The Scheme is currently governed by Section 108 of the Social Welfare Consolidation Act 2005 (and since amended by Section 8 of the Social Welfare Law and Pension Act 2006). While I fully acknowledge the position the complainant finds herself, it is clear that Section 14 (1)(a)(i) of the Equal Status Acts deems the treatment of the complainant as non-discriminatory within the meaning of the law. Section 14 (1)(a)(i) of the Equal Status Acts states:
“Nothing in this Act shall be construed as prohibiting –
a) the taking of any action that is required by or under –
(i) any enactment or order of a court.
This means that any action that is required by or under any enactment is not prohibited under the Equal Status Acts. The method of calculating the contributions for the purpose of Old Age Contributory Pension, insofar as it concerns a Homemaker, is provided for in the Social Welfare Contribution Act 2005, as amended, and so, the treatment complained of by the complainant is required by that provision.
4. Decision
4.1. The complainant has failed to establish a prima facie case of discrimination on the ground of age. Therefore, I find in favour of the respondent.
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DEC-S2008-026 – Full Case Report
Equal Status Act 2000-2004
Equality Officer Decision DEC-S2008-026
Kane v Eirjet Limited (In Voluntary Liquidation)
Keywords
Equal Status Acts 2000-2004 – Direct discrimination, Section 3(1)(a) – Family Status Ground, Section 3(2)(c), Disability Ground, Section 3(2)(g) – Disability Ground by association, Section 3(1)(b) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2004
This complaint was referred to the Director of the Equality Tribunal 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 Act 2000, the Director has 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. The hearing of the case took place on 18th February, 2008.
1. Dispute
1.1 This dispute concerns complaints by Ms. Jennifer Kane, and her son David, that they were discriminated against by Eirjet Limited in terms of Sections 3(1)(a), 3(1)(b), 3(2)(c) and 3(2)(g) of the Equal Status Acts, 2000 to 2004 when they were requested to vacate their allocated seats for take-off and landing during the course of a flight on board the airline operated by the respondent. Both of the complainants also claim that they were subjected to harassment by the respondent in terms of Section 11 of the Equal Status Acts, 2000 to 2004.
2. Summary of the Complainant’s Case
2.1 Ms. Jennifer Kane and her adult son David, who has Down Syndrome, were scheduled to fly with the respondent airline from Dublin Airport to Salou in Spain on 12th May, 2006. The complainants were travelling as a party of six adults and on arriving at Dublin Airport were the first passengers to check in for the flight on this date. As a result they were allocated six seats with extra leg room by the check-in assistant and these seats were situated beside the emergency exits on the aircraft. The flight was scheduled to depart from Dublin Airport for its destination at 12:20 p.m. but it was delayed by approx. nine hours and eventually departed at around 9 p.m. that evening. The complainants and the other members of their party boarded the aircraft and took up the seats by the emergency exits that had been allocated to them at check-in. However, before the aircraft commenced its take-off a male member of the cabin crew, named Miguel, approached the area where the complainants were seated and pointed at Mr. David Kane, who was seated between his two uncles, and stated in an abrupt manner that “this young man will have to move”. He also indicated that another member of their party would have to move from their allocated seat. Ms. Jennifer Kane was taken aback by this request and asked the cabin crew member for an explanation as to why they were being requested to vacate their seats and she was informed that it was necessary for health and safety reasons. The cabin crew member stated that the captain was not going to proceed with take-off until David and another member of their party vacated their seats.
2.2 Ms. Jennifer Kane was not satisfied with this response and requested a further explanation from the head cabin crew member, Mr. John Fitzsimons, who stated that it would be necessary for them to move seats in order to comply with health and safety regulations and he suggested that the complainants move seats for the duration of take-off and landing. Ms. Jennifer Kane and her son, David, vacated their seats and were moved to the rear of the aircraft by the cabin crew where they were re-seated for the duration of take-off and landing. This request to vacate their seats was the source of much upset and embarrassment to both of the complainants. When the complainants were being shown to their alternative seats they were subjected to jibes and snide comments by other passengers and the incident was portrayed in a manner as if they were causing a further delay to take-off and were being removed from their seats for causing trouble. The complainants contend that the entire handling of the incident by the cabin crew resulted in passengers who were already irate because of the existing delay in the flight becoming even more irate. The complainants returned to their original seats after the aircraft was airborne and during the course of the flight Ms. Jennifer Kane asked Mr. John Fitzsimons if the request to vacate their seats was attributable to the fact that David had Down Syndrome and he replied “well actually yes”. Both of the complainants were deeply upset by the incident and Ms. Jennifer Kane expressed her dissatisfaction regarding their treatment to the cabin crew who stated that the request was in keeping with company policy. Ms. Jennifer Kane completed a complaint form regarding the incident while on board the flight and returned the complaint form to a member of the cabin crew before disembarking from the aircraft.
2.3 The complainants also travelled with the respondent airline on the return leg of their journey but did not experience any similar difficulties on this occasion. Ms. Jennifer Kane claims that the respondent must have realised that it had treated them very badly on the outward journey as their group were reserved front row seats on the return flight and they were also afforded special treatment such as complimentary food and drink. Ms. Jennifer Kane received a telephone call from the respondent’s Customer Service Department following their return to Ireland in which the customer service representative apologised for the treatment that they had been afforded on the outward flight to Salou.
2.4 The complainants claim that the request by the cabin crew to move from their allocated seats on the flight to Salou was motivated purely on the basis that David has Down Syndrome. The complainants further claim that the resultant atmosphere for the duration of the flight was both hostile and humiliating and their dignity was violated as a result of the treatment that they were afforded by the respondent. The complainants also contend that their treatment by the respondent’s cabin crew during the course of this flight amounted to harassment.
3. Summary of the Respondent’s Case
3.1 The respondent company went into voluntary liquidation on 6th November, 2006 and the Liquidator subsequently informed the Tribunal in correspondence that he had written to the Managing Director of the respondent company on several occasions in relation to these complaints but had not received any response. The Liquidator was notified of the date of the hearing by the Tribunal on 25th January, 2008 but neither the Liquidator nor the respondent attended at the hearing of these complaints. No evidence was therefore presented by or on behalf of the respondent.
4. Conclusions of the Equality Officer
4.1 At the outset, the burden of proof rests with the complainants. I must, therefore, consider whether the complainants in this case, have established a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria. (1) It must be established that they are covered by the relevant discriminatory grounds i.e. the family status and/or disability grounds in this case. (2) It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainants was less favourable than the treatment that would be afforded to another person in similar circumstances. If the complainants succeed in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if its defence is to succeed. I will now proceed to examine each of the complaints on the grounds claimed.
Mr. David Kane, Disability Ground
4.2 Mr. David Kane has Down Syndrome and I am satisfied therefore that he is a person with a disability within the meaning of the Equal Status Acts, 2000-2004[1]. This fact satisfies the first of the three criteria set out above. I am satisfied that the incident complained of actually occurred in that the complainant and another member of the party with which he was travelling were requested by the respondent’s cabin crew to vacate their seats for take-off and landing. Therefore, the second criterion outlined above has been met. The third criterion to be satisfied in order for the complainant to establish a prima facie case of discrimination is that of less favourable treatment, i.e. he must show that the treatment he 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.
4.3 The complainant claims that he was requested to vacate his seat by the respondent’s cabin crew prior to the take-off of the flight purely on the basis of his disability. I have taken note of Ms. Jennifer Kane’s evidence that she was informed by both of the cabin crew members who were on duty on the flight that the complainant was requested to vacate his seat for health and safety reasons. In considering this issue, I note that it is stated in the respondent’s “Passenger Information Manual” at page 7 that “seats in certain rows including emergency exit rows may only be occupied by able-bodied adult passengers who speak English and are willing and able to assist the cabin crew in the unlikely event of an emergency evacuation of the aircraft”. It is also stated at page 13 of this Manual that passengers with disabilities should not be seated in Emergency Rows 12 and 13. I further note that the operators of commercial passenger airlines are obliged to comply with both national and European Union safety regulations which regulate the allocation of seats on an aircraft that permit direct access to emergency exits[2]. These regulations require that airlines have procedures in place to ensure that passengers are seated, where in the event that an emergency evacuation is required, that they may best assist and not hinder evacuation from the aircraft. In order to facilitate this requirement, only passengers who appear reasonably fit, strong and able to assist the rapid evacuation of an aeroplane in an emergency should be allocated seats which permit direct access to emergency exits. In this regard, passengers who, because of their condition, might hinder other passengers during an evacuation or who might impede the crew in carrying out their duties, should not be allocated seats which permit direct access to emergency exits. The regulations stipulate that certain categories of passengers are among those who should not be allocated seats which permit access to emergency exits, for example, children (whether accompanied or not), passengers who are either substantially blind or substantially deaf to the extent that might not readily assimilate printed or verbal instructions given and passengers suffering from obvious physical or mental handicap to the extent that they would have difficulty in moving quickly if asked to do so[3].
4.4 It would appear that the principal reason for not allocating seats that are adjacent to emergency exits to disabled passengers is purely for safety purposes on the basis that a person with a disability may impede the cabin crew in carrying out their emergency duties, may obstruct access to equipment or hinder aircraft evacuation. Section 14 of the Equal Status Acts provides a defence for a service provider who attempts to ensure compliance with these or any other legislative requirements. In this regard, I am satisfied that commercial passenger airlines operating within this jurisdiction are obliged to abide by the aforementioned EU regulations and in doing so are required to impose certain prohibitions regarding the allocation of “emergency exit seats” to certain categories of passengers who have a disability. However, the regulations do not appear to impose a requirement that all disabled passengers be prohibited from sitting at an emergency exit but rather it would appear to apply to passengers who because of the nature of their disability would not be considered able bodied, who would have difficulty in moving quickly in the event of an emergency or those, who because of their condition, might hinder other passengers during evacuation or impede the cabin crew in carrying out their duties.
4.5 In the present case the evidence is that the complainant presented in person at the check in desk, handed his passport to the check-in assistant and lifted his luggage onto the conveyor belt in the normal manner. The complainant and the other five members of his party were subsequently allocated the emergency exit seats by the check in assistant. I am satisfied that the check-in assistant would have been aware of the nature of the complainant’s disability at this stage. However, based on the evidence presented, and in apparent contravention of the respondent’s stated policy regarding seating allocation, she still proceeded to allocate the complainant an emergency exit seat. It was only when the complainant and the other members of his party boarded the aircraft and took up their allocated seats that the issue of health and safety was raised by the cabin crew. At the hearing of the complaint, counsel argued that the complainant, Mr. David Kane is able-bodied and given the level of his physical ability and intellect, that he is not the type of person, who in terms of the aforementioned safety regulations, should be prohibited from occupying a seat adjacent to an emergency exit. In the present case it would appear that the cabin crew member, immediately upon seeing the complainant, noticed that he had a disability and summarily decided that he was the type of passenger, who because of his disability, was prohibited from sitting in an emergency exit seat.
4.6 I must, therefore, decide whether the actions of the cabin crew in requesting the complainant to move from his seat in such circumstances amounted to less favourable treatment on the grounds of his disability. In deciding this issue, I am mindful of the fact that the cabin crew on board an aircraft are obliged to comply with and enforce all of the safety requirements regarding the seating of passengers and that a failure to do so could potentially compromise the safety of all passengers in the event of an emergency. The overall safety of the aircraft and its passengers is a matter of paramount importance and I am of the opinion that members of a cabin crew would be neglecting their professional obligations and thereby failing in their duty of care to the passengers on board if they failed to adhere to the obligatory safety requirements. Having regard to the nature of the complainant’s disability and in light of the obligations that are imposed upon airline operators to comply with safety requirements regarding the allocation of seats, I find that the actions of the respondent in requesting Mr. David Kane to vacate the seat that he had been allocated beside the emergency exit and to move to an alternative seat was in compliance with the aforementioned safety obligations. In the circumstances, I find that Mr. David Kane was not subjected to less favourable treatment on the grounds of his disability and accordingly, that he has failed to establish a prima facie case of discrimination on the disability ground.
Ms. Jennifer Kane, Disability be Association Ground
4.7 Ms. Jennifer Kane claims that she was discriminated against by the respondent by virtue of her association with a person who has a disability i.e. her son David in the instant case. Section 3(1)(b) of the Equal Status Acts, 2000 to 2004 states that:
“(1) For the purposes of this Act, discrimination shall be taken to occur –
(b) where a person who is associated with another person –
(i) is treated by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would by virtue of paragraph (a), constitute discrimination”
I am satisfied that Ms. Jennifer Kane was associated with a person who has a disability and was so associated by the respondent’s cabin crew in the present case. I am also satisfied that the actions complained of actually occurred, in that another member of the party with which Mr. David Kane was travelling, was also requested to vacate their emergency exit seat by the cabin crew after boarding the aircraft. However, as I have already found that Mr. David Kane has not established a prima facie case of discrimination on the disability ground, it follows, therefore, that Ms. Jennifer Kane cannot, in these circumstances, have been discriminated against, by association with Mr. David Kane on the disability ground.
Ms. Jennifer Kane, Family Status Ground
4.8 Ms. Jennifer Kane 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 2004 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, Ms. Jennifer Kane was accompanied on the flight by her nineteen year old son David who has Down Syndrome. I am therefore satisfied that the family status ground is applicable to Ms. Jennifer Kane in this case. I have noted that the member of the cabin crew that approached the area where the complainants were seated indicated that both Mr. David Kane and another member of the party would have to vacate the seats that they were occupying beside the emergency exits. Ms. Jennifer Kane stated that following this request she nominated herself as the other member of the party that would move seats with her son David. Ms. Kane contended the reason that another member of their party was also requested to move seats by the cabin crew was to make it look as if they were not picking upon David because of his disability. In considering this issue, I am of the view that it would not be unreasonable, in circumstances where a person with a disability was being requested to move to an alternative seat on an aircraft in order to comply with safety regulations, to also request the parent or the resident primary carer of that person to also move for the purposes of accompanying the other person.
4.9 Notwithstanding this, I am also of the view that the manner in which the request was approached and handled by the cabin crew in the present case was entirely inappropriate and unsatisfactory from a customer service perspective. Given the circumstances that pertained and the requirement that Mr. David Kane be re-seated in order to comply with passenger seating regulations, it should in my opinion, have been incumbent on the cabin crew, both as a matter of courtesy and good customer service, to approach the complainants and to clearly explain the requirements and restrictions that pertained with regard to the allocation of emergency exit seating on the aircraft. Having regard to the manner in which the entire incident was handled by the respondent’s cabin crew it is clear that the complainants were not afforded these basic levels of customer service. Whilst I am of the view that this treatment was totally unsatisfactory in terms of customer service standards, I am not satisfied that the request made by the cabin crew member for another member of the party to move from their allocated seat, in the circumstances, amounts to less favourable treatment within the meaning of the Equal Status Acts, 2000 to 2004. Accordingly, I find that Ms. Jennifer Kane has failed to establish a prima facie case of discrimination on the family status ground.
5.1 Harassment
5.1 The complainants claim that they were harassed by the respondent contrary to the abovementioned provisions of the Act. Harassment is defined in Section 11(5) of the Equal Status Acts, 2000 to 2004 in the following terms:
“(a)(i)references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.
The complainants claim that after they had boarded the aircraft and taken up their allocated seats one of cabin crew members approached the area where they were seated and pointed at Mr. David Kane and stated in a very abrupt manner that he would have to vacate his seat. The complainants were not offered any explanation for the request at this stage and were subsequently informed that the captain would not proceed with take-off until they had vacated their seats. The complainants after seeking an explanation were moved to alternative seats but as they were doing so were subjected to jibes and snide comments from other passengers and it was contended that the incident was portrayed as if they had been causing trouble and as a result were being shown to alternative seats. The complainants stated that they were both deeply upset and embarrassed by the incident and that the resultant atmosphere on the flight was hostile and humiliating. The complainants contended that their dignity was violated by the manner in which they were treated during the course of the incident.
5.2 I have found the evidence of the complainants to be very credible in relation to their treatment by the respondent on this flight. In the circumstances, I am of the view that, when the cabin crew became aware that Mr. David Kane had a disability, both he and his mother should have been approached in a courteous manner and afforded an explanation as to why they were being requested to vacate their seats i.e. in order to satisfy safety requirements regarding the seating of passengers at emergency exits. I am satisfied that the attitude adopted by members of the cabin crew and the manner in which the request was communicated to the complainants was totally inappropriate and unacceptable in the circumstances. Having regard to the fact that the flight had already been delayed for nine hours it is probable by the time of departure that there was a certain amount of dissatisfaction and frustration among other passengers on board the aircraft. Given these circumstances, I am of the view that the incident involving the complainants could have been construed by other passengers as if they were being troublesome, thereby exasperating the sense of tension that already existed on the aircraft. I am satisfied that the complainants felt intimidated by the atmosphere that prevailed on the flight as a result of this incident and that the sense of upset, humiliation and embarrassment they felt was as a direct consequence of the treatment that they were afforded by the members of respondent’s cabin crew that they had dealt with on this flight. I am therefore satisfied that the complainants have established a prima facie case of harassment on the disability ground in that their treatment on the flight can reasonably be regarded as degrading, intimidating and a violation of their dignity. As no evidence has been presented on behalf of the respondent, I thereby find that it has failed to rebut the allegation.
6. Vicarious Liability
6.1 While the conduct which constituted harassment is directly attributable to the members of the cabin crew that dealt with the complainants on this occasion Section 42(1) of the Equal Status Acts provides that:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act, as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”
As the members of the cabin crew were clearly acting within the scope of their employment during the course of this flight, I find that the respondent is vicariously liable for their actions in accordance with Section 42(1) of the Equal Status Acts, 2000 to 2004.
6. Decision
6.1 On the basis of the foregoing, I find that both of the complainants, Mr. David Kane and Ms. Jennifer Kane were harassed by the respondent in terms of Section 11(5) of the Equal Status Acts, 2000 to 2004.
6.2 In accordance with section 27(1)(a) of the Act, I hereby order that the respondent pay both of the complainants, Mr. David Kane and Ms. Jennifer Kane, the sum of €1,000 each for the effects of the harassment.
Enda Murphy
Equality Officer
18th April, 2008
1 Equal Status Acts, 2000 to 2004 @ Section 2.1
[2]Irish Aviation Authority (Operations) Order, 2006, S.I. No. 61 of 2006, Section 53(2) and Council Regulation (EEC) No. 3922/91 refer.
DEC-S2004-142 Full Case Report
Thornton v The Turner’s Cross Tavern
1. Disput
1.1 This dispute concerns a complaint by Mr Liam Thornton that he was discriminated against, contrary to the Equal Status Act 2000, by the Turner’s Cross Tavern, Cork. The complainant maintains that he was discriminated against on the Age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 The complainant states that when he sought service in the Turner’s Cross Tavern on Sunday 7 April 2002, he was asked for ID by the barman. When he produced his UCC Student ID Card showing that he was over 18, the barman refused to accept it and pointed to a sign on the wall stating that only Garda Age Cards were accepted by the pub as proof as age. Mr Thornton claimed that, as he had been served twice previously in the pub, on production of his Student ID Card, that he had a “legitimate expectation” that he would be served on 7 April 2002 and that the refusal constituted discrimination on the grounds of age.
3. Summary of Respondent’s Case
3.1 The respondents maintained that in 2002 it was pub policy to only accept Garda Age Cards as proof of age as, at that time, this was the only form of ID that was recognised as acceptable under the Intoxicating Liquor Act 2000.
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 this 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 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)(i) of the Act specifies the Age ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused service in the Turner’s Cross Tavern on 7 April 2002.
5.2 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 discrimination could be inferred. 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 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 complainant. 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 Age 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. With regard to (a) above, the complainant has satisfied me that he was over 18 years of age on 7 April 2002. In relation to (b), the respondents acknowledge that the complainant was refused service on 7 April 2002. To determine whether a prima facie case exists, I must, therefore, consider whether I believe that the treatment afforded the complainant on 7 April 2002 constituted discrimination under the Equal Status Act 2000.
6.2 The principal pieces of evidence before me are as follows:
Liam Thornton and his two friends, who all appeared at the Hearing, state that they were admitted and served on two previous occasions in the Turners Cross Tavern. On being asked for ID on those occasions, they say that they produced their Student ID Cards, which were accepted by staff.
Mr Thornton identified Monday 1 April 2002 (six days before the date of refusal) as the most recent date on which they were served and said at the Hearing that they visited the pub that night to watch a live football match between Southampton and Aston Villa.
Mr Thornton claims that the same barman who refused him the following Sunday, 7 April 2002, was happy to accept his Student ID on 1 April 2002.
The respondents state that the Turners Cross Tavern opened for business in 2001, a few months after the Intoxicating Liquor Act 2000 (ITA) came into force. The pub employed a total of around 12 barstaff .
The respondents say that, as the Garda Age Card was the only acceptable form of ID identified under the Intoxicating Liquor Act 2000, they gave instructions to all staff that no other form of ID was to be accepted in situations where barstaff suspected that a customer may be underage. Staff were regularly reminded of the need to abide by these instructions as both the barstaff and the proprietor were liable for prosecution under the Act, if it was found that an underage person had been served and who was not in possession of a Garda Age Card.
The respondents believe that the vast majority of barstaff strictly enforced the Age Card requirement but, as it was impossible to monitor staff at all times, they accept that a few may have been more flexible on occasion and may have accepted other forms of ID.
On hearing the evidence of the complainant and his witnesses, the respondents said that they were prepared to accept that the three friends had been served in the Turners Cross Tavern previously as claimed, without having produced Garda Age Cards. The respondents stated, however, that this should not have happened and put it down to a member of staff not complying with the instructions he or she had been given
The barman who was on duty on 7 April 2002, Brian O’Neill, said that he recalled refusing service to the 3 gentlemen on 7 April 2002 but that he does not recall having dealt with them previously. On 7 April 2002, he said that he refused service to Mr Thornton because he could not produce a Garda Age Card as proof of age.
6.3 Section 14 of the Equal Status Act 2000 – Action required by an Enactment Section 14 of the Equal Status Act 2000 provides, inter alia, as follows: ‘Nothing in this Act shall be construed as prohibiting…the taking of any action that is required by or under…any enactment…’ Section 14 of the Equal Status Act 2000, therefore, provides that any action required by law cannot be deemed to be discriminatory. The respondents have argued in this case that they were legally obliged at the time of the refusal on 7 April 2002, under the provisions of the Intoxicating Liquor Act 2000, only to accept a Garda Age Card as valid proof of age. Section 14 of the Intoxicating Liquor Act 2000, which deals with the sale of intoxicating liquor to under-age persons, introduced a new requirement into existing licensing legislation which stated that, in any proceedings brought against a publican, ” it shall be a defence for the defendant to prove that the person in respect of whom the charge is brought produced to him or her an age card relating to that person or, if the defendant is charged with permitting another person to sell or deliver intoxicating liquor contrary to either of those subsections, to prove that an age card relating to the person to whom the intoxicating liquor was sold or delivered was produced by that person to that other person.”. It is, therefore, clear from the above text, that the intention of Section 14 of the Intoxicating Liquor Act 2000 was to introduce a practice whereby publicans would only accept the Garda Age Card (and not passports, driving licences, student cards etc.) as legitimate proof of age and that failure to do so could leave publicans open to prosecution.
6.4 The alleged act of discrimination in this case occurred on 7 April 2002 at a time when the provisions of the Intoxicating Liquor Act 2000 were in force. Therefore, in order to comply with the law as it stood on 7 April 2002, the only lawful defence for a publican was to show that a person suspected of being underage had produced to them a Garda Age Card as proof of age, in accordance with the provisions of the Intoxicating Liquor Act 2000. (I note that the proof of age requirements have since been relaxed somewhat by the Intoxicating Liquor Act 2003 but still do not accept Student ID Cards as valid proof of age).
In refusing to accept Student Cards as ID on 7 April 2002, the respondents were, therefore
acting in accordance with the provisions of the Intoxicating Liquor Act 2000. Accordingly, as the respondents were at the time complying with an action that was required by or under an enactment, I consider that, under Section 14 of the Equal Status Act 2000, their actions cannot be deemed to be discriminatory.
6.5 The complainant, Mr Thornton, has also argued that he had a “legitimate expectation” that he would be served on 7 April 2002, having been served previously in the Turners Cross Tavern on production of his Student ID Card and made reference to the case of Webb v Ireland {1988} ILRM 565 where he says the Supreme Court outlined the doctrine of
“legitimate expectation”. In that case, Chief Justice Finlay is quoted as saying that ” it would appear that the doctrine of “legitimate expectation”, sometimes described as “legitimate expression” has not in those terms been a subject matter of any decision of our courts. However the doctrine connoted by such expressions is but an aspect of the well recognised concept of promissory estoppel (which has been frequently applied by our courts) whereby a promise or representation as to intention may in certain circumstances be held to be binding on the representor or promisor”. The Chief Justice then referred to the English courts decision in Amalgamated Investments Ltd v Texas Commerce Int’l Bank [1982} QB 84, at 122 where Lord Denning held ” When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case requires.”
6.6 On considering the complainant’s argument that he had a “legitimate expectation” that he would be served, I consider that the onus is on the complainant to establish the facts on which this expectation is founded. In this particular case, Mr Thornton referred to previous occasions on which he says his Student ID Card was accepted and places particular emphasise on his claim that the same barman who refused him on 7 April 2002 had accepted his Student ID Card six days earlier. On investigating this point, I note that the complainant has given evidence that he believes that he was served by the barman in question, Brian O’Neill, while watching a match between Aston Villa and Southampton on TV on Monday 1 April 2002. In an attempt to validate the accuracy of the complainant’s testimony, I asked the respondents at the Hearing to produce their roster for the week in question showing who was on duty in the pub during w/c Monday 1 April 2002. The roster produced by the pub subsequently showed that Mr O’Neill was not on duty on 1 April but was on duty on the date the complainant was refused service, 7 April 2002. I also carried out some internet research subsequent to the Hearing to establish whether the match identified, Aston Villa v Southampton, was televised on 1 April 2002. My enquiries, however, showed that Aston Villa had no match on Monday 1 April and that the league match referred to, Aston Villa v Southampton, actually took place on 27 April 2002, three weeks after the date the refusal occurred. On bringing these points to the attention of the complainant subsequent to the Hearing, Mr Thornton acknowledged that he may have been mistaken about the date and match in question but insisted that he had been served in the Turners Cross Tavern on a second occasion between 17 March 2002 and 7 April 2002.
6.7 On the basis of the above, I find that there still remains some confusion as to when and whether Mr Thornton was served by Mr O’Neill prior to 7 April 2002 and whether Mr O’Neill was, in fact, the person who accepted the complainant’s UCC Student Card as ID. For this reason, I consider that the complainant has not put sufficient evidence before me to establish, on the balance of probabilities , that the same barman who had served him previously, refused him on 7 April 2002. This to me undermines Mr Thornton’s claim that he had a legitimate expectation that he would be served on 7 April 2002. In relation to the complainant’s other alleged visit to the Turners Cross Tavern, to watch Aston Villa v Arsenal, I note that this match was transmitted live on Sunday 17 March 2002 and I am prepared to accept that the complainant and his two friends were admitted and served in the pub on that date.
6.8 Mr Thornton’s argument that he had a “legitimate expectation” of service does, however, raise the question as to how far this expectation could legitimately have been allowed to extend, bearing in mind that, if the respondent was to accept that the complainant had a “legitimate expectation” of service, in order to fulfil this expectation the respondent would have had to knowingly break the law, by ignoring the provisions of the Intoxicating Liquor Act 2000 which were in force at the time. On considering this point, I find that I cannot accept, in this instance, that any “legitimate expectation” on thecomplainant’s part overruled or superseded the legal obligation on the publican to abide by the terms of the Intoxicating Liquor Act 2000. For this reason, I do not consider that the complainant’s case falls into the same category as the precedent cases referred to above.
Therefore, while I am inclined to accept that Mr Thornton may have felt that he had a genuine expectation that he would be served on 7 April 2002, I do not consider that the circumstances of this particular case supported Mr Thornton’s contention that he had a “legitimate expectation” of service as he claims.
6.9 Another factor in this case which the complainant expressed frustration over was his claim that he made several attempts to resolve the issue directly with the respondents before the case went to Hearing but the respondents never replied to him. For their part, the respondents say that they did reply to Mr Thornton’s initial notification and have produced a copy of a letter dated 11 June 2002 which was purportedly sent to Mr Thornton. Mr Thornton denies, however, that he received it. On this point, I am inclined to empathise with Mr Thornton as I find myself in a similar position in so far as a letter purportedly sent to me by the respondents on 2 February 2004 was not received by me.
6.10 While I can understand the complainant’s annoyance and frustration at being refused service in a pub where he had been served before, I consider that the difference in treatment on the occasions identified occurred because of a lapse in vigilance on the part of barstaff rather than the existence of a policy of discrimination on the part of the respondents. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination under the provisions of the Equal Status Act 2000.
7 Decision
7.1 I find that a prima facie case of discrimination has not been established by the complainant on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000.
Brian O’Byrne
Equality Officer
11 October 2004
Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-037
Sabherwal v ICTS (UK) Ltd
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 1 – Ground of race, section 3(2)(h) – Disposal of goods and services, section 5(1) – Certain activities or measures not prohibited, section 14(iii) – Annex 17 to the Chicago Convention – Security protocol at airport
1. Delegation under the Equal Status Act 2000 to 2004
1.1. Mr Kanti Sabherwal 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 Act, 1998, 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 30 August 2007. A hearing was held on 26 November 2007. Final submission in relation to the above complaint was received on 15 March 2008.
2. Dispute
2.1. The dispute concerns a complaint by Mr. Sabherwal that he was treated less favourably by security agents working with ICTS (UK) Ltd on 22 October 2004 at Shannon airport on the ground of race contrary to section 5(1) of the Acts. The complaint of less favourable treatment arouse when security personnel insisted that Mr. Sabherwal, who was in a queue for check-in, was asked to produce alternative proof of identification with a residential address in addition to his passport.
3. Case for the complainant
3.1. Mr. Sabherwal, a British citizen, is of Asian origin. He has lived in Ireland for over 40 (forty) years and is married to an Irish citizen. His two children travel with Irish passports. On 22 October 2004, he and his family were travelling to the United States when, upon queuing for the check-in counter, ground staff belonging to ICTS (UK) Ltd asked to see his and his family’s tickets and passports. After examining them, the agent asked the complainant to step aside and to produce proof of residence. His wife, an Irish citizen, was not asked for secondary identification.
3.2. The complainant then insists that the security personnel asked him to produce a utility bill with his address on it. As he was travelling on his holidays, the complainant stated he naturally did not have such an item with him. He then asked to speak with a supervisor. A named supervisor came over and spoke with the complainant. This supervisor also insisted that the complainant needed to produce something with his address and that he (the supervisor) had a legal entitlement to ask for such proof.
3.3. The complainant argues that the above incident only occurred because of his skin colour. He stated that he believed that ICTS personnel singled him out from white people. He argues that he was the only non-white person in the queue and that he was the only person who was questioned and asked to produce additional documentation.
3.4. The complainant stated at the hearing that he was not aware of any legal requirement that he, a British citizen, needed to carry a document with his address on it when he was travelling. He stated that he found the questioning humiliating and embarrassing and that it upset his wife and children.
4. Case for the respondent
4.1. ICTS – International Consultants in Targeted Security – (UK and Ireland) Ltd provide aviation security and integrated security. Its aviation security, relevant to this complaint, deals with all aspects of flight, passenger, baggage and cargo security. In Shannon, the location of the incident complained of, the company provides primarily security for United States registered airlines.
4.2. The security processes that ICTS applies to its aviation security protocol is mandated by the United States government and is a legal requirement for all United States registered air carriers flying from Europe to the United States. Part of this process involves a security interview of all passengers prior to proceeding to check-in. This interview follows a standard format, however, it may vary from passenger to passenger, depending on their personal circumstances. These security processes are set out by way of statutory legislation, the Aviation and Transportation Security Act 2001 (US legislation) and more specifically in the Air Operator Standard Security Programme.
4.3. The respondent maintains that any passenger with the same set of circumstances would have been asked exactly the same questions and would have been treated in the same manner as Mr Sabherwal was, had they presented the same documentation as he did.
4.4. The respondent maintains that the security agent dealing with Mr. Sabherwal was dealing with the correct process of questioning when he asked the complainant questions about his residence in Ireland. This, the respondent maintain, had nothing to do with Mr. Sabherwal’s race or nationality.
4.5. The respondent argued at the hearing that Mr. Sabherwal, like every other passenger, was asked to produce a passport by a named security agent prior to reaching the check-in desk. He and his party did so. The security agent received three Irish passports and one British passport that belonged to the complainant. This meant that, in accordance with the established security protocol, the security agent had to request that Mr. Sabherwal produce a secondary form of identification that showed the complaints place of residence.
4.6. According to a contemporaneous report written by the security agent, Mr. Sabherwal took offence of this request and his wife accused the security personnel of being racist by stating something similar to: “You think you are above us, standing there asking us questions like that, your just being a racist”. According to the contemporaneous notes, the security agent attempted to explain the requirements of the security process and then sought out the security supervisor in charge of that flight to inform him of the complainant’s complaint.
4.7. The named security supervisor introduced himself to the complainant as being the person in change of the security for this particular flight. According to his contemporaneous report, the complainant continued to raise questions as to why his British passport was not good enough to travel with. At this juncture, the complainant’s wife accused the security supervisor of being a racist, an accusation that the security supervisor denied. He attempted to explain to the couple that it was because the security procedures required him to follow a certain protocol that he had to ask for secondary form of identification whilst also explaining that due to the nature of the security process and legal restrictions, he was unable to give an exact explanation as to express details of the security process. The security supervisor also offered the complainant a chance to discuss the matter with the airlines’ Ground Security Coordinator (GSC), an offer that was turned down by the complainant. The GSC is a direct employee of the airline and has the final say whether a person can board the flight.
4.8. At this time, the complainant was able to produce some credit cards with his name on them from his wallet and the security supervisor instructed the security agent to continue with the security interview. The security agent did so, no further issues were identified by the security protocol during them and the required security markings were applied. The complainant then proceeded to check-in.
4.9. A while later the complainant approached the security supervisor again to ask why he had been requested to produce a second form of id. The security supervisor reported that the complainant was agitated and that it was obvious that the security supervisor’s reason for not giving answer to his question was annoying the complainant. He repeated that he could not divulge security protocol specific information. The security supervisor again offered the complainant a chance to speak with the GSC, a person with higher authority than the security supervisor, but the complainant refused. The security supervisor then gave the complainant his name and the name of the Regional Manager at the request of the complainant.
4.10. In a letter dated 22 November 2004, ICTS’s Legal and Compliance Manager wrote to the complainant stating: “Unfortunately, due to the nature of the security process that we carry out, I am unable to provide you with the exact criteria applied during the interview process as this is deemed security sensitive information by the Unites States Transportation Security Administration and its dissemination is restricted by United States government statute 49 C.F.R. Parts 15 and 1520”.
4.11. The respondent refutes the complainants’ claim that he has spoken with the company’s help-line stating that the company has no such thing and is unable to divulge any information relating to security protocols.
4.12. The respondent denies any claim that it discriminated on the ground of race or any other ground against the complainant. They maintain that the security procedures applied to the complainant were done so in strict accordance with statutory requirements and without regard to the complainant’s race or ethnicity.
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 she can rely in asserting the she 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. Section 3(1)(a) states:
“Discrimination shall be taken to occur –
Where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”.
5.3. Section 3(2)(h) defines the ground of race: “that they are of different race, colour, nationality or ethnic or national origins”.
5.4. In making my decision I have taken cognisance of both oral and written submissions made by the parties. The last written submission was received on 15 March 2008.
5.5. Mr Sabherwal is a British citizen of Asian origin. The fact that Mr Sabherwal was questioned by security personnel at Shannon airport is not under dispute. What is under dispute is whether Mr. Sabherwal was asked for secondary identification because of his race and/or nationality?
5.6. While neither of the security agents involved during the alleged incident where present at the hearing (they are no longer employed by ICTS), the respondents issued contemporaneous reports written by them as evidence. I have also received a copy of an internal investigation carried out by ICTS’s Station Manager in relation to the way in which the incident involving Mr Sabherwal was handled. The report confirms, from ICTS’s point of view, that the security personnel involved in the incident both acted appropriately and in line with the company’s policies and procedures. It does acknowledge that at times some security screening issues can be frustrating to passengers as personnel do not “have that luxury and can sometimes find a scenario such as this difficult to explain/justify, that being said the passenger was advised on the spot how to proceed to a higher authority who represented the higher level of authority who represented the airline directly.” While I accept the contemporaneous notes as direct evidence, I must acknowledge their limited use as a defence. Parts of the notes explaining the reasons why the complainant was chosen for additional security questions have been blacked out. The respondent justified this by the need to protect security protocols.
5.7. While the respondent submitted that they could reveal the reason(s) to me, the equality officer, they could not – for security protocol reasons – reveal it to the complainant. In accordance with the principles of natural justice, I cannot accept such material as evidence.
5.8. While the respondents referred to legislation enacted in the United States to justify the reason why Mr. Sabherwal was selected to provide additional information to the security officials, I cannot accept them as a defence on Irish soil. While section 14(1) of the Acts may allow for certain measures and activities under national legislation, European legislation and/or legally binding international obligation on Ireland, it certainly does not mean that those measures and/or activities should be provided in a less favourable manner on the grounds of race or any of the other equality grounds unless the legislations and/or conventions specifically require them to do so. Section 14 of the Acts cannot be extended to legislation enacted in the United States.
5.9. The respondent referred to the Air Navigation and Transport Act, 1988 and S.I. 226/2003 – European Communities (Civil Aviation Security) Regulations 2003 and the Chicago Convention. Section 6 of the Air Navigation and Transport Act, 1988 states that –
“it shall be the duty of –
every person owning or operating an aerodrome, and
every person carrying on business at an aerodrome,
to comply with the requirements (including any requirements in relation to that aerodrome, or to the aerodromes in general, specified by the Minister in a direction under section 7 or in a licence or authorisation granted by him under the Acts) of public order and security and of the security and safety of the aerodrome and of the security and safety of persons and aircraft using that aerodrome.”
5.10. Section 6(2) of S.I. 226/2003 – European Communities (Civil Aviation Security) Regulations 2003 states: “An air carrier providing a service from the State shall establish, implement and maintain an air carrier security programme”.
5.11. Annex 2.4 of the Chicago Convention sets out the obligations between contracting states:
“Each contracting state shall ensure that the requests from other Contracting States for additional security measures in respect of specific flight(s) by operators of such other States are met, as far as may be practicable. The requesting state shall give consideration to alternative measures of the other State that are equivalent to those requested.” While the above enactments and the Convention require the presence of a security programme, I have not been presented with anything that states that the security programme must be carried out in the way that it was. Therefore, the respondent cannot rely as section 14(1) as a defence.
5.12. I accept that any air carrier must operate a security programme and that, for a variety of reasons, certain persons are selected for further questioning. However, while making this decision I must acknowledge that the respondent has not submitted any tangible evidence to rebut the complaint. The respondent’s evidence at the hearing states: “Due to the fact that the Complainant presented a passport that was not Irish, the security procedures then required Mr. Long to obtain a secondary form of identification which showed Complainant’s place of residence.” This evidence was subsequently confirmed in writing by the respondent. The only conclusion which I can draw from the statement is that the complainant’s nationality was the substantive reason why the complainant was selected for further questioning. I find this statement as an admission that the complainant’s nationality was the reason why he was expected to show secondary form of identification. This additional requirement that was imposed on the complainant because of his citizenship constitutes direct discrimination as defined by section 3(1) of the Acts. Unlike section 3(c) of the Acts, section 3(1) does not allow for objective justification for such treatment by a legitimate aim.
5.13. In making my order for redress I have taken into consideration the fact that while Mr. Sabherwal was inconvenienced and embarrassed by this treatment, he was able to avail of the service (fly to the United States).
6. Decision
6.1. The complainant has established a prima facie case of discrimination on the race ground contrary to section 5(1) of the Equal Status Acts. In accordance with section 27(1)(a) I make an order of €250 as compensation for the embarrassment and humiliation caused to the complainant.
_______________
Tara Coogan
Equality Officer
11 June 2008
DEC-S2009-053 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 053
PARTIES
Kelly v T.K. Cabs
File Reference: ES/2007/0014
Date of Issue: 14 August 2009
Key words
Equal Status Acts 2000-2004 – Section 3(2)(i), Race ground – failure to attend hearing –no prima facie case
1. Delegation under the relevant legislation
1.1. On 30th 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 17th October, 2008, 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 Wexford on Tuesday, 21st July, 2009.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Race ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(h) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
3. Attendance at hearing
3.1. This case was assigned to me on 17th October, 2008. Submissions were sought from both parties. Upon receipt of those submissions, letters were issued to both parties to the complaint on 19th May, 2009, notifying them that the hearing of the complaint was scheduled to take place at 10:30 a.m. in Wexford on 21st July, 2009. In the case of the complainant, this notice was sent to the solicitor that was nominated to act on her behalf. The notice was sent via registered letter on 19th May 2009 and I obtained confirmation from An Post that it was delivered the following day. I am satisfied, therefore, that valid notification of the hearing was made to the complainant.
3.2. When I opened the hearing at 10.30 a.m., the complainant was not in attendance and was not otherwise represented. The respondent was in attendance, along with a witness. I adjourned the hearing for a brief period and made contact with the Equality Tribunal Offices by telephone to check if any communication had been received from the complainant or her representative regarding her failure to attend the hearing. It was confirmed to me that no such communication had been received.
3.3. The Tribunal also made contact with the complainant’s representative to ascertain if it had been delayed in attending the hearing. The complainant’s representative did not give any indication at that time that it intended to be present at the hearing. The Tribunal explained that, in those circumstances, the hearing would proceed as scheduled and the Equality Officer would issue his decision in the case in accordance with the relevant provisions of the Acts.
3.4. I therefore reconvened the hearing at 10.55 a.m. I outlined that, as the complainant failed to attend the hearing in person, that I was bringing the hearing to a close and a decision would issue shortly. I closed the hearing at 11.05 a.m.
4. Decision
4.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
4.2. As part of my investigation under Section 25 of the Act, I am obliged to hold a hearing. I find that the complainant’s failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination, I conclude the investigation and find against the complainant.
___________
Gary O’Doherty
Equality Officer
14 August 2009
Decision No. DEC-S2009- 043
PARTIES
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
DEC-S2008-015 – Full Case Report
Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-015
McMahon v Bridal Heaven Ltd
Key words
Equal Status Acts 2000 to 2004 –Discrimination, section 3(1) – ground of gender, section 3(2)(a) – Disposal of goods and services, section 5(1) – infringement of privacy on gender ground 5(2)(g) – Denied entry to bridal store – ‘no men policy’
1. Delegation under the Equal Status Act 2000
1.1. Mr McMahon made 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 Act, 1998, 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.
2. Dispute
2.1. The dispute concerns a complaint by Mr McMahon that he was discriminated against on the grounds of gender contrary to the Equal Status Acts 2000 to 2004 by Bridal Heaven Ltd when the shop refused Mr McMahon a service which is generally available to the public contrary to section 5(1) of the Acts on 18 February 2005.
3. Case for the complainant
3.1. Mr McMahon and his then fiancée were looking for a wedding dress for their forthcoming wedding. In their search for the perfect dress, the couple had visited a number of bridal shops. After extending their search to the Internet, Mr McMahon’s bride-to-be identified a potential dress. Bridal Heaven Ltd was listed as a supplier of the said dress and the couple decided to visit the premises to take a closer look.
3.2. On February 18, 2005 the couple journeyed to the shop. On arrival they buzzed the door. Mr McMahon opened the door to let his fiancée in and proceeded to follow her in when the shop assistant’s shout “No men allowed here” stopped him in his tracks. Mr McMahon says that he was highly surprised and embarrassed and stepped outside the store where he waited for his fiancée who had entered the shop.
3.3. While Mr McMahon’s then fiancée remained in the shop for 5 to 10 minutes browsing, no member of staff approached her to explain why her companion was not welcomed in the store. He also pointed out that he is a foot taller than his now wife and that it is, in his opinion, very unlikely that he would not have been visible through the glass in the door to the person in the boutique as they rang the door bell. Mr McMahon believes it could have been less embarrassing if the sales person had come over to the door to explain the situation to them. He does not accept that the reason for the assistant’s yell was out of shock or surprise.
3.4. Mr McMahon states that there was no indication anywhere that the store had a ‘no men’ policy or that it had an ‘appointment only’ policy. Mr McMahon stated that he had visited a number of other bridal stores with his fiancé and had never had any difficulties in being allowed in. He submitted that he had visited a named store where he and his fiancée had been asked to come back in a couple of minutes as the named store had a scheduled appointment. This message was conveyed in a completely different manner than the shout he received from Bridal Heaven Ltd and the store had made it clear that both he and his partner would be welcome later.
3.5. Mr McMahon denies the shop’s counterclaim that there is no reason for a man to enter as they only stock items for women. The store, he says, sells communion dresses and it is highly likely, in his opinion, that some fathers would wish to accompany his daughter/partner when choosing such an item. Mr McMahon stated that it would be very difficult for a child to comprehend why her father would be yelled at in such a manner. He also asserts that at no stage did the store assistant try to find out whether he and his partner where there as parents looking for an outfit for their child. Instead, he was made to feel like there was something sinister about him shopping with his partner.
3.6. Further, Mr McMahon denies that the shops reliance on section 5(2)(g) of the Acts is not valid as the shop had dressing rooms and that people walking-by could see into the store. The front door had a glass pane in it. And there was also a window. Mr McMahon was also at a loss to understand why the shop still (they have since moved to newer much larger premises) operates a strict ‘no-men’ policy when dresses can be secured to size in the new much larger dressing rooms and there is no need for anyone to use the shop floor while trying on the dresses.
4. Case for the Respondent
4.1. Bridal Heaven Ltd is a boutique that specialises in bridal and evening wear. Bridal Heaven Ltd accepts that the incident took place and do not wish to contest Mr McMahon’s statement of him being turned away from the shop. The respondents wished to clarify that the shop assistant had told her employers that she did not see Mr McMahon at the door as he was behind his fiancée. Only when she had spotted him on the stoop did she realise that a man was about to enter the premises. She maintains, through her employers, that the yell was not directed at Mr McMahon to be rude but was more of a warning to the customers present in the shop to take cover.
4.2. Mr McMahon’s attempt to visit the store came at a time when a number of bridal fairs would have just finished and the shop would have been particularly busy with appointments.
4.3. Bridal Heaven Ltd only stocks sample dresses. These tend to be in larger sizes that can be adjusted to a variety of body shapes and sizes. When a customer tries on a dress a shop assistant will adjust it to a correct size so that the bride gets a proper idea of what the dress looks like. Measurements are taken and the chosen dress is then ordered from the stockists. This process means that brides to be enter the shop floor in the large dresses and to hold them up while a shop assistant pins the dress to the right size. This, they argue, exempts their shop from the complaint as the reason why they do not allow men into the store is because it may cause embarrassment to women trying on dresses. The respondents refer to section 5(2)(g) of the Acts to justify this differential treatment.
4.4. Bridal Heaven Ltd states that it adheres strictly to its ‘no men’ policy. This means that no male members of staff are allowed on the shop floor during trading hours and trade persons are met at the door. Only female trade representatives are allowed into the shop. No exceptions of this rule are allowed during normal business hours.
4.5. Men are only allowed into the shop by special arrangement and during such times the shop is not available to general public. This has been done a couple of times when a bride has wished to bring her father along. The shop has never had a request to accommodate both the bride and groom and the shop’s management maintain that most of its clientele would not wish to have their dress seen by the groom before the actual wedding ceremony as this is traditionally seen as bringing bad luck. They stated that most people would not want to parade themselves around when purchasing wedding dresses.
4.6. While the business has moved to larger premises since the complaint was made, and the new shop allows for the dresses to be adjusted in the new larger dressing rooms, Bridal Heaven Ltd still operates a ‘no men’ policy. This is because they firmly believe that most of their clients would prefer to shop in a single sex environment.
4.7. Bridal Heaven Ltd claimed at the hearing that while it was possible to see into the shop, a person would have to stand very closely to the window as there would have been dresses, a half divider and net curtains obstructing the view. They stated that they have never had any difficulties in relation to a person trying to hang around the window and look in an intrusive manner.
4.8. Bridal Heaven Ltd also objected to Mr McMahon bringing up lone fathers at the hearing as his complaint was about him not being able to enter the shop with his then fiancée. They feel it is not appropriate for Mr McMahon to ‘try and champion lone parents rights’ as his complaint is not about this matter.
5. Conclusion of the Equality Officer
5.1. In order for Mr McMahon to establish a prima facie case of discrimination he needs to establish that:
i. he is covered under one of the discriminatory grounds, i.e. the gender ground,
ii. the incident complained of actually occurred,
iii. the treatment he received was less favourable than another person belonging to the same discriminatory ground is, has been or would be treated in a comparable situation.
5.2. Mr McMahon is male and he was turned away from the shop because of this fact. This is not in dispute. It is also clear that the treatment he received was less favourable than a woman would have received in a comparable situation as he was denied access to the boutique. The question that remains is whether Bridal Heaven Ltd is right in its argument that it qualifies for an exemption on the grounds that embarrassment or infringement of privacy is likely to occur if they were to allow men entry to their boutique?
5.3. Section 5(2)(g) of the Equal Status Acts 2000 to 2004 allows for differential treatment on the gender ground where;
“embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender”.
I must evaluate whether the presence of a man in the given circumstances of Bridal Heaven Ltd could reasonably been understood to cause embarrassment or infringement of privacy to the boutique’s main target audience of women. While doing so, it is my obligation to interpret the exemptions of the Equal Status Acts 2000 to 2004 in a way that ensures overall purpose of the legislation is achieved, that is, that there should be no discrimination in the provision of goods and services between men and women. The Acts are a remedial social statute designed for this purpose. Any departure from the principle of equal treatment must therefore be construed in the narrowest possible sense.
5.4. While the then shop had two dressing rooms, any adjustments to the dress needed to be carried out on the shop floor because the dressing rooms were not large enough. This meant that a person trying a dress on had to stand in full view of any other person visiting the store while the dress was adjusted to size. I do not accept that a person wearing a wedding or evening dress – whether they are entering the shop floor to look in the mirrors or having the dress adjusted – could be reasonably be presumed to be embarrassed or that their privacy infringed by a man visiting the store.
5.5. A person wearing a full wedding dress, to my mind, has their privacy protected. I do not accept that a store where dressing rooms are available justifies such differential treatment on the grounds that women might be embarrassed if men were to enter. Women purchasing dresses can protect their privacy in the dressing rooms provided. While the dress is pinned to size, the person trying on the dress is covered. Equally, any person who may feel self-conscious about being seen in a wedding dress by other people has the option of booking an appointment with the shop.
5.6. The shop’s representatives maintained at the hearing that even now when they have a larger shop with much larger dressing rooms they still insist on their ‘no men’ policy. This is, they argue, because women tend to like to come out onto the shop floor where they have a wall of mirrors. The respondents maintain that women would not want to ‘parade’ in front of men and do prefer to have a environment free of men when shopping for dresses. When questioned, the respondents admitted that they have never carried out any customer surveys or anything similar to back up this claim. The fact that women are more comfortable in bridal shops without men is ‘just known’. I do not accept this statement based on ‘knowing the market’ as a valid argument for a single sex environment. Section 5(2)(g) may justify the exclusion of men from changing rooms designated for women but to apply it here would be the equivalent of granting permission to ban men from any shop selling women’s clothing.
5.7. Furthermore, any person who wishes for complete privacy while trying on their dresses can avail of the shop’s appointment service. During such an appointment the customer(s) is entitled to expect privacy in the store’s public areas. It is important that Bridal Heaven Ltd does not allow for exceptions as any deviation from a policy can create an inference of discrimination. By allowing some people in (women) while an appointment is under way is not keeping with the policy and may lead to less favourable treatment. Outside such an appointment, the store must remain open to the public generally.
5.8. I can find no legitimate justification for this bridal store to maintain such a blanket ban on male customers. As Bridal Heaven Ltd offers an appointment service I see no reason why outside such hours any person wanting to browse could not do so. While I accept that a large majority of people visiting bridal stores are women, I do not agree that there is anything inappropriate about a man, in whatever role, accompanying a woman or a young person who is perusing for a bridal, evening or communion dress into a bridal shop. This does not mean that any client wishing to use an appointment with the store should not be afforded the privacy they had requested when booking for such a service. During an appointment the shop should not accommodate any third parties on the premises.
6. Decision
6.1. Mr McMahon has established a prima facie case of discrimination. I order the respondent to pay him €1500 as redress for the embarrassment caused.
6.2. In accordance with section 27(1)(b) I also order that Bridal Heaven Ltd revisit its appointment only policy and ensure that a) clients are appropriately notified of such a policy b) that during appointments the policy is strictly applied in a non-discriminatory manner. This means that during appointments no other customers – male or female – be allowed in. All staff must be instructed accordingly.
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Tara Coogan
Equality Officer
19 February 2008
DEC-S2004-001 Full Case Report
O’Connor v The Icon Night Club (Limerick)
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.
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Marian Duffy
Equality Officer
5 January, 2004
DEC-S2004-164 Full Case Report
Curran v Total Fitness, Dublin
(Represented by Ivor Fitzpatrick & Co., Solicitors)
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-S2009-017 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC–S2009-017
PARTIES
X and Y v A Boys National School
File Reference: ES/2005/0032
Date of Issue: 13th March, 2009
Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2009-017
Keywords
Equal Status Acts, 2000-2008 – Section 3(1)(a) – Direct discrimination, Section 3(1)(a) – Gender Ground, Section 3(2)(a) – Victimization Ground, Section 3(2)(j) – Access to Education, Section 7(2) – Single Gender Educational Establishments, Section 7(3)(a)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 2nd December, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, 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 to 2008. The hearing of the case took place on 11th February, 2009.
1. Dispute
1.1 This dispute concerns a complaint by the parents of a female student who claim that their daughter was discriminated against by the respondent, A Boys National School, on the Gender ground in terms of Sections 3(1)(a), 3(2)(a) and 3(2)(j) of the Equal Status Acts, 2000 to 2008 and contrary to Section 7(2) of the Equal Status Acts, 2000 to 2008 on the basis that she was refused admission as a student to the respondent’s school.
2. Summary of the Complainant’s Case
2.1 The complainant’s parents, Mr. X and Ms. Y, made an application to the respondent on 11 June, 2004 for the enrolment of their daughter, Z, at its Boys National School for the school year which was due to commence in September, 2004. The complainant’s parents wished to have their daughter enrolled at this school as they were not satisfied with the standard of education she was receiving in her existing school and also due to the fact that her two brothers were already enrolled at this Boys National School. The complainant’s parents received correspondence from the respondent on 15 June, 2004 in which it was confirmed that their daughter’s application for enrolment had been refused on the basis that the school was a single gender national school which catered for boys only. The complainant stated that the respondent school had already admitted a female student at that time to the Special Autistic Unit which operated within the school and it was submitted that in doing so, the school had effectively surrendered its status as a single gender school (the complainant was seeking admission to the mainstream section of the school and not to the Special Autistic Unit). The complainant submitted that as a consequence of this action the respondent was no longer entitled to rely upon the exemption that is provided for in Section 7(3)(a) of the Equal Status Acts in relation to single gender schools.
2.2 The complainant’s parents stated that there was an ongoing campaign, in which they were involved, at the time of their daughter’s application for enrolment for the amalgamation of the Boys National School with the Girls National School which shared the same campus. However, the complainant’s parents strenuously denied that the application to have their daughter enrolled in the Boys National School was being used as a means to further the campaign for amalgamation. The complainant’s parents stated that if their daughter’s application for enrolment had been successful, they would have seriously considered sending her to the school irrespective of whether or not the two aforementioned schools were amalgamated. The complainant’s parents also claimed that they have been subjected to victimisation by the respondent as a result of referring this complaint to the Tribunal and because of their involvement in the campaign to obtain an amalgamation of the two schools.
2.3 An issue was also raised that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts, and in response to this issue the complainant’s parents claimed that the effects of the respondent’s decision to refuse their daughter access to its school were ongoing and consequently it was submitted that the effects of the discrimination in this case were ongoing. The complainant’s parents submitted that the complaint was not referred to the Tribunal until 17 February, 2005 as the issues surrounding the amalgamation of the schools were still ongoing up to this time. It was further submitted that if the amalgamation had in fact taken place at that stage there would have been little point in referring the present complaint.
3. Summary of the Respondent’s Case
3.1 The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of her gender. The respondent’s school is a Roman Catholic National School catering for boys only from junior infants to sixth classes inclusive and it shares a campus with another national school which caters for girls only within the same range of classes. The respondent submitted that its enrolment policy clearly outlines that it is a single gender school that caters for boys only. The respondent’s enrolment policy also states that the school includes a Special Autistic Unit, which was established in 1998, catering for boys and girls with autism who are of primary school age. This Unit is operated as a separate entity and can cater for a total of 12 students who are divided into two separate classes. The respondent stated that it does not admit girls to its school unless the child satisfies the criteria for attending the Special Autistic Unit and to date there have only been two girls who have been enrolled in this special unit. The respondent submitted that by admitting a girl with Autism to the Special Autistic Unit it is having due regard to her special educational needs as an autistic child and not to her gender.
3.2 The respondent confirmed that it received an application from the complainant’s parents on 11 June, 2004 for the enrolment of their daughter in the mainstream section of the school for the school year which was due to commence in September, 2004. Following consideration of this application, the school’s Board of Management wrote to the complainant’s parents on 15 June, 2004 and informed them that it was not in a position to accept this application on the basis that the admittance of a girl would be contrary to its enrolment policy unless the girl was making an application to attend the Special Autistic Unit. The respondent stated that as the complainant in the present case was not seeking admission to the Special Autistic Unit it was therefore obliged to refuse the application. The respondent submitted that it is an educational establishment within the meaning of Section 7(1) of the Equal Status Acts and it claims that in being an educational establishment (which is not a third level institution) and which admits students of one gender only, it cannot be held to have engaged in discriminatory conduct by refusing to admit as a student a person who is not of that gender. The respondent totally refutes the complainant’s argument that it has surrendered its entitlement, either unwittingly or otherwise, to avail of the exemption provided for in Section 7(3) of the Acts as a result of its actions in admitting a girl to its Special Autistic Unit. The respondent submitted that the present complaint must be viewed in the context of the campaign (in which the complainant’s parents were involved) for an amalgamation of its school with the Girls National School which shared the same campus. The respondent also denies that it has subjected the complainant or her parents to victimisation as a result of their referral of this complaint to the Tribunal or because of their involvement in the campaign to amalgamate the respective schools.
3.3 The respondent also raised a jurisdictional issue that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts. The respondent claims that the decision to refuse the application for enrolment of the complainant was communicated to her parents in writing on 15 June, 2004 and it submitted that this was the only date upon which it can be claimed that discrimination occurred. The respondent stated that the present complaint was not referred to the Tribunal until 17 February, 2005 which was outside of the six month time limit prescribed within the Acts. The respondent disputes that the discrimination was ongoing and it therefore submitted that the complaint should be deemed inadmissible.
4. Conclusions of the Equality Officer regarding the issue of Time-Limits
4.1 The respondent has submitted that the present complaint was not submitted within the six month time limit as prescribed in Section 21(6) of the Equal Status Acts, 2000 to 2008, and it therefore submits that the complaint should be deemed inadmissible. Section 21 of the Equal Status Acts makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the referral of complaints, namely:
Section 21(6)- “6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence”.
This provision of the Acts clearly envisages a single act of discrimination or a chain of two or more similar acts of discrimination. In the present case the complainant made an application to the respondent on 11 June, 2004 for enrolment at the school for the school year 2004/2005 (commencing in September, 2004). I note that the decision to refuse the complainant’s application for enrolment was communicated by the respondent to the complainant’s parents on 15 June, 2004 and the present complaint was referred to the Tribunal on 17 February, 2005. Therefore, the question that I must decide in order to determine the admissibility, or otherwise, of the complaint in the present case, is whether the respondent’s refusal to accept the complainant’s application for enrolment on 15 June, 2004, on the basis of its policy as a single gender school, constitutes a once-off or single act of discrimination or alternatively, whether or not the discrimination was ongoing as a result of the implementation of this policy.
4.2 In considering this issue further, I have taken cognisance of Section 21(11) of the Equal Status Acts, 2000 to 2008 (which was inserted by the Equality Act, 2004) and which provides:
“For the purposes of this section prohibited conduct occurs –
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period”
I am of the view that the inclusion of these provisions in the Equal Status Acts have provided for greater clarity regarding the manner in which the date of discrimination should be interpreted in the case of an act, contractual term, policy or provision which continued in force over a period of time (as is the situation in the present case). Having regard to the provisions of Section 21(11)(b), I am satisfied that the respondent’s policy of admitting boys only to its school i.e. as a single gender school, constitutes a provision or policy which was in operation over a period of time and which had ongoing consequences or effects for the complainant in terms of her access to the school. I am satisfied that the respondent’s policy was in operation at the time the present complaint was referred to the Tribunal i.e. 17 February, 2005 and that the effects of this policy were still ongoing for the complainant on this date (i.e. for the duration of the school year in which the complainant sought enrolment). Accordingly, I find that the present complaint is admissible under Section 21(6) of the Equal Status Acts, 2000 to 2008. I will now proceed to consider the substantive complaint that has been referred for decision in the present case.
5. Conclusions of the Equality Officer regarding the substantive issue
5.1 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. 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.
5.2 In the present case, the complainant claims that she has been subjected to discrimination by the respondent on the basis of its refusal to accept her application for enrolment at the school. The complainant claims that the respondent has surrendered its status as a single gender school on the basis that it has admitted a female student into the Special Autistic Unit which is operated within the school and therefore, cannot rely upon the exemption that is provided for in Section 7(3)(a) of the Equal Status Acts in relation to single gender schools. The respondent rejects the allegation of discrimination and claims that the complainant’s application for enrolment was refused on the basis that the school is a single gender school and it submitted that the admittance of the complainant (as a female student) to the mainstream section of the school would have been contrary to its enrolment policy. The respondent accepts that it has admitted two female students to the Special Autistic Unit that operates within the school, however, it totally refutes the complainant’s argument that it has surrendered its entitlement, either unwittingly or otherwise, to avail of the exemption provided for in Section 7(3) of the Acts as a result of its actions in admitting a girl to its Special Autistic Unit.
5.3 In considering this issue, I am satisfied that the respondent’s school i.e. being a primary school is an “educational establishment” within the meaning of Section 7(1) of the Equal Status Acts, 2000 to 2008. It is clearly stated within the provisions of Section 7(2) of the Acts that an educational establishment shall not discriminate in relation to the admission or the terms or conditions of admission of a person as a student to the establishment. The Acts also make provision for a number of exemptions to the foregoing requirements, in terms of the admission of a student to an educational establishment, including the exemption that is provided for in Section 7(3)(a) which states:
“(3) An educational establishment does not discriminate under subsection (2) by reason only
that – ”
(a) where the establishment is not a third-level institution and admits students of one gender only, it refuses to admit as a student a person who is not of that gender”
Having regard to the provisions of Section 7(3)(a) of the Acts it is clear that a single gender school cannot be held to have engaged in discriminatory behaviour if it refuses to admit as a student a person who is not of that gender. In the present case, I have taken cognisance of the respondent’s enrolment policy that was in place at the time of the complainant’s application for enrolment (in June, 2004) and I note it states that “X BNS is a Roman Catholic National School, catering for boys from Junior Infants to Sixth Classes (inclusive) …. ”. I am therefore satisfied that the status of the respondent’s school as a single gender school catering for boys only is clearly and unambiguously contained within its enrolment policy. The complainant’s parents, in support of their daughter’s case, have referred to the recent case in which the Department of Education upheld an appeal which was taken on behalf of a female student (under section 29 of the Education Act, 1998) who had been refused admission to a boys’ secondary school which operated under the control of the Cork Vocational Educational Committee. In this case the Department’s Appeals Committee upheld the appeal on the grounds that the enrolment policy of the college did not explicitly state that the college was a boys’ only college. I am satisfied that the complainant cannot rely upon the precedent established in the aforementioned case and that the facts in the respective cases can be clearly differentiated on the basis that the respondent’s enrolment policy in the present case explicitly and unambiguously stated that the school was a single gender school which catered for boys only.
5.4 I also cannot accept the complainant’s argument that the respondent, by admitting a female student to the Special Autistic Unit, may have unwittingly or unintentionally changed the status of the school as a single gender school catering for boys only and as a consequence has surrendered its right to rely upon the exemption that is provided for in Section 7(3)(a) of the Equal Status Acts. I note that the respondent’s enrolment policy also clearly states that “the school also includes a Special Autistic Unit catering for boys and girls”. I am satisfied that it was clearly outlined within the terms of the respondent’s enrolment policy that the school would only admit a female student in circumstances where the student satisfies the entry requirements to its Special Autistic Unit. However, in the instant case, the complainant was seeking admission to the mainstream section of the school and not the Special Autistic Unit that operated within the school. The Equal Status Acts also make provision for the taking of positive measures to cater for the needs of persons who may require special facilities and Section 14(1)(b)(ii) of the Acts provides “that nothing in this Act shall be construed as prohibiting the preferential treatment or the taking of positive measures which are bona fide intended to cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require special facilities, arrangements, services or assistance not required by persons who do not have those special needs”. I am satisfied that, in establishing a Special Autistic Unit within the school, there was a bona fide intention on the part of the respondent to cater for the special needs of children with autism and I find that such an action is not prohibited nor can it be construed as discrimination under the provisions of the Equal Status Acts.
5.5 Having regard to the foregoing, I find that the respondent, being a single gender educational establishment within the meaning of the Equal Status Acts, is entitled to rely upon the exemption that is provided for in Section 7(3)(a) of the Acts and accordingly, I find that the respondent has not discriminated against the complainant on the grounds of her gender as a result of its decision to refuse her application for enrolment at the school. In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground.
6. Victimisation
6.1 The complainant’s parents have claimed that they were subjected to victimisation by the respondent as a result of their referral of the present complaint to the Tribunal and their involvement in the campaign for the amalgamation of the boys’ national school and the girls’ national school. However, having regard to the evidence adduced, I find that I have not been presented with any evidence from which I conclude that either the complainant in the present case or her parents have been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts, 2000 to 2008. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
6.2 I also wish to note that it came to light during the course of written correspondence received from the parties and in the oral evidence presented at the hearing that there were ongoing issues between the parties in terms of the campaign, in which the complainant’s parents were involved, in order to amalgamate the boys and girls national schools. I am satisfied that these issues are outside of the scope of the present complaint under the Equal Status Acts and accordingly, I do not have jurisdiction to investigate any such matters which do not fall within the remit 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 failed to establish a prima facie case of discrimination on the gender and victimisation grounds in terms of Sections 3(1), 3(2)(a) and 3(2)(f) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
13th March, 2009
DEC-S2003-042-043 Full Case Report
Two Complainants v The Department of Education and Science
1. Dispute
1.1 The two complainants in this case, from different non-EU countries, submitted separate complaints of discrimination against the Department of Education and Science on the nationality ground. For various reasons given at the Hearing, the complainants asked that they not be identified in the Decision. The respondents indicated that they had no difficulty with this request. The complainants maintain that they were discriminated against on the race ground in terms of sections 3(1) and 3(2)(h) 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 Complainants’ Case
2.1 The complainants state that they separately applied for maintenance grants from their local Vocational Education Committees under the Department of Education and Science’s Post Leaving Certificate Maintenance Grant Scheme but were refused because they did not hold EU nationality or have official refugee status. The complainants maintain that they were refused these grants because of their race.
3. Summary of Respondent’s Case
3.1 The respondents totally rejected that they deliberately discriminated against the complainants and pointed to the fact that they were both deemed ineligible for a grant under a “nationality” clause which had been part of the scheme for a number of years.
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 Preliminary Issue
The complaint from Mr A was received in this Office on 17 September 2001 and specified 13 March 2001 as the last date of discrimination. As this exceeded the 6 month deadline stipulated in Section 21(6) of the Equal Status Act 2000, the complainant was asked to outline the “exceptional circumstances” which prevented the complainant’s case from being referred within the time limit specified. In support of his case, the complainant made the following points:
13 March 2001 was specified as the date of discrimination because it was on that date that the Department confirmed to Mr A that the “non EU-nationals” policy was still in existence and that there were no appeal procedure in place under which he could appeal the VEC’s original 1999 decision to refuse him a grant
This date, 13 March 2001, cannot, however, be regarded as the definitive date of discrimination as the policy to refuse grants to non-EU nationals is still in place.
The submission of the complaint to the ODEI was delayed while legal advice and further clarification from the Department was being sought.
The complaint was ready for submission within the 6 month deadline. However, the exceptional events in America on 11 September 2001 led to heavy demands on Mr A’s time, because of the nature of his work, preventing him from lodging the complaint until 17 September.
Evidence of Complainant Mr A
Mr A has resided in Ireland since 1987. By 1999 he had achieved “long term residency” status in Ireland but was not an Irish passport holder.
In 1999, he applied to the VEC for a maintenance grant to attend a Post Leaving Certificate (PLC) medical course
His application was turned down as he did not fulfil Clause 4.4 of the scheme which states that “Candidates must hold EU nationality or have official refugee status or have been granted humanitarian leave to remain in the State”
Mr A enquired as to how he could appeal the decision but was told verbally that no appeal mechanism was in place
Mr A estimates that the grant would have been in the region of £1600 (€2000) at the time
Mr A attended the medical course for the year as no fee was payable for the course. He did not, however, sit the exams as he had not got the £500 exam fees required.
Mr A did not reapply for a grant in 2000 as he knew that the same criteria still applied with regard to nationality. He did, however, attend the second year of the medical course but again did not sit the final exams for financial reasons.
Mr A did not submit a fully completed grant application for 2001/2002 nor did he attend any course
During this period, Mr A continued to correspond with the VEC and the Department of Education in the matter and finally received a letter dated 13 March 2001 from the Department confirming that no appeal mechanism was in place.
Mr A applied for Grant in Summer 2002 for a course in Trinity College
In December 2002, the Department of Education informed the VEC that he was now regarded as eligible, notwithstanding the existing nationality clause, and that the grant could be paid if he satisfied all other conditions
On satisfying the VEC that he met the other eligibility requirements, he was awarded a Grant for 2002/2003
Mr A maintains that, as Clause 4.4 is still a part of the maintenance grant scheme, the Department is still operating a policy of discrimination against non-EU nationals.
As the Department’s policy is ongoing, Mr A contends that his complaint about the refusal of a grant in 1999 is admissible.
Mr A is not pressing for compensation but is seeking confirmation that the Department’s actions were discriminatory.
Complainant Mrs B
Mrs B came to Ireland in 1993 to join her husband who had become an Irish national
Mrs B herself became naturalised in 1998 and obtained her own passport in 2001
In 1999, Mrs B applied for and was awarded a maintenance grant by the VEC to attend a child care diploma course.
The grant was paid in monthly instalments and Mrs B received £1314 up to March/April 2000
At that point, she was suddenly told verbally by the VEC that she had inadvertently been awarded a grant for which she did not qualify under Clause 4.4.
No further monthly payments were issued and Mrs B was verbally asked to refund the £1314, which she was unable to do
This caused her much hardship as she had to financially support herself in completing the diploma course. She was also very embarrassed and suffered stress over being told that she owed money to the VEC
Prior to the commencement of the 2000/2001 academic year, Mrs B enquired as to whether she would qualify for a grant to attend an IT course and was verbally told by the VEC that she did not qualify under Clause 4.4
In Oct 2000, Mrs B says she received written confirmation from the VEC that her application for the IT course grant “could not be processed” until such time as she could show that she met all the requirements under the scheme (a copy of this letter has not been produced). As she knew that Clause 4.4 was still in place, she says that did not pursue the matter further.
On 24 November 2000, Mrs B finally received written confirmation from the VEC that she was not entitled to the grant she had been awarded in 1999 and asking her to refund the £1314 paid. Mrs B did not refund the money paid as she had not got the resources to do so
In 2001, Mrs B became an Irish national in her own right. She then applied for, and was awarded, a further maintenance grant for the 2002/2003 academic year.
Mrs B claims that she was discriminated against on the grounds of her nationality in having her grant for the 1999/2000 year withdrawn.
Mrs B claims that this act was covered by the Equal Status Act 2000 (which came into force on 25 October 2000) in that she was not officially told in writing of the VEC’s decision until 24 November 2001.
Mrs B also maintains that, as Clause 4.4 is still a part of the maintenance grant scheme, that the Department is still operating a policy of discrimination against non-EU nationals which negates any allegation that her complaint about a grant for the 1999/2000 academic year, may be time-bound
Evidence of Respondents
The respondents indicated that they had no strong contention as to whether or not Mr A’s complaint was lodged within the 6 months stipulated in the Equal Status Act 2000.
PLC maintenance grant schemes have been in operation since 1995. Clause 4.4, regarding nationality, has been part of the schemes all along.
The criteria under which the Grant Scheme is operated are not set down in legislation and, therefore, do not come under Section 14 of the Equal Status Act 2000.
In late 2001, a Special Project Team was established to carry out a fundamental review of the Student Support Schemes administered by the VECs.
As part of this review, the Team were asked to examine Clause 4.4 regarding nationality.
The submission of the Team’s draft report to the Minister was delayed by the 2002 General Election. This report is expected to go before the new Minister for Education in 2003.
For policy reasons, the respondents are not in a position to disclose any of the proposals contained in the report at this point.
The respondents argue that both complaints are not admissible as they both refer to decisions made prior to the coming into force of the Equal Status Act on 25 October 2000
In the case of Mr A, his application was rejected in 1999
In the case of Mrs B, it was discovered, in March 2000, that she had inadvertently been awarded a grant and she was informed that she would have to refund the money already paid
Fresh Grant Schemes are published before the beginning of each academic year
PLC maintenance grants are awarded on an annual basis and applicants are required to submit a separate application for each academic year
Decisions are crystallized. All applications are considered on their own particular merits prior to the commencement of an academic year.
Decisions are not influenced by previous decisions involving the same applicant.
There is no appeals procedure in place for applicants who have been refused grants
Both applicants were refused grants prior to the Equal Status Act 2000 coming into operation.
The clause under which the refusal was made was not discriminatory at that time and, therefore, the respondents have no case to answer.
Neither applicant has been refused a grant on the nationality ground subsequent to the Equal Status Act 2000 and there is no statutory basis for retrospective payment of these grants.
In recognition of the fact that the “nationality” clause is now under review, the Department has agreed to waive this eligibility requirement in respect of Mrs B’s 1999 application and has instructed the VEC to pay her the outstanding moneys due.
The Department has only disapplied Clause 4.4 in a total of 3 cases, pending the outcome of the Special Project Teams review
The respondents argue that the Equality Tribunal is not empowered to award redress in respect of an incident which occurred prior to the Equal Status Act 2000 coming into force
Matters for Consideration
6.1 At the outset, I must consider the preliminary issue as to whether the submission of the complaint from Mr A exceeded the 6 month deadline stipulated in Section 21(6) of the Equal Status Act 2000. If I am satisfied that the complaint was not “out of time”, I must then consider whether the actions of the respondent constituted discrimination under the Equal Status Act 2000.
6.2 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)(h) of the Act specifies the race 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 complainants claim that they wre discriminated against on the grounds of their race contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000 in being refused grants under schemes run by the Department of Education and Science.
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 These complaints have raised the issue as to whether the payment of a grant is a “service” under the Equal Status Act 2000. Section 2 of the Act defines “service” as a service or facility of any nature which is available to the public generally or a section of the public and includes “facilities for banking, insurance, grants, loans, credit or financing”. The question as to whether State services are covered by the Equal Status Act 2000 was considered previously in Donovan v Garda (DEC-S2001-011) where the Equality Officer stated:
“Having examined the wording of section 2(1) it is clear to me that the services which are covered by it are services which are available to the public or a section of it. A number of examples of such services are mentioned in the Act but it does not purport to be an exhaustive list. While State services are not specifically mentioned as being covered they are not specifically excluded either and I believe it is clear that certain services provided by the State are available to the public and are covered by the Act, e.g. social welfare services, health services, etc.”
7.2 While the term “facility” is not specifically defined in the Equal Status Act 2000 or in the UK discrimination acts, I note that Butterworths on Discrimination Law suggests the following “a facility is usually a manner, method or opportunity for the easy or easier performance of anything. It might enable a member of the public to have easier access to a service; a cash machine facilitates the withdrawal of money from a bank. It may present a method of obtaining goods; a collection point in a department store facilitates the purchase of heavy or bulky commodities. The term should cover most instances where a person is not actually providing goods or a service himself, but is providing a means to obtain access to those goods or that service.” On the basis of the above, I have formed the opinion that the provision of a maintenance grant is a “facility” covered by the provisions of the Equal Status Act. I also note that the Department of Education and Science has not disputed that the grant comes within the scope of the Act.
7.3 Preliminary Issue
On the preliminary issue of whether exceptional circumstances prevented Mr A from lodging his complaint within the specified 6 month period, I am satisfied, from the information provided in confidence at the Hearing, that exceptional circumstances did prevent Mr A from submitting his complaint in time. In this regard, I also note that the respondents indicated at the Hearing that they had no strong contention as to whether the complaint was submitted outside of the 6 months provided for under the Act. Accordingly, I find that Mr A’s complaint is admissible under Section 21(6) of the Equal Status Act 2000.
7.4 Following on from the above, I must now consider the substantial complaints themselves. On the one hand, the respondents maintain that the complaints are inadmissible because they relate to decisions which were made prior to the Equal Status Act coming into force. On the other hand, the complainants maintain that discrimination should be found to have occurred because the policy which governed those decisions still remains in force and therefore the acts “continued over a period”.
7.5 In deliberating on these points, I consider the following factors to be the most important and relevant:
In 1999, Mr A applied to the VEC for a maintenance grant to attend a Post Leaving Certificate (PLC) medical course
His application was turned down in October 1999 as he did not meet the “EU nationality” clause.
Mr A did not reapply for a grant in 2000 as he knew that the same criteria still applied with regard to nationality.
Mr A applied for a grant in 2001 but his application was returned seeking further details. He did not pursue his application.
Mr A applied for a further maintenance grant in Summer 2002 for a course in Trinity College
In December 2002, the Department of Education informed the VEC that he was now regarded as eligible and that the grant could be paid if he satisfied all other conditions. Mr A was awarded a grant for 2002/2003
In 1999, Mrs B applied for and was awarded a maintenance grant by the VEC to attend a child care diploma course.
The grant was paid in monthly instalments and Mrs B received £1314 up to March/April 2000
At that point, she was told verbally by the VEC that she had inadvertently been awarded a grant for which she did not qualify under Clause 4.4. Mrs B was verbally asked to refund the £1314.
In August 2000, Mrs B submitted a grant application to the VEC but this was returned as it was incomplete. Mrs B did not submit a complete application subsequently. Mrs B says that, around this time, she enquired as to whether she would qualify for a grant to attend an IT course and was verbally told by the VEC that Clause 4.4 was still in place.
On 24 November 2000, Mrs B received written confirmation from the VEC that she was not entitled to the grant she had been awarded for the 1999/2000 year and asking her to refund the £1314 paid.
In 2001, Mrs B became an Irish national in her own right. She then applied for, and was awarded, a further maintenance grant for the 2002/2003 academic year.
In 2002, the Department agreed to waive the eligibility requirement in respect of Mrs B’s 1999 application and instructed the VEC to pay her the outstanding moneys due.
The respondents argue that both complaints are not admissible as they both refer to decisions made prior to the coming into force of the Equal Status Act on 25 October 2000
PLC maintenance grants are awarded on an annual basis and applicants are required to submit a fresh application for each academic year
Decisions are crystallized. The respondents say that applications are considered on their own particular merits prior to the commencement of an academic year and that decisions are not influenced by previous decisions involving the same applicant.
7.6 In considering the complainants’ claim that the refusal of grants for the 1999/2000 year, constitutes discrimination on the basis that the policy regarding “non-EU nationals” is ongoing, I have had regard to a previous Equal Status decision, Green v Quinn Direct Insurance Limited (DEC-S2001-024) where the complainant entered into a motor insurance contract in July 2000 and was furnished with an insurance premium which he believed was excessive and constituted discrimination on the age ground. As the Equal Status Act 2000 did not come into force until 25 October 2000, the complainant in the Green v Quinn Direct case made the argument that the contract for motor insurance entered into in July, 2000, was for a full year and that, as he was paying by installments, the alleged discriminatory treatment was ongoing and he had a valid complaint under the Act. The respondent submitted that, as the quotation and inception of the motor insurance occurred in July, 2000, which was before the Act came into operation, it was therefore outside the scope of the Equal Status Act, 2000. The question to be decided, therefore, was, if there was a discriminatory term in the contract, did the discrimination occur when the contract was made in July, 2000 (prior to the Act coming into operation) and then stop, or did it continue for the duration of the contract?
7.6 In the Green v Quinn Direct decision, the Equality Officer concluded that
“Statutes generally do not have a retrospective effect unless there is a clear provision to the contrary and no such provision is contained in the Equal Status Act, 2000. I have considered a Supreme Court Judgement in an employment case under the Employment Equality Act, 1977, Aer Lingus Teo v. The Labour Court [1990] ELR 113 and 125., on the seniority of air hostesses, who were obliged to retire on marriage and who were subsequently re-employed, initially on short-term contracts and in 1980 under a collective agreement, were given permanent employment. Under the agreement neither their pre-marriage permanent service or their post marriage temporary service was credited to them for the purposes of seniority or pensions. The Supreme Court stated:
“This discrimination occurred when it was not illegal and occurred many years before the coming into force of the statute. …… The compulsory retirement of the applicants was a discriminatory act relating to marital status but it was not illegal. The Act of 1977 does not have retrospective effect.” While this particular case relates to employment law, and in the absence of a clear statutory provision to that effect, the Supreme Court is a clear authority that a contractual provision which is discriminatory but lawful at the date of its conclusion should not be invalidated retrospectively. “
7.7 In making her decision, the Equality Officer also took into account a decision of the English EAT under the Sex Discrimination Act, Amies v. Inner London Education Authority (1977) ICR 1975, 308. That case involved a teacher who applied for appointment as a head of the school where she taught but was unsuccessful. She argued that the school’s decision to appoint a male candidate was discriminatory. The appointment was made 3 months before the Sex Discrimination Act, 1975 came into force in England. She argued that the discrimination was continuing and thus “an act extending over a period.” The EAT found that a decision to appoint A rather than B was a once-off act, even if it had the continuing consequence that she was not head of the department and he was. It concluded it was not “an act extending over a period”. Based on the aforementioned caselaw, the Equality Officer concluded in the Green v Quinn Direct complaint that the alleged act of discrimination was not ongoing and that it was “a once-off act” which occurred in July, 2000, before the Equal Status Act came into operation and, therefore did not fall for consideration under the Equal Status Act 2000.
7.8 The Green v Quinn Direct case is, in my opinion, very similar to the case under consideration. PLC maintenance grants are decided and awarded on an annual basis and, according to the respondents, applicants are required to submit a fresh application for each academic year. In 1999, the complainants followed the correct procedures in applying for maintenance grants and their applications were rejected because they were non-EU nationals. On the basis of the above, I am satisfied that the refusal of the complainants’ grant applications in 1999 were “once-off acts” affecting only the 1999/2000 academic year and occurred prior to the Equal Status Act 2000 coming into force. With regard to subsequent years, it would appear that neither complainant submitted a fully completed application for assessment, until the submission of the applications that were eventually approved.
7.7 Accordingly, it seems that that the only formal applications that were rejected, were those submitted in 1999, prior to the Equal Status Act 2000, at a time when it was not illegal to discriminate on race grounds. In Mr A’s case the refusal came in October 1999 while Mrs B was informed of her ineligibility in March 2000. I also note that the impact of these decisions ceased at the end of the 1999/2000 academic year as fresh applications were required for the 2000/2001 year. I cannot accept, therefore, that the effect of the 1999 decisions “carried-over” into the period after 25 October 2000 when the Equal Status Act 2000 came into force.
7.8 The complainants also argue that the fact that the “EU nationals” clause is still in place, is an indication that the discriminatory policy is still ongoing. In this regard, 1 fully accept the argument but find that neither complainant has been affected by it since 25 October 2000. While Mrs B initiated the process of applying for a grant for the 2000/2001 year and Mr A for the 2001/2002 year, it appears that neither submitted a fully completed application form for decision as required by the respondents. When both complainants eventually did submit fully completed application forms for the 2002/2003 years, both applications were approved and grants paid. It would appear, therefore, that no formal decision refusing a grant to either complainant was made after the Equal Status Act 2000 came into force.
7.9 I, therefore, find that the only applications that fall to be considered in the context of this complaint of discrimination are those submitted in 1999 and, as the decisions relating to those applications were made before the Act came into force on 25 October 2000 and the impact of the decisions ceased prior to 25 October 2000, I find that the decisions to refuse the applications do not fall for retrospective consideration under the Equal Status Act 2000. Accordingly, I find that the decisions cannot be regarded as “acts extending over a period of time” for the purpose of consideration under the Equal Status Act 2000.
7.10 While I have decided that the complainants’ 1999 applications are not admissible on the grounds that “an ongoing policy” is still in place, I consider that a different outcome would be likely if a complaint was brought now, in relation to grant applications made after the Equal Status Act 2000 came into force, which fully complied with the required procedures and which were subsequently formally refused.
8 Decision
8.1 While there is strong evidence of an ongoing policy of discrimination in the existing maintenance grant scheme, I find that the rejection of grant applications in 1999 were
“once-off acts” which occurred prior to the Equal Status Act 2000, at a time when it was not illegal to discriminate on the race ground.
I, therefore, find that the complainants have not established a prima facie case of discrimination under the Equal Status Act 2000 and, accordingly, find in favour of the respondents in the matter.
8.2 This case does, however, raise the issue as to whether the Department of Education and Science still applies a policy of discrimination in relation to the provision of grants to non-EU nationals. Clause 4.4 of the Maintenance Grant Scheme for Students states that candidates must hold EU nationality or have official refugee status in order to qualify for a grant which, in my opinion, is clearly contrary to the Equal Status Act’s prohibition of discrimination based on nationality. It would also appear that this clause is currently still in place and, rather than removing Clause 4.4 entirely, the Department has simply chosen to disapply the rule in a number of cases.
8.3 As stated earlier, in this particular case, I have found that no discrimination has occurred because the decisions concerned were made prior to the Equal Status Act 2000 coming into force. As a result, I have no jurisdiction to make any orders in these proceedings. Nevertheless, I consider that a continuing discriminatory rule still exists and, accordingly, in the interests of preventing future unlawful discrimination, I would suggest that Clause 4.4 be annulled completely rather than simply being disapplied as the need arises. I would also recommend that the Department, in designing the grant schemes in future, should take full account of the provisions of the Equal Status Act 2000.
Brian O’Byrne
Equality Officer
28 May 2003
DEC-S2009-034 – Full Case Report
2008
Decision Number
DEC-S2009-034
Yushehenko v Cepartment of Education and Science
(Represented by Mr. David Keane BL instructed by the Chief State Solicitor’s Office)
Case ref ES/2007/0017
Issued 15 May 2009
DECISION NUMBER DEC-S2009-034
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – Race ground, section 3(2)(d)- Educational Establishments, section 7(1) – Educational grants, section 7(5)(b)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Mikhail Yushehenko referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 7 February 2007. In accordance with her 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. An investigation, in accordance with section 25(1) of the Acts, commenced on 17 October 2008. An oral hearing, as part of the investigation was held in Dublin on 20 March 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the race ground. Mr. Yushehenko (“the complainant”) maintains that the Department of Education and Science (“the respondent”) treated and continues to treat him less favourably on the ground of nationality contrary to section 3(1) and 7(2)(b) in relation to his entitlement to educational grants. The complainant maintains that the alleged discrimination is on-going. The respondent was notified on 4 December 2006.
3. Case for the Complainant
3.1. The complainant is a Russian citizen who has been granted Leave to Remain on the basis that he is a parent of an Irish born child. He submitted that he had applied for a student support grant to assist him with his studies while he endeavoured to obtain Irish qualifications to assist him in finding full-time employment. His application for such a grant, the complainant submitted, was refused in September 2006 based on the category of his nationality. Subsequent applications, he submitted, have also been refused.
3.2. The complainant submitted that a number of categories of people who have the same status of residency as he has – immigration Stamp 4 – are entitled to apply for educational grants. The complainant submitted that all persons with Stamp 4 have the same rights and entitlements and that therefore he should be qualified to apply. The complainant submitted that he knows of a person who has the same immigration Stamp 4 in his passport on the grounds that he is married to an Irish person. This person, he submitted, is entitled to educational grants from the respondent. The complainant submitted that the respondent has omitted to include his category of persons in the nationality clause of the ‘eligibility of candidates’ criteria in the VEC handbook.
4. Case for the Respondent
4.1. The respondent denies any discrimination on the ground of the complainant’s race. It was further submitted that there was no omission by the Department in relation to including the complainant’s immigration status into section 4.4. of the VEC Third Level Grant Scheme 2006/2007 booklet.
4.2. The respondent referred to section 7(5)(b) of the Equal Status Acts 2000 to 2004 as justification for such treatment. The respondent also submitted a number of other categories of persons who are not currently eligible for an educational grant:
(i) Persons on work permits or their spouses;
(ii) Asylum-seekers;
(iii) Non-European Economic Area nationals who have been granted permission to engage in Business in the State;
(iv) Persons with temporary leave to remain other than persons who have been granted Humanitarian Leave to Remain in the State (prior to the Immigration Act 1999);
(v) A person in respect of whom the Minister for Justice, Equality and Law Reform has granted permission to remain following a determination not to make a deportation order under section 3 of the Immigration Act, 1999;
(vi) Person with Stamp 2 (persons given permission to remain in Ireland to pursue a course of study;
(vii) Retired persons with Stamp 3;
(viii) Spouses of Non-European Union citizens who are European Economic Area Nationals;
(ix) Parents of an Irish Born Child;
(x) Persons granted long term residency – Stamp 5;
(xi) Diplomats.
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. The complainant maintained that he is treated less favourably on the grounds of his race/nationality/ethnic origin. The complainant submitted in direct evidence that he has been denied grant assistance by the respondent despite the fact that he has a number 4 immigration stamp on his passport. He also stated in direct evidence that his friend, who also has a number 4 immigration stamp in his passport, has been given grant assistance for his educational pursuits. This friend, he stated, has been granted Leave to Remain on the grounds that he is married to an Irish citizen.
5.3. It is clear from the evidence presented to me that the reason for qualifying or not qualifying for educational grant assistance has nothing to do with the complainant’s race/nationality/ethnic origin per se. It is clear that the reason why he is not qualified to apply for an education grant is not because the complainant has Russian citizenship. The reason why he is not eligible to apply is because his immigration status is based on the fact that he has been granted leave to remain on the grounds of an Irish born child. Therefore, the reason for this treatment is because of his immigration status. Therefore, according to the current rules, a Russian citizen with a different immigration status – one acknowledged by the Minister for Education and Science – would qualify to be eligible for an educational grant.
5.4. I find that the reason why the complainant has not been considered for grant assistance is entirely linked with his immigration status and not with his nationality. If he, a Russian national, was married to an Irish citizen he would be entitled to a grant. As he is a Russian citizen with an Irish born child he is not currently entitled to it. This situation is in accordance with section 7(5)(b) –
The Minister for Education and Science does not discriminate where she or he –
(i) requires grants to be restricted to persons who are nationals of a member state of the European Union, or
(ii) requires such nationals and other persons to be treated differently in relation to the making of grants.
It is clear that such decisions are at the discretion of the Minister and not in any way contrary to the Equal Status Acts.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
The complainant has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 7(2)(b) on the ground of his nationality. Therefore I find in favour of the respondent.
_______________
Tara Coogan
Equality Officer
15 May 2009
European Roma Rights Centre & Ors v Immigration Officer At Prague Airport & Anor
[2003] EWCA Civ 666 [2003] IRLR 577, [2003] INLR 374, [2003] EWCA Civ 666, 15 BHRC 51, [2003] ACD 64, [2004] 2 WLR 147, [2003] 4 All ER 247, [2004] QB 811 Brown LJ
Race discrimination
The statutory framework within which this issue arises is as follows. Section 1(1) of the Race Relations Act 1976 (“the 1976 Act”) provides that a person discriminates against another if in any relevant circumstances:
“(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.”
Section 3(4) provides that:
“A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”
Pursuant to a recommendation in the Macpherson Report, the 1976 Act was amended so that its provisions applied (as previously they had not) to public authorities, albeit subject to certain exceptions. Section 1 of the Race Relations (Amendment) Act 2000 introduced into the 1976 Act further provisions as follows:
“19B(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.”
“19D(1) S19(B) does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions.
(2) For the purposes of subsection (1), ‘relevant person’ means –
(a) a Minister of the Crown acting personally; or
(b) any other person acting in accordance with a relevant authorisation.”
“27(1A) In its application in relation to granting entry clearance (within the meaning of the Immigration Act 1971) section 19B applies in relation to acts done outside the United Kingdom, as well as those done within Great Britain.”
A relevant authorisation under s19D(2)(b) was in fact given by the Minister on 23 April 2001. By paragraph 2, under the heading Examination of passengers, it provided:
“2 Where a person falls within a category listed in the Schedule and is liable to be examined by an immigration officer under paragraph 2 of Schedule 2 to the Immigration Act 1971 the immigration officer may, by reason of that person’s ethnic or national origin-
(a) subject the person to a more rigorous examination than other persons in the same circumstances; …”
Paragraph 3 of the authorisation, under the heading Persons wishing to travel to the United Kingdom, provided:
“Where a person falls within a category listed in the Schedule and is outside the United Kingdom but wishes to travel to the United Kingdom, an immigration officer or, as the case may be, the Secretary of State may, by reason of that person’s ethnic or national origin –
(a) decline to give or refuse the person leave to enter before he arrives in the United Kingdom …”
The Schedule there referred to contains a list of persons of seven ethnic or national origins including “(b) Roma”.
It is Mr Munro’s evidence that the authorisation, which in any event was revoked on 11 June 2002, was never adopted or made use of with regard to the pre-clearance scheme at Prague Airport. The respondents accept rather that the Prague operation had to be operated consistently with the 1976 Act and it is their assertion that it was. The appellants submit to the contrary that the scheme operated in a systematically discriminatory fashion. As noted at the outset, the allegation here is not of discrimination against Roma asylum seekers but rather against those Roma who were applying to come to the UK for reasons other than to claim asylum.
What was alleged below was direct discrimination contrary to s1(1)(a) of the 1976 Act in the following two respects:
“a) Longer and more intrusive questioning in the case of Roma than non-Roma, and the treatment of the former with greater suspicion and a requirement for a higher standard of proof.
b) In the event the decision-making was such that Roma were refused while comparable non-Roma were not.”
In those respects it was said that the defendants in operating the pre-clearance scheme have treated Roma less favourably than non-Roma. The appellants relied not least on some striking figures compiled between late January and late April 2002 based on observations made by a Czech Roma citizen working as a consultant for ERRC which were accepted for the purposes of the argument below. These showed that, during that three month period, out of 6,170 passengers recorded as Czech nationals but not Roma, only 14 (0.2%) were refused entry while, of 78 who were apparently Roma (Roma being for the most part visually identifiable) 68 (87%) were refused. The case below rested in part on those statistics, in part on the very existence of the authorisation even though the respondents asserted that it had in no way influenced the approach to the Prague operation, and in part on evidence as to what had in fact occurred in relation to the six claimants and to five other people who were not claimants. Two of the non-claimants (one Czech Roma, Mr Samko; one Czech non-Roma, Ms Novakova) were journalists whose applications were the subject matter of a Czech TV programme. Three (two Czech Roma, Ms Grundzova and Ms Polakova; one Czech non-Roma, Ms Dedicova) were the subject of the ERRC’s own test. All five (whose expenses had been paid respectively by the TV station and by ERRC) were ostensibly seeking leave to enter as visitors. Leave to enter was, in the event, given to Ms Novakova, Ms Polakova and Ms Dedicova, but not to Mr Samko or to Ms Grundzova. In other words, of the five whose applications were staged, both the non-Roma applicants were granted leave but only one of the three Roma. Even in the case of that one, moreover, Ms Polakova who had a well-paid job, it was contended that she was subjected to longer and more intrusive questioning than would have been the case had she been a non-Roma.
The argument below turned entirely on the facts. The parties were in full agreement on the applicable principles of law which were stated by the judge as follows:
“i) A complainant must prove his or her case on the balance of probabilities (King -v- Great Britain-China Centre [1992] ICR 516 at 528-9 approved in Zafar -v-Glasgow City Council [1997] 1 WLR 1659 at 1664f).
ii) Claims brought under the race and sex discrimination legislation 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 (Zafar at 1664d).
iii) It is unusual to find direct evidence of racial discrimination. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the facts (King at 528-529 approved in Zafar at 1664f-g).
iv) If a claimant can show that he has been less favourably treated than comparable individuals from a different racial group, the court will look to the alleged discriminator for an explanation. If no explanation is put forward or if such explanation is inadequate or unsatisfactory it will be legitimate to infer that the discrimination was on racial grounds (King at 528-9 approved in Zafar at 1664h).”
It is convenient to cite also the next two paragraphs from Burton J’s judgment which similarly set out undisputed matters of law:
“51. The Claimants draw attention to the danger of stereotyping, which does not need to be deliberate, and to guidance to be obtained from Lord Nicholls in Nagarajan at 511H-512D:
‘All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover we do not always recognise our own prejudices … Members of racial groups need protection from conduct driven by unrecognised prejudices as much as from conscious and deliberate discrimination.’
52. Balcombe LJ in West Midlands Passenger Transport Executive -v- Jaquand Singh [1988] 1 WLR 730 at 736 referred to ‘a conscious or unconscious racial attitude which involves stereotyped assumptions’, and there was helpful reference to the Court of Appeal decision in Skyrail Oceanic Ltd -v- Coleman [1981] ICR 864 (itself cited in a recent Hong Kong case in which Lord Lester QC was involved).”
The judge then dealt in very considerable detail with the many arguments based on the facts of the case before finally stating his conclusion as follows:
“74. The conclusion that is sought to be drawn is that the Prague operation was discriminatory against Roma. I am wholly unpersuaded that such a proposition is supported or furthered by the refusal of leave of entry to HM or by the TV programme. Is the apparently differential treatment of the Roma in the ERRC test enough, coupled with the statistics, to draw a conclusion that the operation was targeted against Roma and was discriminatory? I am satisfied that this is not established:
(i) The ERRC test is in my judgment insufficient to draw any conclusion as to the nature of the whole operation, not least given the fact that all three were acting out a part.
(ii) The evidence as to the individual Claimants cannot be ignored. I have already concluded that I do not draw support for a case for discrimination from the case of HM, and obviously the same goes for the three Claimants who simply claimed asylum and do not allege discrimination. But the evidence in respect of the other two Claimants must plainly be taken into account. RG and AKu both now admit that they lied by concealing their intentions to claim asylum, and no longer claim discrimination. The contemporaneous notes in respect of RG show his interrogation, and the carefully developing thought processes of the officer, whereby, notwithstanding the then assertion by RG of an intention of a short term visit, by reference to questioning as to the wife’s cousin whom he alleged that he was to visit, and his own financial circumstances, the officer concluded that the expenditure of a trip ‘was wholly out of proportion to the likely resultant benefits for someone of modest economic background’ and that he ‘could not be satisfied that the passenger and his family were genuinely seeking entry as visitors for the period stated’. When Ms Rose talks of a ‘bulls eye’ in relation to the ERRC test, it is in the context that none of the evidence in relation to the Claimants, or the other non-claimant, supports the case of discrimination.
(iii) Mr Munro makes clear in his evidence that different officers have different techniques and different methods. Not always are the same questions asked, and certainly interrogations will vary in length, depending upon whether early answers are satisfactory or not. I am not persuaded that the evidence of Mr Munro is displaced; namely that the authorisation was neither in place nor in mind, and that the operation in Prague was to be and was carried out non-discriminatorily. Whatever might be the position if Ms Grundzova or indeed Ms Polakova were a claimant in respect of their own individual circumstances (whether in s57 proceedings, if permitted, or otherwise), I am wholly unpersuaded that, even taken with anything that could be made of the statistics, this limited evidence shows that the operation in Prague was carried out discriminatorily, or a fortiori that the six Claimants are entitled to relief in respect of discrimination, or in particular that any of the Claimants can establish, as asserted in Lord Lester’s skeleton argument, that the practice of pre-clearance is being operated in a way that discriminates against Roma on racial grounds. In those circumstances I express no view either way as to the desirability of the introduction, either in the United Kingdom or in Prague, of any system of recording by immigration officials of ethnicity.”
Ms Rose (who argued this part of the case on behalf of the appellants) seeks to attack those conclusions by reference to a number of detailed criticisms of the judge’s many findings of fact which underlay them. By way of example only, she criticises the judge’s earlier finding that there was nothing surprising in 68 out of 78 Roma being refused leave to enter since this was “a not dissimilar ratio” to the five out of six claimants whom it was conceded were in fact asylum seekers and thus properly refused. Ms Rose submits that the judge should have taken, for the purposes of the comparison, not the five out of six who failed to get leave, but rather the four out of nine (the nine being the six claimants together with the three Roma who were involved in the TV and ERRC trials) who she says should have been granted leave (HM, Mr Samko, Ms Grundzova and Ms Polakova) whereas only one, Ms Polakova, was. I would reject this criticism which seems to me founded on the false premise that the Roma applicants involved in the TV and ERRC trials were properly to be regarded as typical of the ordinary run of Roma applicants seeking leave to enter the UK. To examine within this judgment all Ms Rose’s many criticisms of the judge’s factual conclusions would be a lengthy process indeed. I decline to embark on it and would say only that I reject almost all of them and conclude that even those few which are made good do not in my judgment seriously undermine the judge’s final conclusions.
That, however, is not the end of the case on discrimination. Rather the court itself raised in the course of argument, and later sought additional written submissions upon, what seems to me the all-important question arising on the race discrimination challenge. The question is this: what is the position in law if, as seems to the court wholly inevitable, immigration officers, aware of the fact that the overwhelming majority of those seeking asylum from the Czech Republic are Roma (it may be doubted, indeed, whether any such are non-Roma), bring a greater degree of scepticism to bear on a Roma’s application for leave to enter for some permitted purpose than upon an apparently comparable application by a Czech non-Roma? Mr Howell for the respondents, I should at once record, does not accept the premise of the question. Nonetheless, at our invitation, he addressed the court’s concern in this regard.
Let me state the problem as clearly as I can. What we are postulating is this:
i) The immigration officers at Prague have treated all passengers in the same way irrespective of race in the sense that they have genuinely tried their utmost not to discriminate against Roma but rather to give Roma and non-Roma alike a fair and equal opportunity to satisfy them on the balance of probabilities that they are coming for a permitted purpose and will not apply for asylum on arrival. So the judge below has found and so to my mind he was entitled to find.
ii) Being aware, however, that Roma alone as a group suffer discrimination (whether or not amounting to persecution) in the Czech Republic and so in general have a much greater incentive than others to seek asylum and therefore, when being questioned at Prague airport, to lie about their intentions in visiting the United Kingdom, immigration officers on that account are inevitably more sceptical of a Roma applicant’s true intentions than those of a non-Roma, and are less easily persuaded that the Roma is genuinely intending to come only for a permitted purpose.
iii) Generally, therefore, Roma are questioned for longer and more intensively than non-Roma and are more likely to be refused leave to enter than non-Roma.
Are Roma in these circumstances properly to be regarded as subject to unlawful direct discrimination? Are they in short to be regarded as being less favourably treated on racial grounds than a relevant comparator? Lord Lester submits so; Mr Howell submits not.
When I first raised with Ms Rose what seemed to me the obvious point that immigration officers at Prague could not fail to be more sceptical of Roma than non-Romaapplicants in processing their applications for leave to enter for non-asylum purposes – they would surely not otherwise be doing their duty which is to refuse leave unless satisfied that applicants are genuinely coming for a permitted purpose – I had thought the point fatal to her argument. Once one predicates, as for this purpose one must, the lawfulness of the policy of excluding prospective asylum seekers from the UK, immigration officers are surely entitled to act logically in its implementation. Her response was that on the contrary it makes good her argument. Having initially found this perplexing I very soon came to regard it as the most troubling part of the case. Indeed, I confess to having changed my mind upon it more than once.
The first point made by the appellants is that an assumption that the effective implementation of the Prague scheme requires a racially discriminatory approach on the part of the immigration officers involved underlies the very authorisation granted by the minister just ten weeks before the operation began – see paragraphs 58 and 59 above. The authorisation expressly provided for such discrimination. True, the Home Office for whatever reason chose not to make use of it. Its grant, however, is not without significance; rather it emphasises the need for such an exception to justify the practice.
As for why the operation is to be regarded as directly discriminatory, all the appellants’ arguments seem to me to depend ultimately on two central principles of discrimination law: the irrelevance of motive and the impermissibility of stereotyping. First it is said that the immigration officers’ motive in treating Roma applicants differently is irrelevant: it matters not that they perceive Roma as being in a materially different position from non-Roma applicants on the basis that they have a greater incentive to lie. The fact, therefore, that the immigration officers are honestly concerned simply to enforce the immigration rules cannot avail them. Secondly the appellants submit that the Prague operation involves stereotyping – treating Roma less favourably because of the group’s assumed characteristics: those of a race subject to discrimination who therefore have an incentive to seek asylum and a propensity to lie to achieve it. Let me briefly refer to the main authorities relied on in support of each argument.
I Motive
The authorities principally relied upon by the appellants under this head are R -v- CRE (ex parte Westminster City Council) [1985] ICR 827, Bain -v- Bowles [1991] IRLR 357 and James -v- Eastleigh Borough Council [1992] AC 751.
In the CRE case the council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds. That the council’s motive for doing so was to avert industrial action could not avail them.
Similarly in Bain -v- Bowles, The Lady magazine had no defence to a complaint by a man whose advertisement for a housekeeper in Tuscany they had refused to accept. Following past complaints of sexual harassment, the magazine’s policy was to accept such advertisements only where the employer was a woman. As Beldam LJ said at paragraph 25:
“In my judgment the perception of the risk of harm to those who answer the advertisement was not a relevant circumstance for the purpose of the Act. Essentially, it comes within the category, as my Lord [Dillon LJ] has said, of motive for the discrimination and for the policy adopted by the defendants.”
In James -v- Eastleigh Borough Council the council allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination. The House of Lords by a majority of 3:2 overturned the Court of Appeal’s decision that the policy was not discriminatory “on the ground of his sex”. As Lord Bridge said at p763-764:
“The fallacy, with all respect, which underlies and vitiates [the Court of Appeal’s reasoning] was a failure to recognise that the statutory pensionable age, being fixed at 60 for women and 65 for men, is itself a criterion which directly discriminates against men and women in that it treats women more favourably than men ‘on the ground of their sex’. … The expression ‘pensionable age’ is no more than a convenient shorthand expression which refers to the age of 60 in a woman and the age of 65 in a man. In considering whether there has been discrimination against a man ‘on the ground of his sex’ it cannot possibly make any difference whether the alleged discriminator uses the shorthand expression or spells out its full meaning.”
II Stereotyping
The appellants’ two main authorities under this head are Hurley -v- Mustoe [1981] ICR 490 and EOC -v- Director of Education in the High Court of Hong Kong on 22 June 2001 (in which Hartmann J’s very full judgment considers a number of the earlier cases).
In Hurley -v- Mustoe the EAT was concerned with an employer’s refusal to employ women with small children because he regarded them as unreliable employees and needed to have reliable staff for his small business. As Browne-Wilkinson J put it at p496:
“[W]e are not deciding whether or not women with children as a class are less reliable employees. Parliament has legislated that they are not be treated as a class but as individuals. No employer is bound to employ unreliable employees, whether men or women. But he must investigate each case, and not simply apply what some would call a rule of convenience and others prejudice to exclude a whole class of women or married persons because some members of that class are not suitable employees.”
The Hong Kong case resulted in the striking down of the Director of Education’s policy of weighting children’s exam results so as to neutralise a perceived advantage enjoyed by girls over boys at that stage of their development. As Hartmann J explained at paragraph 86:
“It is not disputed that the right to equal treatment free of sex discrimination is in our society a fundamental right; as Lord Lester expressed it, a right of high constitutional importance. As an individual right it cannot be undermined or negatived by broad assumptions or generalisations. What may be true of a group may not be true of a significant number of individuals within that group.”
Amongst the earlier authorities considered in that case was Hutton J’s judgment in In re the Equal Opportunities Commission and Others (No 1) [1998] NI 223 in which the court struck down a policy under which non-fee paying school places were awarded to an equal percentage of boys and girls (in each case the top 27%) notwithstanding that some of the girls not thereby qualifying obtained higher marks than some of the boys who did.
Under this head of argument the appellants submit further that the treatment of Roma at Prague airport is directly analogous to other such obviously objectionable discriminatory practices as police officers stopping and searching black youths more frequently than white youths on the assumption that they are more likely to have been engaged in criminal activity, or tax inspectors more frequently or more rigorously investigating Jews than non-Jews on the assumption that Jews are more prone to financial crime. They argue that it is not open to the discriminators to say that the appropriate comparators in these cases are respectively other recognisable groups of asylum seekers (this being one of Mr Howell’s arguments) or drivers of white vans (like black youths, frequently stopped and searched by the police) or self-employed plumbers (whose tax returns, we are told, are often found unreliable).
Both arguments, I readily acknowledge, appear to have considerable force. Clearly it is unacceptable for someone to be treated less favourably because of his race whatever the motives underlying such treatment and whether or not it results from the discriminator making stereotyped assumptions. My difficulty, however, is in recognising in the practice followed at Prague airport anything that can realistically be regarded as less favourable treatment of Roma qua Roma. True, as we ourselves have postulated, Roma are questioned more intensively and with a greater degree of scepticism that non-Roma (although I reject the appellants’ contention – see paragraph 61(a) – that they are subjected to a higher standard of proof). True too, paragraph 2 of the s19D(2)(b) authorisation provided in terms for “a more rigorous examination [for, amongst others, Roma] than other persons in the same circumstances”. I reject, however, the contended-for implication that such an examination must necessarily otherwise be unlawful. How, I ask rhetorically, is an objection to the more rigorous questioning of some than others reconcilable with the exhortation repeatedly to be found throughout the case law that applications must be investigated individually, each applicant being given the opportunity to establish that he or she can satisfy whatever may be the legitimate requirements of the questioner? How can it be said that the Prague operation falls foul, for example, of the principle established in Hurley -v- Mustoe? On the contrary, what Browne-Wilkinson J surely was advocating there, in place of the wholesale rejection of women with children as an unreliable class of employees, was the questioning individually of women in that position, questioning logically likely to be more intensive in their case than in the case of other applicants for the same job. Consider similarly an employer interviewing for a job involving heavy lifting. He may not be entitled to refuse to interview women at all, but is he not permitted to question a female applicant for the job more sceptically and rigorously than her male counterpart?
Nor do I see the operation of the Prague scheme as being in any way inconsistent with the majority decision of the House of Lords in James -v- Eastleigh Borough Council. Once it was recognised that the council there might just as well have said that entry was free to women, but not men, in the 60-65 age group, the direct discrimination involved against men became indisputable. The condition of pensionability was itself patently gender-based. The position would in my judgment have been very different had the policy been instead to admit free, say, those who were in fact retired, or who could otherwise establish that they were of limited means; that would not have involved direct discrimination and, if challenged as indirect discrimination, would surely have been capable of justification.
The gender-based discrimination so plainly evident in James -v- Eastleigh Borough Council was, of course, itself unlawful. The appellants appear to suggest that that is mirrored here by the discrimination against Roma in the Czech Republic which, of course, is what underlies the inevitable scepticism surrounding Roma applications for leave. I readily accept that the race discrimination against Roma in the Czech Republic is no less objectionable than sex discrimination in the UK. But it does not follow that the fact that Romaare discriminated against must be ignored and so cannot properly found the basis of otherwise legitimate concerns felt by immigration officers at Prague about Roma applicants seeking to enter the UK. On the contrary, once it is recognised as lawful to operate in Prague a policy designed to keep asylum seekers away from the UK, that policy must inevitably focus on those suffering discrimination abroad and for this purpose it cannot sensibly matter whether such discrimination is by reason of race, sex, politics, or whatever else may found a claim of persecution on Convention grounds.
The policy at Prague airport is manifestly not to refuse Roma as Roma; rather it is to refuse prospective asylum seekers, or rather those who cannot satisfy the immigration officer to the requisite standard that they will not claim asylum on arrival. (That the policy is designed also to prevent travel to the UK even for one of the permitted purposes if the applicant cannot satisfy the immigration officer of a relevant condition for entering, seems to me for present purposes immaterial.) It is, it must be noted, a very different policy from that which could properly have been adopted pursuant to paragraph 3 of the s19D(2)(b) authorisation, namely a refusal of leave to any and all Roma qua Roma,irrespective of their purpose in travelling. That, of course, would have involved direct discrimination and been unlawful save under an express statutory authorisation.
Nor to my mind can the Prague operation be said to fall foul of the principle established in the Hong Kong case (see paragraph 76 above) or the Northern Ireland case (see paragraph 79 above). In both those cases a general policy was being adopted which necessarily depended for its validity upon assumed characteristics as between the respective sexes and which inevitably, therefore, disadvantaged a number of girls without their being given an opportunity to qualify for the relevant benefit on individual merit.
I have already recognised that, because of the greater degree of scepticism with which Roma applicants will inevitably be treated, they are more likely to be refused leave to enter than non-Roma applicants. But this is because they are less well placed to persuade the immigration officer that they are not lying in order to seek asylum. That is not to say, however, that they are being stereotyped. Rather it is to acknowledge the undoubtedly disadvantaged position of many Roma in the Czech Republic. Of course it would be wrong in any individual case to assume that the Roma applicant is lying, but I decline to hold that the immigration officer cannot properly be warier of that possibility in a Roma’scase than in the case of a non-Roma applicant. If a terrorist outrage were committed on our streets today, would the police not be entitled to question more suspiciously those in the vicinity appearing to come from an Islamic background? Similarly in the case of sectarian violence in Northern Ireland. These seem to me the relevant analogies here, not the now defunct practice of repeatedly stopping and searching black youths, clearly an unjustifiable interference with their liberty unless reasonable grounds exist for suspecting those actually stopped.
There are, it seems to me, various jurisprudential paths by which to reach what I conceive to be the common sense result in this case. I would hold either that the Romaapplicants are not being treated less favourably than others in the respects alleged, alternatively, if they are, that this is not “on racial grounds”. If necessary I would hold that there are no relevant comparators against whom to judge the treatment of Roma applicants. I believe that the true analysis of this case is that, so far from Roma applicants being treated less favourably than others in a comparable position, in reality there is being applied to them a requirement or condition which is applied equally to others – the requirement that they satisfy the immigration officer that they are not travelling to the UK with a view to claiming asylum. True, a considerably smaller proportion of Roma applicants than others are able to satisfy that requirement, but it is nonetheless justifiable. In other words, this appears to me to be a case of justifiable indirect discrimination. No case of indirect discrimination, however, has ever been advanced here, or is now sought to be advanced. The appellants’ claim stands or falls as one of direct discrimination. For the reasons already given, I take the view that it falls.
It follows from all this that in my judgment none of the appellants’ arguments is sustainable and in the result the appeal fails and should be dismissed.
DEC-S2004-187 Full Case Report
A named individual v A named Detective Garda Immigration Office,
An Garda Siochana, Limerick (represented by the Office of the Chief State Solicitor)
Headnotes:
Equal Status Acts 2000 to 2004 – Direct discrimination, section 3(1)(a) – race and marital status grounds, harassment – definition of service – jurisdiction of the Tribunal – Failure by complainant to attend hearing – no prima facie case
1. Dispute:
1.1 This dispute concerns a claim by a named individual that a named Detective Garda in the Immigration Office, An Garda Siochana, Henry Street, Limerick, discriminated against him and harassed him on the marital status and race grounds on 20 June 2002. The claim was referred to me as Director of Equality Investigations on 11 December 2002. I commenced the investigation on 21 September 2004 and a hearing was held on 24 November 2004.
2. Summary of the Complainant’s written evidence:
2.1 A named individual, who is a Turkish citizen married to an Irish woman, claimed harassment on the race ground in that he was subjected to verbal abuse, derogatory and unfounded insinuations when he applied to the Immigration Office in Limerick to renew his permission to remain in Ireland, which had lapsed some five months previously. He also claimed discriminatory treatment on the race and marital status ground in that he was provided with a limited service when permission to remain in Ireland was renewed for one year rather than two. He also claimed that the Gardai further harassed him by trying to contact him after he made his initial complaint.
3. Summary of the Respondent’s written evidence:
3.1 Statement by a named Detective Garda:
3.1.1 A named Detective Garda furnished a statement, in response to the notification form, that he applied standard procedures to the process of renewing the complainant’s permission to stay and that this procedure was no different from any other person in similar circumstances. He also denied harassment or discrimination.
3.2 Further submission by the Respondent:
3.2.1 The Respondent’s representative further submitted that immigration control within the State is outside the Tribunal’s jurisdiction as it does not represent the provision of a service within the meaning of the Equal Status Acts. They cited Donovan v Donnellan1 in their support, which concluded that the controlling functions of the State (including the investigation and prosecution of crime) are not services within the meaning of the Equal Status Act. In the alternative they submitted that the complaint was frivolous or vexatious. For the avoidance of doubt, they also strongly denied the detailed allegations made by the complainant.
4 Outline of events:
4.1 A hearing of the case was arranged for Wednesday 24 November 2004 at the offices of the Equality Tribunal. Both parties were notified of the hearing by letter issued on 21 September 2004 and confirmation of the respondent’s attendance was received on 1 November 2004. The Tribunal further wrote on 10 November to the complainant enclosing the respondent’s further submission, emailed a reminder on 15 November and attempted to phone the complainant on 15th and 16th November. No confirmation was received from the complainant and no application for an adjournment of the hearing was lodged.
4.2 On the date of the hearing the respondent party with his legal representatives and witnesses attended at the Tribunal for the hearing of the case. The complainant did not attend and the office sought unsuccessfully to contact the complainant by mobile telephone to ascertain the reason for his non-attendance. The respondent’s representatives confirmed that they were not aware of any reason for the complainant’s non-attendance as he had current permission to remain in Ireland until June 2005. I am satisfied that the Tribunal made every effort to contact the complainant.
5. Conclusions of the Director:
5.1 From my consideration of the submissions in this case, two distinct complaints of discrimination were raised by the complainant: a) the allegations of discriminatory treatment on the ground of race regarding the way the complainant was treated by the respondent when he sought to renew his permission to stay in Ireland; and b) the allegation of discrimination on the ground of race and marital status regarding the substantive decision to renew the permission to stay for one year rather than for two.
5.2 In accordance with the Tribunal’s settled practice, the onus is in the first instance on the complainant to establish a prima facie case of discrimination. In order to establish a prima facie case, a complainant needs to establish, to the satisfaction of the Tribunal, primary facts which are of sufficient significance to raise a presumption of discrimination. In the absence of the complainant, it is not possible for him to establish a prima facie case. The respondent thus had no case to answer.
5.3 I consider it may nevertheless be helpful to make some general comments on the jurisdiction of the Tribunal, which are necessarily obiter given the absence of the complainant at the hearing of this case.
1 Donovan v Donnellan, DEC-S2001-011
5.4 The definition of “services” in section 2 of the Equal Status Act 2000 clearly covers services provided by the State. However, not all functions carried out by the State amount to provision of services. I would refer to the Equality Officer’s decision in Donovan v Donnellan concerning the possible liability of the State in proceedings under the Equal Status Act. That decision makes a clear distinction between: i) the exercise by the State of executive functions which relate to the exercise of the controlling functions of the State and which do not amount to the provision of a service to the public; and ii) the treatment of an individual by the State in relation to ancillary matters, which may amount to the provision of a service generally available to the public or a section of it.
5.5 Donovan v Donnellan held that the investigation and prosecution of crime was not a service provided by the State to a person accused and was accordingly outside the scope of the Equal Status Act. Conversely, I note the point made in that decision, and the similar conclusions of the UK Court of Appeal under the Race Relations Act in Farah v Metropolitan Police Commissioner [1997] 2 WLR 824, that Gardai actions such as the treatment of persons reporting a crime, asking for witnessing of passport application or giving directions to a person on the street can amount to services provided to the public, which are covered by the Equal Status Act.
5.6 I would refer to the statement made by the Minister for Justice, Equality and Law Reform during the Dail debates on the Equal Status Bill on 15 December 1999 to the effect that: “The service aspect of policing, immigration, defence and prisons will, however, come within the scope of the Bill. For example while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and collateral services and facilities, such as access to buildings and information, would come within the scope of the legislation.” I am conscious of the High Court and Supreme Court caselaw in relation to the use of parliamentary debates as an aid to statutory interpretation. Given that this statement was made by the presenting Minister, and as I am fully aware of the legislative history of this particular Bill, I am satisfied that it accurately reflects the basis on which the Oireachtas enacted this particular provision. I consider therefore that I am entitled to take the Minister’s statement into account in my deliberations.
5.7 My preliminary view is accordingly that, on the one hand, certain decisions made by the State on applications concerning immigration and the entry of nonnationals may well also be the exercise by the State of controlling functions which are not covered by the Equal Status Acts. On the other hand, by analogy, it appears that the treatment by the State or its officers (including gardai) of a person wishing to make an application in an immigration matter may involve provision of a service to the public and thus may come within the Equal Status Acts.
5.8 However, I wish to stress that this issue has not been decided, as no facts have been proved in the present case.
6. Decision
6.1 I find for the respondent, a named Detective Garda.
Melanie Pine
Director
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
Clare (A Minor) v. Minister for Education and Science & Ors
[2004] IEHC 350
Smyth J
The Law and Legal Submissions
In this case a considerable quantity of time, some three days, was devoted to legal submissions. I did have the advantage of several detailed and meticulous written submissions from counsel on both sides, for whose industry and care I am very much indebted. However, this is a case, in my view, that comes to be determined on its own facts. The law in respect of education of persons with disabilities has been recently and authoritatively considered and decided in the Supreme Court in Sinnott -v- The Minister for Education & Ors [2001] 2IR 545. It would be as impertinent as it would be redundant of me to offer a commentary on this and the related cases of O’Donaghue -v- The Minister for Health & Ors [1996] 2IR 20 and Crowley -v- Ireland [1980] IR 102. The instant case, in my judgment, is clearly distinguishable from the Sinnott case and both O’Donaghue and Crowley, not only on its facts but in the light of that decision — Richard has received not only primary education but has completed (as of the date of this judgment) full post primary education and up to and including the hearing of this case I am satisfied and find as a fact, when considering all the evidence, as already noted, that Richard’s educators at all times tried in earnest to meet his needs whilst having regard to the concerns and convictions of his parents. Furthermore, notwithstanding the disruptions that occurred in the course of his post primary education, the education given was effective in its delivery. Likewise, in making the arrangement in the Parish Hall and in Moincoin, such were a proper response by the Defendants to provide a “discrimination” in favour of Richard (bearing in mind section 4(4) of the Act of 2000 – Equal Status Act), that such is not to be considered as discrimination so as to ensure that he had a more than equitable opportunity to permit and facilitate in his realising his potential.
In my judgment, De La Salle did not discriminate unfairly, unreasonably or at all (in the context of Section 7(1)(d) of the Act of 2000) in expelling Richard. The appeal mechanism of the 1998 Act was not in place at the time. Further, a period of three months notice of intention to follow a probable course elapsed before the action into which the De La Salle were challenged: the school was entitled to balance the rights of Richard and the other students in his (intended) class — such, on the basis that the facts in the correspondence are true, is not discrimination (Section 7(4)(b) of the Act of 2000).
I find as a matter of fact and of law that the Defendants were not and are not in breach of such constitutional obligations as they had to the Plaintiff; they acted in a manner that regarded the plaintiff’s constitutional rights. Furthermore, there was not any breach of statutory duty of the statutes invoked or under the Convention as submitted.
There is no evidence that Mrs. Clare ever conveyed to the authorities in any school what she said she was told by Ms. O’Connor about Richard. If Richard was as difficult or problematical as Mrs. Clare stated in evidence, this fact was deliberately withheld from the De La Salle because Mrs. Clare wished Richard to go the De La Salle with a clean slate, or that
Mr. O’Mahony in St. Declan’s or the teachers in the De La Salle should be faulted for failing to ascertain that Richard had ADHD. In my judgment, Mr. O’Mahony’s judgment and response was, in all the circumstances, reasonable and responsible. It was only after Richard went to the De La Salle that an appreciation was arrived at over time that a problem, undisclosed to them at the time of Richard’s being accepted as a pupil, existed — true, the teachers did not appreciate that a problem existed or its nature and extent, but then neither did Mr. Richard Frank or Dr. McGovern, perhaps because it was a mild case of ADHD, as it was in September 1999 when a history and profile had built up that Dr. O’Loughlin diagnosed the condition or problem as ADHD. I find as a fact and as a matter of law that the support services and level and quality of education appropriate to Richard to meet his needs was provided to him. In my judgment, it is probable that had Mrs. Clare disclosed what she stated she was professionally advised by Ms. O’Connor to St. Declan’s and disclosed that information, Mr. O’Mahony would have regard to such information and taken whatever course might have been appropriate had he been fully informed. The De La Salle were not informed that the advice of Mr. Richard Frank had been sought or that Richard had been taken to see him after he went to the De La Salle. It may very well be that had these schools been fully and properly informed by the information available to Mrs. Clare that they would have either not taken Richard as a pupil on the basis that the school was inappropriate for his needs or sought in advance of his acceptance to have Richard assessed or to try to put in place, by the seeking of resources and/or teachers with an understanding and ability to deal with the condition ultimately diagnosed as ADHD. The evidence of the Head Master of St. Declan’s and Mooincoin was of such schools being concerned to deliver appropriate education to Richard to meet his needs. In my judgment, as a matter of fact, they have done all that was reasonable to accommodate the needs of Richard. I take the like view concerning the position of the De La Salle, whose position has to be judged against the circumstances in which they were placed by Richard being placed with them without disclosure of the stated problem that he had, which was totally unknown to them, but which when known to them they co-operated in dealing with the question of the medication. They could not and should not be expected to produce an instant solution to a problem which, on the basis of the case placed before me by the Plaintiffs, was of enormity. I do not accept that it was a question of enormity, but it was a problem that required to be dealt with on an information basis. If the facts were as alleged by the Plaintiff at the time of Richard’s entrance to the De La Salle, they were not disclosed to that school.
In this judgment, I am mindful that the Plaintiff was at all material times a minor. I am satisfied and find as a fact and as a matter of law that the Plaintiff’s human rights, constitutional rights, statutory rights and common law rights have been fairly and properly observed by both the Defendants and the schools at which he attended.
Accordingly, I dismiss the Plaintiff’s case.
APPROVED JUDGMENT: SMYTH J.
Liam Thornton v The Turner’s Cross Tavern
1. Dispute
1.1 This dispute concerns a complaint by Mr Liam Thornton that he was discriminated against, contrary to the Equal Status Act 2000, by the Turner’s Cross Tavern, Cork. The complainant maintains that he was discriminated against on the Age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 The complainant states that when he sought service in the Turner’s Cross Tavern on Sunday 7 April 2002, he was asked for ID by the barman. When he produced his UCC Student ID Card showing that he was over 18, the barman refused to accept it and pointed to a sign on the wall stating that only Garda Age Cards were accepted by the pub as proof as age. Mr Thornton claimed that, as he had been served twice previously in the pub, on production of his Student ID Card, that he had a “legitimate expectation” that he would be served on 7 April 2002 and that the refusal constituted discrimination on the grounds of age.
3. Summary of Respondent’s Case
3.1 The respondents maintained that in 2002 it was pub policy to only accept Garda Age Cards as proof of age as, at that time, this was the only form of ID that was recognised as acceptable under the Intoxicating Liquor Act 2000.
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 this 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 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)(i) of the Act specifies the Age ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused service in the Turner’s Cross Tavern on 7 April 2002.
5.2 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 discrimination could be inferred. 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 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 complainant. 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 Age 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. With regard to (a) above, the complainant has satisfied me that he was over 18 years of age on 7 April 2002. In relation to (b), the respondents acknowledge that the complainant was refused service on 7 April 2002. To determine whether a prima facie case exists, I must, therefore, consider whether I believe that the treatment afforded the complainant on 7 April 2002 constituted discrimination under the Equal Status Act 2000.
6.2 The principal pieces of evidence before me are as follows:
Liam Thornton and his two friends, who all appeared at the Hearing, state that they were admitted and served on two previous occasions in the Turners Cross Tavern. On being asked for ID on those occasions, they say that they produced their Student ID Cards, which were accepted by staff.
Mr Thornton identified Monday 1 April 2002 (six days before the date of refusal) as the most recent date on which they were served and said at the Hearing that they visited the pub that night to watch a live football match between Southampton and Aston Villa.
Mr Thornton claims that the same barman who refused him the following Sunday, 7 April 2002, was happy to accept his Student ID on 1 April 2002.
The respondents state that the Turners Cross Tavern opened for business in 2001, a few months after the Intoxicating Liquor Act 2000 (ITA) came into force. The pub employed a total of around 12 barstaff .
The respondents say that, as the Garda Age Card was the only acceptable form of ID identified under the Intoxicating Liquor Act 2000, they gave instructions to all staff that no other form of ID was to be accepted in situations where barstaff suspected that a customer may be underage. Staff were regularly reminded of the need to abide by these instructions as both the barstaff and the proprietor were liable for prosecution under the Act, if it was found that an underage person had been served and who was not in possession of a Garda Age Card.
The respondents believe that the vast majority of barstaff strictly enforced the Age Card requirement but, as it was impossible to monitor staff at all times, they accept that a few may have been more flexible on occasion and may have accepted other forms of ID.
On hearing the evidence of the complainant and his witnesses, the respondents said that they were prepared to accept that the three friends had been served in the Turners Cross Tavern previously as claimed, without having produced Garda Age Cards. The respondents stated, however, that this should not have happened and put it down to a member of staff not complying with the instructions he or she had been given
The barman who was on duty on 7 April 2002, Brian O’Neill, said that he recalled refusing service to the 3 gentlemen on 7 April 2002 but that he does not recall having dealt with them previously. On 7 April 2002, he said that he refused service to Mr Thornton because he could not produce a Garda Age Card as proof of age.
6.3 Section 14 of the Equal Status Act 2000 – Action required by an Enactment Section 14 of the Equal Status Act 2000 provides, inter alia, as follows: ‘Nothing in this Act shall be construed as prohibiting…the taking of any action that is required by or under…any enactment…’ Section 14 of the Equal Status Act 2000, therefore, provides that any action required by law cannot be deemed to be discriminatory. The respondents have argued in this case that they were legally obliged at the time of the refusal on 7 April 2002, under the provisions of the Intoxicating Liquor Act 2000, only to accept a Garda Age Card as valid proof of age. Section 14 of the Intoxicating Liquor Act 2000, which deals with the sale of intoxicating liquor to under-age persons, introduced a new requirement into existing licensing legislation which stated that, in any proceedings brought against a publican, ” it shall be a defence for the defendant to prove that the person in respect of whom the charge is brought produced to him or her an age card relating to that person or, if the defendant is charged with permitting another person to sell or deliver intoxicating liquor contrary to either of those subsections, to prove that an age card relating to the person to whom the intoxicating liquor was sold or delivered was produced by that person to that other person.”. It is, therefore, clear from the above text, that the intention of Section 14 of the Intoxicating Liquor Act 2000 was to introduce a practice whereby publicans would only accept the Garda Age Card (and not passports, driving licences, student cards etc.) as legitimate proof of age and that failure to do so could leave publicans open to prosecution.
6.4 The alleged act of discrimination in this case occurred on 7 April 2002 at a time when the provisions of the Intoxicating Liquor Act 2000 were in force. Therefore, in order to comply with the law as it stood on 7 April 2002, the only lawful defence for a publican was to show that a person suspected of being underage had produced to them a Garda Age Card as proof of age, in accordance with the provisions of the Intoxicating Liquor Act 2000. (I note that the proof of age requirements have since been relaxed somewhat by the Intoxicating Liquor Act 2003 but still do not accept Student ID Cards as valid proof of age).
In refusing to accept Student Cards as ID on 7 April 2002, the respondents were, therefore
acting in accordance with the provisions of the Intoxicating Liquor Act 2000. Accordingly, as the respondents were at the time complying with an action that was required by or under an enactment, I consider that, under Section 14 of the Equal Status Act 2000, their actions cannot be deemed to be discriminatory.
6.5 The complainant, Mr Thornton, has also argued that he had a “legitimate expectation” that he would be served on 7 April 2002, having been served previously in the Turners Cross Tavern on production of his Student ID Card and made reference to the case of Webb v Ireland {1988} ILRM 565 where he says the Supreme Court outlined the doctrine of
“legitimate expectation”. In that case, Chief Justice Finlay is quoted as saying that ” it would appear that the doctrine of “legitimate expectation”, sometimes described as “legitimate expression” has not in those terms been a subject matter of any decision of our courts. However the doctrine connoted by such expressions is but an aspect of the well recognised concept of promissory estoppel (which has been frequently applied by our courts) whereby a promise or representation as to intention may in certain circumstances be held to be binding on the representor or promisor”. The Chief Justice then referred to the English courts decision in Amalgamated Investments Ltd v Texas Commerce Int’l Bank [1982} QB 84, at 122 where Lord Denning held ” When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case requires.”
6.6 On considering the complainant’s argument that he had a “legitimate expectation” that he would be served, I consider that the onus is on the complainant to establish the facts on which this expectation is founded. In this particular case, Mr Thornton referred to previous occasions on which he says his Student ID Card was accepted and places particular emphasise on his claim that the same barman who refused him on 7 April 2002 had accepted his Student ID Card six days earlier. On investigating this point, I note that the complainant has given evidence that he believes that he was served by the barman in question, Brian O’Neill, while watching a match between Aston Villa and Southampton on TV on Monday 1 April 2002. In an attempt to validate the accuracy of the complainant’s testimony, I asked the respondents at the Hearing to produce their roster for the week in question showing who was on duty in the pub during w/c Monday 1 April 2002. The roster produced by the pub subsequently showed that Mr O’Neill was not on duty on 1 April but was on duty on the date the complainant was refused service, 7 April 2002. I also carried out some internet research subsequent to the Hearing to establish whether the match identified, Aston Villa v Southampton, was televised on 1 April 2002. My enquiries, however, showed that Aston Villa had no match on Monday 1 April and that the league match referred to, Aston Villa v Southampton, actually took place on 27 April 2002, three weeks after the date the refusal occurred. On bringing these points to the attention of the complainant subsequent to the Hearing, Mr Thornton acknowledged that he may have been mistaken about the date and match in question but insisted that he had been served in the Turners Cross Tavern on a second occasion between 17 March 2002 and 7 April 2002.
6.7 On the basis of the above, I find that there still remains some confusion as to when and whether Mr Thornton was served by Mr O’Neill prior to 7 April 2002 and whether Mr O’Neill was, in fact, the person who accepted the complainant’s UCC Student Card as ID. For this reason, I consider that the complainant has not put sufficient evidence before me to establish, on the balance of probabilities , that the same barman who had served him previously, refused him on 7 April 2002. This to me undermines Mr Thornton’s claim that he had a legitimate expectation that he would be served on 7 April 2002. In relation to the complainant’s other alleged visit to the Turners Cross Tavern, to watch Aston Villa v Arsenal, I note that this match was transmitted live on Sunday 17 March 2002 and I am prepared to accept that the complainant and his two friends were admitted and served in the pub on that date.
6.8 Mr Thornton’s argument that he had a “legitimate expectation” of service does, however, raise the question as to how far this expectation could legitimately have been allowed to extend, bearing in mind that, if the respondent was to accept that the complainant had a “legitimate expectation” of service, in order to fulfil this expectation the respondent would have had to knowingly break the law, by ignoring the provisions of the Intoxicating Liquor Act 2000 which were in force at the time. On considering this point, I find that I cannot accept, in this instance, that any “legitimate expectation” on thecomplainant’s part overruled or superseded the legal obligation on the publican to abide by the terms of the Intoxicating Liquor Act 2000. For this reason, I do not consider that the complainant’s case falls into the same category as the precedent cases referred to above.
Therefore, while I am inclined to accept that Mr Thornton may have felt that he had a genuine expectation that he would be served on 7 April 2002, I do not consider that the circumstances of this particular case supported Mr Thornton’s contention that he had a “legitimate expectation” of service as he claims.
6.9 Another factor in this case which the complainant expressed frustration over was his claim that he made several attempts to resolve the issue directly with the respondents before the case went to Hearing but the respondents never replied to him. For their part, the respondents say that they did reply to Mr Thornton’s initial notification and have produced a copy of a letter dated 11 June 2002 which was purportedly sent to Mr Thornton. Mr Thornton denies, however, that he received it. On this point, I am inclined to empathise with Mr Thornton as I find myself in a similar position in so far as a letter purportedly sent to me by the respondents on 2 February 2004 was not received by me.
6.10 While I can understand the complainant’s annoyance and frustration at being refused service in a pub where he had been served before, I consider that the difference in treatment on the occasions identified occurred because of a lapse in vigilance on the part of barstaff rather than the existence of a policy of discrimination on the part of the respondents. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination under the provisions of the Equal Status Act 2000.
7 Decision
7.1 I find that a prima facie case of discrimination has not been established by the complainant on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000.
Brian O’Byrne
Equality Officer
11 October 2004
EQUALITY OFFICER’S DECISION
NO: DEC-S2009-071
Husband and wife v A Voluntary Housing Association
File No. ES/2007/0105
Date of Issue: 15 October 2009
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1) – Traveller community ground, section 3(2)(i) – Harassment, section 11(1) – Accommodation, section 6(1) and 6(6)
1. Delegation under the Equal Status Acts
1.1. A husband and wife referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 September 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998, 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 Act on 12 December 2008. A hearing, as part of the investigation, was held in Dublin on 9 July 2009.
2. Dispute
2.1. The dispute concerns a complaint by a husband and wife (“the complainants”) that they were treated less favourably contrary to section 3(1) and harassed within the meaning of section 11(1) in relation to the disposal of premises and provision of accommodation within the meaning of section 6(1) on the ground of their Traveller identity on 6 August 2007 and thereafter by a voluntary housing association (“the respondent”).
3. Case for the complainants
3.1. The complainants, a husband and wife, submitted that on 6 August 2007 and thereafter, the respondent had made the complainants feel like the aggressors in an on-going dispute with a neighbour whom the complainants submitted constantly bullied them. The complainants submitted that they believed that if they, the complainants, had been behaving like their neighbour then the respondent would have taken different action. The complainants submitted that the respondents took an alleged incident involving a neighbour and the complainant’s wife more seriously than an incident that involved the same two people 4 days previously. The complainants submitted that on the first day a named neighbour attacked the complainant wife with a slash hook while three men used abusive language towards her. The complainants submitted that the respondent did not carry out proper investigations to determine fault in these incidents. They also submitted that the respondent’s allegation that there were no independent witnesses to the first incident is false. It was submitted that the complainants made the respondent aware of such a person. The complainants submitted that they felt it was suspicious that this named witness was not interviewed by the respondent. This is in stark contrast, the complainants submitted, to the respondent’s action that took place after the second incident.
3.2. The complainants submitted that as soon as the second incident occurred the respondent rang the complainant husband and warned him to ‘cop himself on’. The complainants submitted that they believe that the second incident involving the two women was taken more seriously than the first incident because the respondent wanted to evict the couple because they are members of the Traveller community.
3.3. The complainant husband submitted that this is the first time that he had felt discriminated against because of his Traveller status. He submitted that the experience had left him feeling very angry and helpless as he believed that he and his young family would be homeless. The complainant submitted that the fact that the respondent did not respond to his ES 1 form further exasperated the feeling of being treated less favourably.
3.4. The complainants submitted that the legal submission made on behalf of the respondent creates a general impression that the complainants are mindless thugs who go around intimidating their neighbours. The complainant husband submitted that he and his wife are both students and strive hard to be productive members of society and resent and refute any allegation that they are “some sort of lowlife”.
3.5. The complainants submitted that the respondents continued to side with the other named party involved in the incidents, despite the respondent having prior knowledge of the other party’s alleged anti-social behaviour and habits.
3.6. The complainants submitted that they were advised by the estate’s permanent caretaker that his superiors intended to issue a ‘notice to quit’ to the complainants. It was submitted that the caretaker told the complainants that it would be in their best interest to pack up and leave and consequently avoid negative ramifications in terms of not receiving rent allowance or indeed being left homeless. The complainants submitted that the ‘notice to quit’ was presented to them as a fait accompli and that the caretaker told them that he was powerless to do anything about it. The complainants submitted that to them such action was unprecedented. It was submitted that the complainants requested to meet with the Board and/or make a submission to same but were told by the caretaker that this was impossible.
3.7. The complainants submitted that they are in no doubt that the reason why they were not evicted was because they had the foresight to issue proceedings with the Tribunal
4. Case for the respondent
4.1. The respondent submitted that is has approved status under section 6 of the Housing Miscellaneous Provisions) Act 1992. A letter dated 8 April 1993, from the then Department of Environment and Local Government, was submitted to the investigation.
4.2. It was submitted that section 6(1) of the Equal Status Acts prohibits discrimination in disposing of any estate or interest in premises, in terminating any tenancy or other interest in premises or in providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.
4.3. It was submitted that section 6(6) states that nothing in Sub Section 1 shall be construed as prohibiting 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.
4.4. It was submitted that section 5(1) of the acts prohibits discrimination in relation to disposing of goods and services. Sub section 2 of section 5 states that Sub section 1 does not apply in respect of a service related to a matter of provided for under section 6.
4.5. It was submitted that section 15 of the acts states that nothing in the acts prohibiting discrimination shall be construed as requiring a person to dispose of goods and premises, or to provide services or accommodation or services or amenities related to accommodation, to another person in circumstances which would lead a reasonable person to the belief, on grounds other than discriminatory grounds, that the disposal of goods or premises or the provision of services or accommodation or the services and amenities related to accommodation would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity in the place in which the goods or services are sought or the premises or accommodation are located.
4.6. It was submitted that the respondent is not amenable to a claim of discrimination.
4.7. It was submitted that section 11 of the Acts covers harassment and section 11(2) provides a defence for a provider of goods and service and/or accommodation provided that they did all that is reasonable to prevent the harassment from taking place. It was submitted that the respondent was not clear who the complainants were alleging harassed them. It was submitted that the respondent denies any claim of harassment on the Traveller status ground.
4.8. The respondent submitted that with regards the incidents complained of, namely 6 August and 10 August 2007, refer to an altercation between the complainant wife and a named tenant. It was submitted that as there were no independent witnesses to the first incident, the respondent took the view that as the complainant wife had approached the neighbour instead of the respondent, the complainants bore the major responsibility for the event. It is submitted that this cannot be construed as harassment within the meaning of section 11.
4.9. In relation to the second incident, the respondent submitted that there was a named independent witness. It was submitted that this witness had made an initial report which she subsequently withdrew. It was submitted that this was because the witness had stated that she was afraid of the complainants.
4.10. It was submitted that the second party, the named neighbour, moved out of the estate shortly after the incidents had taken place. It was submitted that she told the caretaker that the reason why she was leaving was because she was afraid of the complainants. The respondent submitted that the named neighbour cannot be accused of harassment nor can the respondent be accused of allowing harassment. It was further submitted that a number of other tenants had stated that they were afraid of the complainants but that they were not willing to sign statements to this effect.
4.11. It was submitted that in view of the fear felt by a number of tenants who could substantiate the respondent’s position and the fact that, even if their names were blacked out they would be easily identified, the respondent feels it owes a duty of care to these people and has been unable to persuade them to give evidence.
4.12. It was submitted that section 21 of the Housing (Miscellaneous Provisions) Act 1997 permits an officer of a Housing Authority to give evidence of anti-social behaviour when another person would be deterred by violence, threat or fear from providing evidence. It was further submitted that section 26 of the Freedom of Information Act 1997 permits a body to refuse to furnish a Record containing information given in confidence when its disclosure would be likely to prejudice the giving of further similar information.
4.13. It was submitted that in all the circumstances, the respondent’s decision on 11 September 2007 is fully justifiable, particularly in light of section 15 of the acts.
5. Decision 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 complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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. It is agreed that the complainants are both members of the Traveller community. The respondent’s caretaker accepted that he knew the complainants were Travellers before and at the time of the alleged incidents. It was not accepted by the respondent that the Board of the respondent would have been similarly informed.
5.3. It was submitted that section 6(6) of the acts exempts local authorities and /or bodies with approved status under section 6 of the Housing (Miscellaneous Provisions) Acts, 1992 from the accommodation provisions of the equal status acts. This, in my view, is an incorrect interpretation. In my reading of section 6(6), using everyday language and looking at the Acts as a whole, it clearly provides local authorities with the right to different treatment – not less favourable treatment – in relation to family size, family status, marital status, age, disability or membership of the Traveller community. While the Equal Status Acts do not prohibit all types of discrimination, it is important to note that this section does not provide local authorities and/or bodies with approved status under the 1992 Housing Act with a carte blanche approach from the ambition and obligations set out in the Equal Status Acts. It does, however, give such bodies discretion to manage their housing lists by providing different treatment based on family size, family status, marital status, disability, age or membership of the Traveller community provided that it does so in a transparent and coherent manner. Section 6(6) is not a defence to matters concerning eviction or disciplinary proceedings concerning accommodation.
5.4. I have not been presented with enough evidence to provide a nexus between membership of the Traveller ground and the alleged less favourable treatment. Having considered the full facts of this case, I find, on the balance or probabilities, that the respondent treated the complainants the same way it would have treated any other couple who were involved in a public altercation with a neighbour. The complainants have not been able to present any evidence to support an argument that a non-Traveller family who were involved in similar altercations would not have received a written notice in similar circumstances.
5.5. Furthermore, I have been presented with no evidence that the complainant was in receipt of less favourable treatment. I appreciate that this in hindered by the fact that the other person involved in the disputed incidents, a non-Traveller, moved out of her house voluntarily soon after the incident. This makes it difficult for the complainants to show a comparator. However, having considered the full facts of the case, I find that the complainants were treated exactly like anyone else living in the estate would have been treated in similar circumstances. It is clear that local authorities and other such bodies do have a duty to manage estates and to deal with anti-social behaviour issues. It should be borne in mind that this duty of care, however, also extends to the complainants. While it is clear that the complainants firmly believed that they were not the guilty party and that the responsibility for these incidents rested entirely with the named neighbour, I am satisfied that the respondent had begun to carry out an investigation of sorts into the incidents. The complainants were unable to show any evidence to the contrary. I note that both parties were heavily relying on the witness statements of family members who, for obvious reasons, cannot be construed as independent witnesses. I note that the complainant husband disputed the named neighbours witness being present at the house at the time of the incident on 6 August. However, I was presented no evidence to the contrary.
5.6. I am also mindful that the complainant lodged this complaint as soon as eviction was mentioned to him, meaning that the respondent had not at that stage been given enough time to carry out a proper and fair investigation. It is crucial to bear in mind that any such investigation must be done in a manner that adheres to the principle of natural justice. Such an investigation, by its very nature, requires time. It is clear that no decision to evict the complainants was made at this time. I was not presented with enough evidence to support an argument that the complainants Traveller status was known to the respondent Board who made a decision to issue the warning to the complainants. Documents issued to the Board, and submitted to the investigation, had nothing on them that may have clearly indicated the complainants’ Traveller identity.
5.7. I do accept that the named caretaker spoke with the complainants after the second incident. I also accept that the caretaker had mentioned a notice to quit as a possible outcome for anti-social behaviour. It is unfortunate that the complainants were not given proper information about their rights as tenants and that, as a result of this casual approach, proper procedures are not in place to ensure tenants that they are entitled to a fair hearing and a chance to put their case forward. While I do not agree that service provides should take such a casual approach to a matter which obviously could have a major impact on the complainants circumstances, I am satisfied that this is the manner in which the respondent deals with such matters regardless of the social status of the tenant.
5.8. Furthermore, I am satisfied that the complainants had made the respondent aware that the complainants had an on-going problem with their named neighbour concerning their children. This complaint, however, does not give rise to a complaint of harassment within the meaning of the acts. I have not been presented with any evidence of harassment on the Traveller ground. I do accept that the complainant family had a number of disputes between their neighbour and that toys were broken and words exchanged. I have not been presented with any evidence to support an argument that these words or actions are in any way linked to the complainants’ Traveller identity. Furthermore, I find that the respondent did take action when complaints of harassment were formally lodged by the complainants. This argument was supported by the undisputed fact that when the complainant husband approached the respondent about another named person who had used Traveller specific language when addressing the complainants’ son, the respondent took immediate action and the discriminatory use of language stopped.
5.9. I am satisfied that the reason why the respondent initiated the disciplinary proceedings against the complainant was in accordance with section 15. That is, the proceedings were initiated because there was an issue concerning anti-social behaviour, not because the complainants are Travellers. This is not to say that this Tribunal is ascribing any disproportionate blame on the complainants, simply just accepting that the complainant wife was involved in these incidents. It is not for this Tribunal to investigate what happened between the complainant wife and her neighbour or who initiated the altercation and it is worth noting that neither side provided compelling evidence on this issue. This Tribunal can only accept, and this was not disputed by either party, that two altercations took place and that the police were called and attended the scene of the first incident. It is also clear from the evidence that the reason why the respondent took more action after the second incident is because the estate was managed by a temporary caretaker while the permanent person was on holiday.
5.10. I am satisfied that the reason why the respondent did not reply to the complainants ES 1 form questions was because they had received independent legal advice. It is regrettable that the respondent did not, knowing that the couple were members of the Traveller community and having some knowledge of the experience and situation of Irish Travellers, take more care in explaining the exact reasons for the disciplinary proceedings.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainants have failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 6(1) on the ground of their membership of the Traveller community. The complainants have failed to establish a prima facie case of harassment contrary to section 11(1). Therefore, the complaint fails.
_________________
Tara Coogan
Equality Officer
15October 2009
Doherty & Anor -v- Sth Dublin County Council & Ors
[2007] IEHC 4 [2007] 2 IR 696 Charleton J
The Equality Acts
11. Both counsel for the Attorney General and for South Dublin County Council have argued that there is no unequal treatment in the provision of accommodation offered pursuant to statute to the applicants. Fundamentally, they argue that the Court, in adjudicating on this judicial review, is not entitled to have any regard to the provisions of the Equal Status Act, 2000 and the Equality Act, 2004. The rights and obligations therein created, it is argued, belong only within the scheme created by those Acts and administered within the mechanisms set up by them. Prior to the Equal Status Act, 2000, a person selling a house would have been entitled to advertise it in the newspapers as being for sale only to a purchaser of a particular Christian denomination or an individual over 60 years of age. The Act of 2000 announces itself, in its long title, as a measure to promote equality and to prohibit discrimination whereby members of the public will have general access to goods and services. Most importantly, the Act has mechanisms for investigating and remedying discrimination through the Equality Authority, which it sets up. The applicants are clearly members of the “Traveller community”, which the Act, by s. 2, defines as “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”. Discrimination occurs, within the meaning of the Act, where one person is treated less favourably than another person. There can be good reasons for discrimination. For instance, one does not pick an elderly man as part of an international sprinting team. The discrimination that is prohibited is therefore described in the Act. It includes gender, marital status, family status, sexual orientation, religious belief, age, disability, ethnic origins, membership of the traveller community or victimisation because a complaint has been made by that person under the Acts; s. 3 of the Equal Status Act, 2000 as amended by s. 48 of the Equality Act, 2004. This kind of discrimination is prohibited within a range of human activities including the sale and renting of accommodation, the provision of goods and services, and within clubs and educational establishments. Part 3 of the Act of 2000, as amended, deals with enforcement. Section 21 provides that a person who claims that discrimination has been directed against them “may…seek redress by referring the case to the Director”: that is the person in charge of the Equality Authority set up by the Act. The case is then, subject to time limits and other procedural matters, investigated and may be subject to mediation and ultimately decision; s. 25 of the Equal Status Act, 2000 as amended by s. 59 of the Equality Act, 2004. Redress may be ordered under s. 27 of the Equal Status Act, 2000 as amended by s. 61 of the Equality Act, 2004. There may be compensation or a mandatory order. Thereupon the matter may be appealed to the Circuit Court; s. 28 of the Equal Status Act, 2000. From there an appeal may be taken on a point of law to the High Court. Under the scheme of the Acts, this Court could have been involved earlier, pursuant to s. 23 of the Equal Status Act, 2000, as amended by the Equality Act, 2004. This creates a legal norm whereby an injunction may be granted by the High Court, on the application of the Director, in respect of discrimination, which is called prohibited conduct, which is likely to re-occur. The Equality Act, 2004 recites in its long title that it is passed into law, in part, for the purpose of implementing certain European Union Directives. So, for instance, s. 64 inserts a new s. 38A in the Equal Status Act, 2000 providing for a reversal of the burden of proof and this accords with Article 8 of Council Directive 2000/43/EC of 29th June, 2000.
12. In my judgment, the Equal Status Acts, 2000 – 2004 do not create new legal norms which are justiciable outside the framework of compliance established by those Acts. Prior to the Local Government (Planning and Development) Act, 1963 one could lawfully turn one’s house from being a family home into a block of apartments. Subject to tort laws relating to nuisance, one could establish a factory or workshop in one’s back garden. Many activities which involved the development of land would also have required one to obtain a licence, for instance to run a slaughter house, but these were incidental to one’s general right to develop one’s property as one wished. Prior to the Unfair Dismissals Act, 1977, the only right that an employee would have in respect of his or her employer was for a period of notice to be given of dismissal, as specified in the contract of employment, or such as were implied by law where the contract was silent. There was no recognition that an employee had a right to work or had any quasi-proprietary interest in their job; see Redmond, Dismissal Law in Ireland (Butterworths, Dublin, 1999) 3 – 27. The Unfair Dismissals Act, 1977 established such rights and, like the Equal Status Acts, 2000 – 2004, set them up within a framework providing for a specific tribunal enforcing new legal norms and with particular rights of appeal to specified courts in particular circumstances. The difference between the Unfair Dismissal legislation and the Equal Status Acts, 2000 – 2004 is that under the Unfair Dismissal Act, 1977, a person must opt to choose between a claim for wrongful dismissal pursuant to his employment contract, or for unfair dismissal under the Act. Wrongful dismissal would involve litigation in the ordinary courts, which historically have dealt with all the questions related to contract, whereas by claiming unfair dismissal one would come under the special tribunal established by that Act.
13. Article 34.3.1 of the Constitution provides that “The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” It is on this basis that the applicant claims that the rights available to him under the Equal Status Acts, 2000 – 2004 may be pleaded and determined in judicial review. In Tormey v. Ireland [1985] I.R. 289, Henchy J. at 295 analysed this provision of the Constitution in the light of the remainder of Article 34 and in the light of the Constitution as a whole. He said:-
“Article 34, s. 3, sub-s. 4 amounts to a recognition of the fact that the High Court is not expected to be a suitable forum for hearing and determining at first instance all justiciable matters. Apart from practical considerations, it would seem not to be in accordance with the due administration of justice underlying the Constitution that every justiciable matter or question could, at the instance of one of the parties, be diverted into the High Court for trial. For example, the right given by Article 38, s. 2 of the Constitution to provide for the trial of minor offences in the District Court must imply that it would not be open to a prosecutor or a defendant in any such case to opt for a trial in the High Court. Fundamental fairness, the right to equality before the law and compliance with the basic purpose of Article 38, s. 2 would all seem to require that it should not be an option of one of the parties to such a prosecution to frustrate a trial in the District Court by asserting a constitutional right to a trial in the High Court.”
14. Earlier, Henchy J. referred to the wording of Article 34.3.1 as giving jurisdiction to the High Court to determine “all matters and questions” as being required to be read “all justiciable matters and questions”. Many of the rights and obligations created by modern statute were never justiciable until they were created by the passage of legislation. Some legislation consolidates existing rights in a code form while others interfered with the general freedom of contract by establishing, for instance, that particular terms of contracts in particular circumstances may be unfair. These Acts tag onto the existing law, by way of amendment or tidying up, and divert the law in a particular direction. Such legislation contemplates that the courts are to be used for the settling of controversies. Where, however, an Act creates an entirely new legal norm and provides for a new mechanism for enforcement under its provisions, its purpose is not to oust to the jurisdiction of the High Court but, instead, to establish new means for the disposal of controversies connected with those legal norms. In such an instance, administrative norms, and not judicial ones are set: the means of disposal is also administrative and not within the judicial sphere unless it is invoked under the legislative scheme. In the case of the Planning Acts, in employment rights matters and, I would hold, under the Equal Status Acts, 2000 – 2004, these new legal norms and a new means of disposal through tribunal are created. This expressly bypasses the courts in dealing with these matters. The High Court retains its supervisory jurisdiction to ensure that hearings take place within jurisdiction, operate under constitutional standards of fairness and enjoy outcomes that do not fly in the face of fundamental reason and common sense. In some instances, the High Court has declined jurisdiction on the basis that a forum established by law, over which it exercises supervisory jurisdiction, as above, is a more appropriate forum. In Deighan v. Hearne [1986] 1 I.R. 603 at 615, Murphy J. declined to engage in a tax assessment of the plaintiff in favour of the administrative tribunal established in this regard. He felt the jurisdiction of the High Court would only come into play in the most exceptional circumstances because legislation provided a constitutional procedure “competently staffed and efficiently operated to carry out that unpopular but very necessary task”. In my judgment it is no function of the High Court, at first instance, to adjudicate on planning matters, to assess income tax, to decide on unfair dismissal or to decide whether there has been unequal treatment. I allow that there is a category of legislation which creates specific rights under statute and the breaches of which can be pleaded as tortious liability as breaches of statutory duty. An example of this is the Safety and Industry Acts. These create conditions whereby workers may be safely employed, breaches of which are criminal offences. A failure to comply with these is not simply a crime triable before the court given jurisdiction in that regard but is also a breach of the workers rights and which can give rise to damages. Francis Bennion in his “Statutory Interpretation” (Butterworths, London, 2002) states at p. 53 that if no criminal sanction is provided for a breach of a statute the inference is that a civil sanction is intended. Here, instead of a criminal sanction, there is a complete mechanism for resolution.
15. The general test developed in the law of tort was stated by Lord Diplock in Lonrho Limited v. Shell Petroleum Co. Limited and Others [1982] A.C. 173, [1981] 2 All E.R. 456 where he indicated that the existence of a statutory provision could give rise to a right in damages:-
1. Where the provision is designed for the protection or benefit of a particular class of persons and a member of that class is injured as a result of the breach; or
2. Where the provision creates a public right, but the plaintiff has suffered particular injury over and above the type of harm suffered by the public generally.
16. The ultimate test, however, is a matter of statutory interpretation. The issue is whether the legislature intended that private law rights of action should be conferred upon individuals where breaches of statutory duty are shown to have occurred. Of itself, the fact that a particular provision was intended to protect certain individuals, such as member of the Irish Traveller community, is not sufficient to confer a right of action before a court. Legislation creates obligations. All of the case law concerned with private law rights centres around categories of legislation where the right of enforcement is not specifically stated to be in the context of a civil claim. Often, the breach is triable before a criminal court. In addition, rights of action in private law may be created where the breach of the protection has caused an injury to the persons in respect of whom it was designed to provide protection and where the legislation creates a public right where the plaintiff has suffered a particular injury as a result of the breach. The fundamental rule of statutory interpretation remains, however, that stated by Tenterden C.J. in Doe d, Bishop of Rochester v. Bridges [1824-34] All E.R. Rep. 167 at p. 170:-
“Where an act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.”
The rules as to determining tort liability arise by virtue of an exception to that rule. I note that in amending s. 21 of the Equal Status Act, 2000, s. 54 of the Equality Act substitutes for the words “to seek redress under this Act”, with “to seek redress by referring the case to the Director”. Here, a specific legal obligation is created for the first time by statute, a mode of enforcement is set up through an agency which was thereby created and limited rights of access to the courts are created. In my judgment this amounts to the creation of a separate legislative and administrative scheme which does not create a series of private rights which are either enforceable in damages, or outside the context of that scheme.
17. I am fortified in this conclusion by a statement made by Fennelly J. in the course of his judgment in Maha Lingam v. Health Services Executive, (Unreported, Supreme Court, 4th October, 2005) where, in the context of a claim which, in part, relied on the Protection of Employee’s Fixed Term Work Act, 2003 he stated:-
“However, having looked at that Act the Court cannot see that it significantly alters the matter. It is unnecessary to go into it except that the general policy of the Directive and the Act seems to be to protect employees who are employed on short term fixed term contracts and who have been employed on such basis for a certain minimum number of years, either three or four years, and, accepting for the sake of the purpose of the present case, that the plaintiff is employed under such a contract of employment, the question would be whether he could make out a case to justify the grant of an interlocutory injunction. There are two major obstacles in place of the plaintiff/appellant in this context; firstly that it is the implementing Act, the 2003 Act, contains, like the Unfair Dismissals Act, its own statutory scheme of enforcement and it does not appear to be envisaged by the Act that it was intended to confer independent rights at common law or to modify in general the terms of contracts of employment to be enforced by the common law courts; and the second is that in any event the general terms and provisions and policy of the Act and of the Directive seems to be to put persons who were in such short term contracts in the same position as if they were persons who were on fixed long term contracts but in neither event does it appear to interfere with the ordinary right and obligation of the employer to terminate the contract on the giving of reasonable notice and for that reason the matter comes back within the general ambit, therefore, of the sort of remedy that would be available to the plaintiff/appellant for the termination of the contract.”
18. For the sake of removing doubt, if I were to analyse the case of the applicants under the Equal Status Acts, 2000 – 2004, I do not feel that I could hold that their treatment has been discriminatory. My reasons are as set out below.
The Right to be Housed
19. The Housing Act, 1966 consolidated existing legislation as to the provision of housing. It also cast a duty on local authorities to survey the need for housing within their functional area and to make provision, based on the scheme of priorities, whereby people who are otherwise unable to afford housing might be offered accommodation at reasonable rent. Section 60 provided that it is the duty of a housing authority to make a scheme determining the priorities to be accorded to categories of persons who are in need of housing. This scheme was a public document which could be inspected; s. 60(9). The primary objectives of this section were replaced by s. 9 of the Housing Act, 1988, which recasts s. 60, which it repealed. Section 9 makes it the duty of a housing authority to assess the needs of the homeless, of Travellers, of those in unsuitable accommodation, of young people without family support, of the sick and the elderly, and those without adequate means. This includes those who may later enter the functional area of the authority. Under s. 10 further powers to offer accommodation, such as Bed & Breakfast accommodation, are conferred on the housing authority. Part IV of the Act of 1966 is concerned with the elimination of slum and tenement dwellings and, in that regard, empowers local authorities to serve orders for repair or demolition and to bring prosecutions in respect of related offences. Section 56 of the Act of 1966 provides:-
“56 – (1) A housing authority may erect, acquire, purchase, convert or reconstruct, lease or otherwise provide dwellings (including houses, flats, maisonettes and hostels) and such dwellings may be temporary or permanent.
(2) A housing authority may, in connection with dwellings provided, to be provided or which in the opinion of the authority will in the future require to be provided under this Act, provide and, if they think fit, maintain in good order and repair roads, shops, playgrounds, places of recreation, parks, allotments, open spaces, sites for places of worship, factories, schools, offices and other buildings or land and such other works or services, as will, in the opinion of the authority, serve a beneficial purpose either in connection with the requirements of the persons for whom the dwellings are provided or in connection with the requirements of those persons and of other persons.”
20. The following section of the Act of 1966 allows for the provision of sites for housing in a similar way. There is no specific mention in the Act of 1966 of the Irish Traveller Community. One notes however, the reference in s. 56 to temporary accommodation which could, although it is not specified, include a mobile home or caravan. Section 13 of the Housing Act, 1988 applies only to those who belong “to the class of persons who traditionally pursue or have pursued a nomadic way of life.” The section was replaced by s. 29 of the Housing (Traveller Accommodation) Act, 1998. It is to be noted that the definition does not confine the rights enabled by the section to those who have pursued this lifestyle on this island, as does the Equal Status Acts, 2000 – 2004. It applies, on the face of it, to all traditional nomads. As substituted by s. 29 of the 1998 Act, s. 13 of the 1988 Act reads, as to its material part:-
“13 – (1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.
(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of s. 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.
(3) Section 56(2) of the Principal Act shall apply in connection with the provision of sites under this section as it applies in connection with the provision of dwellings under that section.”
21. Section 56(2) of the Housing Act, 1966, enables the authority to maintain buildings and services ancillary to housing. Section 13(7) of the Act of 1988, as substituted by s. 29 of the Act of 1998, defines a caravan as:-
“Any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent.”
A site with limited facilities is defined by reference to the temporary nature of the stay but which, in that regard, must have sufficient water, a hard parking surface and facilities for waste disposal. Just as under the Housing Act, 1966, there was a duty to make an assessment of housing needs, so under the Housing (Traveller Accommodation) Act, 1998, Part II provides a duty on a housing authority to assess the need for sites and to adopt an accommodation programme for Travellers. Under
s. 25, the authority may make a loan for the acquisition or repair of a caravan, or to purchase a site. Under s. 15 of the Housing Act, 1988, as inserted by s. 30 of the Housing (Traveller Accommodation) Act, 1998, the Minister may pay to a housing authority a grant or subsidy in respect of:-
“(a) The provision of dwellings (including houses, flats, maisonettes and hostels) by the authority;
(b) The improvement or reconstruction of dwellings provided by the authority;
(c) The provision of caravans or the provision, improvement or management by the authority of sites for caravans referred to in s. 13 (as amended by the Housing (Traveller Accommodation) Act, 1998) for persons to whom that section applies;
(d) The acquisition of land for the provision of dwellings or sites referred to in this section;
(e) The carrying out of ancillary works … ; and
(f) The provision of assistance under s. 5 to a body approved of by the Minister for the purposes of that section.”
22. Counsel for the applicants have argued that the foregoing legislation, which I have referred to in some detail, comprises a scheme for the housing of members of the Irish Traveller Community and of settled persons on an unequal basis. It is claimed that this amounts to discrimination. Further, it is argued that this legislation has running through it a division as to the accommodation requirements of Travellers and of members of the settled community. Once, it is asserted, a person who has pursued a nomadic life opts to be treated as such, then the relevant legislation allows that person to make an untrammelled choice for caravan accommodation: they cannot be housed in bricks and mortar unless they make a choice to opt out of caravan accommodation. The inequality claimed arises from the fact that a Traveller will only receive a site, with services, whereas a non-Traveller will receive accommodation. I cannot accept either argument.
23. Under the scheme of the Acts there was a duty cast upon housing authorities to work on the elimination of homelessness within their functional areas according to a scheme of priorities set out by the Oireachtas. Homelessness is, of its nature, a measure requiring an emergency response. I cannot accept that it was the intention of the Oireachtas to establish a rigid division between members of the Irish Traveller Community and persons who are settled by providing that the problem of homelessness would be dealt with by the authority always being required to provide only caravan or site accommodation to Travellers, at their option, but bricks and mortar accommodation to settled persons. It seems to me that the resolution of this problem hinges around the issue as to how homelessness is defined. Section 2 of the Housing Act, 1988, provides that definition:-
“2. A person shall be regarded by a housing authority as being homeless for the purposes of this Act if –
(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or
(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a),
and he is, in the opinion of the authority, unable to provide accommodation from his own resources.”
24. There is no distinction drawn in this section between accommodation available to a member of the Irish Traveller Community and to a member of the settled community. The same definition applies to both. I would find it impossible to hold that there is an untrammelled statutory right vested only in members of the Irish Traveller Community to opt in all and any circumstances for caravan accommodation and to reject bricks and mortar. Such an interpretation would mean that those who are very elderly, very infirm or very ill and who would be unsuited, for that reason alone, to caravan accommodation would be entitled to caravans adapted to their needs; and adapted ever more extremely as their disability grew. Such a right would be in contradistinction to the ordinary adaptations which every member of the community must make as they are stricken by age, infirmity or illness. People, in the ordinary course of life, often leave the homes which they occupied with their family for flat accommodation, for single storey accommodation, for a retirement village or for a nursing home. Often, this is a traumatic transition. If the statutory scheme required me to make a distinction conferring a special right on Travellers always to be housed in a caravan, I would do so but the definition of a homeless person, as set out in s. 2 of the Housing Act, 1988, apart from any other provision, requires that I should not.
25. Counsel for the Attorney General has argued that homelessness does not depend alone on the accommodation which a person is occupying, but depends as well on what accommodation is available to him or her: once, within the meaning of s. 2 of the Housing Act, 1988, there is accommodation available which a homeless person can reasonably occupy, the state of homelessness ends. I agree with this. It is impossible to ignore that to be homeless, under the Acts, one is required to have not just no accommodation but none that one could reasonably occupy. Living, as they are, in a caravan which is damp and without the provision of an indoor toilet which they need and which is unsuited to their state of health, the applicants are homeless. Once, however, a reasonable offer has been made by the housing authority which the applicants choose not to take up, their state of homelessness has ended.
26. The further assertion that there is inequality of treatment between members of the Irish Traveller Community and those who are settled is based on the premise that a settled person, applying for a house and being successful, will receive a roof over his or her head, whereas a traveller will not. In accordance with s. 15 of the Housing Act, 1988, as amended by s. 30 of the Housing (Traveller Accommodation) Act, 1998, there is, in fact, a scheme of loans and grants for the purchase of caravans pursuant to circular letter TAU 1A/2000 of the 18th October, 2000, from the Department of the Environment and Local Government. This requires that a caravan must be purchased from a reputable supplier who is registered for VAT, that it is value for money and that it will be located in a bay or other site provided by the Local Authority. According to documents handed in during the course of the hearing, a scheme is available whereby loans may be made under s. 25 of the Housing (Traveller Accommodation) Act, 1998, which empowers local authorities to give loans for the provision of private Travellers specific accommodation; SI 37 of 2000 provides that a loan of up to €6,350, repayable over one to five years, together with a once off grant of €640 is available and a special, though small, grant is available only to Travellers for the purchase of a new or second hand house in the amount of €3,810. Circular letter TAU 4/2002 and circular letter TAU 1/2000 explain that the purpose of the scheme is “to encourage initiatives to address the needs of traveller families who live in substandard caravans or in over crowded conditions”.
27. There is equality of treatment between members of the Irish Traveller Community and the settled community vis à vis SIZE=4 FACE=”Times New Roman”> the provision of housing in bricks and mortar. Anyone, without distinction, will have an entitlement to same upon being homeless. Members of the Irish Traveller Community have a special and unique additional provision made for them in the form of caravan sites, site works and loans for the purchase of caravans. The fact that this additional option is available only to Travellers, from whatever country, does not mean, in my judgment, that it can be exercised in all and every circumstance so as to apparently continue the state of homelessness that gives rise, in the case of all citizens, to the requirement of the local authority to seek to offer accommodation to homeless persons that they might reasonably be expected to reside in.
28. This is the first case in which a claim has been made by a member of the Irish Traveller Community to be provided with more than a site. In all the previous cases to which I have been referred, the argument has been as to whether there is a statutory duty on a housing authority to make provision for sites for members of the Irish Traveller Community and as to whether in particular circumstances, that duty has been fulfilled. In McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July 1980), it was held that the offer of provision of chalet accommodation to the plaintiff, was in the circumstances, a reasonable discharge by the defendant of its duty to house the plaintiff. In O’Reilly and Others v. Limerick County Council and The Attorney General and Human Rights Commissioner, (Unreported, High Court, 29th March, 2006), it was held by MacMenamin J. that a choice to resume accommodation in unacceptable conditions may not disentitle an applicant to relief and that there is a duty on a county council to fully advise those members of the Irish Traveller Community who were uneducated as to their full rights with regard to housing.
29. Since University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February, 1991), a line of authorities have followed the judgment of Barron J. in that case that the scheme of the Housing Acts contemplates not only that an assessment of housing needs should be made in relation both to the Irish Traveller Community and to settled persons, but that it should be acted upon. In two cases, orders were made by the High Court that serviced halting sites should be provided by housing authority respondents within a period of 12 months. In County Meath V.E.C. v. Joyce and Others [1994] 2 ILRM 210, Flood J. ordered that Meath County Council should bring their assessment of housing and serviced camp site needs up to date and to provide sites within 12 months of the date of the perfection of the order he made in that regard. In John O’Brien and Others v. Wicklow Urban District Council and Wicklow County SIZE=4 FACE=”Times New Roman”> Council, (Unreported, High Court, 10 June 1994), Costello J. made an order that the County Manager should carry out works at specified locations providing for hard core sites, an electricity supply and drainage to certain members of the Irish Traveller Community. All of these judgments followed the decision of Barron J. in University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February 1991). Having first decided that s. 13 of the Housing Act, 1988 imposed a duty to provide caravan sites, as opposed to merely empowering a housing authority to do so, Barron J. went on:-
“Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s. 13 applies to the provision not of dwellings but of caravan sites. It is I think significant that s. 56(2) of the 1966 Act is to apply to serviced halting sites as it does to dwellings. In my view, s. 13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings in the same way as s. 56(1) requires them to provide the latter. Such obligation is, of course, subject to all the provisions which limit the obligations of the housing authority under s. 56 of the 1966 Act. The section does however mean that the housing authority cannot meet its statutory obligations by offering only a conventional dwelling to Travellers. It must bring into force the estimate, assessment and scheme respectively required by ss. 8, 9 and 11. If in accordance with the result of these matters, the housing authority has obligations in accordance with its resources for persons who are Travellers, then those obligations must be fulfilled. In the case of those persons to whom s. 13 applies and who do not wish to be provided with dwellings, the obligation must be fulfilled by the provision of caravan sites. As a matter of construction of s. 13, it seems to me that the statutory obligation to provide a caravan site for Travellers is identical to the statutory obligation to provide dwellings for those of the settled community. The only difference in the obligation lies in the nature of the housing to be provided. Whether the person in need is a traveller or a member of the settled community, once the duty exists it must be performed. In the one case, it is performed by providing a caravan site; in the other by providing conventional housing. I refer only to the position of those Travellers who live permanently in a particular area and whose need for a caravan site is as a permanent home. The provision of a temporary halting site or sites is a different matter and does not arise in the present case.”
30. As a matter of fact, the respondent Council has made available to the applicants a halting site on a temporary basis. It is the intention of the Council to redevelop the site in which they currently reside so as to make provision for them on a permanent basis so that their caravan can be used in conjunction with a day house as explained above. This accommodation will be available within a period of 18 months from the date of this judgment. There has therefore been no failure by the respondent housing authority to fulfil its duty under the relevant provisions of the Housing Acts. It would be desirable were this accommodation to be available immediately. The housing authority, however, has obligations only in accordance with its resources and according to the scheme of priorities set out by it.
Human Rights
31. The applicants argue that their status as members of the Irish Traveller Community means that special arrangements are required to be made for them, even apart from the statutory provisions already referred to. It has been argued that the scheme under the Housing Acts operates on the basis of an untrammelled choice to be made by a member of the Irish Traveller Community between accommodation in bricks and mortar and in a caravan. It is urged that this interpretation be placed upon the Acts because of s. 2 of the European Convention on Human Rights Act, 2003. This provides:-
“2(1) In interpreting and applying any statutory provision or rule of law, the court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provisions or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
32. It is further argued that the respondents, and in particular the housing authority, have an obligation to treat the applicants in a special way having regard to their status as members of the Irish Traveller Community and that this obligation arises by virtue of s. 3 of the European Convention on Human Rights Act, 2003 which reads:-
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
33. Under the Act, judicial notice has to be taken by all courts of the Convention provisions and the decisions in relation thereto. If in any proceedings before the High Court, or the Supreme Court exercising its appellate jurisdiction, it emerges that a provision of Irish legislation is incompatible with any Article of the Convention, then a declaration of incompatibility should be made under s. 5 of the Act of 2003. This does not affect the continuing operation of the law. An ex gratia payment of compensation may be made once an application for compensation by a party wronged has been made to the Attorney General. It is not stated, but it is to be inferred, that where a declaration of incompatibility with the European Convention on Human Rights has been made by a court that a political will may exist to alter relevant legislation in favour of compatibility.
34. The European Convention on Human Rights was agreed between the signatory governments in Rome in November, 1950. Its text sets out the fundamental rights which the citizens of Europe are entitled. The Articles pleaded here were Articles 8 and 14. Article 14 prohibits discrimination and provides:-
“14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 8 secures rights whereby the State must respect private and family life. This provides:-
“8. – (1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 3 is also relevant in that it prohibits torture. It states:-
“3. No one shall be subjected to torture or to inhumane or degrading treatment or punishment.”
35. These Articles may be contrasted with Article 40.3 of Bunreacht na hÉireann which provides:-
“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
36. The guarantee in Article 40.3 is a promise never to infringe a right. Thus, there can be no laws passed in Ireland which infringe constitutional rights or, in the case of a conflict, which do not draw a reasonable balance between the interaction of two differing rights. When it comes, however, to taking positive action to defend and vindicate the personal rights of the citizen, the text of the Constitution makes it clear that the State is only obliged to do as much as is practicable, or in the original text “sa mhéid gur feidir é”. It is easier to find a circumstance where a State body is actively infringing on someone’s constitutional rights than to define the circumstances under which the State must positively intervene to uphold a right. For instance, if a law were passed, or an administrative measure adopted, providing that members of the Irish Traveller Community could never be housed in communities that were settled, this would be a positive denial of their constitutional right as human persons to be treated equally before the law. The State cannot set out to infringe constitutional rights: but when is it obliged to intervene to uphold them? Many rights could be set at nought by reason of the inability of a citizen to provide the means to exercise them. There is certainly a constitutional right to life and a provision denying access to particular medicines which are necessary for the exercise of that right would be unlawful but where a citizen did not have the means to purchase necessary medicine would that mean that the State had an obligation to intervene by providing him or her with some form of welfare in that regard? The answer may be that the State could, in certain circumstances, have an obligation consistent with its financial and administrative commitments. A similar problem arises in relation to the European Convention on Human Rights. It is to be noted that there is no positive obligation to intervene to uphold private and family life in Article 8 and that, expressly, the text forbids “interference by a public authority with the exercise of this right”. The courts of England and Wales and the European Court of Human Rights have attempted to grapple with this issue without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right. Counsel for the applicant argued that no more than practicable assistance could be offered from State resources and that a citizen has a general obligation to have recourse to welfare as a last resort only.
37. In Anufrijeva and Anor v. Southwark London Borough Council [2004] 1 QB 1124 the Court of Appeal of England and Wales dealt with three different cases that concerned the right to a family and private life under Article 8 of the Convention. Lord Woolf C.J. noted at para. 25 in relation to the problem of deciding when a positive obligation of intervention was cast on State authorities, apart from a duty not to interfere:-
“Strasbourg provides little guidance in this area, for we are not aware of any case where the Court of Human Rights has held a state in breach of the Convention for failure to provide housing to a certain standard, or for failure to provide welfare support. … The dearth of authority is evidenced by the fact that counsel on each side attached importance to two recent decisions, which seem to us of only peripheral significance.”
38. These cases were Botta v. Italy (1998) 26 EHRR 241 where a physically disabled person failed in a claim under Article 8 on the assertion that his rights were infringed because there were no facilities to enable him to get down into the sea in a resort distant from his home. In Zehnalová and Zehnal v. Czech Republic, Reports of Judgments and Decisions 2002 – V, p. 337, a complaint under Article 8 failed where the national authorities had failed to provide access for physically disabled persons to all public buildings. This, the court held, was to invoke rights which were “too wide and indeterminate” as to give “convincing proof of an attack on their private lives”. It may be speculated that some minimum welfare provisions may constitute a positive obligation inherent in effectively respecting private and family life. In Anufrijeva, the Court of Appeal offered these observations, at paras. 43 to 45, as to the formulation of a useful legal test:-
“… Article 8 is capable of imposing on a State a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R(J) v. SIZE=4 FACE=”Times New Roman”> Enfield London Borough Council [2002] EWHC 735 (Admin), where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J. to find that Article 8 was infringed on the facts of that case … insofar as Article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant’s private and family life were at risk: see the approach of the Court of Human Rights to the positive obligation in relation to Article 2 in Osman v. United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J. in N. [2003] EWHC 207 (Admin) at 126-148. Where the domestic law of a State imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of Article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.”
39. In this regard, I note that Costello J. in John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10th June, 1994) stated that conditions which are totally unacceptable in a Christian community and which could be relieved if the statutory powers of a local authority were exercised, and without any great expense can give rise to an obligation to intervene, he said:-
“I am also satisfied that the County Manager has power to deal with an emergency and that this power in the circumstances of a case now amounts to a duty.”
40. I would find it impossible to apply the tests of culpability and of inhuman treatment where a number of offers of housing have been made, and where the best form of halting site accommodation is to be made available to the applicants within 18 months.
41. It is argued, in addition, that the housing legislation should be interpreted in favour of the applicants. The limits to which the interpretation requirement set out in the corresponding provision of the United Kingdom Human Rights Act, 1998 may be taken are to be found in the decision of the House of Lords in Ghaidan v. Godin-Mendoza [2004] 3 WLR 113 where it was held that a definition of spouse as extending to a person living with a tenant “as his or her husband or wife” could encompass a surviving homosexual partner who is not, under the decision, to be put in any less secure a position than the survivor of a heterosexual relationship in respect of statutory tenancy rights.
42. It has been urged on the Court that what is reasonable in terms of accepting or refusing accommodation, within the definition of homelessness in s. 2 of the Housing Act, 1988, must take into account the particular circumstances of the applicants living, as they have, all their life either as nomads on the side of the road or, for the about the last ten years in various halting sites. Circumstances can occur where persons who have led a nomadic way of life may find it difficult to accept, on a permanent basis, settled accommodation. It is not, however, what the applicants are being asked to do here. In asserting their rights to nomadic accommodation, they are being met with an answer, from the Council, that a symbolic vestige of their tradition may be preserved in the shape of a site for their caravan with a day house, but only after a reasonable interval of time for the purposes of re-development. In the meanwhile it is not unreasonable that the available accommodation is in bricks and mortar and nor is it unreasonable that the County Council will not go and immediately buy them a plumbed, centrally heated mobile home with electricity supply: this is not in accordance with the scheme of priorities set down by the Council under the Housing Acts and its provision is outside the relevant regulations made under s. 15 of the Housing Act, 1988, as amended.
43. A duty to take into account the sensitivities of members of the Roma communities, whether Gypsies from the neighbouring kingdom, members of the Sinti from Central Europe, or members of our own Irish Traveller Community, can arise when interpreting administrative measures. These obligations are not, however, unlimited. In Chapman v. United Kingdom (2001) 33 EHRR 18 the European Court of Human rights dismissed an argument that a nomadic lifestyle gives rise to an automatic duty on States to intervene in favour of preserving this way of life, stating, at paras. 96 to 99, as follows:-
“Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.
It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-Gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English Courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to the protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.
It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not of judicial decision.”
44. This decision was followed by the European Court of Human Rights in the decision in Codona v. The United Kingdom, judgment delivered on 7th February, 2006. The applicant was a Gypsy who lived with her young son and other members of her extended family in caravans. Injunction proceedings were issued against her because the site on which the caravans were placed did not have the relevant planning permission. During the course of court proceedings the applicant averred that she did not “wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs. Codona wishes to live in a caravan and have the support of her extended family around her”. The housing authority, on examining the case, concluded that they could only offer bricks and mortar accommodation in a bed and breakfast establishment until it could make a final offer of accommodation. The application before the Court of Human Rights was, in essence, for relief under Article 8 on the complaint that the response of the Council did not take into account her rights as a Gypsy under Article 8 of the Convention. The court held:-
“Following Chapman, the court does not rule out that, in principle, Article 8 could impose a positive obligation on the authorities to provide accommodation for a homeless Gypsy which is such that it facilitates their “Gypsy” way of life. However, it considers that this obligation could only arise where the authorities had such accommodation at their disposal and were making a choice between offering such accommodation or accommodation which was not “suitable” for the cultural needs of a Gypsy. In the instant case, however, it appears to be common ground that they were, in fact, no sites available upon which the applicant could lawfully place her caravan. In the premises, the court cannot conclude that the authorities were then under a positive obligation to create such a site for the applicant (and her extended family). Such would be to extend the positive obligation imposed by Article 8 far beyond the – limited – bounds established in previous case law. In particular, to accept that the authorities were under such an obligation would be to have the effect of imposing upon the respondent State the positive obligation to create either one or more caravan sites so as to equate supply with demand. The court recalls that this was precisely the obligation that the Grand Chamber found that the contracting states could not be said to owe in Chapman (para. 98). The court does not find that there are any compelling reasons in the present case to depart from the position adopted by the Grand Chamber in Chapman.”
45. In addition to the foregoing, I can find nothing in any other decision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of Article 8 of the European Convention on Human Rights.
46. I would add that the decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights. Whether welfare is provided, and at what level, and in what particular circumstances, is essentially a matter of political decision. The discourse of politics in this area tends to move between the poles of urging self-reliance and of offering cradle-to-grave support. Like a family, the resources of any nation are limited and it is a matter for political and executive decision as to what resources should be committed to what problems and with what priority. A breach of legislation prescribing such an allocation, as in housing, calls for judicial intervention. Where, however, a plea is made that the court should declare the absence of welfare support to be wrong in a particular situation of itself, the applicant should show a complete inability to exercise a human right for his or her own means and a serious situation that has set the right at nought with the prospect of serious long term harm. Any proposed intervention by the court should take into account that it is the responsibility of the legislature and executive to decide the allocation of resources and the priorities applied by them.
Procedural Matters
47. Some procedural matters were pleaded in order to bar certain sections of the applicants claim. Since the substantive decision has gone against them, I can deal with these matters briefly.
48. It was claimed that as there was a conflict of evidence on the affidavits as between the applicants and South Dublin County Council, that the court should not proceed to judgment but should refer the matter for plenary hearing. I do not accept this. Insofar as any conflict existed, it was on the basis that the applicants claimed that they wished to continue to live in a caravan, and an assertion by South Dublin County Council that their age and medical condition made it entirely unsuitable that they should be accommodated in a caravan or mobile home which, of its nature, has insulation difficulty and, consequently, condensation problems. The duty cast on the High Court in judicial review is to resolve such facts as can be resolved on affidavit and to determine, on the basis of those facts, as to whether any of the reliefs sought should be granted.
49. Secondly, it was pleaded that the applicants should involve themselves, in some unspecified way, in an appeal mechanism and that, in consequence, the decision of the Supreme Court in the State (Abenglen Properties Limited) v. Corporation of Dublin [1984] I.R. 381, gave me a discretion to refuse that application. I do not accept that. Persons given statutory rights to a hearing may be able to call in aid the High Court’s jurisdiction under judicial review. The fact that an appeal might be available as an alternative can, depending on the circumstances, bar the availability of a remedy but it does not automatically exclude it.
50. Thirdly, it has been argued that a mandatory order should not issue in this case. In Minister for Labour v. Grace [1993] 2 I.R. 53 at 55, O’Hanlon J. held:-
“An order of mandamus may be granted ordering that to be done which a statute requires to be done, and for this rule to apply it is not necessary that the party or corporation on whom the statutory duty is imposed should be a public official or an official body. In order, however, for an order of mandamus to issue for the enforcement of a statutory right it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a power of discretion only, as distinct from a duty, exists, an order of mandamus will not be granted by the court.”
As against that, I note that in the decisions cited earlier in this judgment – namely The University of Limerick v. Ryan, Mongan v. South Dublin County Council, and O’Brien v. Wicklow County Council – such an order was in fact made on the basis that a statutory duty to provide a halting site had not been complied with.
51. Lastly, I note that in T.D. v. Minister for Education [2001] 4 IR 259 the limits on the court in terms of interference with executive decision-making was set out. Hardiman J. stated:-
“I have read the judgment of Murray J. in this case and I wish to express my agreement with what he says in relation to the circumstances in which the court may make a mandatory order compelling the executive to fulfil a legal obligation. First, such a thing may occur only in absolutely exceptional circumstances ‘where an organ or agency of the State has disregarded its constitutional obligations in an exemplary fashion. In my view the phrase ‘clear’ disregard can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties accompanied by bad faith or recklessness’. Secondly, even in such circumstances, the mandatory order might direct the fulfilment of a manifest constitutional obligation but ‘without specifying the means or policy to be used in fulfilling the obligation’. Such an order, in my view, could only be made as an absolutely final resort in circumstances of great crisis and for the protection of the constitutional order itself. I do not believe that any circumstances which would justify the granting of such an order have occurred since the enactment of the Constitution 64 years ago. I am quite certain that none are disclosed by the evidence in the present case.”
52. Were it to be the case that the applicants’ statutory rights, or their human rights or constitutional rights, had been infringed a suitable order by way of declaration, at least, could have been made in this case. In the result, I am not satisfied that any such infringement has occurred.
DEC-S2010-003 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2010-003
PARTIES
Maurice Cleary v Waterford City Council
File Reference: ES/2007/0167
Date of Issue: 18th January, 2010
Keywords
Equal Status Acts 2000-2008 – Direct discrimination, Section 3(1)(a) – Gender Ground, Section (2)(a) – Marital Status Ground, Section 3(1)(b) – Disability Ground, Section 3(2)(g) – Race Ground, Section 3(2)(h) – Reasonable Accommodation, Section 4(1) – Discrimination by a Housing Authority, Section 6(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 13th December, 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 Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 25th November, 2009. Final correspondence with the parties concluded on 15th December, 2009.
1. Dispute
1.1 This disputeconcerns a claim by the complainant, Mr. Maurice Cleary, that he was discriminated against by the respondent on the grounds of his gender, marital status, disability and race in terms of Sections 3(1)(a) and 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 and contrary to Sections 4(1) and 6(1) of those Acts in terms of the manner in which it processed his application for local authority housing.
2. Summary of the Complainant’s Case
2.1 The complainant, Mr. Maurice Cleary, who is forty seven years of age and single has a congenital back condition and recurrent depression. He initially made an application to the respondent for local authority housing on 1st September, 2005 and this application was subsequently updated on 11th October, 2007. The complainant stated that when he made his initial application for housing in September, 2005 the respondent was implementing a policy whereby persons who were residing outside of the county of Waterford were not accepted onto the housing list for local authority housing. The complainant was residing in Dublin at that juncture, however he stated that he was born in the Waterford area and that he resided in the county of Waterford for a period of approx. two months in September/October of 2006. He claims that this policy of refusing to accept the housing applications of persons residing outside of County Waterford amounts to discrimination against him. The complainant accepts that the respondent amended its housing policy in December, 2007 and that from this point onwards it accepted applications for housing from persons living outside of its area of jurisdiction. However, the complainant stated that the respondent has never carried out an assessment of his housing application since making his initial application and that he has not been offered any accommodation whatsoever throughout this period.
2.2 The complainant claims that he has not been offered local authority housing by the respondent on the basis that he is a single male and he claims that this amounts to discrimination on the grounds of his gender and marital status. The complainant claims that the respondent was made fully aware of the nature of his disability but that it has failed to take this disability into consideration in terms of the assessment of his application. He claims that this amounts to discrimination against him on the grounds of his disability. The complainant also claims that the respondent has provided local authority housing for a large number of refugees/non-Irish nationals during the period of time since making his initial application for housing. He claims that the respondent’s failure to provide him, as an Irish citizen, with local authority housing constitutes discrimination on the grounds of his race.
3. Summary of the Respondent’s Case
3.1 The respondent stated that the complainant initially submitted an application for housing on 1st September, 2005 and he was informed at that time that Waterford City Council did not accept housing applications from persons residing outside of Waterford City and County (in accordance with it’s existing policy at that juncture). As a result the complainant’s application was not accepted on the respondent’s housing list at that juncture. The respondent stated that the complainant moved into private rented accommodation in the Tramore area of County Waterford in September, 2006 and re-applied for local authority housing. The complainant’s application was accepted at that juncture as he was at that stage resident within it’s jurisdiction. However, it subsequently came to the attention of the respondent in April, 2007 that the complainant was no longer resident within it’s jurisdiction and he was notified through his elected representative that it could no longer consider his housing application. The respondent stated that the policy which it implemented at that juncture which required applicants for housing to reside within it’s jurisdiction was applied uniformly to all applicants regardless of their gender, marital status, disability or race and it therefore submitted that this policy did not constitute discrimination against the complainant within the meaning of the Equal Status Acts.
3.2 The respondent stated that this policy was amended following the issuance of guidelines from the Department of the Environment in December, 2007 and from this juncture onwards it decided to accept applications for housing from persons residing outside of its jurisdiction. The respondent stated that it is obliged under the Housing Acts, 1966 to 1992 to carry out a formal assessment of housing needs within it’s jurisdiction every three years. It stated that the most recent formal assessment was carried out on 31st March, 2008 and it confirmed that the complainant’s application for housing was included on it’s housing list as a result of this assessment and that it is currently still active. The respondent stated that prior to January, 2008 it’s policy was to conduct a home visit with all new applicants for housing. However, since January, 2008 the respondent no longer undertakes home visits and from that date onwards an initial assessment is carried out on each individual application upon receipt with an interview subsequently arranged with the applicant at the respondent’s premises at a later date.
3.3 The respondent stated that it has jurisdiction to allocate housing within eight different areas throughout Waterford City and applicants are permitted to indicate their preferred areas when completing their initial application for housing. The respondent confirmed that applicants are only considered for tenancy of the housing units that become available in the area(s) of their stated preference. The respondent stated that the complainant has indicated on his application form that he only wishes to be considered for housing in three of the eight areas within it’s jurisdiction. The respondent stated that no new housing units have been built in two of these areas since the complainant’s application was accepted onto the housing list. The respondent stated that the allocation of individual dwellings is determined in accordance with the Scheme of Letting Priorities which has been adopted in accordance with its obligations under the Housing Acts, 1966 to 1992. The respondent stated that points are awarded to applicants based on factors such as the condition of his/her present dwelling, overcrowding, medical or compassionate grounds, persons living in institutional care and financial considerations relative to the applicant. The number of points awarded to an applicant determines their position on the housing list and offers of accommodation are made to applicants in order of priority on this list. The respondent stated that an applicant can be awarded up to a maximum of 25 points for medical grounds.
3.4 The respondent stated that it accepts the complainant has a disability and it confirmed that his application has been categorised in the Medical/Compassionate Need category as part of the assessment of housing needs that was carried out in March, 2008. The respondent confirmed that the complainant has been awarded 4 points on medical grounds based on the medical certificates which he has submitted in relation to his disability. The respondent denied that the complainant has been subjected to discrimination on the grounds of his disability and it stated that by virtue of his inclusion within the Medical/Compassionate category he is being afforded a higher level of priority than many other applicants who do not qualify to be included in this category. The respondent stated that the demand for local authority housing in any given period is far in excess of the number of units that are at it’s disposal for allocation. The respondent stated that it has a very limited housing stock at it’s disposal and as a result it would not be uncommon for a person to be on the waiting list for several years prior to being offered accommodation. The respondent stated that it currently has a total of 1,124 applicants awaiting to be housed within it’s jurisdiction and it confirmed that it has only been possible to allocate approx. 200 housing units each year since the complainant’s initial application was received in 2005.
3.5 The respondent stated that the race of an applicant is not taken into consideration when assessing applications for local authority housing and it submitted that once an applicant is deemed to have a valid need for housing his/her application is treated the same regardless of race or nationality. The respondent also stated that gender of an applicant is not taken into consideration when assessing and allocating applications for housing. The respondent denies that it has discriminated against the complaint on any of the grounds claimed in terms of the manner in which it has dealt with his application for housing.
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.
4.2 I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainant in the present case:
1. Was the complainant subjected to discrimination on the grounds of his gender, marital status, race and/or disability in terms of the policy which the respondent had in place up to December, 2007 of not accepting the housing applications from persons who were residing outside of its jurisdiction.
2. Was the complainant subjected to discrimination on the grounds of his gender, marital status, race and/or disability in terms of the manner it has dealt with his application for housing after it amended the above policy and accepted his application in December, 2007.
4.3 In considering the first question identified above, I note that it was not in dispute between the parties that when the complainant made his initial application for housing in September, 2005 the respondent was implementing a policy whereby it would not accept applications for housing from persons who were residing outside of its area of jurisdiction i.e. Waterford City. The respondent subsequently amended this policy following the issuance of guidelines from the Department of the Environment in December, 2007 and from that point onwards it accepted applications from persons not resident in Waterford City. Having regard to the evidence adduced, I am satisfied that the aforementioned policy was applied uniformly and in a non-discriminatory manner to all applicants who resided outside of the respondent’s area of jurisdiction regardless of their gender, marital status, race or disability (or indeed any of the other nine discriminatory grounds). I am therefore satisfied that the applicant was not treated less favourably on any of the discriminatory grounds claimed within the meaning of the Equal Status Acts in terms of the respondent’s policy of not accepting his application on the basis that he was not resident within its area of jurisdiction.
4.4 In considering the second question identified above, I note that in cases relating to the provision of local authority housing I must take cognisance of the provisions of section 6(6) of the Equal Status Acts, which states, inter alia,
“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.”
In accordance with its obligations under the Housing Acts[1], a housing authority is required to make a scheme determining the order of priority to be accorded in the letting of dwellings, and in doing so, it may specify certain categories of persons to which priority is to be accorded, such as applicants living in dwellings deemed to be unfit or dangerous, applicants living in overcrowded conditions and applicants who lack suitable or adequate accommodation. The respondent in the present case is empowered under the Housing Acts to act in the capacity of a housing authority and it has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. I am of the view that the exemption provided for in Section 6(6) of the Equal Status Acts does not allow a housing authority to discriminate against the category of persons outlined therein, but rather, that it facilitates the housing authority to prioritise in favour of those categories of persons and that such prioritisation does not constitute discrimination.
Gender and Marital Status Grounds
4.5 In considering this issue, I note that the complainant has claimed that the reason he has not been allocated local authority housing by the respondent is because of the fact that he is a single male. It was not disputed between the parties that the complainant’s current application was not accepted until December, 2007 when the respondent amended it’s policy in relation to the acceptance of applications from person who were residing outside of it’s jurisdiction. The respondent denies that it has discriminated against the complainant on the grounds of his gender or marital status and it claims that the complainant’s application has been assessed in the same manner as all other applicants in accordance with it’s Scheme of Letting Priorities. Having regard to the statistical evidence presented by the respondent, I note that it presently has a total of 1,124 applicants who are awaiting to be housed within it’s jurisdiction. The respondent has only been in a position to allocate approx. 200 housing units each year since the complainant made his initial application in 2005 and it is therefore evident that the demand for local authority housing far exceeds the supply that is available for allocation by the respondent.
4.6 Based on the evidence adduced, I am satisfied that the housing requirements of all applicants are assessed by the respondent in accordance with the criteria outlined in its Scheme of Letting Priorities. As I have already stated above, I am satisfied that the provisions of Section 6(6) of the Equal Status Act facilitates a housing authority to prioritise in favour of the categories of persons identified therein and that such prioritisation does not constitute discrimination. The complainant has not adduced any evidence to show that the housing needs of any person who has been allocated housing by the respondent since December, 2007 was not more urgent than his, at the particular time, or any evidence from which I could conclude that this was the case. Accordingly, I find that the reason the applicants who have been allocated housing in preference to the complainant was because their need for housing was considered to be more urgent than that of the complainant’s based on an objective assessment carried out in accordance with its Scheme of Letting Priorities. In the circumstances, I find that the complainant has failed to establish that he was treated less favourably than another person, in similar circumstances, on the basis of his gender or marital status in terms of the manner in which his application for housing was dealt with by the respondent.
Race Ground
4.7 The complainant has claimed that the respondent has provided preferential treatment to refugees and non-Irish nationals in terms of the manner in which their applications for local authority has been dealt with by the respondent. In considering this issue, I accept the respondent’s evidence that all applicants who are deemed to have a genuine housing requirement are assessed in accordance with its Scheme of Letting Priorities and that the race or nationality of an applicant is not a factor that is taken into consideration in this assessment. The complainant has not adduced any evidence from which I could reasonably conclude that this is not the case or that he has been treated less favourably than other applicants for housing on the ground of his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination of the grounds of his race in terms of the manner in which the respondent has dealt with his application for housing.
Disability Ground
4.8 The complainant has been diagnosed with a congenital back ailment and depression and I am satisfied that these conditions constitute a disability within the meaning of the Equal Status Acts. The complainant has claimed that the respondent has failed to take his disability into consideration when assessing his application for housing. The respondent claims that it has, in fact, recognised the complainant’s disability and it denies that it has discriminated against the complainant on the grounds of his disability. It claims that the complainant’s housing application has been (and will continue to be) assessed in accordance with the same objective criteria as all other applications. I note that the Scheme of Letting Priorities 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 can be awarded up to a maximum of 25 points in accordance with this policy. I am 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 I note the respondent’s evidence that the complainant has been assessed as having a medical need for housing and that his application has been included for consideration within the Medical/Compassionate Needs category. I also note that applicants who are included in this category are afforded a higher level of priority than many other applicants who do not qualify to be included in this category. It is clear from the statistical evidence presented by the respondent that of the 126 people who are included within the Medical/Compassionate Needs category that 86 of these people (i.e. 68%) have been on the waiting list for housing for a longer period of time than the complainant i.e. for a period of three years or longer. Having regard to the evidence presented, I am satisfied that the respondent has been made fully aware of the precise nature of the complainant’s disability and that it has recognised the complainant is, in fact, a person with a disability for the purposes of assessing his application for housing. Furthermore, I accept the respondent’s evidence that the complainant’s disability has been and will continue to be taken into consideration in accordance with its Scheme of Letting Priorities when accommodation becomes available for allocation in the areas of his stated preference. 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 are objectively greater than his. 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 nor had a different disability.
Reasonable Accommodation
4.10 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 in accordance with the provisions of section 4 of the Equal Status Acts. 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”
Having regard to the findings of Hunt J. in the foregoing case, I am satisfied that a housing authority is not exempted 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 has submitted information to the respondent which detailed 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 Act, in the present case, places an obligation on the respondent to give due consideration to the complainant’s disability as part of the overall assessment of his application his application for housing in accordance with the adopted Scheme of Letting Priorities.
4.11 Based on the evidence adduced in the present case, I am satisfied that the respondent has accepted and recognised that the complainant has a disability and in this regard, I note that his application was included in the Medical/Compassionate Needs category as part of the assessment of housing needs that was carried out in March, 2008. As already stated in para. 4.9 above, the Scheme of Letting Priorities 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 can be awarded up to a maximum of 25 points in accordance with this policy. I note from the evidence adduced by the respondent that there was an delay in terms of it’s assessment of the medical certificates submitted by the complainant which in turn resulted in a delay in medical points being awarded in respect of his application. However, based on the evidence presented, I note that the complainant has now been awarded a total of 4 points on medical grounds following an assessment of his medical condition by the Area Medical Officer. In doing so, I am satisfied that the respondent has provided reasonable accommodation in it’s assessment and consideration of the complainant’s application for housing.
4.12 Notwithstanding the foregoing, and having regard to the evidence presented I am satisfied that the delay in assessing the complainant’s medical certificates was not motivated by any malicious or discriminatory intent on the part of the respondent but rather that it arose as a result of an unintentional administrative oversight within the respondent organisation. Furthermore, I am satisfied that this delay has not, to date, negatively impacted, in any way, on the overall assessment and consideration of the complainant’s application for housing. In reaching this conclusion, I have taken into consideration that the assessment of the complainant’s medical condition by the Area Medical Officer was deemed to warrant a relatively low award of points (i.e. an award of 4 points out of a total of 25 points) which has resulted in a relatively low placing of his application within the Medical/Compassionate Needs category. I have also taken cognisance of the fact that approx. 68% of the applicants within this category have been awaiting housing for a period of time in excess of the complainant i.e. for a period in excess of three years. In the circumstances, I find that it is reasonable to conclude that the only reason that the complainant has not been allocated housing by the respondent is as a consequence of the number of applicants for housing who have been deemed to have a more urgent need for housing than his based on an objective assessment carried out in accordance with its Scheme of Letting Priorities. Accordingly, I find that the respondent has not failed in its obligations in accordance with the provisions 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, disability and race grounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(h) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
18th January, 2010
[1]Section 60 of the Housing Act, 1966 and Section 11 of the Housing Act, 1988
[2]Circuit Court judgement delivered by Judge Hunt on 15th April, 2008 in the case of Dublin City Council –v- Grace Deans
DEC-S2011-001- Full Case Report
Egan v Young Fine Gael
(represented by Kevin O’ Higgins, Solicitor)
File Ref: ES/2007/71
Date of Issue: 5 January 2011
Keywords: Equal Status Acts 2000-2008 – Disposal of goods and provision of services, Section 3(2)(f), age ground, prima facie case, Section 5(2)(h)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 10 July 2007 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, Valerie Murtagh, 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 23 September 2010 my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 13 October 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr. Egan (hereafter “the complainant”) that he was discriminated against by Young Fine Gael (hereafter “the respondent”) on the grounds of age in terms of Section 3(2)(f) of the Equal Status Acts, 2000-2008 and contrary to section 5 of those Acts by its refusal to allow him access to join membership of the Young Fine Gael party.
2. Summary of the Complainant’s Case
2.1 The complainant states that in or around January, 2007 there was a leadership heave against Mr. Enda Kenny, the leader of the Fine Gael party. The complainant was listening to a ‘Morning Ireland’ programme wherein there was a discussion about this issue with Mr. Damien English, TD who represented the Meath constituency where the complainant is also a constituent member in that area. The complainant states that there was a heave against Mr. Enda Kenny and while there had not been an election declared, the discussions were around a new leader for Fine Gael. The complainant further states that Mr. John Deasy was backing Mr. Simon Coveney for the role of leader. The complainant contends that Mr. English was asked who he would vote for and on at least three separate occasions, he stated on each occasion that that he would be voting for the younger man. It was put to him by the broadcaster of the programme that this comment could be viewed as ageist, however, according to the complainant he restated his mantra of ‘he would always vote for the younger man who would have fresher ideas’. On listening to the broadcast, the complainant stated that he felt old and worthless and was very annoyed with what he heard. The complainant states that at this time, Mr. English was around 28/29 years of age and could possibly be the TD in Meath representing constituents for the next 30 years and the complainant was very concerned about this prospect given what he had heard on the ‘Morning Ireland’ programme.
2.2 The complainant states that because he was so outraged at what he heard, he wrote to Mr. Damien English and Mr. Enda Kenny about his concerns. After the third letter issuing to Mr. Kenny by the complainant and with no reply forthcoming, he attended a public meeting in order to speak to Mr. Kenny. He advised Mr. Kenny that he had written to him on a number of occasions but received no reply. Mr. Kenny stated that it was not like him not to reply to correspondence and would check out the position on his return to his office. The complainant sent a third letter to Mr. English but received no reply. At this stage, Mr. English was re-selected following a general election as local TD for the Meath constituency and the complainant felt very annoyed by the alleged ageist comments by Mr. English and the fact he was his local public representative. The complainant states that due to the fact that neither Mr. English nor Mr. Kenny would reply to his correspondence or engage in dialogue with him, he felt strongly about applying to join Young Fine Gael to change the system from within in a democratic way. He applied for membership of Young Fine Gael in or around March/April 2007 and states that his application and fee were accepted. He received a phone call from Ms. C, national youth officer with Young Fine Gael on 20 April 2007 stating that he was not eligible for membership because he was 20 years too old. Ms. C stated that the constitution and rules laid down by Young Fine Gael would not allow him access to membership as he was born in 1956 and the cut off date for joining at that time was 1976. Up to this point, he was of the understanding that he was a member of Young Fine Gael and had passed the selection procedure, he had been sent texts regarding party business, he was requested to go out and canvass for members and he was sent information regarding various events which were taking place. He states that due to the foregoing, he had assumed that he was a member until he received the phone call from Ms. C. The complainant took issue with what Ms. C had stated and wrote to her in this regard but he received no reply.
2.3 The complainant states that he wanted to join Young Fine Gael in order to effect change. He wanted to join to make a point. He felt old and worthless after the comments made by Mr. English on the ‘Morning Ireland’ programme. He was very annoyed that he received no replies to his correspondence from Mr. English and Mr. Kenny. He states that ”all he wanted was someone to talk to him regarding his concerns but instead he felt they were laughing at him and taught he was funny”. He states that ”he wanted to get in at the nursery stage in order to effect real change”. He contends that he was discriminated against on the grounds of age by the Young Fine Gael party in not been allowed to join the party.
3. Summary of the Respondent’s Case
3.1 The respondent’s representative states that, in the first instance, the respondent is incorrectly and unfairly cited, in that, the complainant named Ms. C as the respondent. He further states that under section 22 of the Equal Status Act, this complaint should have been dismissed on the grounds that it is was made in bad faith and is misconceived, frivolous and vexatious. The respondent contends that Young Fine Gael does not provide a service as defined in the equal status legislation, in that, it does not provide facilities for banking, entertainment, cultural activities or transport and travel. It further states that it is not a service or facility provided by a club and is not a professional or trade service. The respondent maintains that the Tribunal has no jurisdictional grounds in this matter.
3.2 The respondent states that the Young Fine Gael party was established in 1977. It was established as a forum for young people to engage together for political discourse, to speak freely. He further states that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds. He contends that the parent party can be stifling for younger people. He further asserts that most political parties have their own youth wing, including for example, Ogra Fianna Fail, Ogra Sinn Fein and young Labour. The respondent states that there is nothing unusual in this and that Young Fine Gael’s constitution expressly restricts its membership to persons under the age of thirty one. The respondent’s representative provided the Tribunal with a copy of the rules and constitution where it states that membership is restricted to persons 30 years of age and under. The respondent quoted the Preamble of its constitution;
“Young Fine Gael, the young United Irelanders is an Irish Nationalist Youth Movement that pledges allegiance and fidelity to the Irish Republic and derives its inspiration and endeavour from this bedrock. Young Fine Gael is an autonomous yet integral part of the Fine Gael party. It seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael.”
3.3 The respondent states that the parent party has been helpful to Young Fine Gael, enabling it to play an important role in the main party. Its role is recognised in the constitution of the parent party. The respondent submits that there are circa 4000 members in Young Fine Gael and around 35,000 members in the parent party. The respondent states that in order to apply for membership, one can call headquarters and request an application form, through a branch or complete an application form on-line. Membership is for 1 year and to renew membership, a person contacts the local branch and pays the fee and is re-affiliated. The respondent states that the complainant submitted an application form for membership of Young Fine Gael on 30 March, 2007. On 19 April, 2007 Ms. C received the application form and presumed there was a mistake. She contacted the complainant by telephone and queried his date of birth. She states that she would not have used the term 20 years too old but instead advised him of the age limits as laid down in the constitution and rules of the Young Fine Gael party. She states that she advised him that he was ineligible to join Young Fine Gael on age grounds but advised him that he could join the parent party. She states that she does not recall any mention of Mr. Damien English or Mr. Enda Kenny during this conversation. She further states that the complainant stated that he was familiar with the age requirement to join but still wanted to join the Young Fine Gael party. She restated that she could only offer him membership of the Fine Gael party and ended the conversation.
3.4 The respondent states that when a member attains the age of 31, they cannot renew membership of Young Fine Gael and subsequently graduate for membership of the parent party. The respondent further contends that generally when persons reach their mid 20’s, they migrate to the main party and some persons have dual membership of Young Fine Gael and the parent party. The respondent re-iterated that the age limit is in place so that the peer group have freedom of expression, can speak freely and openly. It may be more inspirational and radical than the elder party. It states that if it allowed older members to join, it may dampen down the discussion and the debate that takes place. The respondent states that there are no members 31 years of age or over in the Young Fine Gael party.
3.5 The respondent states that the complainant had a grievance with his local public representative, Mr. Damien English and was very annoyed and angry regarding the way he perceives that he was treated and alleged remarks made on the ‘Morning Ireland’ programme. It submits that this anger was not about joining Young Fine Gael but more about a grievance with his local representative and the fact that Mr. English and Mr. Kenny would not enter into dialogue with the complainant. The respondent asserts that the complainant had seen the Fine Gael website and was well aware of the age criteria in order to attain membership of the Young Fine Gael party. The respondent states that the complainant seeking to join the Young Fine Gael party was akin to an 18 year old wanting to join Age Action Ireland or an older persons bridge society, he stated that it was perverse and reiterated the point that the complainant’s main grievance was with his local public representative, Mr. English and Mr. Kenny and their non-engagement with him. The respondent further states that the issue is not about the complainant seeking to join the Young Fine Gael party but more about seeking to embarrass and show up the Fine Gael party.
3.6 The respondent also argues section 5(2)(h) of the equal status legislation in support of its case, i.e. “differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests”
In this regard, the respondent re-iterated that the principal purpose of Young Fine Gael is to provide a forum for young people to express their views and be more inspirational and radical than the elder party. It also quotes the preamble of its constitution where it states ‘Young Fine Gael seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael’. It also made the argument that if it allowed older persons to join, it could lead to a dampening down of the discussion and debate that takes place and may be stifling for the younger members.
The respondent also refers to the High Court and Supreme Court cases in relation to the Equality Authority v Partmarnock Golf Club [2005] IEHC 235 and [2009] IESC 73 enabling positive discrimination and this type of restriction where there are bona fide grounds. The respondent argues that it is entitled to rely on this exemption under the legislation.
4. Conclusions of Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the age ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions, 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:
3. — (1) For the purposes of this Act, discrimination shall be taken to occur —
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ”discriminatory grounds)”
Section 38A (1) provides that the burden of proof is:
” 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.”
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.2 In the Equal Status Acts under Section 2, “service” is defined 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 –
(a) access to and use of any place
(b) facilities for –
(i) banking, insurance, grants, loans, credit or financing
(ii) entertainment, recreation or refreshment
(iii) cultural activities, or
(iv) transport or travel
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service
In examining the definition of service in the Act, it is very broad and includes a service or facility which is available to the public generally or a section of the public. I am of the view that the youth wing of a political party can be defined as a service to a certain section of the public and therefore it constitutes a service within the meaning of section 2 of the Equal Status Acts.
4.3 The respondent has argued that Young Fine Gael is incorrectly and unfairly cited in that Ms. C who is the national youth officer has been named as the respondent in the complaint form ES.3 instead of Young Fine Gael. I have noted this point, however, the complainant has given the correct address of Young Fine Gael in the address box of the form. Given the High Court judgment in the case of County Louth Vocational Education Committee v Equality Tribunal and Pearse Brannigan (Notice Party)[2009] IEH370, I note that McGovern J. stated at paragraph 6.2 “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint…remains the same.” I am satisfied that the ES3 form is an outline document and the complainant has given the correct address of the Young Fine Gael office in the form. I am further satisfied that this complaint is valid and admissible and that I have jurisdiction to hear the complaint. Accordingly, I do not accept the argument put forward by the respondent in this regard.
4.4 The respondent further argues that under section 22 of the Equal Status Act, this complaint should have been dismissed on the grounds that it is was made in bad faith and is misconceived, frivolous and vexatious. In examining section 22 of the Equal Status Acts, I am satisfied that the claim could not be dismissed as misconceived, vexatious and frivolous. A claim is misconceived if it is incorrectly based in law. I take cognisance of the Supreme Court case, Farley v Ireland, [1997] IESC 60 which referred to frivolous and vexatious and in the course of the judgement stated: “so far as the legality of the matter is concerned, frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that as far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendants to have to take steps to defend something which cannot succeed and the laws calls that vexatious.”
The complainant’s claim is not misconceived as it is directly related to his age and the refusal to accept him as a member. In addition, refusal of membership of a political party could not be regarded as trivial. I do not accept the argument put forward by the respondent in this regard.
4.5 The complainant gave evidence at the hearing in relation to the ‘Morning Ireland’ programme and the reasons he felt so aggrieved by what he perceives was said on that programme and following same, the non-engagement in dialogue by both Mr. English and Mr. Kenny with him. He states that this is the reason he wanted to make a point and join Young Fine Gael at ‘the nursery level in order to change attitudes and effect real change from within’. When I questioned the complainant regarding whether he was aware of the age restriction (i.e. between the ages of 15 and 30) prior to applying to join the Young Fine Gael party, he stated that he was not sure and could not exactly remember but as the questioning continued, he stated that on a 60/40 percentage basis, he would have assumed at the time that he was aware that there was an age restriction in applying to join the party. The complainant also gave evidence in relation to Ms. C whom he spoke to when she contacted him querying his date of birth. He states that she spoke to him in a rude and offhand manner and advised him that he was 20 years too late to join the party. Ms. C rejects this allegation and states that she did query his date of birth and highlighted the age limit as laid down by the constitution and rules of the party. She further states that she advised him that he could join the parent party but states that she does not recall any mention of Mr. Damien English or Mr. Enda Kenny with regard to not replying to correspondence or non engagement in dialogue with him. While there is a conflict of evidence regarding this point, on hearing Ms. C’s testimony, I find her to be a credible witness and find it plausible to accept her evidence in this regard. Also, given the complainant’s evidence and the variation therein, in that, he firstly stated that he was unaware of the age restriction to apply to join the party but subsequently stated that on a 60/40 percentage basis he assumed at the time he was aware that an age restriction did apply. Taking the totality of evidence into account, I am satisfied that the complainant was aware of the age restriction at the material time based on the testimony he gave at the hearing and the fact he quoted a number of paragraphs from the website and appeared to be knowledgeable about the activities, social events, calendar etc. of Young Fine Gael. I am also satisfied that the complainant was offered the option of applying to join membership of the parent party by Ms. C but declined this offer on the basis that he wanted to get in ‘at the nursery level’ to use his own words ‘to change attitudes and to effect change from within’.
4.6 The respondent states that Young Fine Gael was established as a forum for young people to engage together for political discourse, to speak freely. It further stated that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds. It contends that the parent party can be stifling for younger people. It further asserts that most political parties have their own youth wing, including for example, Ogra Fianna Fail, Ogra Sinn Fein and young Labour. The respondent states that there is nothing unusual in this and that Young Fine Gael’s constitution expressly restricts its membership to persons 30 years of age and under. In this regard, the respondent has argued Section 5(2)(h) of the Equal Status Acts in support of their case that- ” differences in the treatment of persons in a category or persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,”
The respondent re-iterated that the principal purpose of Young Fine Gael is to provide a forum for young people to express their views and be more inspirational and radical than the elder party. It also quotes the preamble of its constitution where it states ‘Young Fine Gael seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael’. It also made the argument that if it allowed older persons to join, it could lead to a dampening down of the discussion and debate that takes place and may be stifling for the younger members.
The respondent cites the decisions of the High Court and the Supreme Court in relation to the Equality Authority v Portmarnock Golf Club in support of its case. The respondent argues that allowing a political party to have a specific section for those 30 years of age and under is a positive action measure and Young Fine Gael is entitled to have this type of restriction on the basis that Young Fine Gael’s principal purpose is to promote, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests and that this exemption is allowed under the legislation.
4.7 For completeness purposes, I questioned the respondent in relation to their procedure with regard to members of Young Fine Gael upon reaching the age of 31 and details of the age breakdown of members with names redacted. The respondent states that their membership database is not programmed to output this type of sensitive information. The respondent further states that while the information is captured when a member affiliates for the first time, the system is not configured to output reports of this nature. The respondent submits that their database will alert the user if they try to update a person who has reached the age of 31 by flagging that the person is no longer eligible for membership of Young Fine Gael and state that this rule is strictly enforced. The respondent also states that in addition to the flagging on the database, individual branch secretaries indicate to those seeking to renew membership that they cannot do so upon reaching the age of 31. The respondent re-iterates that there are no members 31 years of age or over in the Young Fine Gael party. It also has submitted documentation to the Tribunal by the General Secretary of Young Fine Gael stating that having examined their records and trawled through its database, the organisation is satisfied that no one over the age of 31 was a member of Young Fine Gael in 2007. I am satisfied on the basis of the information provided at the hearing and the documentation submitted to the Tribunal thereafter that there were no members over 31 years of age in the Young Fine Gael party in 2007.
4.8 Taking all the evidence into consideration, I am satisfied that Young Fine Gael is entitled to apply an age restriction where there are bona fide grounds for doing so, as outlined above at paragraph 4.6. The respondent operates from their rules and constitution, in that, in order to gain membership of Young Fine Gael, persons must be between the ages of 15 and 30. I accept the information put forward by the respondent, in that, Young Fine Gael was established as a forum for young people to engage together for political discourse, to speak freely, that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds and that the parent party can be stifling for younger people. I also note that many political parties have their own youth wing where the same type of age requirements apply. While I take on board the hurt and annoyance of the complainant in relation to what he perceives was said by Mr. English and others on the ‘Morning Ireland’ programme and the subsequent alleged non- engagement in dialogue by members of the Fine Gael party with the complainant; the issue for decision in this claim is whether the complainant was discriminated against on the grounds of age. I have carefully examined the evidence presented by the complainant in the instant case and find that he has failed to establish a prima facie case of discrimination in relation to access to a service on grounds of age contrary to the Acts. I am satisfied that the respondent is entitled to rely on the exemption laid down in Section 5(2)(h) of the equal status legislation.
5. Decision
5.1 For the foregoing reasons, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of Sections 3(1)(a), 3(2)(f), and contrary to Section 5 of the Equal Status Acts. Accordingly, I find in favour of the respondent in this matter.
_________________
Valerie Murtagh
Equality Officer
5 January, 2011
DECS2011-035-Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2011
PARTIES
Keane v World Travel Centre
File Reference: ES/2009/089
Date of Issue: 15th August, 2011
Equal Status Acts, 2000-2011
Decision No. DEC-S2011-035
Key words
Equal Status Acts – Section 3(1)(a), Section 3(2)(h), race ground – Reduced fare for Filipino nationals only – positive discrimination – commercial considerations – Section 5(2)(h) exemption
1. Delegation under the relevant legislation
1.1. On 5th August, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On 18th November, 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts (hereinafter referred to as “the 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 Acts, on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 17th May, 2011.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the race ground contrary to the Acts in terms of Sections 3(1)(a) and Section 3(2)(h) of the Acts and contrary to Section 5(1) of the Acts in that the respondent treated him less favourably by not allowing him avail of a reduced fare on a flight to Manila.
3. Summary of the Complainant’s Case
3.1. The complainant, an Irish national, submitted that he rang the respondent on 29th June, 2009 on foot of an advertisement which he had read which offered travel to Manila for €649 including tax. He submitted that he was informed by two separate representatives of the respondent, one of whom, he said, did not sound Irish, that this fare was for Filipino travellers only and that, as an Irish passport holder, the price would be over €800. He submitted that he was told that, as it was the policy of the airline, Z Air, it was in order for World Travel to promote such a policy. He submitted that he “could not believe what (he) was hearing” and felt that, as an Irish person, he was clearly being treated less favourably.
3.2. The complainant said that he was also told that there was a two-tiered pricing system in Ireland, in particular in some restaurants, and that travellers from other countries were charged more than Irish customers. He contested the respondent’s evidence that this comment related to different prices at different times. He submitted that he worked in the restaurant business and he knew the comment in this respect was entirely incorrect. He added that the person who said this had not been appropriately trained and should have been very familiar with not upsetting an ethnic group (i.e. Irish people). He disagreed that his experience with the respondent’s assistants was professional in this context, though acknowledging that it was polite.
3.3. The complainant submitted that he was later informed that it was Z Air that had devised the promotion in question and that the airline had ceased that promotion in April 2009 but had not informed the respondent of this. He submitted that he was then offered a ticket at the advertised rate, but declined the offer as other arrangements for his travel were already in place at that stage. He submitted that, in contrast, he later received an e-mail dated 20th August, 2009 from the respondent stating that it had sought this concession for Filipinos from Z Air and did not mention that Z Air had withdrawn the offer. He submitted that, in light of these contrasting statements, it was unclear to him as to whether it was Z Air or the respondent that took this initiative.
3.4. The complainant stated that the different fares offered by another named airline as described by the respondent (see par. 4.2 below) are not based on ethnicity. He stated that he had no difficulty with special fares being offered to missionaries and students but that was a different matter. He stated that his wife was Filipino and he knew that community well. In that context, he submitted that they are a very resilient and hardworking race and stated that, in his experience, the members of that community were “doing well for themselves” and did not need special treatment. He submitted that it was the strength of competition rather than sentimental fervour that prompted the respondent to adopt this type of “offensive sales offer”.
4. Summary of the Respondent’s Case
4.1. The respondent did not dispute most of the factual evidence of the complainant, except to say that the reference to two-tier pricing was in the sense of different prices being offered by restaurants at different times of the day rather than to different prices for different ethnic groups. It expressed its surprise “that the majority” (i.e. Irish people, and the complainant in particular) “felt that they could have something that the minority had in that respect” (i.e. the special fare for Filipinos). It submitted that the complainant was the first customer to bring to its attention that the fares in question may be in breach of the Equality legislation. It said it ceased offering these fares in that context. It also submitted that it offered the flight in question to the complainant at the price advertised and also gave a written apology to him.
4.2. The respondent stated that it was technically correct that the fares in question were provided by the airline but that they arose from direct negotiations it had with them. However, it stated that it had not been informed by Z Air of the change in the relevant fare. It added that the fare was not withdrawn, rather that the “ethnic fare” had been replaced by a new type of fare which was being offered to all nationalities and passport holders and would have been available to the complainant if it had been in place at the time in question. It added that “ethnic fares” were standard in the airline industry and the segmentation of fares was common practice in that industry (citing the policy of another named airline in that respect).
4.3. The respondent submitted that it has been in the forefront of arranging flights for the various ethnic communities living in Ireland for the past ten years. It stated that the fares and conditions that it offered to members of the Filipino community, as well as other ethnic communities such as the Nigerian community, were pivotal to those communities. It then outlined why it considered them to be so. In particular, it said it carried the largest proportion of the members of those communities and its product would fail if it did not get their support.
4.4. In that regard, the respondent submitted that it had negotiated special fares with airlines over the years to try and ease their burden of travel and reflect their special needs and had thus engaged in “positive discrimination”. It added that it had been “dealing with nuns and priests” for years and that named charities and voluntary bodies had their corporate accounts with it. It stated that it doubted the complainant’s sphere of Filipinos living in Ireland was typical.
4.5. The respondentsubmitted that the complainant’s argument was that a Filipino person “working in our hospitals” cannot have a cheaper fare to return home to visit family and friends unless the same fare is offered to an Irish national for leisure or business travel. It submitted that the complainant was using the Tribunal to look to be personally compensated for alleged insult and injury. It stated that it had not looked in detail at the Acts as its focus had been on dealing with the complainant on a one-to-one basis. It agreed that it did well commercially but stated that there was a moral as well as commercial undertone to the service it provided. It added that, while its market share from ethnic groups had not reduced since it discontinued its “ethnic fares”, that market had shrunk. It emphatically denied that its policy in question was related to competition from another airline.
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.
5.2. The respondent required the complainant to pay a higher fare on the same flight than a person of a different nationality solely on the basis of his nationality. In doing so, the respondent clearly discriminated against him and the complainant has established a prima facie case in that respect. I note that the respondent essentially conceded this point. Its defence was primarily that the Tribunal should take into account that the complainant was an avaricious person who is seeking to take advantage of it when it sought only to provide a service which was critical to those members of the Filipino community living in Ireland who wished to return to their homeland.
5.3. Section 5(2)(h) provides an exemption from the application of the Acts to service providers with respect to “differences in the treatment of persons….that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests.” While the respondent stated that it did not seek to rely on this provision, it spoke about its altruistic purpose of engaging in what it termed “positive discrimination.”
5.4. It is clear that members of ethnic communities, including the Filipino community, who availed of the respondent’s services did so because the fare it was offering to those customers was considerably lower than any competing non-discriminatory fare. Furthermore, I am entirely satisfied that the fare in question was offered by the respondent, following negotiations with Z Air, for the sole purpose of attracting members of these ethnic communities, including the Filipino community, to avail of its services. It did so not only in relation to the particular fares in question but also in order to gain their loyalty as customers with a view to retaining their custom in the future. I am satisfied that its sole purpose in doing so was to gain a competitive commercial advantage over other tour operators who were unable to offer a similar fare to such customers without acting in a discriminatory manner.
5.5. None of the strict and comprehensive criteria required by Section 5(2)(h) have been met by the respondent. The sole purpose of offering the discriminatory fares in question was commercial and I do not accept its bona fides with respect to the purpose or manner in which it sought to achieve its alleged altruistic goal. Its principal evidence that the special interests of the Filipino community justified such a blatantly discriminatory policy was that the high market share of members of the Filipino community returning home that it obtained illustrated how important its service was to that community. However, it is clear that the reason why the particular Filipinos concerned availed of its service was a monetary one: it offered the cheapest fares. Nor can such evidence be considered to be proof that “the differences in treatment are reasonably necessary to promote those special interests”.
5.6. Furthermore, I am satisfied that, if the complainant had not made the present complaint, the respondent would have continued to apply this discriminatory policy. In that context, I am satisfied that the cessation of the policy was caused more by the discomfort of Z Air with that policy than any desire on the part of the respondent to terminate it. On the other hand, I note that the respondent offered an apology to the complainant and I note its offer to provide him with the reduced fare. That said, I also note that the apology was far from fulsome. Indeed, it gave the appearance of one given for the sole purpose of persuading the complainant to withdraw his complaint to the Tribunal rather than one that displayed a sense of genuine remorse for the respondent’s discriminatory behaviour.
5.7. In short, I am satisfied that, not only was the respondent fully aware that the manner in which it behaved was unlawful, but in portraying itself as “positively discriminating” it sought to use the protection of the Acts to carry out an action which it knew to be contrary to those Acts. For the avoidance of any doubt, let me clearly state that the pursuit of commercial advantage by service providers in a non-discriminatory fashion is their perfectly legitimate occupation. There may even be circumstances where a service provider may lawfully carry out a practice or policy which would appear to discriminate, even if it turns a profit, but only if it meets the strict and comprehensive criteria laid out in s.5(2)(h). Of course, that would also depend on the other circumstances of such a case.
5.8. However, it cannot be considered acceptable for a service provider to deliberately and consciously use the Acts as a cloak to carry out a pricing policy that is flagrantly in breach of the Acts for the sole purpose of gaining a commercial advantage and increasing its profit at the expense of the Acts. Yet that is exactly what the respondent did in the context of this complaint.
5.9. Therefore, while I am conscious that the effects of the discrimination on the complainant in this case were relatively minor, I also consider that my award in this case must be dissuasive. On the other hand, it must also be acknowledged that it would appear that the respondent has discontinued the discriminatory policy at issue in this case. I also note the apology offered by the respondent for its behaviour in this respect, and its offer to the complainant to provide him with the reduced fare in question, though also noting what I have already stated with respect to that apology (at par. 5.6 above). The award I am making in this case is reflective of these considerations.
6. Decision
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the respondent discriminated against the complainant on the race ground in terms of Sections 3(1)(a), 3(2)(h) and Section 5(1) of the Equal Status Acts.
6.3. Accordingly, I order the respondent to pay to the complainant the sum of €1,750 for the effects of the discrimination.
_____________
Gary O’Doherty
Equality Officer
15th August, 2011
DEC-S2003-056 Full Case Report
Shanahan v One Pico Restaurant
Ms Shanahan 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.
2. Dispute
This dispute concerns a claim by Ms Shanahan that she was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of her family status in that at lunchtime on 15/1/02 she was denied service in the respondent’s premises. The respondent does not deny that service was not provided, but states that it was on the basis of a restaurant policy not to serve persons accompanied by children under four years of age.
3. Summary of the Complainant’s case
To mark her mother’s first visit to Ireland, Ms Shanahan, a qualified chef herself, decided to take her mother for a lunchtime meal with others to allow her to sample ‘fine’ Irish cuisine. Her father-in-law made a reservation but on arrival the group was refused because Ms Shanahan had her five month old child with her.
4. Summary of the Respondent’s Case
The Respondent agrees that the party was refused because they had a baby with them. Their policy is not to allow children under four years of age into their premises during the day and at night the age limit is 10. This policy is based on a previous incident involving a child of two years of age after which other (business) customers complained and said they would not return. The respondent submitted that Section 5 (2)(h) might be relevant to this case.
5. Evidence of the Parties
Complainant – Ms Paola Shanahan
Ms Shanahan is an Italian who had been in Ireland for 10 years. She trained as a chef in Ireland. Shortly after the birth of Ms Shanahan’s baby, her mother came to Ireland for the first time.
To mark the occasion, and because of her chosen profession, Ms Shanahan decided to take her mother to a nice restaurant to allow her to sample Irish cuisine and fine food.
Ms Shanahan’s husband knew staff at One Pico restaurant having been involved in taking pictures of the restaurant for the Bailey’s book.
Ms Shanahan’s father-in-law made the booking for lunch on 15/1/2002, which was a Tuesday.
Ms Shanahan’s baby was five months old at the time and she carried the baby in her arms as she entered the restaurant with the group for lunch
The Manager informed them politely that they could not have lunch. Ms Shanahan’s perception of the manager’s approach was that he was cold and nonnegotiable.
Although her baby is a very content and quiet one, she had made arrangements to use her father-in-law’s office near the restaurant, should the baby become unsettled for any reason.
She was very embarrassed and disappointed at the reception. Her group had been kept in the hall. She was particularly embarrassed since her Mother did not speak any English which meant that what was going on had to be explained to her.
Neither Ms Shanahan nor her Mother could understand the restaurant’s approach since this would not happen in Italy.
The group left and went to another (named) restaurant in the area and were received without difficulty.
Ms Shanahan said that in her opinion the purpose of a restaurant was to have somewhere to go with others to enjoy fine food. She could not understand why this should be restricted to a particular section of society.
After the incident Ms Shanahan contacted 15 restaurants by phone, including some fine food restaurants, and was informed by all of them that the presence of a baby would not present a problem.
After her first complaint to One Pico Restaurant Ms Shanahan received an invitation to dine at the restaurant at some later date. Ms Shanahan pointed out that there had been four adults in her group for lunch but the invitation was for two people only and made no reference to her baby.
One Pico Restaurant’s card makes no mention of the restaurant having a strictly business purpose; it simply states the quality of the food served. Ms Shanahan pointed out that it is not useful to have the policy relating to children under 4 years of age noted on menus since if you cannot get in you cannot see the menu.
Ms Shanahan pointed out that her baby did not need anything from the restaurant, he could not even sit in a high chair at that time. Ms A Shanahan, complainant’s Mother-in-Law Ms Shanahan had nothing further to add to her daughter-in-law’s version of events except to repeat the embarrassment felt by the entire group at having to leave and the embarrassment at having to explain this approach to an Italian lady being welcomed to Ireland for the first time. Mr. Eamonn O’Reilly, Respondent
Mr O’Reilly did not contest the date or the format of the notification sent by Ms Shanahan.
One Pico Restaurant had originally been in Camden Street, where there had been an incident with a young child of about two years of age. The child appears to have disturbed other customers by moving around the restaurant. There were a number of complaints from corporate customers on the day stating that because of that incident they would not be back.
Mr. O’Reilly stated that the staff did approach the parents or those in charge of the child. He was unclear as to whether the reaction of the parents was adequate. The child’s group had not been asked to leave. On foot of that incident One Pico Restaurant decided not to allow young children in again. It is not appropriate for a baby to be present during corporate lunchs. The actual age-limit of four evolved after that incident. They rely on parents of children over four to be responsible. At night the age limit is over 10 years of age.
When planning the move to the new premises all of these issues were considered.
Mr. O’Reilly stated that he had approached the Restaurant Association of Ireland in relation to this complaint who declined to become directly involved.
One Pico Restaurant has a wine-license.
The principle target customer base is corporate and there are neither babychanging facilities nor high chairs in the Molesworth Place premises.
They have always presumed that similar restaurants operated the same policy. This policy is noted at the base of the menu.
Mr. O’Reilly said that if people call for a reservation and ask for a high chair, they will be told that the restaurant has no such facilities.
Mr. O’Reilly is in business with Mr. L. Crowe and they have another restaurant called Pacific in Sycamore Street. This restaurant caters for families. Another similar restaurant will open soon in Dawson Street.
When asked if the restaurant was still pursuing the policy, Mr. O’Reilly replied that they did not know what was the correct thing to do and asked for directions.
Mr. Larry Crowe, joint owner of One Pico Restaurant
Health and safety is an issue to be considered in these circumstances. They have a duty of care in relation to spillages.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(a) and 3 (2)(c) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
Section 3 (1)(a) provides that discrimination shall be taken to occur where: “On any of the grounds specified…….a person is treated less favourably than another person is, has been or would be treated”.
Section 3 (2) provides that: “As between any two persons, the discriminatory grounds … are …
(c) that one has family status and the other has not or that one has a different family status from the other…”
Family status is defined in Section 2 of the Act as follows: ”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, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
Section 5 (1) and 5(2)(h) are as follows:
“5. — (1) 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.
(2) Subsection (1) does not apply in respect of —
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,
(l) differences, not otherwise specifically provided for in this section, in the treatment of persons in respect of the disposal of goods, or the provision of a service, which can reasonably be regarded as foods or a service suitable only to the needs of certain persons.”
Section 15(1) of the Equal Status Act 2000 provides that : “… nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person 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 provision of 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.” At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (in this case the family status ground)
(b) Whether or not there was specific treatment of the complainant by the respondent
(c) Whether or not the treatment received by the complainant was less favourable than the treatment someone that does not have family status or that 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.
7. Conclusions of the Equality Officer
7.1. Prima facie case
Ms Shanahan is a mother whose baby was 5 months old and in her charge on the date of the incident. I am satisfied therefore that the family status ground is applicable to her in relation to this incident.
Ms Shanahan claims she was refused access to the restaurant on 15/1/2002. This was not disputed by the respondent, who subsequently responded to her in writing explaining their policy of no children under 4 years of age. This satisfies the requirement at (b) above.
In relation to (c) above, I will now consider if the treatment of the complainant was less favourable than someone who does not have family status or has a different family status would have been treated. The policy operated by the respondent is one of nonadmittanceof children under four years of age and consequently of non-admittance of those in the company of children less than four years of age. If the complainant is compared with a person who, on presenting themselves for service at One Pico Restaurant, does not have family status, (that is a person who does not have responsibility as a parent or primary carer), or with a person who has a different family status, (for example a lady who is pregnant or a person who is a primary carer of a person of over 18 with a disability), it is clear that this policy would not have been applicable and service would not have been refused on that basis. Therefore Ms Shanahan has been treated less favourably than both a person who does not have family status and a person who has a different family status.
It is interesting to note that this case is based on the family status ground, even though Ms Shanahan’s refusal was based not on the fact that she was a parent, but on the fact that she had a child under four years of age with her. While other adults admitted may also have been parents, and therefore have a general responsibility as a parent, they were not accompanied by their children and therefore would have been admitted. However, in Ms Shanahan’s case, the child she had with her distinguished her as a parent or person in loco parentis and it is clear that she had responsibility as a parent in the context of the incident.
I am satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7.2. Respondent’s rebuttal
The respondent did not contest that the incident happened and that the statutory notification procedures had been complied with in accordance with the Equal Status Act, 2000. The respondent relied on the following arguments:
An earlier unsupported report of an incident involving a child of about two years of age
Duty of care under Health and Safety legislation
They have other restaurants that are for family use
Lack of facilities for young children
The target customer base and Section 5 (2)(h) of the Equal Status Act, 2000
Earlier Incident
The respondent submitted that the bulk of their business, or perhaps that business which they wished to nurture, was corporate. They felt that the presence of a baby was not conducive to business being carried on at lunch time. This opinion was based on an incident that occurred while the restaurant was based in Camden Street. On that occasion a child was running around and the parents were approached and informed that the child’s behaviour was not appropriate. The respondent did not give any indication that the parents’ response was not adequate, but pointed out that the business customers on that day had indicated that they were unhappy and that they would not return. It is not clear if these customers were unhappy with the child’s presence or with the level of control exercised by both the manager of the restaurant and/or the parents. The child’s party was not asked to leave. On the basis of this incident it was decided to avoid the issue by not allowing children under four into the restaurant. When considering their options in relation to the new premises, the respondent decided to continue to exclude all children under the age of four years of age. It appears that the respondent decided, on the basis of one incident, to refuse those who brought children under four. This defence is somewhat similar to that contained in Section 15(1) of the Equal Status Act, 2000 (quoted above) which suggests that where the service provider, having the appropriate experience and responsibility is entitled to refuse to serve someone whom that person considers may pose a risk of disorderly conduct. However this defence only relates to a customer who may have caused difficulties in the past or whose behaviour reasonably suggests that such a risk exists.
It is useful to ask at this stage who is the customer. In this case the baby required no service from the restaurant, other than being allowed to be present on the premises. Ms Shanahan was the customer, and there was no suggestion that to serve Ms Shanahan would have led a reasonable person with the relevant experience to the conclusion that she would behave in a disorderly manner. However, Ms Shanahan was refused because of her association with a baby. Could serving Ms Shanahan have led to a risk of disorderly behaviour by the baby?
A five month old baby is not comparable with older children who can run around, and after all the policy was based on an incident where a child was moving around. Most people would accept that babies, in general, cry at some point and that some cry more than others. There is often no reason to expect a baby’s behaviour to be anything other than unpredictable. Could the crying of a child be seen as disorderly conduct? In the wording of section 15(1) ‘disorderly conduct or behaviour’ is sandwiched between (1) ‘criminal conduct or behaviour’ and (2) ‘damage to property’. Both of these are serious forms of behaviour and suggest an overall context for the sentence. I am not satisfied that a child’s crying is in the same order of magnitude or that it constitutes the implied form of behaviour. However, even if one accepts that it is, the section suggests that the person must have reasonably believed that the provision of the service would produce a substantial risk of the disorderly conduct. In general it is not the service received, or not, from the service provider that makes a young baby cry. To refuse all those who present themselves with a child under four on the basis of one incident is not reasonable, since it does not afford the parent(s) or those in loco parentis the opportunity to attend to any difficulties arising. This is exacerbated by the fact that those with children over four years of age are afforded this opportunity. Indeed the setting of the age limit at four years of age seems arbitrary.
In the instant case Ms Shanahan said that her baby was very quiet and content. She also said that arrangements had been made to have somewhere to take the child should he have become fractious or upset for any reason. A blanket refusal such as this does not sit well with section 15(1) for all of the reasons mentioned above, but particularly because it does not provide for the assessment of the customer in each instance. I am satisfied that Section 15(1) does not provide a defence in this case.
Health & Safety
The respondent raised the issue of health and safety but in response to a request they did not point to any particular provision to rely upon. The respondent has another restaurant where families are welcome and a second is at an advanced stage of preparation. Since health and safety considerations in relation to children under 4 appear to be an issue only with their One Pico restaurant and not the other restaurant, this argument cannot be sustained without evidence of some form to justify the difference. None was presented. The size of the restaurant was mentioned but not from a Health and Safety perspective. Size in fact may well be irrelevant, since even a large premises may present Health and Safety difficulties if overcrowded. Other restaurants that are for family use The respondent explained that they had another restaurant and a third at an advanced stage of preparation. Families are and will be welcome in these restaurants. However, in this case it was the ‘fine dining’ that One Pico offered that was required for the occasion given the complainant’s work background and the first visit of her mother to this country. Lack of facilities for young children
The lack of facilities, including changing facilities and high chairs, was presented as a reason for not serving those with children under four. However, this lack of facilities appears to be a direct consequence of the respondent’s decision to implement the policy, since once the decision to implement the policy was arrived at there was no apparent need to provide such facilities, even when planning the new premises. In other words the lack of facilities results from the policy and not vice versa, therefore this cannot be relied upon as a justification of the policy in this case. The target customer base and Section 5 (h) of the Equal Status Act, 2000 Section 5 (2)(h) (quoted above) states that treating persons who belong to a particular category differently is acceptable where one is promoting the special interests of those in that category. This promotion must be for a bona fide purpose and undertaken in a bona fide manner. It is unclear who the relevant category of person(s) is intended to be. In my view it cannot be used to justify treating Ms Shanahan differently since One Pico Restaurant was clearly not promoting her special interests. The section talks about the differences of treatment and since it does not indicate whether this treatment should be more favourable or less favourable, it appears that it might apply to both. On the basis that the treatment must flow from the promotion of the special interests of persons in the category, it is my opinion that this sub-section of the Equal Status Act, 2000 will normally, if not always, relate to the justification of more favourable treatment of a particular category of persons.
Perhaps the respondent meant this to refer to his corporate clients as he stated that these were his target customers, suggesting therefore that it is acceptable to treat them differently. This raises several difficulties.
Is the service provided for the principal purpose of promoting corporate special interests?
Is this promotion for a bona fide purpose?
Is it undertaken in a bona fide manner?
Is the difference in treatment reasonably necessary?
However, a more fundamental difficulty relates to the identification of the appropriate category of persons because, in fact, the respondent welcomes all those without children under the age of four. While it may have been the respondent’s intention to prevent children from disturbing his business clients, the group treated more favourably is much larger. Parents, and those in loco parentis, of children under four who wish to eat in the company of these children, for whatever reason, are precluded from eating in One PicoRestaurant, in addition to the children under four themselves1. Therefore, the people who are being treated more favourably than the complainant are all of those who are not in the company of children under four when requesting a meal, not only corporate customers.
Since neither arguments nor evidence were brought before me
as to what the special interests of such an diverse group might be,
that the services are provided for the principal purpose of promoting those special interests, and
that the promotion was for a bona fide purpose and undertaken in a bona fide manner,
I am satisfied that this section cannot be relied upon to justify the less favourable treatment of the complainant in this case. Section 5(2)(l) of the Equal Status Act, 2000 For the sake of a thorough consideration of this issue I have considered Section 5(2)(l) also. This section (quoted above) appears to suggest that where the goods or service being provided are suitable to the needs of certain persons only, then different treatment of persons not in that category is acceptable. Is fine food only suitable to the needs of certain persons? In my view it is suitable for any person who can enjoy the food. The section does not define what constitutes “the needs” of a person. While all people require or need food on an ongoing basis, it is a moot point whether fine cuisine addresses a need for any person. It is perhaps more of a luxury than a need. However, even if one accepts that the provision of fine cuisine is a service which satisfies the section, it is necessary to 1 On the basis of section 3(3) it is not illegal to treat those under 18 less favourably on the grounds of their age. look at the category of persons whose needs it addresses. The provision of fine dining is not a service which is suitable to the needs of only corporate customers. Fine dining is suitable to all of those who wish to enjoy fine food and it seems logical that the provision of fine food is not suitable to the needs of a child of five months. However, as established above, it was not the baby who was the customer in this case and there is no provision in the Equal Status Act, 2000, which provides that, where family status is applicable to a person, such a person should be seen as an indistinguishable part of a parent-child group. Ms Shanahan was the customer, and she had deliberately sought a restaurant serving fine cuisine both because of her work background and her mother’s visit. The provision of fine food was exactly what had been identified by Ms Shanahan as suitable for her needs in that instance.
Were I to suggest that a parent and child make up an unbreakable unit in terms of the Act, this would in my opinion undermine the protection offered by the family status ground in the Equal Status Act, 2000. To suggest that could be used to reduce the rights of a person accompanied by a child to the level of protection offered by the Act for a person under 18 on the age ground, i.e. zero. The Equal Status Act, 2000 specifically provides for the rights of parents and those in loco parentis in Section 3(2)(c) by making this a discriminatory ground. This is the only ground that is directly by association with another person, i.e. the child. While discrimination on all of the other grounds may be claimed ‘by association’ in accordance with section 3(1)(b)(i), this is tempered by Section 3(1)(b)(ii) which suggests that where the treatment of the person being associated with is not discriminatory, then it cannot constitute discrimination by association for someone else. There is no such mitigating subsection in relation to the “family status” ground. Therefore, to suggest that the rights of a person accompanied by a child should be reduced to zero would be to entirely undermine the intention of the Legislature in creating the family status ground.
I am satisfied that section 5(2)(l) cannot be relied upon to justify the less favourable treatment of the complainant in this case.
I find that the respondent has failed to rebut the prima facie case of discrimination as established, and that Ms Shanahan was discriminated against by the respondent on the family status ground in this case. This finding is based on the circumstances surrounding the incident and particular services involved in this case only.
8. Decision DEC-S2003-056
I find that the complainant was discriminated against on the family status ground contrary to section 3(1), and section 3(2)(c) of the Equal Status Act, 2000, and in terms of section 5(1) of that Act.
8.1. Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
8.2. Order
I hereby order:
8.2.1. That €400 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration:
The embarrassment created by the refusal of service.
The annoyance caused by the undoing of plans made for the occasion.
The fact that Ms Shanahan was inconvenienced for a short time only, since she found an alternative restaurant in which to dine after the incident.
8.3. Recommendation
Given the amount of confusion that appears to exist in the Restaurant business in relation to the Equal Status Act, 2000 it may be useful, in the interests of giving clarity, for the appropriate representative body to develop a code of practice for service providers in the restaurant business, perhaps in conjunction with the Equality Authority.
Bernadette Treanor
Equality Officer
30 June 2003
DEC-S2006-077 – Full Case Report
2 Named Complainants v Minister for Education and Science
Complaints in accordance with the Equal Status Act 2000
The two named Complainants each 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 Complainants’ Case
Complainant A
At the time of the alleged incident of discrimination Complainant. A was a second level student suffering from dyslexia. She applied for ‘reasonable accommodation’ in respect of her leaving certificate examination in 2001. She was refused the ‘reasonable accommodation’ and this was appealed. This appeal was also refused. There was considerable confusion in the correspondence emanating from the respondent. This second refusal was also appealed and she was granted a waiver in relation to the assessment of spelling/grammar in language subjects. The respondent wrote to the complainant advising her of this waiver and that the grades obtained by her in any language subject would be accompanied by an explanatory note which would read as follows:
In the case of English:-
“All parts of the examination in this subject were assessed except the spelling and written punctuation elements.”
In the case of other language subjects:-
“All parts of the examination in this subject were assessed except spelling and some grammatical elements.”
On 1st August 2001, the complainant’s father appealed the decision regarding the proposed notation. The appeal was considered by three members of the Independent Appeals Committee and the Department’s decision was upheld. The Complainant’s father then wrote to the Data Protection Commissioner objecting to the notification on the grounds that it revealed personal, confidential and medical information which invites discrimination without serving any useful educational purpose. In response the respondent contended that the notation was required if they were to afford a level playing field and that applicants had the option to seek reasonable accommodation or not at their election. A complaint was lodged with this Office on 13th February 2002. The complaint alleges discrimination on the grounds of disability on the basis that the presence of a notation on her Certificate reveals the fact that she has a disability and requires her to explain and justify her results and places her at a disadvantage with regard to prospective employment.
Complainant B
At the time of the alleged discrimination the complainant was a second level student suffering from dyslexia. She also applied for ‘reasonable accommodation’ in respect of her leaving certificate examination in 2001. Complainant B was also granted the waiver which would include the notations described above. The appeals procedure was invoked in relation to the notations because the complainant’s father felt it constituted labeling resulting in discrimination against the complainant. The respondent’s position was upheld and the complainant’s father was provided with a copy of the Expert Advisory Group’s report in relation the assessment of candidates with special needs. The complainant’s father sought to have representations made through his T.D. The respondent Minister indicated that the inclusion of an explanatory notation was rooted in the principle of inclusiveness and the making of examinations more open to students with special needs. A complaint was lodged with this Office on 18th July 2002. The complainant alleged discrimination on the basis that a Leaving Certificate containing notations which labels her as a person with a disability had issued.
Both Complainants
From January 2002 on the Equality Authority exchanged correspondence and met with the respondent. The complainants’ representative finally confirmed to me that they had exhausted their direct contacts with the respondent and I began my investigation in 2005. Outline legal submissions were made on behalf of both complainants. A responding submission on behalf of the respondent was made primarily dealing with the complaint from Complainant B although it ultimately served as a response to both cases. Both parties submitted substantial information in respect of the practice in other jurisdictions, in national universities and both presented expert witnesses.
Summary of the Respondent’s Case
The respondent does not dispute the incidents as described by the complainants. What is disputed is that any of the actions taken by the respondent could amount to discrimination. The following is an extract from the respondent’s submission with the complainant’s name altered.
“Complainant B alleges that the Department of Education and Science (hereafter “the Department”) discriminated against her by issuing her with a leaving certificate containing notations which, she claims, label her as a person with a disability. Complainant B further claims that, as a result of the discrimination which she alleges, she will be forced to reveal and explain her disability to prospective employers, even where it has no relevance. Complainant B alleges that she is being treated less favourably than other students who are not placed at such a disadvantage.
The Department denies Complainant B’ s claim. It contends that Complainant B has been given an exemption from an element of the standard assessment in a number of subjects (which exemption is not available to candidates generally). Even though the purpose of the examination regarding that element has demonstrably not been met, Complainant B has benefited through having her grade determined on the balance of her work in each such subject. This places Complainant B, not in a position equal to that of the majority of other candidates, but in a more advantageous position than them.
The footnoting of the fact that Complainant B was assessed on all parts of the examination in each subject except ‘spelling and written punctuation elements’ in English and ‘spelling and some grammatical elements’ in other language subjects, is a necessary balance to protect the integrity of the examination certification process. The relevant certificate does not record that Complainant B suffers from a disability, either directly or by inference.
Where an accommodation is made that simply assists in, or permits, the assessment of a core skill, then no explanatory note is necessary and none is appended to the certificate. Examples of accommodations in this category would included the provision of aural tests by face to face interview, the provision of enlarged or Braille examination papers or of examination papers without graphics, the provision of additional time, and the provision of special examination centres. The excision of a core element of the exam is an accommodation of a different order, however. Such accommodations include the use of tape recorders, word processors, dictation software (with the spell-check facility enabled) or scribes in subjects that involve an assessment of spelling and punctuation skills, or the use of readers in subjects that involve an assessment of comprehension. The grant of an exemption from assessment constitutes a further obvious example of an accommodation of this kind – whether the exemption is from an oral test, an aural test, or the examination of spelling, punctuation and grammar. In the provision of reasonable accommodations, there is nothing arbitrary in the distinction between requiring annotation where the testing of a core competency has been affected (or prevented) thereby, and not requiring such annotation where it has not. The difference between accommodations that affect the testing of core competencies and those that do not is one of the central distinctions that the Complainant’s submissions fail to address.
Complainant B requested the pertinent exemptions in the knowledge that, where granted, they would require the appropriate notation on her Leaving Certificate. Complainant B was informed of the content of the relevant notations when those exemptions were approved.
Complainant B’s spelling and written punctuation in English has not been assessed in her Leaving Certificate examination, nor has her spelling and written grammar in the other language subjects that she has taken at that level (Irish and French). The deletion of the appropriate notation from her Leaving Certificate would misrepresent to any person invited to consider, or to rely upon, that document that Complainant B’s marks in the relevant subjects include, and reflect, an assessment of those skills.
The Department does not accept that the notation concerned labels Complainant B as a person with a disability. The use of tape recorder by a candidate due to a sprained wrist would result in the same notation. Nor does it accept that the existence of the notation ‘forces’ Complainant B to reveal and explain the nature and extent of her disability to a potential employer, even where it is not relevant. Where it is not relevant Complainant B is not obliged to reveal it or explain it. For these reasons, the Department does not accept that any privacy issue arises on Complainant B’s complaint. Even if any privacy issue did arise, it would be counterbalanced by the right to free expression.
The relevant notation appears on Complainant B’s Leaving Certificate, solely because Complainant B requested and received an exemption from the spelling and punctuation or spelling and grammar components of the Leaving Certificate examination in the subjects concerned. This exemption has placed Complainant B, not in a position equal to, but in a position more advantageous than, that of the majority of other students taking those subjects in that exam. The Department does not accept that Complainant B has been treated less favourably than other students. The purported ‘disadvantage’ of the notation can only accrue where the undoubted advantage of the exemption (or similar accommodation) has been obtained. The balance that has been struck by the Department is a reasonable accommodation. To exempt a person from examination in a core competency, and to thereafter conceal that fact by omission on the relevant certificate, would be to confer an unreasonable advantage on the person concerned; to correspondingly disadvantage other candidates; and to undermine the fundamental integrity of the Leaving Certificate examination process.”
The submission provides a substantial amount of background information and then goes on:
“The Department’s Overall Approach
There is no assumption in the Department that the present system is sacrosanct. Nor is there a belief in the Department that absolute objectivity in that examination has been, or can be attained; the Department accepts that absolute objectivity can only ever be strived for. Nevertheless, equity and fairness dictate that that must be the goal. The Department cannot abandon its pursuit of objectivity by unreasonably advantaging one group of candidates (with a particular disability) over the rest. The Department must strive for equity between candidates.
The Department acknowledges that syllabuses, examinations, and forms of assessment continue to evolve. That is why there has been an expert Advisory Group Discussion Paper and Report on Special Arrangements/Reasonable Accomodations. That is why there has been a Task Force on Dyslexia. That is why the National Council on Curriculum and Assessment was established, and why it continues to keep curriculum and assessment under review. That is why a State Examinations Commission has been established to develop, assess and accredit the second level examinations of the Irish state.
Complainant B’s Application For An Exemption
As already set out above, Complainant B requested the relevant exemptions in the knowledge that, where granted, they would require the appropriate notation on her Leaving Certificate. Complainant B was informed of the content of those notes when those exemptions were approved. In respect of her English examination, the relevant note reads: “All parts of the examination in this subject were assessed except spelling and written punctuation elements”. In the case of Complainant B’s other language subjects (which the Department understands were Irish and French) the notation states: “All parts of the examination in this subject were assessed except spelling and some grammatical elements.” The letter of exemption went on to expressly state: “Clearly no explanatory note will be necessary in any subject where the skills listed above are not under assessment”. That is the key principle which underlies the notation procedure and it is important to bear it in mind in considering the practice in, and case-law of, other jurisdictions.
The Complainant’s father appealed against the proposed annotation of her leaving certificate by an undated letter in the Spring of 2001. The unavoidable implication of this appeal would appear to be that the Complainant (or the Complainant’s father on her behalf) was seeking an exemption from a core assessment to which most other students were to be subject; was seeking to have her grade determined solely by reference to the other elements of her work; and was seeking to have the information that – in contrast to the vast majority of other candidates – her spelling and punctuation (or spelling and grammar, as the case might be) had not been assessed at all, withheld by omission from any future ‘user’ of her leaving certificate. Perhaps, it was not appreciated that other candidates could lose marks under the relevant heads, whereas the Complainant could not. The Department replied by letter dated the 31st May 2001, explaining the principles underlying its decision and enclosing a copy of the Expert Group Report. The Minister for Education and Science replied to representations from Seamus Brennan T.D. on the same issue by letter dated the 30th August 2001.
The Complainant instituted the present complaint by the submission of an ODEI 5 Form on the 19th April 2002 and a Form ODEI 2 on the 18th July 2002.
Entirely disregarding the exemption sought and granted; the far-reaching accommodation constituted thereby; and the significant advantage it represents, Complainant B’s complaint seeks to isolate, and focus solely upon, the corresponding annotation on her leaving certificate. This ignores the fact that the annotation is inextricably bound up with the exemption. It does not constitute a free-standing difference of treatment. Had Complainant B received no exemption, there would have been no annotation. It is the exemption which is free-standing. That exemption (coupled with the necessary annotation) is either permissible as reasonably necessary to promote the special interests of dyslexics or else it represents an impermissible discrimination in Complainant B’s favour as against other leaving certificate examination candidates.”
Interaction between Parties
The following is a description of the correspondence and interactions between the parties before the Tribunal’s investigation. This was included in the submissions made on behalf of the complainants.
In the absence of a Response to the First Named Complainant’s notification of complaint, the Equality Authority wrote to the Respondent on the 14th of January, 2002 requesting delivery of the response. By letter dated the 29th of January, 2002, the Respondent replied setting out the rationale for the examination notation practice. The Respondent indicated that whilst the thrust of policies in the area is to make the second level examination system more flexible and responsive to the needs of students who would otherwise have difficulty with some examination subjects because of their special needs. The Respondent contended that examination notation was necessary because it would not be credible for the Department:
“as the national certification authority to conceal the fact that it had not assessed publicised core assessment criteria determined by the National Council for Curriculum and Assessment”.
The Respondent further contended that it would be misleading not to include the examination notation stating:
“if we were unable to make the nature of the assessment modification explicit we would in effect be concealing the fact that standard national assessment did not apply.”
The Respondent continued:
“it is also important to point out that a candidate opts to apply for a particular accommodation and where such an application is approved there is no obligation on a candidate to avail of it. There is no coercion by the Department. It is an elective process for the candidate concerned.”
On the 5th of November, 2002, the Respondent wrote to the Equality Authority further to a meeting held on the 27th of September, 2002 to confirm the basis for the Respondent’s policy to include an explanatory note on examination results. It was clear from the Respondent’s letter that the Respondent’s policy had been the subject of review and the Respondent stated that:
“in considering policy development in this area the core question raised in relation to the State Examination was whether the Department, given current curriculum, should insist on all candidates sitting the same examination in all circumstances, or modify our examinations to be more inclusive and open to students with special needs”.
In justifying examination notation, it was contended on behalf of the Respondent that:
“the Department’s core rationale in this respect is that it has a central role in the certification process. It is responsible for providing and implementing the test instruments and examinations that comprise the national assessment process at second level. In this context the Department has a fundamental role in underpinning the credibility and currency of the certificate examination results, both for the purpose of entry to further education and for entry to the world of work.”
The focus of the Respondent’s submissions in this case to date is on the integrity of the examination process. It is worthy of some comment that there is an assumption that runs through the submissions made by the Respondent that the exam process is sacrosanct that that it is absolutely objective. No evidence is produced to confirm this viewpoint but this view point is clearly discriminatory as it proceeds on the basis that one size fits all, thereby discriminating against students with disabilities.
By letter dated the 12th of August, 2004, the Equality Authority again wrote to the Respondent advising that it had conducted research into the question of examination notation and the integrity of the examination assessment process. Based on this research which showed a range of different practices in other jurisdictions, the Equality Authority contended that the integrity of the examination system would not in any way be compromised by a decision to cease annotating the relevant leaving certificates.
It was pointed out that the examination system had evolved and was capable of evolving further to reflect good educational policy. In their letter, the Authority reminded the Respondent that its perceived role as “gatekeeper for third level institutions and potential employers” and its overarching responsibilities must be exercised in a manner that complies with the Equal Status Act, 2000 which prohibits less favourable treatment on grounds of disability or type of disability and requires reasonable accommodation through the provision of facilities and services.
Complainant’s Legal Arguments
The following is an extract from the complainant’s submissions.
It is respectfully submitted that the Respondent is in breach of Sections 3(2)(g) and 5(1) by providing less favourable treatment to the Complainant on grounds of disability and also breaches section 4(1) by reason of a failure to provide reasonable accommodation within the meaning of the Act.
This submission will be made on the basis of evidence to the effect that standardized are discriminatory because they assume that each student taking the test will read in the same way but a student, such as the Complainant, who has dyslexia cannot process words in the same way as other students. In applying standardized testing to a student with dyslexia, the Respondent insists on testing disability and not ability. The standardized tests used by the Respondent have not been developed with the needs of the disabled student in mind. This, it is submitted is discriminatory and the only means available to the Respondent to alleviate the discriminatory impact without developing an alternative test which permits the testing of the Complainant’s ability, is to accommodate the student. To make the examination system fair in a standardized system such as the Leaving Certificate, however, this accommodation must by adapted to the situation so that, in reality, the student is competing on a level playing field. Were the accommodation properly effected, then there would be no requirement to annotate the results because the test results would properly measure ability.
Accordingly, the need for annotation on the grounds advanced by the Respondents, only exists if there has been no reasonable accommodation in the first instance. Furthermore, the act of causing a notation to appear on an examination certificate perpetrates a whole new act of discrimination. The Complainant is being treated less favourably than other students, the certificate is defaced and her achievements demeaned. The Complainant is further discriminated against in that her right to privacy is not protected in like manner with other students. By annotating the certificate, the Respondent has caused a signal to be sent to the world at large that the Complainant is disabled, in complete violation of her right to privacy protected both under constitutional law and international human rights law. Any accommodation which requires such a breach of a fundamental human right in order to be made available to a student cannot be construed as reasonable within the meaning of the Act which falls to be construed in the light of the Constitution.
Discrimination
The Respondent is guilty of a double discrimination against the Complainant. It forces the Complainant to sit a standardized examination which it contends cannot properly measure the Complainant’s ability as the publication of the results would “conceal” the reality of the test result. To fail to provide an examination system which permits a disabled persons ability to be measured in comparison to others without reference to their disability is discriminatory. It then causes a notation to be inserted on the examination certificate to explain that the Complainant was not tested in various aspects of the subject, thereby suggesting that the Complainant’s result is not a real result which is as meritorious as the result of a student obtaining the same overall grade but without the notation. This is discriminatory. Still worse, if identifies to the world that the Complainant is a person with a disability. This compounds the injury to the Complainant and is discriminatory.
Insofar as the central thrust of the Respondent’s argument in meeting this case is the requirement to uphold the integrity of the examination assessment system and its transparency, the Respondents seem to rely on the need for each student to sit the same examination in order to ensure the integrity of the examination system. The examination system, however, as currently operated gives marks for spelling and grammar. To obtain a standardized examination certificate without notation a student must be assessed in spelling and in grammar. The Respondent’s argument that this is necessary to uphold the integrity of the result, however, fails to take account of the fact that such a test does not represent a fair assessment of the ability or educational attainment of a student with dyslexia and an assessment on the basis of spelling and grammar is not a neutral means of assessing educational attainment. Clearly, students with dyslexia will have greater difficulty performing in such an examination but the result they achieve will not be a true measure of their attainment because they have been assessed in a discriminatory manner by requiring persons with dyslexia to be marked on spelling and grammar before their level of attainment in a language subject can be measured. It is respectfully submitted that the Respondents have failed to justify their requirement that students with dyslexia be assessed as to spelling and grammar before a standardized examination certificate will issue. It is respectfully submitted that there is no objective justification for this requirement within the meaning of the Act.
It is respectfully submitted that the annotation of Leaving Certificates constitutes discrimination against people with learning difficulties. The annotation of scripts does not occur for people who do not have a disability or for people with certain other disabilities. It has been acknowledged by the Respondent that the explanatory notation is used in certain cases of reasonable accommodation and not in others. The impact of the notation is significant in that it undermines the value of the State Examination Certificate and the real attainments of the student at the said examinations by flagging to the world (in particular, prospective employers) that the result does not represent the actual ability of the student in a given subject. This also has a demoralizing impact of the student.
It is worthy of special note that that Irish universities do not themselves generally provide information on grade transcripts about the taking of their own tests under non-standard conditions. Such grade transcripts are essential to securing places for third level graduates in further education (whether in Ireland or abroad) and in securing employment. It seems that unlike the Respondent, Irish universities do not operate under the assumption that employers (whether in Ireland or elsewhere) and others have a right to know that their degree results were obtained under “non-standard” conditions.
It follows that the insertion of a notation on an examination certificate assists a discriminating employer to identify a student with a disability even in advance of interview resulting in the unlawful exclusion of the said student from interview because they have a disability or the less favourable treatment of the student at interview. The Respondent points out that it should not be held responsible for the discriminatory acts of third parties but this is to ignore the fact that it is the practice of the Respondent in annotating test results to indicate the presence of a disability (thereby pre-identifying a candidate for employment as a disabled person) which renders it possible or easier for discriminating employers to effectively discriminate and consequently, the action of annotating directly causes or facilitates discrimination contrary to the whole objective of the Equality code. It is to further ignore the fact that annotation in itself reveals the existence of a disability and thereby offends against the Complainant’s right to privacy as protected under the Constitution and results in an invasion of the disabled person’s constitutional rights thereby resulting in a tangible and immediate less favourable treatment of the Complainant directly related to the act of notating and caused by the Respondent.
The Respondent’s response to this appears to be that the Complainants have elected to use the accommodation and have therefore consented to the publication of private information concerning them and identifying them as disabled persons. This response is unacceptable in law because it fails to comprehend the fundamental basis for reasonable accommodation which is that the person requires the accommodation to enjoy access. Accordingly, the accommodation is not an optional extra which the student can elect to use or not. The accommodation, however inadequate, is required so that the person has access to the examination.
The Respondent provides a service through the establishment of a system which measures educational attainment. In failing to provide for the equal measurement of the Complainant’s level of attainment without also ring-fencing the student as a disabled person, the Respondent actively discriminates against the Complainant. If the student is penalized by the annotation of her test results by reason of reliance on an accommodation, the student continues to be treated less favourably than other students with regard to access to State examinations.
The act of inserting a notation on the certificate is in itself discriminatory. In effect the accommodation given is negatived by the notation. Students with a disability are treated less favourably than other students by the inclusion of the notation which only occurs where a student has a disability (thereby invalidating the accommodation made).
Further because the Respondent has failed to provide reasonable accommodation in ensuring that the examination system is equally balanced for all comers permitting real attainments to be measured on an equal basis (thereby amounting to a failure to reasonably accommodate), the examination system remains discriminatory.
The effect of the notation is to penalize the student for using non-standard accommodation on the presumption that so called “reasonable accommodation” (in the sense envisaged by the Respondent) somehow confers an unfair advantage on the disabled student rather than merely permitting the student to compete on a level playing pitch. If the effect of the accommodation were really to confer an unequal advantage then the accommodation in question is not “reasonable accommodation” within the meaning of the Equal Status Act, 2000.
Reasonable Accommodation
The Equal Status Act, 2000 requires the Respondent 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 treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. The purpose of reasonable accommodation within the meaning of the Act (as opposed to Department literature) is to ensure genuinely equal opportunity and therefore, a legitimate and comparable testing outcome. The purpose of reasonable accommodation within the meaning of the Act is not to confer an unequal advantage on a disabled person (which seems to be implicit in the requirement for a notation system with regard to the Respondent’s scheme) but rather to require the adjustment of the modalities of the examination to enable ability to be accurately recorded and measured. Therefore, the very rationale of “reasonable accommodation” is not to confer an advantage but to ensure a genuinely level playing field for all candidates.
It follows that if the rationale for notation advanced by the Respondent were to be accepted (in essence, the “credibility and currency” of national assessment criteria i.e. comparability), then the Respondent has, per se, failed in its responsibility to provide “reasonable accommodation” in accordance with the requirements of the Act because were reasonable accommodation in place the examination method used would be capable of providing comparable results.
The Tribunal has interpreted “reasonable accommodation” as requiring the giving of consideration to alternative means of providing access. The failure to find or to consider an alternative to notation as a means of assessing educational achievement in a language subject constitutes a failure to provide reasonable accommodation. Furthermore, the requirement to annotate the results posited by the Respondent, if followed to its logical conclusions, evidences a failure to provide reasonable accommodation within the meaning of the Equal Status Act in the manner in which the Respondent provides its so-called reasonable accommodation. The accommodation fails or is ineffective if notation remains necessary to ensure a level playing field. It is respectfully submitted that the provision of an ineffective accommodation amounts to a failure to provide reasonable accommodation.
In short, the assistance that is provided by the Respondent does not constitute reasonable accommodation insofar as the only accommodation which appears to be available to a person with dyslexia is the modification/waiver which the Respondent insists is elective. Reasonable accommodation within the meaning of the Act is not an optional extra and the purpose of reasonable accommodation is to level the playing field. The Respondent appears to consider reasonable accommodation to confer an unequal advantage for a person with a disability but this, it is respectfully submitted, is to wholly misconstrue “reasonable accommodation” within the meaning of the Equal Status Act, 2000. The Respondents are required by section 4 of the Equal Status Act, 2000 to provide “reasonable accommodation” so that a student can be assisted in overcoming a discriminatory barrier. A student who avails of the right to reasonable accommodation cannot then be said to be advantaged because the accommodation was necessary in the first place to protect against discrimination. To annotate the examination script perpetuates the discrimination which reasonable accommodation, properly construed, protects against.
The Right to Privacy and the Meaning of Reasonable Accommodation under the Equal Status Act, 2000
The Complainant enjoys a constitutionally protected right to privacy (Article 40.3). The Complainant also enjoys a right to privacy under the European Convention on Human Rights (Article 8) which has been incorporated into Irish law through the provisions of the European Convention on Human Rights Act, 2003. Insofar as the Respondent has any discretion with regard to the extent or nature of the accommodation it provides in accordance with the Equal Status Act, 2000, it is respectfully submitted that as a matter of law this discretion must be exercised in accordance with the requirements of constitutional justice and in a manner which vindicates and respects constitutionally protected rights.
It is submitted that the failure of the Respondent to respect and vindicate the Complainant’s right to privacy must mean that the accommodation provided does not constitute “reasonable accommodation” within the meaning of the Equal Status Act, 2000 which is presumed to bear a constitutional interpretation and is presumed to require vindication and respect for constitutional rights in the manner in which accommodation is mandated in the Equal Status Act, 2000. Similarly, the Respondent is required to exercise its discretion in a manner compatible with the requirements of the European Convention on Human Rights (section 3, European Convention on Human Rights Act, 2003).
Insofar as it falls on the Tribunal to interpret the meaning of “reasonable accommodation” under the Equal Status Act, 2000 and to judge the treatment of the Complainant by the Respondent in this regard, the Tribunal is respectfully reminded of the duty to construe the provisions of the Act in a manner which is compatible with the Constitution (double construction rule) in the case of any ambiguity and the requirement under the European Convention on Human Rights Act, 2003 to interpret legislation, where possible, in line with the requirements of the Convention.
Respondent’s Legal Arguments
The following is a further extract from the respondent’s submission.
The Equal Status Act 2000
Complainant B claims to have been discriminated against by the Department of Education in the provision of a service, contrary to the terms of Section 5(1) of the 2000 Act. While the Complainant’s submissions do not identify the ‘service’ at issue, paragraph 3 of Complainant B’s ODEI 2 Form would suggest that it is the certification of her tested accomplishment at leaving certificate level. Of course, Complainant B’s accomplishment in the spelling and punctuation elements of English and the spelling and certain grammar elements of her other language subjects has never been tested at that level. It is the simple and neutral annotation to this effect on her leaving certificate which she alleges amounts to discrimination between her and other candidates without exemptions. The marks available to Complainant B in the other tested elements of those subjects have been increased proportionately, so that she was eligible for the same marks total as other candidates, although – unlike them – she could not lose marks for spelling, punctuation or grammar.
Section 5(2)(h) of the 2000 Act
Section 5(2)(h) of the Act, to which the Complainant’s submissions do not refer at all, states:
“Subsection (1) does not apply in respect of-
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those interests.”
Of course, the exemption/annotation arrangement is just such a difference in treatment (of the category of persons who are dyslexic), provided for the principal purpose of promoting for a bona fide purpose and in a bona fide manner, the special interests of dyslexic examination candidates. The Department introduced the exemption/annotation system in the belief that this difference of treatment was reasonably necessary to promote those special interests. The Complainant appears to contend that an undisclosed exemption is, in fact, reasonably necessary instead. In either event, it is difficult to see how Section 5(1) can be properly invoked by Complainant B in respect of a service that squarely falls within the terms of Section 5(2)(h).
Section 3(2)(g)
In the submissions filed on her behalf, the Complainant argues that there has been a breach of both Section 5(1) and Section 3(2)(g) of the Act. Section 3(2)(g) provides:
“As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”
The Department submits that Section 3(2)(g) provides a definition of one of the ‘discriminatory grounds’ (in this case, the disability ground) prohibited by Section 5(1) of the Act. Perhaps this is what the Complainant’s submissions in this respect are intended to convey, in which case there is agreement between the parties on this point.
Section 4(1)
The Complainant’s submissions are unambiguous in asserting the Complainant’s case that the Department has breached both Section 5(1) (whether or not coupled with Section 3(2)(g)) and Section 4(1) of the 2000 Act. Section 4(1) states:
“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 a person the person to avail himself or herself of the service.”
Four points must be made concerning this provision. First, it does not constitute a separate prohibition in addition to that provided by Section 5(1) of the 2000 Act but rather an elucidation of what constitutes discrimination on the disability ground contrary to that prohibition. The issue of whether the Section 5(1) prohibition applies at all – in light of the terms of Section 5(2)(h), has already been addressed.
Second, the question must be asked; what is the special treatment that it is alleged the Department failed or refused to provide by way of reasonable accommodation in this case? The Complainant applied for and received an exemption in the examination – by way of special treatment – which was not available to the general body of candidates. This special treatment left her in a position of advantage over the general body of candidates, rather than in a position of equality with them. The annotation on her certificate that certain assessments have not been carried out is a reasonable and necessary measure in light of that advantage. It prevents persons invited to rely upon that certificate from being misled by omission about the nature of the assessments performed. It provides transparency and openness in the certification process for the benefit of candidates generally. And for those two reasons it protects the integrity of the examination and certification process. The Complainant’s argument to the contrary entirely ignores the reasonable accommodation/special treatment already provided to her through the exemption from which she has benefited, save to the extent that she claims an entitlement to it in addition to an entitlement that her leaving certificate should mislead concerning it by an omission that conceals the limited nature of her assessment. Such concealment by omission would call the integrity of the examination process into most serious question.
Third, in invoking the sub-section, no basis is provided for the implicit assertion that, without the excision of the relevant annotation, ‘it would be impossible or unduly difficult’ for the Complainant to avail of the service at issue (i.e. certification of the results of the assessment of her accomplishment at second level). The strained and artificial nature of Complainant B’s claim in this regard is demonstrated by the fact that she has availed of the service concerned. Complainant B sat the certification examination with the benefit of the exemptions that had been sought by her. The ‘impossibility or undue difficulty’ test applies much more neatly to the sitting of the relevant examinations without an exemption than it does to the truthful and accurate certification of actual accomplishment that results.
Fourth, Section 4(1) of the Act falls to be construed in conjunction with Section 4(5). Section 4(5) states:
“This section is without prejudice to the provisions of sections 7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as they relate to functions of the Minister of Education and Science, recognised schools and boards of management in regard to students with a disability”.
Section 7(2)(a) of the of the Education Act 1998 provides:
“(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act….”
(emphasis added)
Section 2 of the 1998 Act defines “support services” to include the assessment of students and the conduct of examinations including the Leaving Certificate examination.
The Complainant’s argument, which ignores the foregoing provisions entirely, fails to explain how Section 4(1) of the Act can be invoked in the present case, when that section is expressed to be without prejudice to the provisions of Section 7(2)(a) of the Education Act 1998, which in turn states that support services to students, including students with a disability, are to be provided as the Minister considers appropriate. For the avoidance of doubt, the Minister, having adopted the recommendations of the Report of the Expert Advisory Group, considers the exemption/notation procedure in its present form, to be an appropriate support service.
Section 14 of the 2000 Act
Section 14 of the 2000 Act provides in relevant part:
“Nothing in this Act shall be construed as prohibiting-
(b) preferential treatment or the taking of positive measures which are bona fide intended to-
(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.”
The exemption/notation practice adopted by the Minister by reference to the Report of the Expert Advisory Group is just such preferential treatment or just such a positive measure, intended to cater for the special needs of dyslexic leaving certificate candidates in certain subjects.
The Arguments
A Standardised Test – But Not An Inflexible One
Paragraph 19 of the Complainant’s submission appears to be predicated on the assertion that the Department administers an inflexibile standardised test in the leaving certificate to persons with a disability and, in particular, to persons with dyslexia. As already demonstrated above, that is simply not correct. Special Arrangements for persons with dyslexia have been in place for many years. Those arrangements extend from, at one end of the spectrum, the making of an exceptional effort to decipher and mark scripts, to, at the other end, the grant of facilities such as the use of tape recorder or computer. The grant of an exemption with appropriate annotation, as recommended by the Expert Advisory Group, and as availed of by Complainant B in this case, falls somewhere in between. It is therefore wrong to say that the standardized tests used by the Respondent have not been developed with the needs of the disabled student in mind.
Evidence that the Leaving Certificate is Discriminatory?
At paragraph 19 of the Complainant’s submissions, it is stated that evidence will be adduced to the effect that standardized tests are discriminatory. The Department respectfully requests that the Complainant be directed to provide notice of the nature and content of that evidence in advance of the hearing before the investigating officer, in order that it might be properly considered, and tested if necessary at that hearing.
The Means of Testing and the Accomplishment Tested
The fundamental misconception at the heart of the Complainant’s argument is that spelling, punctuation and grammar are merely the mechanism through which achievement is tested in language subjects. It is certainly the case that spelling, grammar and punctuation are merely part of the means (i.e. the written word) through which achievement (in the form of level of knowledge) is tested in some subjects. So, in a history examination for example, one can test a candidate’s level of knowledge through the spoken word as effectively as through the written word. However, in language subjects, the ability to write with accurate spelling, grammar and syntax is an integral part of the achievement that is being tested.
The Department is not ‘testing disability’ instead of ‘ability’. One might as well say that the driving test is not a test of ability but rather a test of the disability of the vision impaired; or that an oratory competition is a test of the disability of the speech impaired. The Department is testing spelling, grammar and punctuation because these are still considered to be valuable skills (or core competencies) in language subjects. The Department is not seeking to test the disability of persons with dyslexia.
Every testing authority throughout the world acknowledges that not all disabilities can be perfectly accommodated in every circumstance. In particular, in an examination the very purpose of which is to objectively grade candidates according to ability in a particular discipline, a disability in that discipline is extremely hard to accommodate without unfairness to other candidates. In a sight test, can a visually impaired person be accommodated such that he is eligible to receive higher marks than those obtained by a fully sighted person without affecting the overall integrity or credibility of the test? Can a dyslexic person be accommodated in a spelling, grammar or punctuation test such that he is eligible to receive higher marks than those received for spelling, grammar and punctuation by a non-dyslexic person without affecting the overall credibility of that test? This is the difficult problem that the Department faces, and it has sought to deal with it by granting the Complainant an exemption with annotation in this case. It cannot be correct to argue, as the Complainant’s submissions do at paragraph 19, that if an accommodation were properly effected, there would be no requirement to annotate the results because the test results would properly measure ability. The Complainant did not want her ability at spelling, grammar or punctuation properly measured because, due to her disability, that measurement would have been low. The Complainant wanted, and received, a complete exemption from that measurement.
No Discrimination
There is no discrimination in failing to arrange an equitable spelling test between persons with dyslexia and persons without it, just as there is no discrimination in failing to arrange an equitable sight test between fully sighted persons and those who are vision impaired, or a hearing test between those with normal hearing and those who are hearing impaired.
The Complainant is not being treated less favourably than other persons – she has been in receipt of an exemption not available to the vast majority of other candidates. The Complainant’s certificate has not been ‘defaced’; it has been annotated to accurately reflect her accomplishment. In no way has that accomplishment been demeaned by the annotation at issue.
No Breach of any Privacy Right
The Complainant’s privacy rights under both international and domestic law have been, and remain, at all times entirely unaffected by the relevant notation of her leaving certificate. That notation does not send a signal of any kind to anyone – let alone the world at large – that the Complainant is disabled. Even if it did, the leaving certificate examination is a public examination. The Complainant’s leaving certificate is in her own possession. It is a matter for the Complainant to whom she chooses to disclose its contents. The Complainant applied for the exemptions concerned in the knowledge that, if granted, the relevant annotations would result. The annotations concerned do not in any way, shape or form affect any privacy right enjoyed by the Complainant, either under Article 40.3 of the Constitution of Ireland, Article 8 of the European Convention on Human Rights and Fundamental Freedoms, any statute, or the common law. Moreover, there is a countervailing right to freedom of expression under Article 40.6.1° and under Article 10 of the European Convention on Human Rights and Fundamental Freedoms (which includes a right to receive and impart information), which is also recognised in the domestic law of the State pursuant to the European Convention on Human Rights Act 2003.
Preferment not Penalisation
At paragraph 21 of the submission under reply, an extract is set out from the report of a United States disability rights advocacy group, the Disability Rights Advocates Group (DRA). It is difficult to see the relevance of the passage quoted to the facts at issue. This is not a case in which any school has withheld the benefits of doing well from a student using a non-standard accomodation. Complainant B received an exemption from assessment in certain aspects of the relevant examinations and a proportionate increase in the marks awarded to her in respect of the remaining aspects of those exams. Complainant B has, in all probability received higher marks than she would have otherwise received, and exactly the same benefit (i.e. grade) as that of any other person who received the same total number of marks (without the benefit of such exemption). There has been no ‘penalization’ of Complainant B for using the accommodation concerned. There has been no failure on the part of the Department to conduct any appropriate research.
The paragraph of the DRA Report immediately preceding the one quoted in the Complainant’s submission begins with the sentence: “The test results of disabled students who participate in the assessment with accommodations should count for whatever purposes the assessment system has been validated.” The assessment system at issue here (the Leaving Certificate) has been validated for the purpose of assessing overall accomplishment at the end of the secondary school cycle. Complainant B’s marks in the subjects concerned (even though she obtained exemptions unavailable to the majority of other candidates) count towards that assessment in exactly the same way as those of any other candidate.
University Examinations – An Inappropriate Analogy
At paragraphs 4 and 25 of the Complainant’s submissions, heavy reliance is placed on the assertion that the Irish universities do not annotate grade transcripts when tests are taken under non-standard conditions. The implicit suggestion is that a direct comparison between second and third level exam certification is appropriate and instructive. However, no account is taken of any of the following factors:
? It is not stated whether the ‘non-standard conditions’ under which the tests concerned are taken includes the availability of an exemption from assessment of a core competency. It is only where a core competency cannot be tested that a leaving certificate is annotated accordingly. Under any other non-standard condition (i.e. in relation to the provision of any other reasonable accommodation), leaving certificates are not annotated.
? It is not acknowledged that the universities are autonomous in their assessment procedures. Grade transcripts are not centrally certified to provide direct equivalence between universities i.e. identical grade transcripts issued by different universities may be weighed quite differently by their end users. The leaving certificate strives for universal equivalence between the grades obtained by all candidates.
? It is not acknowledged that grade transcripts alone do not constitute the sole measure by which post graduate places are secured. This may be contrasted with leaving certificate grades which, of course, do constitute the sole measure by which eligibility for the majority of places at third level is decided.
In these circumstances, the comparison sought to be made is entirely unhelpful, if not invidious.
Conclusions of the Equality Officer
Prima Facie Case
I must first consider whether the existence of a prima facie case has been established by the complainant.
The matter referred for investigation turns upon whether or not the complainant was discriminated against in terms of Sections 3(1)(a), 3(2)(g), 4 and 5 of the Equal Status 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.
Where the disability ground is the basis for a complaint I am satisfied that the key issues to establish a prima facie case are as follows:
(i) Are the complainants covered by the discriminatory ground? (in this case have the complainants a disability?)
(ii) Is there evidence that they have been subject to a specific treatment by the respondent?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
(iv)Did the respondent’s actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainants’ needs as students with a disability, which made it impossible or unduly difficult for them to sit the Leaving Certificate examinations and receive standard Certificates?
(v) Would providing for those needs have given rise to greater than nominal cost to the respondent?
While the complainants have not got to satisfy all the issues above they need to satisfy test (i) (that they are covered by the disability ground) plus tests (ii) and (iii), or test (iv) (that is that the respondent has failed to provide reasonable accommodation in accordance with section 4 of the Equal Status Act).
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. Where the complainants succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
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 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court) and 1986 (Equality Officer: Gibney), and that this was a consistent practice across a spectrum of cases 1. European Court of Justice caselaw did not address the issue of the shift in the burden of proof for the first time until the Danfoss and Enderby cases so this was not done purely in implementation of Community law. It seems to represent an indigenous development in Irish discrimination law, which was in advance of Community law. There is no reason why it should be limited to employment discrimination or to the gender ground. The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson and by the High Court in Conlon v University of Limerick . While these were both indirect discrimination cases, it seems that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
In considering what constitutes a prima facie case, I have examined definitions from other sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred.” In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) 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”. In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: ” This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. “
This shift in the burden of proof has now been formally adopted in the legislation in Section 38A(1) of the Equal Status Act 2000 (as inserted by the Equality Act 2004).
Section 3and 5
Direct discrimination and the Disability Ground
Section 5 states that a person shall not discriminate in providing a service whether its for consideration or otherwise and whether the service provided can be availed of only by a section of the public. I am satisfied that the service provided by the respondent to the complainants amounts to a service in terms of the Equal Status Act 2000. Secondary education and its assessment is a service which is available to the public or a section of the public. Education was evidently intended to be embraced by this legislation as it is mentioned in Section 4 and Section 7. Section 3 of the Equal Status Act, 2000 provides, inter alia:
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,
(2) As between any two persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are:
….
(g) that one is a person with a disability and the other either is
not or is a person with a different disability (the ”disability
ground”),
This suggests that discrimination shall be taken to occur where, on the grounds of a disability, a person is treated less favourably than another is treated. It is agreed by all parties that both complainants had a disability at the time of the provision of the Department’s reasonable accommodation and the issue of the certificates which satisfies (i) above. It is agreed that the complainants sat their Leaving Certificate examination in 2001 and received annotated certificates which satisfies (ii) above. It is also agreed that other students were treated differently at the time of the issue of the certificates. What is at issue is the respondent’s contention that the provision of accommodations to the complainants amounted to a considerable advantage over and above what was available to students who did not have a disability and that this advantage had to be balanced by annotation of their Certificates in order to redress the imbalance between students, to maintain the integrity of the certification system and for transparency purposes. The respondent argues that since the annotation of Certificates only arises where the considerable (usually termed unfair) advantage has been granted, any other treatment cannot be considered less favourable.
The Bundling of Reasonable Accommodation and Annotation
The respondent argues that the annotation arises only because the complainants have applied for and been granted reasonable accommodation. They argue that the annotation can only arise because the complainants have already been treated more favourably than others in the first place. While this arguably displays a fundamental misunderstanding of the reasonable accommodation provisions, Section 4, in the Equal Status Act 2000 in the first place it also assumes that once you provide some form of favourable treatment you are then at liberty to balance this treatment in whatever way is considered appropriate. It also assumes that Section 3 of the Equal Status Act 2000 cannot then be applied to that balancing treatment. It was also argued that Section 4 of the Equal Status Act 2000 cannot stand alone as a definition of discrimination. In my view, however, Section 4 extends the previous definitions of discrimination included in Section 3 by including the failure of a service provider to provide reasonable accommodation as defined. It does not require a link with Section 3. (See the treatment of Section 4 below.) There is an inherent contradiction in the respondent’s argument in this regard since it is argued that Section 4 cannot stand alone while at the same time it is argued that the balancing treatment only arises as a result of Section 4 treatment and should be considered in that light only.
I am satisfied that the mere existence of an alleged reasonable accommodation in terms of Section 4 cannot rule out consideration under Section 3 of other treatments.
Comparator and Less favourable treatment
There are a variety of groups to which the complainants could be compared.
– Students without disabilities
– Students without disabilities and those with disabilities who do not require the exemption from assessment of spelling and grammar.
– All students who have had results adjusted
There is another group of students who have their results adjusted in a similar though different way to those who have applied for exemptions. When the complainants applied for their reasonable accommodation they were assessed on all aspects of their examination except spelling and grammar. Therefore they were assessed only on say 90% of the available marks. Their marks were then rounded up to represent a score out of 100%. With regard to those who sit their examinations through Irish, they are awarded up to an additional 10% for their achievement. However, no note of this is made on their certificates.
– All students who applied for reasonable accommodation. (Not all reasonable accommodations attract annotation.)
I am satisfied that the appropriate comparator is either a student without disabilities or a student with a different disability to that of the complainants and whose disability does not require exemption from a ‘core element’ of a course, or both.
The annotated certificates issued to the complainants are certainly different to the certificates issued in general by the respondent. Therefore those receiving the annotated certificates are being treated differently. The complainants argue that the issue of the certificates with the relevant notations is less favourable treatment in comparison with others. Certainly Complainant A was caused great embarrassment on the day of the results when all her friends wanted to know why her paper was different and what the notes meant when she had not previously revealed her disability. Complainant B described difficulties she perceived arising in an employment where her Leaving Certificate was submitted. In any event the complainants received certificates indicating their scores. The annotation of their certificates indicates that their score was not achieved in standard conditions. The note clearly implies that their score does not reflect the same achievement as it would for a student without the note.
I accept that employers who routinely use leaving Certificates as part of their recruitment process would quickly come to know that the only people with annotated certificates are people who had a disability of some sort at the time they sat the examinations. Those employers would be remiss if they failed to check what the annotation was about in order to ensure that the applicant could perform the job for which they had applied. Therefore in my view the annotation reveals details about the certificate holder which they may not have been otherwise obliged to reveal wherever it was not relevant. The Department has revealed information about the complainants in a manner which can lead to only one conclusion, that they were suffering from a disability at the time of the examinations. In such situations the decision to reveal their disability or not has been taken out of the hands of the complainants.
While the integrity of the certification system is vital, and is correctly something to be aspired to, the Department’s position is entirely undermined in this regard when one considers the adjustment of marks given to those who sit their examinations through Irish. Those students are given an extra 10% in some subjects, 5% in some others. The Department was asked to provide samples of Leaving Certificates of students who sat their examinations through Irish. While the certificates submitted on request relate to the year 2005, these bear no indication that an adjustment has been made and they are not annotated in any way. Therefore an end-user is being misled as to the student’s achievement in the subject at issue. The respondent argued that in the case of an Irish adjustment the student has been examined in all aspects of the subject and no one section has been omitted as is the case with spelling and grammar under their reasonable accommodation arrangements. However, these students are given extra marks which, although they show creditable expertise in Irish, bear no relation to the student’s expertise in the subject being examined. While there has been advice that this practice of adjusting the marks of those who sit their examinations through Irish should be ceased, that is not at issue here. If a policy decision has been taken that such an increase in marks would increase the use of Irish I see no reason why it should be discontinued. What is at issue is the respondent’s treatment of the marks adjustment. Where the marks are adjusted because the subject is taken through Irish no annotation is made with no apparent concern as to the end-user being misled. Where the marks are adjusted on foot of an application for reasonable accommodation because of a disability the certificate is annotated reflecting concern about misleading the end-user. If it is suggested that to annotate the certificates of those who have been granted extra marks for taking the examination through Irish would discourage its take-up then that simply re-enforces the arguments made by the complainants. It would also undermine the position taken by the Expert Advisory Group’s suggestion that annotation would promote the use of accommodations. (This group is described below.) In any event a situation exists where some marks adjustments are annotated and some are not, reflecting an inconsistency in the respondent’s approach.
I find that the complainants have established that they were less favourably treated than others without a disability and others with a different disability when their Leaving Certificates were annotated with regard to the aspects of the courses not assessed in terms of Section 3 and Section 5 of the Equal Status Act, 2000. (See Summary below.)
Section 4
Section 4 states:
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.
(3) A refusal or failure to provide the special treatment or facilities
to which subsection (1) refers does not constitute discrimination if,
by virtue of another provision of this Act, a refusal or failure to
provide the service in question to that person would not constitute
discrimination.
(4) Where a person has a disability that, in the circumstances,
could cause harm to the person or to others, treating the person
differently to the extent reasonably necessary to prevent such harm
does not constitute discrimination.
(5) This section is without prejudice to the provisions of sections
7(2)(a), 9(a) and 15(2)(g) of the Education Act, 1998, in so far as
they relate to functions of the Minister for Education and Science,
recognised schools and boards of management in regard to students
with a disability.
(6) In this section —
”provider of a service” means —
(a) the person disposing of goods in respect of which section
5(1) applies,
(b) the person responsible for providing a service in respect of
which section 5(1) applies,
(c) the person disposing of any estate or interest in premises in
respect of which section 6(1)(a) applies,
(d) the person responsible for the provision of accommodation
or any related services or amenities in respect of which
section 6(1)(c) applies,
(e) an educational establishment within the meaning of subsection
(1) of section 7 in relation to any of the matters
referred to in subsection (2) of that section, or
(f) a club within the meaning of section 8(1) in respect of admission
to membership or a service offered to its members,
as the case may be, and ”service” shall be construed accordingly;
”providing”, in relation to the special treatment or facilities to which
subsection (1) refers, includes making provision for or allowing such
treatment or facilities, and cognate words shall be construed
accordingly.
Section 4(5)
The respondent argued that Section 4(1) of the Equal Status Act 2000 falls to be construed in conjunction with Section 4(5). Section 4(5) is quoted above but essentially it states that Section 4 is without prejudice to Section 7(2)(a) (among others) of the Education Act 1998, which states:
(2) Without prejudice to the generality of subsection (1), each of the following shall be a function of the Minister:
(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools, centres for education, students, including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate and in accordance with this Act;
This suggests that the requirement to provide accommodation in accordance with Section 4 of the Equal Status Act 2000 is without prejudice to Section 7(2)(a) which indicates (taking only the immediately relevant parts) that it shall be a function of the Minister to provide support services to students with disabilities as the Minister considers appropriate. Support services are defined in Section 2 of the Education Act 1998. However, Section 7(2) (a) is itself without prejudice to Section 7(1) which states:
7. — (1) Each of the following shall be a function of the Minister under this Act:
(a) to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education appropriate to meeting the needs and abilities of that person,
(b) to determine national education policy, and
(c) to plan and co-ordinate —
(i) the provision of education in recognised schools and centres for education, and
(ii) support services.
This indicates (again taking only the immediately relevant parts) that it shall be a function of the Minister to ensure that support services are available, to each person resident in the State, which are appropriate to meeting the needs and abilities of that person.
The respondent referred me to Mr. Justice John McMenamin’s judgement delivered on 15th June 2005 in respect of O’Carolan v Minister for Education and Science and others. The applicant had alleged that the Minister had breached a duty under Section 7(1)(a) of the Education Act 1998. The Judge stated: “It will be seen that Section 7(1)(a) provides for a function of the Minister. It does not impose a duty.” The Judge goes on to find that even if it was a duty the proposals before him would have complied with any statutory duty imposed on the Minister under that Section. In that case however, what was in dispute was the selection of a service provider to respond to the specific needs of the appellant. In the cases before me no such customised accommodations or services relevant to the assessed needs of the complainants in particular are at issue.
In response the complainants argue that “In the judgement Mr. Justice McMenamin does not decide the question of whether the section imposes a duty on the Respondent to provide the level of services and the particularity of services being sought in that case as it was not necessary for him to do so in the particular constitutional framework. …. Furthermore, although it was not necessary for Mr. Justice McMenamin to decide the question in O’Carolan it is in fact quite clearly established that where a statutory function is created there is a duty on the part of the person in whom the function is vested to perform that function.”
I am satisfied that Section 7(2)(a) taken as required with Section 7(1) is not in conflict with Section 4 of the Equal Status Act, 2000. While the flow of the legislation is convoluted my interpretation is that the Equal Status Act, 2000 requires the provision of reasonable accommodation for students with disabilities, without prejudice to the function of the Minister to achieve this in a manner he considers appropriate, without prejudice to the function of the Minister to ensure that each person has available to them the support services appropriate to meeting the needs and abilities of that person.
While the respondent argued that the purpose of Section 4(5) is to preclude consideration of reasonable accommodation in respect of support services in education in any investigation under the Act, the complainants argued that the effect of the subsection is to remove the nominal cost provision in subsection 4(2) from such considerations. Wherever exemptions are included in the Act, these are generally specific for example those included in Section 6 and Section 14 (a). Had an exemption been intended, the section could simply have said that and I intend to take a purposive approach to this matter. I find that consideration of reasonable accommodation with respect to support services in education is not precluded by Section 4(5).
Section 4, General
While the term reasonable accommodation is not mentioned in the Act it is commonly used to refer to the requirements of Section 4. Considerable confusion has been created by the adoption of the term by the respondent to describe the accommodations they provide. It is a strongly held belief by those in the Department who attended the hearing that what they provide is reasonable accommodation in terms of the Act. This is contested by the complainants who argue that if the accommodations were in fact in line with what is required by the Equal Status Act, 2000 notation of certificates would not be required. (In addition they argue that a proper reasonable accommodation under the Act would require a different form of assessment of those with disabilities.) The difference of opinion arises from the belief in the Department that any reasonable accommodation given in fact confers an unfair advantage on the recipient. This, in my view, is to fundamentally misunderstand the purpose of Section 4. The purpose of reasonable accommodation is to provide for a situation where people with disabilities can avail of the service on an equal footing with those who have no disabilities. It is to remove a disadvantage rather than confer an advantage. It is to allow them to take part on a level playing field while allowing for their disability.
The Department has decided to offer certain fixed, that is inflexible, categories of accommodations and they require all students with disabilities to fit into one of these. Wherever an accommodation exempts the assessment of a core element of the course, they insist that these accommodations confer an unfair advantage on the students with disabilities over their counterparts without disabilities. The annotation of the certificates is said to balance this unfair advantage.
The respondent in this case has argued that the complainants have always had the option not to use the reasonable accommodation but that they elected to do so. However, just as a person in a wheelchair cannot reasonably be expected to elect to use 30 steps as a means of access, neither can a person with dyslexia be expected to elect to be assessed on the one aspect of their ability affected by the dyslexia when an alternative exists.
Does Section 4 stand alone?
It was argued that Section 4 cannot stand alone without Section 3 of the Equal Status Act 2000. I am satisfied that Section 4 provides for another quite different type of discrimination than that covered by Section 3. Section 3 provides for all situations where less favourable treatment arises. Section 4 provides for situations where treating a person with a disability the same way as you treat people without disabilities creates an inherent unfairness. These provisions are quite different and nowhere in Section 4 is there a requirement that Section 3 must first apply or vice versa. Neither is there provision for compliance with Section 4 providing a get-out-of-jail-free card with regard to any less favourable treatments arising under Section 3. Therefore, with regard to the five key issues I have adopted to identify whether or not a prima facie case has been established in the section called Prima Facie Case above, I am satisfied that the correct approach is that either numbers (i) along with (ii) and (iii) or numbers (i) and (iv) along with (v) would, in general, be sufficient to establish a prima facie case of discrimination. In this case, however, I find that it is necessary to look at both.
Impossible or Unduly difficult?
The respondent asks what was it about the service provided that made it impossible or unduly difficult for the complainants to avail of it. The complainants argue that because of their disability sitting the examinations without any accommodation would have been unduly difficult for them. I am satisfied, based on the evidence presented, that the complainants would have found the relevant examinations unduly difficult without accommodation. However, having availed of the reasonable accommodation in question the complainants were able to sit the examinations. So an accommodation was provided by the respondent which facilitated the sitting of the examinations by the complainants and their certificates were annotated. The latter arrangement has been dealt with under Section 3 of the Equal Status Act 2000. The former still begs the question does the accommodation provided amount to reasonable accommodation under the Act.
What should have been provided that was not?
The complainants argue that if reasonable accommodation was applied properly to people with disabilities the Department would be required to provide different methods of assessment to take account of the various disabilities. With regard to what nominal cost might be the Tribunal has always looked at the capacity of a respondent to meet such costs and has decided such issues on a pro rata basis with large organizations being expected to carry a larger nominal cost. No evidence of such costs was presented to me and in any event I have only the complaints relating to two complainants before me. I cannot go further to consider a type of class action on behalf of any person with a disability.
In their treatment of the O’Carolan case the complainants argued that :
“where a statutory function is created there is a duty on the part of the person in whom the function is vested to perform that function.”
They go on:
“This has been construed by the Courts in other contexts as requiring that all reasonable steps to give effect to the function are taken. The Tribunal is specifically referred to the decision of Mr. Justice Flood in the case County Meath VEC v. Joyce [1997] 3 IR 402 in this regard in which he found in relation to the Housing Acts that although no express statutory duty was created there was “an implied statutory function” which function was implied by reference to the purpose of the legislation and was required to be exercised in a reasonable manner to achieve the purpose of the legislation.”
As I have found that Section 4 without prejudice to S7(2)(a) which is without prejudice to Section 7(1) is applicable, what remains to be addressed is whether or not the Minister provided reasonable accommodation or whether he has taken all reasonable steps to give effect to the relevant functions.
Although the complainants were able to sit their examinations once the accommodation was granted I am not satisfied that the accommodations available were in all respects appropriate. Given that the students applying for special accommodations are each individually assessed at present by the National Educational Psychological Service, (NEPS), to ensure they are eligible for the accommodation applied for, given also the respondent’s fears of providing an accommodation which is greater than what is actually required by a student to avail of the service and given that the accommodations are not specifically meeting the needs of the individuals using the service, I am not satisfied that the respondent has done all that is reasonable to accommodate the needs of the complainants. However, the complainants were able to sit their examinations and provision was made to take account of their disability. Therefore it was neither impossible nor unduly difficult for them to take the examination.
I find that the complainants have failed to establish a prima facie case of discrimination in terms of Section 4 of the Equal Status Act, 2000.
Prima Facie Case – Summary
The annotation of the complainants’ certificates indicates that their score was not achieved in standard conditions and implies that their score does not reflect the same achievement as it would for a student without the note. The annotation of the certificates is directly relevant to the complainants’ disability in that it was applied because they had attempted to sit the examinations in a manner that took account of their disability. I am satisfied that the certificates, as issued, constitute less favourable treatment of the complainants when compared to others issued with certificates without annotation satisfying (iii) above. I find that the complainants have established facts from which it can be presumed that prohibited conduct has occurred and therefore they have established a prima facie case of discrimination on the disability ground in terms of Sections 3 and 5 of the Equal Status Act, 2000.
Respondent’s rebuttal
The respondent has argued that the annotation is required to present a student’s results accurately and to avoid misleading the end-user. It is a necessary balance to protect the integrity of the examination certification system. The Central Applications Office is possibly the largest single end-user of leaving certificates and that Office is provided with the Leaving Certificate results including the annotations when the information is transferred to them electronically by the respondent. However, it appears they ignore this information as an indicator of disability and collect that information from applicants directly. They do, however, accept the grade presented on the certificate without taking account of the mark adjustment indicated by the note. Therefore the CAO apparently does not require this information to be provided by the respondent. The respondent indicated during the hearing that no research has been done to assess whether or not the annotation is of use to other end-users or whether it achieves their goals of maintaining the credibility of the exam system. In the Expert Advisory Group’s (see below) discussion document and report in relation to the assessment of candidates with special needs this annotation is posited. There is no supporting research or justification for it in either document. The Group’s report was adopted by the Minister and has remained in practice since. When asked how many appeals against this annotation have been successful the respondent replied none. Therefore it appears that annotation has been adopted by the Department as best practice and although they advise that all aspects of the process can be appealed, the practice of annotating certificates is absolute and has never successfully been appealed. This position appears to be without foundation or supporting research other than the assertion that it maintains the integrity of the system.
The respondent has failed to present any evidence in support of their assertion that the annotation is necessary to maintain the integrity of the certification process. They have failed to present any evidence that the annotation actually achieves this goal.
Annotations arose as a result of the adoption of the Report of the Expert Advisory Group on Certificate Examinations by the Minister for Education as policy. This Group had originally been established in 1997 and it was asked by the Minister in 1998 to prepare a discussion paper on special arrangements for students with special needs. A Discussion paper was prepared which originally mentioned the annotation and in January 2000 a report was submitted to the Minister. The Report stated that “Most, but not all, submissions were opposed to indicating on certificates that candidates had taken an examination under special circumstances.” No mention is made as to whether the remainder who did not express opposition were in favour of annotation or whether they simply did not reference it. It is not clear why a group of individuals making up the expert group who were initially considered expert in relation to the certificate examination in standard circumstances were also considered expert in respect of examinations taken in special circumstances. Nor is it clear why that group did not need to include new members with expertise in dealing with the assessment of students with special needs to take account of any inherent biases in relation to standards of assessments normally applied and when, or indeed whether, these can be waived.
In their report the Group laid down inter alia the following principles:
“3. Special arrangements should not put the integrity, status or reputation of the examination at risk.
5. Special arrangements are designed to assist a candidate in demonstrating his or her achievements in an examination setting. They are not designed to compensate for a possible lack of achievement arising from a disability.
6. Since a core principle of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give the candidate for whom they are made an advantage over other candidates.
10. A candidate’s disability may be such that it is not possible for him or her to participate in a particular mode of assessment (an aural examination for a candidate with severe hearing impairment), in which case it should be open to a candidate to apply for an exemption from part of the assessment procedure.
11. An alternative procedure is not acceptable where the purpose of an examination would be compromised by its use (e.g. reading a test of reading comprehension to a candidate with a specific reading difficulty).
12. When an element or elements of an examination have been waived, so that the purpose of the examination regarding that element or elements has not been met, or the method of examining has been significantly altered, this should be indicated by the presence of an explanatory note on the candidate’s certificate of results.”
The Respondent’s submission in referring to this report states:
“Under the heading “Treatment and Reporting of Candidate Performance” the Expert Advisory Group stated that those submissions that expressed the view that certificates should not carry an annotation concerning special arrangements seemed to be based on the view that annotation on a certificate always works to the disadvantage of a candidate. The Report went on:
“This, however, is not the case. A scheme in which annotation is applied to certificates can serve to expand the capacity for special arrangements. Furthermore, users of the certificates (e.g. universities) are often prepared to make special provision for candidates when they know that such provision is required.”
The Report concluded in relevant part: “It should be noted on certificates of results if an element or elements of an examination have been omitted or the method of examining has been altered in a substantial way.” While this conclusion, and the reasoning underpinning it, is disparaged on Complainant B’s behalf in the Complainant’s submissions, no countervailing expert opinion is relied upon in doing so.”
While it is correct to say that the complainants did not present countervailing expert opinion, it is also true to say that the respondent has not presented any expert evidence to show how annotation is intended to achieve the goals set it such as maintaining integrity if the examination system and maintaining equality of treatment among students. As previously mentioned, neither has there been any surveys or research into how end users view these goals. It appears that the assertion was made by the Expert Group, without reasoning, after their research into the processes in place in other jurisdictions that certificates should annotated where considered appropriate. No explanation is available as to how annotation could serve to expand the capacity for special arrangements. I have mentioned above that the CAO does not appear to use the footnotes to the certificates as an indication that the holder requires special provision and collects this information from the applicants directly for passing on to the relevant university or college. Indeed the statement “Furthermore, users of the certificates (e.g. universities) are often prepared to make special provision for candidates when they know that such provision is required” appears to suggest that the Expert Group were under the impression that the footnotes were to be used as an indicator that the certificate holder was a person with special needs. This in turn suggests that even though they felt the footnote could indicate a disability they still felt that it should be highlighted. (It should be noted that the Expert Group Report was submitted to the Minister in January 2000 while the Equal Status Act was enacted in October 2000.)
Principle 6 above states :
Since a core principle of the Certificate examinations is to ensure equitable treatment for all candidates, arrangements should not give the candidate for whom they are made an advantage over other candidates.
This is a central theme throughout the respondent’s documents wherever this matter is dealt with. My own reading of these references were such that it was intended that no accommodation should provide the recipient with an unfair advantage but that where their disability was such that an accommodation would allow them to start on an equal footing then no unfairness would arise. In other words the removal of a disadvantage would be acceptable. However, it was clear at the hearing that some accommodations given are considered to confer an unfair advantage to the recipient. This principle as is worded, combined with the respondent’s position about unfair advantage, seems to leave no room for the offering of accommodations in situations where equal treatment would produce an inherent unfairness. I find that this is in direct contradiction with Section 4 of the Act.
In July 2001 the Task Force on Dyslexia, appointed by the Minister for Education and Science to consider the issue of dyslexia, delivered its report. It included the following two recommendations:
Establishment of an Appeals Procedure
In the short term
17) The Department of Education and Science should establish an independent procedure to deal with appeals instigated by parents of children with learning difficulties arising from dyslexia who are dissatisfied with the response of the system to their children’s needs.
Provision of Reasonable Accommodations in State Certificate
Examinations
In the short term
18) In light of recent equality legislation, the Department of Education and Science should refer to the Director of Equality and the National Disability Authority the practice of appending explanatory notes to the certificates of candidates with specific learning difficulties, including those arising from dyslexia, who are granted certain accommodations in state examinations.
In respect of recommendation 17, the following is what was included in the respondent’s Circular S11/2000 introducing the new exemptions in paragraph 5 headed “Changes to the Appeal procedures”:
…The Minister has decided that in future the entire [appeal] group should be drawn from outside the Department. The remit of the appeal group will cover appeals against all elements of a decision regarding special arrangements including any proposed inclusion of an explanatory note on an examination certificate. The appeal group will be required to consider all cases in light of principles set out by the Expert Advisory Group.”
Also in respect of recommendation 17, the following is what is currently available on the respondent’s website in respect of all appeals relating to accommodations:
In cases where a school/parent or candidate is dissatisfied with any aspect of the Commission’s decision in relation to an application for reasonable accommodations, they have access to an independent appeals forum. All members of the appeals group are drawn from outside the Commission. The remit of the appeals group covers appeals against all elements of a decision taken by the Commission, including any proposed inclusion of an explanatory note. All appeals are considered in light of the principles set out by the Expert Advisory Group.
The ‘Commission’ refers to the State Examinations Commission which is the non-departmental public body under the aegis of the Department of Education and Science that has taken over responsibility for examination arrangements which were formally handled by the Department. Both statements above indicate that the appeal process is independent with regard to its personnel. However, since all appeals are considered in the light of the principles of the Expert Advisory Group, and since no appeals relating to annotation have been successful when considered in this light, it would appear that the group is not independent in relation to its operation since it appears to abide by what I believe is simply an unreasoned assertion in the Report that any exemption should be indicated by the inclusion of an explanatory note. This suggests a failure to observe the rules of natural justice and audi alteram partem in particular. I note that this process relates only to applicants who are disabled.
Recommendation 18 suggested revisiting the annotation issue given the Equal Status Act, 2000. The Department stated that they were at all times content that the issue was in accordance with the Act and no reconsideration of the matter took place.
Section 5 (2) (h)
The subsection states:
“5. — (1) 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.
(2) Subsection (1) does not apply in respect of —
…………….
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,”
A reading of Section 5 leads to the understanding that it provides for the more favourable treatment of persons belonging to a category of persons in order to promote the interests of that category of persons in a bona fide manner so long as the differences in treatment are necessary to promote their special interests. One would expect complaints in respect of such treatment to originate from persons not in the category since they would by definition be treated less favourably. Could differences in treatment as mentioned in the
Section be intended to include less favourable treatment? While a literal interpretation would suggest that it could, it would be nonsensical since the less favourable treatment would have to be provided for the principal purpose of promoting the special interests of persons in the category.
However, the respondent has presented this as a defence in respect of the claims from the complainants and the category of persons to which they belong.
Throughout this decision I have not accepted that the bundling of what is allegedly more favourable treatment with other treatment can provide cover for less favourable treatment. However, it is my view that it is irrelevant whether the annotation and accommodation be looked at separately or bundled together for the purposes of this Section since neither can be said to have promoted the interests of students with dyslexia or disabilities. The accommodation could arguably be seen as a facility which allowed the complainants sit their examinations without undue difficulty. The complainants did not request that their special interests be promoted. They simply requested access to a service available to others in such a way as would remove any undue difficulty for them arising from their disability. It is difficult to see how the ordinary meaning of the words could be stretched to perceive that facility as a promotion of their interests. In addition, no evidence was presented to show that it is reasonably necessary to annotate certificates in order to promote their special interests were these seen to apply. I am satisfied that Section 5 (h) does not provide a defence for the respondent in this case.
Section 14
14.- 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, or
(ii) cater for the special needs of persons, or a category
of persons, who, because of their circumstances, may
require facilities, arrangements, services or assistance
not required by persons who do not have those
special needs.
This provision is similar in thrust to that of Section 5(2)(h) in so far as it provides for more favourable treatment of certain persons and, again, one would expect complaints to which it relates to originate with persons not receiving the more favourable treatment. As mentioned above I have not accepted that the bundling of what is allegedly more favourable treatment with other treatments can provide cover for less favourable treatment. The wording of the Section is so specific as to leave little room for misinterpretation. It deals with preferential treatment or the taking of positive measures for the promotion of equality of opportunity of disadvantaged persons or the catering for special needs of persons. The relevant persons in this regard are the complainants. The issue of annotated certificates cannot be seen as a positive measure and does not promote equality of opportunity for them nor does it cater for their special needs. I do not accept that this Section provides a defence for the less favourable treatment of those whose interests it aspires to protect. I find that Section 14 does not provide a defence for the respondent in this case.
I am satisfied that the respondent has failed to rebut the prima facie case of discrimination on the disability ground which the complainant’s have established.
Decision DEC-S2006-077
The schemes and processes introduced by the Department over the past number of years to take account of the many disabilities which may present in students taking the certificate examinations should be recognised. These indicate a recognition by the Department of the difficulties faced by these students and a willingness to address them. Indeed their efforts were explicitly recognised by the complainants’ representatives. However, the case was presented in accordance with statute and I am required to issue a decision.
I find that the respondent has discriminated against the complainants in terms of Sections 3 (1), 3(2)(g) in relation to the provision of services in terms of Section 5(1) by annotating their Leaving Certificates with a reference to the aspects of the courses not assessed.
I hereby make the following order in accordance with Section 27 of the Equal Status Act, 2000:
– The respondent is hereby directed to pay each of the complainants €6000 as compensation for the discrimination.
– The respondent is hereby directed to issue new Leaving Certificates to the complainants without the relevant notations.
– The respondent is hereby directed to ensure that all aspects of its appeal process conform with the rules of natural justice, in particular audi alteram partem, instead of adhering rigidly to the principles set out by the Expert Advisory Group regardless of the appellant’s case.
– The respondent is hereby directed to formally investigate the feasability, with a view to its implementation, of creating and implementing a system which can create an individually suited accommodation or group of accommodations which meet the needs of each particular student applying for accommodation, based on their individual assessment, rather than the current practice of assessing each applicant student to grant access to a pre-existing accommodation.
– The respondent is hereby directed to ensure that the range of accommodations which is available at present for students with disabilities continues to be available. This Decision should not serve to justify any regression in relation to the situation which already prevails.
Bernadette Treanor
Equality Officer
3rd November 2006
Equality Authority -v- Portmarnock Golf Club & ors and Cuddy & anor -v- Equality Authority & ors
[2009] IESC 73
Court: Supreme Court
Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., Macken J.
Judgment by: Hardiman J.
IN THE MATTER OF SECTION 2 OF THE SUMMARY
JURISDICTION ACT 1857 AS AMENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of November, 2009.
This is a case with a very narrow focus, but it is no less important for that. The reason for the narrowness of the issues is the significant measure of agreement between the parties, which however leaves a well defined area of very strong contention between them.
The narrow focus of the case as it was argued turns on one issue, which essentially raises a point of statutory construction. It is this: is the Portmarnock Golf Club entitled to rely on the exception created by s.9(1)(a) of the Equal Status Act, 2000 in order to take it out of the category of “discriminating club” as that term is used in s.8 of the same Act? The meaning of these Sections will be discussed in some length below. But it is important to make one point here at the very outset. It is this: s.9 permits clubs for specific groups of the community (men, women; gay people; travellers; married people; single people; people holding a particular religious belief; people holding no religious belief, people suffering from a disability; people of a particular nationality; people of a particular ethnic origin) to exist, and to exclude other people, and to be registered as clubs, provided that their “principal purpose is to cater only for [the needs of the group in membership]”. Each of these groups is treated by the Act on a footing of strict and indeed absolute equality with all of the others. Thus, there is strict equality between men and women, gays and heterosexual people, between one religion and another and between members of all religions and persons who have no religion and between each of the named groups and all the others. Accordingly, the logic of a judgment which says that Portmarnock Golf Club may, or may not, avail of the statutory exception will apply precisely to any other exclusive club within s.9. For example, if Portmarnock is entitled to succeed on this appeal brought by the Equality Authority, then so too would a womens’ club, or a gay club, or a travellers’ club, or an Ethiopians’ club, with the same sort of rules.
The club which is a defendant in the first above entitled action is a gentlemens’ golf club. All parties agree that this is perfectly legal: this is the first significant agreement in the case. There is a constitutionally recognised right to freedom of association. At least in the private sphere one may associate with whom one likes and need not associate with those with whom one does not wish to associate. Thus, one may have a ladies’ club, a gentlemens’ club, a gay club, a Catholic club, an Africans’ club and so on. And if one forms such a body, one may exclude from it those who do not meet the basic criterion for membership. Thus, a man may be excluded from a ladies’ club and so on. This is the immemorial position at law, and is also agreed by all parties. This is the second significant area of agreement.
The Equal Status Act 2000 does not alter this position. But, by S.8, it introduces the concept of a “discriminating club”. The nub of this case raises the single question: is Portmarnock a “discriminating club”? A club may become a discriminating club in a number of ways but the most relevant is if “it has any rule policy or practice which discriminates against a member or an applicant for membership”. Thus, any registered club (and not just a Golf Club) which was exclusively a ladies club, or a gentlemans’ club, a gay club or an Africans club would on the face of it be a discriminating club. This is a third area of agreement.
But even if a club is “a discriminating club”, that fact in no way renders the existence of the club, with its discriminating rules, unlawful. This is also agreed. No attempt is made in the Equal Status Act or anywhere else to do this, perhaps because it is feared that to do so would be unconstitutional; see the annotation to the 2000 Act in “Statutes Annotated” discussed below. What the Act does provide is that an application may be made to the District Court for a determination that a club is a discriminating club. The sole consequence of a finding that a club is a discriminating club is that its certification of registration under the Registration of Clubs Act 1904 as amended is suspended for a stated period. If the club maintains the rule or practice which makes it a discriminating club, it will not be able to renew its certificate at all.
This regime applies only to clubs registered under the Registration of Clubs Act, 1904: it has no effect whatever on clubs which are not so registered. The sole effect of the declaration that a club is a discriminating club is to prevent the club from making alcoholic drinks available to its members. A punitive form of prohibition is enforced on “discriminating clubs”, but they can continue to discriminate. This is the fifth area of agreement.
The club considers that this is a strange state of affairs. It is perfectly legal to be, or to be a member of, a discriminating club and the right of a citizen to associate in a discriminating club is constitutionally protected. But if one avails of this undoubted right one becomes subject to what the Equality Authority describes as a “significant sanction” or penalty: the inability to make alcoholic drink available to the members of the club. The club says there is no other context in which one can be subjected to a legal penalty for acting in a manner which is perfectly legal. This is an aspect of the case which may, or may not arise for consideration in the second above entitled action, the constitutional claim, depending upon the result of the first.
Indeed, if the effect of the Act of 2000 were limited to that summarised above, the constitutional claim would be the club’s only recourse. There is significant Irish case law to the effect that one cannot penalise or disadvantage a person with a view to persuading him or her to waive, or not to exercise, a constitutional right.
But the full effect of the Equal Status Act, 2000, is more complicated than that so far discussed. Section 9 of the Act effects a considerable limitation on the sort of club which can be considered “a discriminating club”. The text of this Section may be summarised as saying that a club is not to be considered a discriminating club, notwithstanding the terms of s.8, if
“its principal purpose is to cater only for the needs of –
(i) Persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,
(ii) Persons who are members of the traveller community, or
(iii) Persons who have no religious belief,
it refuses membership to other persons.”
The club’s primary defence to the Authority’s claim is that it falls within this exclusion. It is agreed, sixthly, that the nature of s.9(1)(a) is that it is a proviso, cutting down or limiting the scope of s.8.
The nub of the case.
It will be seen immediately that s.9 positively permits a registered club to maintain its registered status (and thus the right to make alcohol available) if its principal purpose is to cater only for the “needs” of one of the twelve groups mentioned in s.9. This list of groups is a broad one and permits, for example, exclusive clubs (that is, clubs which exclude certain people from membership) for persons of a particular gender (i.e. ladies or gentlemen), sexual orientation i.e. gay or “straight”, religious belief, such as Catholic, Protestant or Jewish etc. or, on the other hand, lack of religious belief, marital status (i.e. a club for single or married persons, or husbands or wives), family status, nationality or ethnic or national origins, and members of the travelling community (though not of the settled community).
With the exception of this last category, the Section is carefully non-discriminatory, treating mens’ clubs and ladies’ clubs, gay clubs and “straight” clubs, Catholic clubs and Jewish clubs etc., all alike.
It appears from the note on the Equal Status Act, 2000 in the excellent “Statutes Annotated” series that s.9 in its present form became part of the present Act (which itself is a revised version of a measure of the same title of 1997 which had been found unconstitutional on a reference under Article 26 of the Constitution), because of fears that, without such a provision, the interference with the right of free association constituted by s.8 might lead to that Section’s being declared unconstitutional. This view is more fully discussed below, as are other aspects of the annotation.
The very first exempted category, “persons of a particular gender” would appear to take any ladies club or gentlemens club out of the category of “discriminating club”. This, clearly, was a major obstacle in the way of the Equality Authority when it sought to have Portmarnock Golf Club condemned as a discriminating club. But the Authority has advanced an argument of considerable intricacy and ingenuity, which is at the heart of the first above entitled action.
The Authority emphasises the introductory words of s.9(1)(a) of the Act of 2000 (“if its principal purpose is to cater only for the needs of…”). On the basis of this form of words, the Authority agrees that s.9(1)(a)(i) would certainly permit the existence of a club exclusively for ladies or for gentlemen. But, the Authority says, it would not permit the existence of, for example, a ladies book club or a gentleman’s golf club. This is because, says the Authority, books, or golf, are not a “need” of persons of either gender considered only as persons of that gender and omitting all other individual characteristics. The authority says it is necessary to do this because the structure of the Section means that the “needs” must be a need of the exempted category (gender etc., homosexuality, traveller status) “as such”. This appears to imply that the “need” must be a need of all men, women, travellers etc. Many ladies may take an interest in the reading and criticism of books, and many gentlemen in golf or vice versa. But neither activity is so marked a characteristic of either gender as to make it a “need” of persons of that gender as such. “Needs”, the Authority further argues, relates solely to absolute necessities, like air, food and water and not to social, cultural or recreational preferences, however central or important to an individual they may be. This, they say, is the literal meaning of the word, and golf is not within that meaning. Therefore, said the Authority, the club is not within s.9. Therefore, it is a discriminating Club under s.8. In consequence of that, in the light of the Act, the members must lose the right to consume alcohol on the Club premises. That is the Authority’s case. The Attorney-General dissents as, of course, does the Club. That is what the case, as argued on this appeal, is about.
Before turning to the substance of these matters, it is necessary to explain certain preliminary and procedural aspects of the case, which has taken on a somewhat complicated form in terms of the pleadings and the decision of the High Court.
Preliminary and procedural matters.
The first above entitled action concerns an attempt by the plaintiff, which is a statutory body, to impose the unique sort of sanction described: – a penalty for doing something quite lawful – above on the defendants (who are a registered Club and those responsible for its management), because the authority feels obliged by the terms of the Act to disapprove of the nature and constitution of the Club and considers that it is a “discriminating Club” within the meaning of a statute considered at length below. The High Court found against the authority and this is their appeal. In the course of this judgment it will be necessary to consider the nature and the history of the Equal Status Act, 2000, and of certain other transactions and measures as well. It will become clear that the actions raise veryfundamental questions to do with the constitutional rights of citizens to associate with one another, and the powers of the State to regulate, penalise, or discourage such association and cognate matters, including the right to associate for purposes disapproved of by the political establishment, or by the “great and the good” in Government, the media, the quangos and elsewhere.
The second above entitled action, in which the Club’s trustees are the plaintiffs and the Equality Authority, the State and the Attorney General are defendants, is the Club’s challenge to the constitutionality of certain portions of the Equal Status Act, 2000. However, this issue of the statute’s constitutionality will arise only in the event of the Equality Authority’s construction of s.9 of the Act being upheld by the Court. As we shall see, the High Court has rejected that construction but the learned trial judge nevertheless went on to make certain “comments” on the constitutional issues. These matters are set out in more detail below.
Interpretation consistent with the Constitution.
In the ordinary course of events, many of the constitutional considerations mentioned above would arise only in the constitutional action. However, in resisting the Authority’s appeal from the High Court judgment, the Club has relied on the proposition that, having regard to the constitutional guarantee of freedom of association, set out below:
“… the right of freedom of association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it.” (per McCarthy J. in NUJ v. Sisk [1992] 2 IR 171).
This submission was construed by the Attorney General (paragraph 4 of his submissions) as “the invocation of the double construction rule by the Club” and, says the Attorney, it requires him to deal to some extent with the interpretation of certain Sections of the Act. This is a matter of some importance because, as will be seen, the Attorney General’s interpretation of s.9 of the 2000 Act in light of the Constitution is not the same as the Equality Authority’s. He does not share the view that a Ladies Golf Club or a Mens’ Book Club is ipso facto outside the scope of s.9.
Accordingly, I have thought it appropriate to set out later in this judgment, before construing s.9, one or two aspects only of the constitutional context in which the facts of the present cases and the details of the statutes referred to must be considered. These provisions are the inescapable context of every part of this case. But in the first action, their importance is limited to their effect on questions of construction.
(C) The statutory framework: context and detail.
(i) A striking omission.
The origin of this case is the Equality Authority’s objection to the fact that Portmarnock, by its rules which are more fully quoted below, restricts membership to “gentlemen” who can comply with the rules of amateur status. The Club is, the court was told, one of only two Golf clubs in Ireland who limit their membership in this way but it is a matter of such concern to the Authority that, rather than leaving the members alone to work out their own salvation, or to using their statutory power to evolve a Code of Practice, they instituted proceedings against the Club and others in the District Court. This is all the more surprising in view of the fact that the Equality Authority itself appears to be in obvious and unexplained breach of its own obligations under the statutory regime.
This must be explained in some little detail before considering the rest of the statute.
Section 56 of the Employment Equality Act, 1998 allows the Minister to require the Authority to prepare a draft code of practice in certain circumstances. This duty on the part of the Authority is couched in mandatory terms (“the Authority may, or if requested to do so by the Minister shall prepare for submission to the Minister draft codes of practice…”).
The Equal Status Act extended this provision to the context of that Act. Shortly after the passage of the Equal Status Act the Minister wrote to the Authority (23rd June, 2000) under the heading “IMPLEMENTATION OF THE EQUAL STATUS ACT, 2000: GENDER EQUALITY AND GOLF CLUBS”. The letter stated that the area was a complex one and that “the position of women in golf clubs generate a particular controversy…” and said that many golf clubs “operate dual structures with separate streams for men and women”. The Minister requested the Authority to draw up a code of practice on this issue.
As mentioned above, the Authority would appear to have been statutorily obliged to comply with the Minister’s request. This was not contradicted by the Authority. It appears simply to have ignored this legal obligation. No such code was produced prior to the commencement of the proceedings or, as far as the court is aware, since.
This point was trenchantly made on behalf of the Club and is more than just a debating point. It is, in my opinion, quite extraordinary for a public body (especially in times of economic difficulty) to put the taxpayers to the expense of litigation, and to expose others to it, when it has manifestly ignored its own duty to produce a Code which might have avoided litigation. Furthermore, the Authority’s breach of statutory duty has the significant consequence that the Minister has not had the opportunity of approving or disapproving a code of practice in relation to gender in golf clubs. Nor is there any reason to assume that the Minister would adopt the Authority’s interpretation as put forward in this case: the Attorney General did not adopt the interpretation of s.9 of the Act by the Authority either in the High Court or on appeal.
Single Gender associations and clubs.
(ii) It is perhaps not surprising in view of the legal and constitutional citations set out elsewhere in this judgment that the Irish statutes do not in fact attempt to outlaw all discrimination in the membership criteria of private clubs or associations. The reason for this may be that ordinary social life, here and abroad, provides myriad examples of voluntary associations which cater exclusively for persons who originated in a particular place, whether in Ireland or abroad, or who are of a particular gender (ladies clubs; certain book clubs; sporting associations or groups whose members who are of a particular sexual orientation). There are groups which cater to the needs of persons who meet two or more of these criteria such as the gay mens’ Rugby Club, “Emerald Warriors”. Rugby, of course, is not a “need” of gay men as the Authority understands that term. It is not easy to think of any game or sport which is a “need” of gays, men or women “as such” as the Authority would have it.
To those un-attracted to golf, book clubs, or other forms of single gender association the prevalence of such bodies may seem strange. But that is not the test for the resolution of the present case. Strange or not, there are an enormous number of exclusively single gender bodies and there is some reason to believe that their number may be increasing. For example, in the Irish Times for Friday 4th March, 2005, Finola Meredith wrote an article entitled “Wanted: Single-Sex zones for our Sanity”. She canvassed the question “… as equality gradually gains force and impetus, will it become even more vital to preserve places where the sexes can stay separate, reaffirming their essential differences?”
She quotes Joanna McMinn, of the National Womens’ Council of Ireland who is said to think that “women only spaces offer an essential forum”.
She also quotes Mona Gardener the Dublin Federation President of the Irish Countrywomens’ Association, a body which (the court was told on the hearing of this appeal) is associated with the registered club entitled to serve alcohol at the Association’s premises is in Co. Louth, as saying “It’s still important for women to get together to have space and time for themselves.”
The largest and longest established womens’ group, the Irish Countrywomens’ Association (1910) has for its objects “to bring women together in fellowship and through co-operative effort to develop and improve the standard of rural and urban life in Ireland…”. Is this, one wonders, an activity of “women qua women” in the Equality Authority’s eyes? Would a similar organisation for men pass muster?
She again goes on to describe the activities of Voca Loca, an “all-women cappella singing group based in Belfast”.
She concludes by pointing out that single gender groups have attracted certain critcism:
“Yet it is evident that many women and men experience times in their lives when the company of their own sex provides a measure of comfort, solidarity or stimulation that can’t be found elsewhere”.
In fact, it would appear that the number of all-women groups is hugely greater than the number of all-male groups. There are, for example, said to be only two all-men (or all “gentlemen”) golf clubs in Ireland. But almost any directory provides pages of womens’ associations. There are networking associations for women in business, an association for women graduates and associations for women lawyers and even women judges. There can be little doubt that these bodies are, if they wish, legally entitled function on a single-gender basis. On another level, if one Googles “all-women book clubs,” one gets 1,400,000 (one million four hundred thousand) “results”. This, too, is perfectly legal.
There is, of course, an extremist point of view which considers that whereas all-women groups should be permissible, all-male groups should be banned. An example of this stern and discriminatory point of view in a legal context is Rhode, Association and Assimilation (1986/1987) 81 NW ULR (North Western University Law Review) 106. Whatever the merits or demerits of this view (and it is certainly, manifestly and unashamedly an authoritarian one), the fact is that it has no basis or purchase in Irish law because, as will be seen in the citations from the statute, the Irish emphasis is on gender equality and the Act of 2000 which will mostly be under discussion treats of discrimination, and is not concerned to mandate reverse discrimination, whether for constitutional or other reasons.
(iii) Whatever the reason for it, the fact is that there is no prohibition on the establishment on clubs or associations whose membership is limited to persons of a particular gender. Instead, the first above-entitled action raises in particular a question of the interpretation of s.9(1)(a) of the Equal Status Act, 2000. This is a complex provision, appearing in a complex portion of the statute, the Equal Status Act, 2000.
Section 9 is part of a three section portion of the Act, Sections 8 – 10 inclusive, which is addressed to clubs and in particular to clubs registered under the Registration of Clubs Act, 1904 – 1999. For practical purposes, the purpose of registration under those Acts is to permit the service of alcoholic drink on club premises. Section 8 of the Act permits a declaration by the District Court that a club is “a discriminating club” if, relevantly:
(i) It has any rule policy or practice which discriminates against a member or an applicant for membership, or
(ii) A person involved in its management discriminates against a member or an applicant for membership in relation to the affairs of the club.
By reasons of the definition Section of the Act (s.2), the verb “discriminate” means to discriminate within the meaning of s.3(1) or s.4(1) of the Act. Readers are referred to those provisions, and it would be otiose to set them out here. It will however be observed that s.3(2) sets out a number of specific grounds of discrimination including “the gender ground”, “the marital status ground”, the “family status ground”, the “religion ground”, the “age ground”, the “disability ground”, the “ground of race”, and the “traveller community ground”.
Returning to s.8, a person may apply to the District Court for that court to make a determination as to whether a club is or is not a discriminating club. The court may make an order determining whether or not the club is a discriminating club. The consequences of this order are set out in subsection (7)ff of the Section: if it is the first such order the court is required to order suspension of the club’s certificate of registration for a period not exceeding thirty days. But if it is a subsequent order the Club will not be entitled to renew its certificate of registration at all. It will be subjected to a punitive form of Prohibition.
The strikingly limited nature of this provision will be apparent. Firstly, it has no application whatever to clubs that are not registered clubs, for the purpose effectively of making alcoholic drink available. The draftsman appears to be saying, “We can’t stop you running a single gender Club, but we will try to arrange that you won’t enjoy it”, a strikingly puritanical attitude. Secondly, the Act nowhere prohibits the continued activity of a discriminating club: it may discriminate as much as it likes if it is prepared to refrain from making alcohol available. These aspects, however, as the Authority says, are the responsibility of the legislature. The next matter, which is the central topic for the court’s attention, is the terms of s.9 of the Act of 2000. Section 9 creates an exception to the broad power contained in s.8. Section 9(1) provides as follows:
“(1) For the purposes of s.8, a club shall not be considered to be a discriminating club if –
(a) If its principal purpose is to cater only for the needs of –
(i) Persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,
(ii) Persons who are members of the traveller community, or
(iii) Persons who have no religious belief,
it refuses membership to other persons.” (Emphasis added)
The effect of this Section was at the heart of the argument on the hearing of this appeal. A number of things are obvious about the Section, taken in its statutory context. Firstly, it permits a club to escape a penalty, and stigmatisation as a discriminating club, if its “principal” purpose is to cater “only” for the “needs” of varied categories of the community who are the subject of the list of “discriminating grounds” set out above and previously listed in s.3.
Thus, to take some grounds at random, the Act stigmatises discrimination between two persons on the ground that one is male and one is female. This is, by statute, to be referred to as “the gender ground” but, by s.9, a club will not be a discriminating club if its “principal” purpose is to cater “only” for the needs of persons of a particular gender.
Similarly, one may not discriminate between persons on the grounds that they are of different sexual orientation. This, by statute, is to be referred to as “the sexual orientation ground”. See s.3(2). But, by s.9, a club will not be a discriminating club simply because its “principal” purpose is to cater “only” for the “needs” between persons of a particular sexual orientation.
Strikingly, one may not discriminate between persons on the basis that they are “of a different race colour nationality or ethnic or national origin.” This, by statute is to be known as the “ground of race”. See s.3(2). But a club will not be a discriminating club, as a result of s.9, if its “principal” purpose is to cater “only” for the needs of persons of a particular nationality or ethnic or national origin.
Just as strikingly, s.3(2) prohibits discrimination against persons on the grounds of their religious beliefs (“the religion ground”) but a club will not be discriminating if it is to cater only for the needs of “persons who have no religious beliefs”, or who have a particular religious belief. Such a Club may discriminate by excluding all others.
On the hearing of this appeal counsel for the respondents, the Club, Mr. Donal O’Donnell S.C., gently mocked these provisions and pointed to certain aspects of them alleged to be ridiculous. Counsel for the Appellant Authority, Mr. Frank Callanan S.C., expressed his resentment at this and pointed out that the provisions of the Act were not the work of the authority but of the legislature and that the authority had to implement the Act as it stood. This is perfectly true. But the interaction between Sections 3, 8 and 9 is a subtle, complex and sometime surprising one. It appears to me to come down to this: one cannot discriminate on the ground, for example, of religious belief or the lack of it between two applicants for members of a club. But one can have a club whose principal purpose is to cater only for the needs of people of a particular religion or, on the other hand, of people who have no religious belief at all. In that latter event, one not merely can, but (as the Authority sees it) one must, exclude any applicants who have a religious belief because, to benefit from the exemption contained in s.9 one must as a principal purpose cater “only” for the needs of “persons who have no religious beliefs”. Similarly, one may not discriminate between applicants for membership of an association on the ground that one is, and one is not, a member of the travelling community. But one may have a club whose principal purpose is to cater “only” for members of the travelling community, which clearly requires that one should exclude persons who are not such members because if even a small number of the members are not travellers the Equality Authority may take the point that the club does not cater “only” for the needs of travellers.
The tensions between the sections mentioned seem to me to be at their greatest in relation to discrimination of ground of “nationality or ethnic or national origin”. The correlative of this, in s.3(2) is “the ground of race” set out in s.3(2)(h). By virtue of this, one cannot discriminate against a person by comparison with another person on the basis that “they are of different race, colour, nationality or ethnic or national origin”. But the exempting Section permits one to discriminate by having a club whose principal purpose is to cater only for the needs of persons of a particular nationality or ethnic or national origin. There is no exemption on the ground of race. The precise distinction in practice between “race” and “ethnic origin” is not clear to me but fortunately does not arise in the present case.
In this case, no individual has come to Court complaining about Portmarnock Golf Club or its constitution, which confines membership to “gentlemen”. But the authority made an application to the District Court under s.8, for a declaration that the club is a discriminating club, which is how the matter comes to be litigated. The authority were successful in getting a declaration that the club was a discriminating club in the District Court but the club successfully appealed by way of case stated to the High Court on this issue: the High Court held that the club was not a discriminating club by reason of the terms of s.9. From this latter determination the authority has taken an appeal to this court. Separately, Mr. Cuddy and Mr. Keane who are members of the club have commenced a constitutional action. The details of these separate actions will be considered below. The first, and perhaps the only, issue before the court is whether or not Portmarnock Golf Club is entitled to the benefit of s.9 of the Act of 2000.
(D) Statutory history.
The present Act is a revised version of a Bill of the same title of 1997 which was referred to the Supreme Court by the President of Ireland pursuant to Article 26 of the Constitution. Both the Employment Equality Bill 1996 and the Equal Status Bill 1997 were found to be unconstitutional. See Re The Employment Equality Bill 1996 [1997] 2 IR 321 and Re The Equal Status Bill 1997 [1997] 2 IR 387. In part the finding of unconstitutionality related to a provision for vicarious liability which would have exposed an employer to a prison sentence of several years duration in respect of discriminatory conduct by an employee of which he neither knew nor approved. According to the learned authors of the “Statutes Annotated” note on the present Act, s.9 was “intended to protect rights of freedom of association, the government having been advised by the Attorney General that the previous provisions does not sufficiently protect such rights”. The example given was that, in the absence of the present s.9(1)(a), the Freemasons, not being a religious body, could not avail of the previous protective measure. But the Freemasons, in the view of the annotators, “is a body which was set up to encourage interpersonal bonds of a fraternal nature and is thus par excellence a body of individuals who are exercising their constitutional rights of freedom of association”. Thus, it was said “it would be extremely difficult to justify in law a refusal to renew the Freemasons certificate of registration which is based, not on any drink related ground, but on a refusal to admit women”. The passage continues:
“The same logic extends to many other groups – lesbian and gay organisations, the ICA (Irish Country Womens’ Association), Traveller groups – who might well wish to exclude members of a particular category. There is no rational basis on which to suggest that such groups do not enjoy the same rights as others to drink together in the privacy of their own club”.
The note continues:
“This exemption therefore safeguards the right of freedom of association, by providing an exception from s.8 to clubs which have as their principal purpose catering for one particular class of persons”.
Structure of the Equal Status Act, 2000.
Firstly, the long title of the Act is as follows:
“An Act to provide equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for an investigating and remedying certain discriminations and other unlawful activities to provide for the administration by the Equality Authority of various matters pertaining to this Act, to amend the Employment Equality Act, 1998 in relation thereto and in certain other respects and to provide to related matters”. (Emphasis added)
The bulk of the Act deals with matters other than clubs. Though the structure of the Act is complex, and little has been done to simplify it, certain structural aspects are identifiable. Section 4 deals with discrimination on the ground of disability. Section 5, which is the first Section of general application, prohibits discrimination in the provision of goods or services to the public generally. But this prohibition is subject to a number of exceptions and qualifications. Section 5(2)(f) permits differences in the treatment of persons on the basis of gender, age, or disability, or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or a sporting event, to the extent that the differences are reasonably necessary to the nature of the facility or event and are relevant to the purpose of the facility or event. It may be important to note the basis on which such “differences” are not permissible: these are the balance of the “grounds of discrimination” other than those mentioned above viz. marital status, family status, sexual orientation, race or colour or membership of the travelling community. These aspects are mentioned here because of their possible relevance to the respondent club in the present proceedings, which is a mens or “gentlemens” golf club.
The Club.
According to the Authority’s submissions, Portmarnock Golf Club was established in 1884. Under the rules (Rule 3) the members of the club:
“… shall be gentlemen properly elected and who shall conform with the rules of amateur status, for the time being prescribed by the Royal and Ancient Golf Club of St. Andrew’s”.
They are, according to the same source, 626 members and 625 associate members of Portmarnock Golf Club. It is thus clearly a private club and not a pubic or commercial body.
Although women may not, according to the rules of the club, be members, they may play golf at the Club with or without a member on identical terms to those applicable to male non-members. There is thus no discrimination in the Club’s dealings with the public. This action concerns alleged discrimination in the Club’s private, internal arrangements.
From the rule quoted it is clear that members must be men, who are in a position to comply with the rules of the “Royal and Ancient” on amateur status, as widely recognised by golf clubs throughout the world. It is clear that the principal activity in the club is the playing of golf, though the playing of golf is not positively required of a member who might for example wish to be a social member of the club or might maintain his membership after he had for age or other reasons ceased to play golf.
Central Issue on the Statute.
The authority submitted that the key issue in the case is whether the club can avail of the exception provided in s.9 and I agree that this is so, in relation to the first action herein, that initiated by the Equality Authority. The authority contends that the club is not within s.9 because its principal purpose is not to cater “only” for the “needs” of persons of a particular gender. On the contrary, says the authority, the purpose of the club is to play golf or (more correctly) to provide facilities for the playing of golf, which cannot be described as catering for the needs of one gender only, or as a “need” at all.
The proceedings.
On the 10th June, 2003, the Equality Authority issued a Civil Summons in the District Court. The respondents to this were the club and its various officials and officers. This came before the District Court on the 28th November, 2003 and subsequently on the 19th January, 2004. In it the plaintiff claimed a determination that the Portmarnock Golf Club was a discriminating club for the purpose of s.8 of the Act and an order suspending the registration of the club for a period not exceeding thirty days. It also sought an order for costs against the Club.
On the 20th February, 2004, District Judge Collins made the determination that the club was a discriminating club. Reasons for this decision were given on the 20th February, 2004, concluding:
“The principal purpose of the club is to play golf. The ordinary words of the terms of the statute do not ascribe to mens golf as a special need (sic). A literal approach is appropriate in this case and therefore cannons of construction are not needed. I propose to rely on the presumption of constitutionality”.
On the 11th June, 2003, Messrs. Cuddy and Keane, the trustees of the club issued proceedings against the Equality Authority, Ireland and the Attorney General, claiming a declaration that the club was not a “discriminating club” and in the alternative, a declaration that if the club is correctly considered to be a discriminating club, then the provisions of Sections 8, 9 and 10 of the Equal Status Act are invalid, as being inconsistent with the Constitution. These are the second proceedings in the title to the present case, and were clearly by way of reaction to the proceedings stated by the Authority.
Subsequently, on the 10th September, 2004, the club appealed to the High Court from the decision of District Judge Collins by way of Case Stated, “being dissatisfied with her decision in point of law”. In June, 2005 O’Higgins J. delivered a judgment on the case stated in which he upheld the club’s submissions as to the construction of s.9 of the Act of 2000. However, notwithstanding this decision, and the fact that the club’s claim to unconstitutionality was specifically conditional upon the authority’s construction of the Act of being upheld, the learned trial judge nonetheless proceeded to express his view on the constitutional issues as well. The reason why he did this are set out at p.22 of the judgment. He acknowledged that it was “unnecessary” to decide the case on constitutional grounds and there is ample authority that in those circumstances “that the court should not do so”. But he went on to say that “in deference to the arguments made in this court and for the purposes of expedition in the event of a different conclusion being made elsewhere, I consider it appropriate to make some comments on the constitutional arguments”. These were comments addressed to the constitutional repercussions of a finding that the interpretation contended for by the Club “were not accepted by the court”.
The “comments” on the constitutional issues in fact constitute the bulk of the judgment, twenty-four of its forty-six pages being devoted to the constitutional issue.
The High Court Order.
The relevant portion of the High Court Order is as follows:
“IT WAS CONSIDERED AND ADJUDGED that the said judge of the District Court was wrong in point of law in her determination and order set out above.
THE COURT DECLARED that by reason of the provisions of s.9 of the Equal Status Act 2000 the Portmarnock Golf Club shall not be considered a discriminating club for the purposes of s.8 of the Equal Status Act, 2000 and ordered accordingly”.
The court went on to order that the plaintiff in the case stated (the authority) pay to the defendants their costs when taxed and ascertained and that the plaintiffs in the second-named action (the club and its officials) pay to the State its costs of the constitutional Action.
It thus appears that, although the learned trial judge discussed at length the constitutional arguments, no order was made as to the constitutionality of the statutory provisions, though an Order for the costs of this issue was made.
Following this decision, the Equality Authority by an undated Notice of Appeal appealed to this court “against that part only of the judgment and order of the Honourable Mr. Justice O’Higgins of the High Court which judgment was delivered on the 10th June, 2005 and which order was made on the 15th June, 2005 and perfected on the 26th July, 2005. Mr. Justice O’Higgins gave judgment on the appeal by way of case stated from Mary Collins, Judge of the District Court pursuant to s.2 of the Summary Jurisdiction Act, 1857 as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961 [being the section of the judgment entitled ‘interpretation’] at pp6 to 22 of the judgment”.
Although this notice is not strictly grammatical, it is clear that the appeal of the authority is limited to the learned trial judge’s determination on the interpretation of s.9. In light of this appeal by the authority, the club and its officials by Notice of Appeal dated the 19th August, 2005 appealed “from that part of the judgment and order of the High Court (Mr. Justice O’Higgins) delivered the 10th June, 2005 in which, not withstanding its judgment and order on the issues of interpretation of Sections 8, 9 and 10 of the Equal Status Act, 2000, the court proceeded to consider and deliver judgment on the constitutional and other arguments raised by the plaintiffs in relation to the validity of the 2000 Act and rejected the plaintiffs challenge to the validity of those provisions having regard to the provisions of the Constitution”.
In the alternative, the club contended that the judgment should be varied “having regard to the filing by the Equality Authority of the Notice of Appeal from the interpretation section of the judgment. The club contends that the learned trial judge ought not to have proceeded to consider the constitutional issues.
I have set out the foregoing history of the proceedings in order to explain the somewhat complicated position which now arises in relation to the two portions of the High Court judgment. It is appropriate to resolve the appeal by way of case stated before deciding what is to be done in light of the two notices of appeal. Neither party appeared to dissent from this approach.
(E) The High Court decision on the interpretation of the statute.
The learned High Court judge observed, at page 7 of the judgment, that:
“It is not in dispute that Portmarnock Golf Club comes within the s.8(2)(ii) and is subject to the provisions of s.8 of the Act as being a ‘discriminating club’ unless it falls within the exemptions provided for in s.9”.
He then proceeded to set out and summarise the effect of the provisions of s.8 of the Act. He then, at p.8 of the judgment, quoted a media statement issued to the Press by the Equality Authority drawing attention to the launch by it of the District Court proceedings as follows:
“There are separate and distinct provisions of the Act in relation to clubs which hold [a] certificate of registration under the Registration of Clubs Act. The Equal Status Act, 2000, does not render unlawful discrimination in registered clubs. Registered clubs are allowed to discriminate and male only clubs are allowed. The Equal Status Act, 2000, does however impose a significant sanction in relation to such clubs”.
It may be observed that it is a very partial statement of the law to say that “male only clubs are allowed”. That statement is true but it is also true, but not said, that female only clubs are allowed as are gay or lesbian only clubs, traveller only clubs, clubs limited to persons of a particular ethnic or national origin, and clubs limited to persons without religious beliefs as well as other exclusive clubs. It is also significant that the Authority, in the statement it later issued to the media after the District Court case, proclaiming its victory, described the consequence of a finding that a club is a discriminating club as “a significant sanction”. On the hearing of this appeal, the authority conceded again that the determination that a club was a discriminating club, and the consequences of that decision for its certificate of registration, were in the nature of a penalty.
What Clubs are within s.9?
The learned trial judge then set out the relevant terms of s.9(1)(a) of the 2000 Act and continued as follows:
“In effect, the Section exempts clubs from the provisions of s.8 of the Act in certain circumstances. The major issues in these proceedings involve the interpretation of s.9. In particular both parties argued as to the correct interpretation and meaning of the [phrase] ‘principal purpose’ in that Section. The plaintiffs on behalf of Portmarnock Golf Club argue that the principal purpose of the club is to cater only for the needs of persons of a particular gender that is male golfers. The club refuses membership to any other persons. They contend that on a proper construction of s.9 (1)(a) of the Act the club is not and should not be considered to be a discriminating club for the purposes of s.8 of the Act of 2000. The District judge rejected this argument and held that because the principal purpose of the club is to play golf it did not fall with any of the exemptions provided for in s.9 of the Act. The interpretation of s.9 is the core of the case made by the plaintiffs.
… It is important to note that the Equal Status Act, under s.8, specifically exempts from being ‘discriminating clubs’, certain single gender clubs thus any assertion that it is somehow impermissible to have a male only or female only club is not an issue having regard to the specific provisions of the Act. The question therefore is not whether the legislation permits single gender clubs – it manifestly does – but whether the Portmarnock Golf Club is one of the type of single gender clubs envisaged by s.9 of the Act”. (Emphasis added)
The learned High Court judge then, at page 10 of the judgment, summarised the contentions made on behalf of the Authority, and those made on behalf of the Attorney General, which were somewhat different. He said:
“It is submitted on behalf of the Equality Authority, however, that there must be some logical nexus between the objectives of the club and the category of persons catered for in order for the s.9 exemption to apply. In the case of a single gender club it is argued that there must be a logical connection between the gender and the objects of the club. The Equality Authority also submits that the words are clear under the principal purpose of a golf club is clearly not to cater for the needs of persons of a particular gender but rather to play golf. On that basis the s.9 exemptions do not apply to the plaintiffs. It is also submitted that the playing of golf does not constitute a ‘need’ of men, therefore a golf club cannot be said to be catering for the ‘needs’ of men as is required to come within the exceptions provided for by s.9 of the Act.
The Attorney General adopts a somewhat different approach to exemption from the provisions of s.8. It is conceded by him that a gentlemens club or ladies club – and not only those confined to those whose objects had a logical connection with male or female – could be exempt from the provisions of s.8. It is difficult to see how a ladies club or a gentlemans club might be exempt from the provisions of s.8 while a gentleman’s golf club or a ladies golf club cannot avail of such exemptions”. (Emphasis added)
The learned High Court judge considered it “instructive and helpful” to ask what kind of single gender clubs are contemplated by the Act as falling into the exceptions specifically provided for in s.9. He pointed out that the learned District judge did not address this issue. He continued:
“Although the Equality Authorities submitted that there must be a logical connection between the objects of the club and gender, it is significant that the court was not provided with any example of an existing club of that type. No convincing example was given of any theoretical club which might fall within the definition contended for by the Equality Authority”.
This position continued to obtain on the hearing of this appeal. Indeed, it was a feature of the case that the Equality Authority could not provide either an example of an existing club, (other than “perhaps” the Freemasons) which would fall within the exception. Mr. Callanan S.C. however submitted that it was unnecessary that there should be any existing or even any imaginable club which falls within the exception: the legislature may have been providing for some theoretical future development. Mr. Callanan also said that the club had equally failed to give an example of a single gender club which would fall outside the exemption, though it occurs to me that a club which quite explicitly, according to its own constitution, had an obligation as a principal purpose to cater for needs other than those of the members might do so.
Meaning of “needs”.
The judge said that the Equality agency had adopted the finding of the District Justice that “the ordinary words of the statute do not ascribe to mens golf a special need” and that “the golf club did not cater for the needs of men”. He said:
“[This] would in my view be readily acceptable were the definition of the word ‘needs’ to be construed very narrowly to mean only ‘requirements’ but the definition as set out in the District Court decision also extends to ‘that which is wanted’- a much broader and less stringent criterion than ‘requirements’. It is in my view an unduly stringent interpretation of the word ‘needs’ and would render quite meaningless the s.9 based exemption in the case of persons of a particular nationality or ethnic or national origin (another category of persons encompassed by the provisions of s.9). It is difficult to see how persons could have different needs based on nationality if the word ‘needs’ were to be construed narrowly as being ‘requirements’. For example, in the case of an Italian national it is difficult to see what his or her requirement referable only to nationality might be that would differ from the requirements of non-Italians if the word ‘needs’ were to be narrowly construed. Indeed counsel for the Equality Authority rightly conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a ‘particular nationality, or ethnic or national origin’ the word needs would have to be construed broadly so as to include the cultural needs of the nationality in question. I agree. However, if the word needs is to be interpreted in such a non-restrictive fashion in relation to clubs catering for persons of a particular nationality, it cannot be given a more restrictive interpretation when applied to single gender clubs in the same Section of the Act. I cannot see how cultural needs fall within the definition of needs in relation to persons of a particular nationality while at the same time the sporting needs in relation to persons of a particular gender would be excluded. There are even those who go so far as to equate sport with culture although – perhaps fortunately – that argument was not advanced in the present case.”
The learned trial judge considered and rejected an argument that s.9, if interpreted as the club wished, would deprive s.8 of most of its efficacy. He pointed out that it was a clear purpose of s.9 to exempt some registered clubs from s.8: this exemption was itself part of the statutory scheme. The exemption, on the evidence, extended only to a very limited class of bodies on the evidence and had no effect on the vast majority of clubs. The authority had urged the learned trial judge to adopt a “purposive approach” to the statute in interpreting its provisions. This, said the club, mandated the adoption of a “wide liberal interpretation”. This was an odd submission from a party who needed the narrowest and most rigid interpretation of the term “needs”. The learned trial judge held that such an approach “is of little assistance in the interpretation of the provision of s.9 and in particular in deciding what type of single gender clubs were encompassed by its exemptions… the principle of equality does not assist in ascertaining which clubs are within the exemption. Considerations of gender equality are of no assistance in interpreting s.9 because the provisions of s.9 apply equally to all single gender clubs and not only to men only clubs… the Act therefore does not treat men any differently than women and therefore cannot be said to discriminate against women”.
The learned trial judge considered it important that the long title of the Act (set out earlier in this judgment) described it as an Act to prohibit “types of discrimination…”. It was not designed to prevent “all types of discrimination” and in fact by s.9 specifically exempted from the provisions of s.8 clubs which discriminate on gender and many other grounds.
The learned trial judge concluded that the contention of the golf club made for an intelligible reading of s.9(1)(a), which was straightforward and easy to reconcile with the purposes of the Act. It did not undermine s.8 but qualified its provisions in an understandable way in relation to clubs coming within a particular category. He considered it significant that the court has given no example of an existing club which would fall within the exemption provided by s.9 on the Authorities interpretation. Nor was it given a plausible example of any club which, even in theory, would fall within the Authority’s definition. He rejected the authority’s contention as to the meaning of the term “needs” and said that it amounted to reading words into the statute. He concluded (at p.21):
“The promotion of equality and the prohibition of types of discrimination – the express purposes of the Act – are legitimate and laudable goals of legislation. The interpretation of s.9 as contended for by the golf club does not in my view in any way undermine those aims, but rather recognises the fact that there is nothing inherently undesirable with persons seeking – in a social context – the society of persons of the same gender or the same nationality or the same religion. In a tolerant and free and increasingly diverse society it is not surprising that the type of exemptions envisaged in s.9 were enacted. As a result of which – in terms of registered clubs – it is permissible to have – exclusively – a bridge club for Bulgarians, a chess club for Catholics, a wine club for women and a golf club for gentlemen. In my view too, the significant omission from the s.9 based exceptions of exceptions based on race and colour serves to reinforce the plaintiff’s argument for their interpretation of the Section”.
On p.22 the learned trial judge specifically held that the principal purpose of Portmarnock Golf Club “is to cater only for the needs of male golfers and therefore comes within the exception to the provisions of s.8 provided by s.9.
Submissions on appeal.
On the hearing of this appeal the submissions on behalf of the Equality Agency were very similar to those summarised by the learned trial judge. In certain respects, however, the Authority contended for a more rigid interpretation of s.9(1)(a) than that which it had advanced in the High Court. It reiterated that the term “needs” referred to things which were absolutely necessary and did not extend to catering to the social, cultural or similar preferences of people within the groups for whom discrimination is legitimated by s.9. The Authority argued, as it had to by virtue of the plain meaning of the Act, that a club exclusively for Bulgarians and which could therefore exclude non-Bulgarians, was permitted by the statute but it claimed that the learned trial judge was quite wrong to say that a Bulgarian Bridge Club i.e. a bridge club for Bulgarians was permitted. Bridge was not a “need” of Bulgarians or, presumably, of anyone else. The Bulgarian Club would have to content itself with bringing together Bulgarians. If it had another purpose, such as the playing of bridge (or presumably backgammon, baccarat or bingo) it would cease to enjoy the benefits of s.9 because it would not be catering “only” for the needs of Bulgarians as such. Similarly, a gay mens club would manifestly be within the exemption provided by s.9 but a gay mens Rugby club would not because rugby is not a “need” of gay men “as such”, as the Authority interprets “need”. Equally, a ladies club would be quite legitimate and within the meaning of s.9 but a ladies drama club or book club would not be legitimate because the production of plays or the reading or discussion of books is not a need of ladies as such. The Equality Authority went further. A club which openly described itself as a ladies drama club or a ladies book club would loose the benefit of s.9 for the reasons summarised above. But a ladies club which did not so describe itself but which in fact engaged in the production of plays or the reading and discussion of books might become a “discriminating club”, by loosing the protection of s.9, simply because their actual practises, if not their rules, demonstrated that they were catering to needs other than the needs of ladies “as such”. Mr. Callanan was prepared to concede that a ladies club which produced one play in the course of a year or which facilitated the reading and discussion of one book in the course of the year might escape the loss of the protection of s.9 but if it did more than that it would be vulnerable. In other words, said Mr. Callanan, one could indeed arrange to a be a member of a club or association composed exclusively of members of one’s own gender, or sexual orientation, or sharing one’s own absence of religious belief or of the same nationality or ethnic origin as oneself. Furthermore, one could avail of the protection of s.9, thus enabling this exclusive body to make drinks available. But the club could do absolutely nothing more than bring members of the exclusive club together and serve drinks. If, when together, they played indoor or outdoor games, put on a play, discussed a work of literature, had a wine tasting or any of a myriad of such common activities they must loose the protection of the Section because none of these things are “needs” of the gender, racial group, gay or lesbian community as such. That is why, the Authority said, there is protection for a gay or lesbian club but none for a gay rugby club.
This approach seems to me to require the Court to add words to the statutory exception, which I would decline to do. The legislature has specifically not employed the words “as such” on which so much of the Authority’s case is based.
Mr. Callanan emphasised that, in the context of this litigation, it was not for the court, or the club, or even for the Equality Authority, to form or express any view as to whether these provisions were sensible, reasonable, fair or constructive. The authority, he pointed out, did not write the legislation: it had to operate it. It had formed the view that the interpretation set out above was the correct interpretation and that was all that mattered. This was the law which the legislators had produced and it fell to be interpreted according to the ordinary cannons of construction. These, of course, forbid the Court to add words to the Statute.
In the course of argument, Mr. Callanan agreed that the effect of being found “a discriminating club” was to impose a penalty or sanction on the club.
Many Irish statutes, as is well known, may resemble those which have addressed similar problems in other jurisdictions, notably the United Kingdom, or at a broader level notably in the law of the European Union. Mr. Callanan however confirmed that, so far as his client was aware, the present statute has no exemplar anywhere in the world. But it is, of course, an attempt to deal with a particularly Irish dilemma, the reconciliation of a desire to outlaw some types of discrimination with a well established constitutional right of freedom of association, even association on a discriminatory basis.
On the hearing of this appeal, as in the High Court, the Attorney General did not adopt the submissions on the construction of s.9 put forward by the EqualityAuthority. As recorded by the learned trial judge, the Attorney considered that a ladies book club or a gay rugby club would be permissible under s.9, and did not consider that to avail of the exemption required that the ladies, or the gays or whatever group was in question would have to limit their association to enjoying their own company without enjoying any activity together. But the Attorney emphasised that this matter was not really for him: he was primarily concerned with the constitutional action. But he did not think that a gentlemens’ Golf Club was ipso facto outside s.9, as the Authority did. The High Court judge agreed with him.
(F) Nature of the change in the Authority’s position.
The case for the Authority was as subtly formulated and as cleverly and carefully thought out as the nature of the case, and in particular of the statutory provision, permitted. It is thus quite certain that there is nothing fortuitous about the change in the Authority’s position briefly noted above.
The structure of s.9(1)(a) is a unitary one. It provides that exclusive clubs of certain specified kinds (twelve in all) shall not be considered to be a discriminating club simply because, its principal object being “to cater only” for the needs of members of one of the twelve classes set out in subparagraphs (i), (ii) and (iii), it refuses membership to other persons. It would not vitally affect the structure of the Act if there were, for example, only ten or as many fifty categories of persons mentioned in the Section.
In the High Court, the Equality Authority conceded at one stage that in the case of some of these categories – those whose principal purpose was to cater only for the needs of persons of a particular “nationality or ethnic or national origin” the word ‘needs’ would have to be construed broadly so as to include the cultural or recreational needs of the nationality in question. But, it then said, the word should be differently and more rigidly interpreted as it applied to the gender category even though the word “needs” is the same and the gender category is provided in the same Section of the same Act as provides the nationality etc. category.
On the hearing of this appeal, however, it was not submitted that the word “needs” should be more loosely construed in relation to one category of person rather than another. On the contrary it was submitted that it should be rigidly construed in relation to all the categories: no exceptions. Thus, since the Authority wishes to contend that only a gentleman’s club, and not a gentleman’s golf club, is protected by s.9 it is constrained to argue, by the same token, that only a ladies club, and not a ladies book club, and only a gay club, and not a gay rugby club, enjoys the protection of the Section. This it did, thereby avoiding the difficult position of contending (as it did in the High Court) that the same word “needs” in the same Section and subsection of the same Act should be interpreted in a broad way in favour of persons who wished to associate exclusively with people of the same nationality or ethnic or national origin, but in a narrow way, so as to mean something like “absolute necessities or requirements” against those who wish to associate with persons of the same gender. On the other hand, it is this change of position that compels him to argue that a ladies club, like a gentleman’s club, can cater for no need whatever other than the need for single sex association: drama production, literary criticism, or for that matter knitting, flower arranging or backgammon or golf cannot feature amongst the needs of members for which a ladies club may cater, or a gentleman’s club either. This is a view of extraordinary rigidity. I would not adopt it unless compelled to do so by clear words.
(G) CONSTRUING THE SECTION.
Constitutional context.
There is, both in Ireland and elsewhere, a rich and somewhat complex body of case law and academic writing on the question of freedom of association. If it becomes necessary to consider the Club’s constitutional challenge to portions of the 2000 Act, then it will be necessary to explore this body of law in considerable detail. However, the Club’s constitutional challenge is expressly pleaded as arising only if the Equality Authority’s construction of s.9(1)(a) of the Act is upheld by the Court. In the event that the Club’s interpretation is upheld, the constitutional issue will not arise at all. In that event, the question of what to do about the High Court judgment and order in that context will be considered later.
It is of course necessary to interpret any statute in a manner which is consistent with the Constitution. In the view which I take of the plain meaning of the statute, it is unnecessary to have regard to the constitutional context, except perhaps in one regard. Accordingly I intend to refer to very little of the well established Irish Case Law on freedom of association. Indeed, I think it is sufficient for present purposes simply to set out the constitutional provision on freedom of association and to quote (literally), a single sentence from one of the leading cases on the subject.
Article 46 of the Constitution provides as follows:
“(1) The State guarantees liberty for the exercise of the following rights, subject to public order and morality…
(iii) The right of the citizens to form associations and unions
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.
(2) Laws regulating the manner in which the right of forming associations and unions and the right to free assembly may be exercised shall contain no political religious or class discrimination.”
It will be noted that the foregoing provisions do not purport to create the right to freedom of association but merely guarantee liberty for its exercise. The right to freedom of association is a pre-existing natural right, inhering in human kind by virtue of its rational and social being and is essential to the exercise of various other rights such as the right to engage effectively in political speech, to organise for industrial purposes or otherwise, to take part in elections, to participate in sporting or cultural events, and many more.
The judicial dictum to which I have referred above is from National Union of Railwaymen v. Sullivan [1947] IR 77. Expounding Article 40.6 of the Constitution the Court concluded that:
“Each citizen is free to associate with others of his choice for any purpose agreed upon by him and them.”
The significance of this important finding will become clear when the Equality Authority’s submissions are considered, below.
Interpreting the Section.
Following the approach to statutory construction advocated by Mr. Francis Bennion in his classic work on Statutory Interpretation I identify the unit of inquiry for present purposes as s.9(1)(a) of the Equal Status Act, 2000. One then turns to the nature of that provision: it is clearly a proviso cutting down the effect of the terms of s.8 of the same Act, which allows the District Court to make a declaration that a Club is a “discriminating club” in certain circumstances. The mechanism of this proviso is to declare that a Club shall not be considered a discriminating club by reason only of the fact that it refuses membership to persons outside a particular category, if “its principal purpose is to cater only for the needs” of twelve classes of persons. As we have seen earlier in this judgment the first of these exempted categories are “persons of a particular gender”.
In the novel and ingenious argument advanced on the part of the Equality Authority, emphasis is placed on the introductory words of sub-paragraph (a) of the above Section:
“If its principal purpose is to cater only for the needs of … persons of a particular gender.”
Since there are only two genders to which a person may belong, the last few words plainly mean that it is quite lawful to have a club which discriminates in those who may be members, if its principal purpose is to cater only for the needs of men or of women. In the first instance one may exclude women; in the second, one may exclude men.
This is a comparatively simple situation compared with that which arises with some of the other exempted grounds. Words like “a particular sexual orientation” equally posits the duality of homosexual and heterosexual. But the provision relating to “a particular religious belief” plainly opens the door to the exclusive social organisation of persons of a potentially enormous number of religious beliefs particularly if variants of the main religions are taken into account. Similarly, “age, disability, nationality, or ethnic or national origin” opens a door to the possibility of a separate social organisation in clubs or societies of an enormous variety of people. On the other hand, the category of “persons who are members of the Traveller community” and are thus permitted exclusive social organisation with alcohol by s.9, are easily identified at least in principle and the last remaining category, “persons who have no religious belief” seem simple and unitary, at least by comparison with the enormous number of individual religious beliefs which may need to be considered.
The second obvious point I wish to make is that each and every one of the categories mentioned above is treated alike in the Act. This is now agreed. The Equality Authority at one point contended that the Act should be differently and more broadly interpreted in dealing with the “nationality or ethnic or national origin” category than in dealing with the others but at the hearing abandoned that argument and now contends, correctly in my view, that each of the categories is to be treated in the same way and the Section interpreted in the same way in relation to each of them. This is quite a significant matter.
Thirdly, it follows from the last proposition – that all of the exempted categories are to be treated in the same way under the Section – that an interpretation which would stigmatise a book club or a golf club exclusively for men as a “discriminating club” would equally stigmatise a golf club or a book club, exclusively for women. To look at this from the other point of view, an interpretation permitting a book club or a golf club exclusively for men will equally permit a golf club or a book club exclusively for women. Moreover, this equality of treatment is not confined to men and women: an interpretation along the lines contended for by the Club would enure to the benefit of a rugby club for gays, a bridge club for Bulgarians, a chess club for Catholics and so on.
Fourthly, it was eventually agreed on the hearing of this appeal that the words which make up Section 9(1)(a) are to be interpreted in their literal meaning, that is their ordinary and natural meaning. The difficulty in the case arises from the fact that, that though both sides were agreed on this, each side came up with a completely different result from applying what it said was the ordinary and natural meaning of the words.
“A logical connection”.
The Equality Authority’s argument started from the premise that one could not simply set up any kind of club and claim that it catered only for the needs of men, or of women, of gays or travellers, Africans or Indians, just because one confined membership to one of those groups. On the contrary, said the Authority, there had to be “a logical connection” between the purpose or activity of the Club and the gender, sexual orientation, religious belief, or other ground mentioned in the Section. This argument was expressed in another way in the course of argument in the High Court. It was said that one could plainly have an exclusive club for Bulgarians because of the express mention in the Act of “nationality”. But one could not have a Bridge club for Bulgarians because there is no logical connection between the game of bridge and the condition of being a Bulgarian. It was also expressed in a third way both in the High Court and in this court: it was said that the activity to which the Club was devoted had to be a “need” of women, or men, or Bulgarians, or gay people, or travellers etc. “as such”. According to this argument, in order for the Club to benefit from s.9 it would have to show that golf was a need of men “as such”. In its written submissions, p.21, the Authority expresses this as “the needs of men qua men”, which means, according to the Oxford Dictionary, “men in their capacity as men” (as opposed to men who happen to be fond of golf).
I have no hesitation in rejecting this argument, and on a number of grounds. Firstly, the statute itself does not require that the Club cater to the needs of travellers, or men, or women “as such” or “qua men (or women)”. For the Authority’s argument to succeed the Court would have to be persuaded to read into the statute the words “as such” or some equivalent and I can see no warrant for doing this.
Apart from this, I wish to draw attention to the patent absurdity of regarding any sporting or cultural activity of the sort to which clubs and voluntary societies are typically devoted, as a need of men, or of women, or of Bulgarians “as such”.
We shall see below that for many years now the term “needs” has applied to psychological and cultural as well as physical needs, although the Authority contended the contrary. A great many men play golf and no doubt for some of them the sport, and the social environment which has grown up around it will be counted amongst their “needs”. Equally, a great many women play golf and no doubt, for some of them, the same observation could be made.
Not being a golfer, I have no idea as to the proportion of men, or of women, for whom golf represents a need, an important part of their lives. But in neither case can their deep commitment to the game of golf be said to be “logically connected” to their gender. It is easy to think of many sports, pastimes and cultural pursuits which are seriously important to some persons of either sex. But it is quite impossible to say that any of these are a need of either gender “as such”. One either likes Grand Opera, or one does not. But whether one does or not is emphatically not a function of one’s gender. I would not have thought this obvious proposition worth writing down, were it not that the Authority does not appear to acknowledge its truth.
The ramifications of the view that the statute should be read as though those two words – as such – were added to sub-paragraph (a) are quite startling.
If a “need” is required to be logically connected to one of the eleven categories mentioned in the Section, it follows that it must be a need of, for example, of women “as such”, women qua women. If something is a need of women “as such” or “qua” women then it seems to follow that it is a need of all women. But this is manifestly ludicrous. However many women are devoted to golf, there must be a larger number who are quite indifferent to it. The same could be said of men. Sexual orientation is one of the grounds in which one may establish an exclusive club which would otherwise be “discriminating”. There is in fact a rugby club for gay men, Emerald Warriors, though I have no idea whether or not it is a registered club. It cannot seriously be thought that rugby is a need of gay men, or indeed straight men, “as such”. But this is precisely what the Authority says such a club would have to show to benefit from s.9.
Stereotyping.
The utterly reductive, nature of the Equality Authority’s submission can be illustrated from a consideration of the other parts of the relevant Section of the Act. If the “needs” referred to must be needs of “men as men”, then the phrase “needs” as applied to a ladies club must be the needs of “women qua women” and the needs of the members of a gay club must be the needs of gay men qua gay men, or gay men “as such”. Similarly, the needs of travellers must be the needs of “travellers as such” or “travellers qua travellers”.
At the hearing of this appeal the Equality Authority was utterly unable to suggest even one sport or game which would meet any of these formulations. Moreover, the very attempt to do so involves one in an exercise which is sexist, perhaps racist in some instances, and a crude attempt to stereotype. This is a quite extraordinary activity to be indulged in by an Equality Authority, or in the construction of a statute directed at equal status.
The fact is that the interests and activities of Irish citizens today are much more varied, and shared by a much broader section of the community, than ever before. Not long ago, it might have been thought that boxing was of interest (almost) exclusively to men: this is plainly untenable today, in light of the achievements of Irish female boxers such as Katie Taylor, who is a world Boxing champion. She may be in a minority amongst women in taking an interest in, and participating in, the sport, but that in no way disqualifies her from doing so or from being a member of a Ladies’ club formed for the purpose of boxing. Moreover, it should not disqualify such a club from becoming a registered club under the Act of 1904 as amended if it so desires. But, on the Authority’s submission, such a Club, to avail of s.9, would have to show that Boxing was a need of women qua women. And Ms. Taylor’s very existence as a world boxing champion also demonstrates that boxing is not a need of “men qua men” either. Like every other human activity, boxing is a need of some men and some women, not of all men or all women, and still less of men, women, gays, Bulgarians or travellers, “qua” men, Bulgarians etc.
The fact which the Equality Authority’s submissions ignore is that every sport game or cultural activity will be of great interest to some people, but none will be of interest to all people or even all people in a particular category. Even if one accepts that, for example, boxing is of interest to a much greater proportion of men than of women, that still leaves the irrefutable fact that it is not of interest to all men, or even to most men in any serious way. The Authority advances an interpretation which only has meaning if there is any activity that said can be a “need” of all men, women, married persons, single persons, persons with particular religion, persons of particular ethnic or national origin, or travellers. But this cannot be said because, in the real world, there is no such activity. The Authority can hardly be unaware of this basic fact. Therefore, in advancing the interpretation of the Act which it has, it is consciously attempting to empty s.9 of all meaning.
It was a remarkable feature of the argument in this case that the Authority was unable to give an example of even one existing Club which could benefit from s.9. The reason for this is clear: as the Authority interprets the Section there is no Club, anywhere, ever, that could benefit from it. Indeed, their argument is designed to emasculate the Section. I entirely agree with the observation of Mr. Justice Geoghegan in this case that:
“It seems reasonable to assume that an exempting Section such as s.9 was not dealing with purely theoretical and potentially non-existing clubs but was concerned with actual types of club which did exist within the State.”
I further agree with the same learned judge that:
“The elaborate draftsmanship of Sections 8, 9 and 10 with all their qualifications and exemptions etc. is clearly designed to avoid unconstitutionality having regard to the well established constitutionally protected right to freedom of association. I think it obvious that the Oireachtas was nervous and in my view,rightly nervous, of infringing that right.”
The same conclusion appears to follow from a consideration of what is said about the 2000 Act by the learned authors of the “Statutes annotated” commentary on it. It is not relevant to the present aspect of the case as to whether the drafter’s nervousness that the Act might otherwise be unconstitutional is justified or exaggerated, but the Section is plainly in the nature of a saver whereby certain clubs are exempted from the general fate of discriminating clubs. Against this background the Authority advanced a construction which empties the Section of all meaning: the category of clubs actually within the Section is empty, a “null set”, as one learnt that phrase in elementary mathematics.
For reasons expounded by Mr. Bennion in the work cited above, one must assume that statutory words have some meaning and make some practical sense. (Bennion, 858-866) I am therefore disinclined to adopt an interpretation of the Section which negatives both of these things. And I am certainly not prepared to read words into the Section in order to bring about this, to me, futile and thus absurd result.
Futility.
Since this latter point seems a significant one to me, as I believe it did to the learned trial judge, I will say a little more about it. Mr. Bennion, in part of the code-like series of propositions which compose his work says, at p.858 that “The Court seeks to avoid a construction that produces a futile or pointless result since this is unlikely to have been intended by parliament”. He comes to this conclusion on the basis of a scholarly consideration of the traditional cannons of interpretation such as lex nil frustra fecit, the law does nothing in vain. This maxim was affirmed as part of the common law of statutory interpretation in Halki Shipping v. Sopex Oils [1998] 2 AER 23 at 43/44. The statutory creation of a legally recognised category of entities which has not now, never had and can in practice never have, any members whatever is the very definition of acting vainly or futilely, as parliament is presumed not to do. I have no doubt that the Oireachtas is as much entitled to this presumption as the Westminster Parliament.
The foregoing conclusions are in no way central to my construction of the Section. Their importance is, they exclude the necessity to adopt a broad, purposive construction of s.9, as the Authority contends for, in the alternative. It is literally ludicrous to suppose that the Oireachtas would adopt this futile devising of a legal nonsense – a set of legal entities which could never have any member – when it could easily and be usefully have stated “it shall not be lawful to maintain a club which does not make membership available to persons of both genders”, if that was what it intended to do. I conclude that that was not what it intended to do.
A Club with no Activity
Having regard to the very considerable difficulty which the above considerations represent for the Authority’s case, they put the case in another, even odder, way said however to be a corollary of their first approach. If it is the case that there is no activity which could logically be described as a need of men, or of women, or of Bulgarians, “as such”, then, said the Authority, the effect of s.9 was that although the categories of persons mentioned in it could associate together in a discriminatory way, they could not engage in any activity at all when so associated. It was this that gave rise to their submissions in the High Court (which I regard as wholly artificial) that one could have a Club for Bulgarians but not a Bridge Club for Bulgarians.
As it appears elsewhere in this judgment I regard this interpretation as literally absurd. I have given certain examples of this absurdity. But considered purely as a legal proposition, this is the one aspect of the Authority’s case to the decision on which I think the constitutional jurisprudence may be a necessary aid. The citation above from NUR v. Sullivan makes it clear that persons may associate freely, and may do so for any purpose upon which they agree. I would gloss this only by saying that such purpose must of course be a lawful purpose.
I cannot see how a section which permits association on an exclusive basis to certain classes of persons can be read as requiring that they do not engage in any activity together once they are associated. This would nullify the right to association as it exists in Irish law: if there are no activities there will soon be no club, no matter which of the categories of persons mentioned in s.9 one is speaking of.
The Club caters for Women
The point is made that the Club in question here, Portmarnock, permits women to play golf on their premises and actually provides facilities for this. There is a suggestion that this is in some way inconsistent with their stances in excluding them from membership. This, too, is a grave misunderstanding. It is also said that this prevents the Club from claiming to cater “only” for the needs of men, and this is considered below. Indeed, for one of my colleagues this point is decisive. It is said:
“The fact that Portmarnock caters for women golfers as well as men is a relevant factor. I am satisfied that this is relevant in analysing the facts and in determining whether it is a club with a principal purpose ‘to cater only for the needs’ of men. Portmarnock caters for men and women. It caters more fully for men than for women but that is not the test set down by the Statute – which is to cater ‘only for the needs of’ men.”
For the reasons set out immediately below, and expanded upon later in this judgment, I entirely disagree with that submission. Portmarnock’s purpose, I am satisfied, is to cater for the needs of male golfers. It is necessary to distinguish between the Club’s purpose what the Club is obliged by law is to do. It is obliged by law to cater for the needs of women golfers, in as much as they are part of the general public. This is wholly irrelevant to the question of what the Club’s “principal purpose” is.
I find it difficult to see how the “purpose” of a body of persons can be defined other than by themselves. The fact that they are obliged by law to do other things as well can in no way be regarded as permitting a different purpose to that they have themselves associated for to be attributed to them. Equally, it is necessary to distinguish between “purpose” and “activity”. A club, as that term is understood in the English speaking world, is first and foremost an association of persons who typically share expenses of the maintenance of club property etc. Persons have been known to associate on the basis of various things they have in common which include, for example, nationality and religion. The vast numbers of ladies’ or womens’ clubs around the country plainly illustrate that they also associate on the basis of gender. But once associated they will naturally do something. This is true whether the Club is one for men, for women, for homosexuals, for pensioners or for primary school children. The activity which the Club elects to become involved in may be a matter of great interest for some of the members and little or none for others. Whatever it is, does not detract from the underlying purpose of the Club.
Female golfers are, of course, part of the general public. If a club, or any other sort of organisation, discriminates in its dealings with the general public, then it risks the sanctions created by s.5 of the Act. But that Section exists in the Act precisely for the purpose of regulating the Club in its relationship with the general public. The fact that the Club complies with the law laid down by the legislature in dealing with the general public in no way undermines its right to have a different arrangement in its own private and internal affairs, which is what s.9 permits. Indeed, the distinction which the Act clearly makes between dealing with the general public, and dealing with an organisation’s own private and internal affairs, to my mind considerably strengthens the case for the interpretation advanced by and on behalf of the Club. S.5 is discussed more fully below.
Doubtful penalisation.
It was agreed on both sides of the case that the suspension of a club’s certificate of registration, or still more seriously preclusion of the Club from renewing such certificate, is in the nature of a penalty. The principal effect of this is to prevent the Club from making alcoholic drink available. This, as the Equality Authority said in a press release intended to draw attention to its case against the Club in the District Court is a “significant sanction”.
A penalty or sanction is something imposed by way of example and deterrence, and indeed for pure punishment, following on a finding that a person or entity has been in breach of some rule or law. Indeed, the primary meaning of “penalty” in the Oxford English Dictionary is “a punishment imposed for breach of law, rule, or contract”. Its secondary meaning is described as “a loss, disability or disadvantage of some kind, either ordained by law to be inflicted for some offence or agreed to be undergone in case of violation of a contract.” The relevance of this definition, of course, is that the District Court finding that the club is a “discriminating club” was agreed, on the hearing of this appeal, to be a penalty.
The first oddity about this particular sanction is that it is imposed without any necessity to establish a breach of rule or law and indeed none is alleged. An ordinary licence to sell alcoholic drink can be lost for repeated breaches of the licensing law or on objection on the grounds of bad character. Nothing of the sort is alleged here nor is any irregularity whatsoever concerning the Club’s making alcoholic drinks available.
Apart from the foregoing, there is a rule of law, and a cannon of statutory interpretation, prohibiting doubtful penalisation i.e. the imposition of a penalty by language which is less than clear. This was described by O’Higgins J. in Mullins v. Harnett [1998] 2 ILRM 304 as “the principle against doubtful penalisation”.
In Broderick v. Flanagan [1979] IR 265 at 276 Henchy J. said:
“If the lawmakers wish to trench on personal liberty by extending the range of the criminal law they may do so, within constitutional limitations; but an intention to do so should not normally be imputed to them when the statute has not used clear words to that effect.”
In the first mentioned case, the learned trial judge continued:
“… whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle is correspondingly powerful.” (Emphasis added)
In the present case the penalty was described by the Authority itself as “significant”. In Mr. David Dodd’s book on “Statutory Interpretation in Ireland” it is said that the principle expresses what is at the heart of the maxim “nullam crimen sine lege, nulla poena sine lege – there must be no crime or punishment except in accordance with fixed pre-determined law.”
Moreover though this principle most often arises in the context of the criminal law O’Higgins J. in the case already cited stated “Penal statutes are not only criminal statutes, but any statutes that impose a detriment.” The Act of 2000 is certainly such a statute. This, too, is agreed.
“Only”.
The Authority placed considerable emphasis on this word. It is from it that the Authority derived its submission that there had to be a logical link between the activity of a club and the gender, sexual orientation etc. of the membership. I entirely disagree with that submission. As a purely linguistic matter, the rigid limitation of the Club’s activities to an activity which was a “need” of men, women or travellers qua men, women or travellers, and nothing else, would be inconsistent with the use of the term “principal purpose” which necessarily involves a possible plurality of purposes and activities. Secondly, it seems to me obvious as a matter of ordinary linguistic construction that “only” relates to the category of persons who may be in membership. Thus, for example, a gay club might wish to exclude persons who are not of that orientation, or a women’s club might wish to exclude men.
But whether one thinks of men, women, gays or travellers, there is no warrant whatever in the word “only” or in any other word or form of words in this Section for supposing that the activity of a club has to be in need of gays etc. “qua gays” that is to say a need of all gay people. It is in my view quite sufficient, to take the example of a womens’ or ladies’ club that, membership being confined to women, it pursues activities of interest to some women. To take the opposite viewinvolves one in hypothesising some activity which could be described as a “need” of all women and it cannot in my view be done either in the case of women, or of men, or of travellers or any of the other groups mentioned in s.9. To “cater only for the needs of women” it is in my view quite sufficient if the women being catered for themselves agree on an activity, cultural pursuit or interest which they wish to enjoy together in their club. The same applies to men, gay people, travellers, Catholics, Protestants, Jews, and every one of the groups mentioned, and their consistent sub-groups.
An exempted club, to coin that phrase, under s.8 is one whose “principal purpose” is to cater only for the needs of men, or women, or any other group mentioned in the Section. The members are the best and only possible judges of what their own “needs” are.
The word “only” seems to me to qualify the verb “cater” and the catering for the needs of the relevant group is to be the “principal” purpose, an adjective which, as we see elsewhere in this judgment, permits of and indeed assumes the existence of other purposes. It must be emphasised that, this being a Section concerned with the infliction or non-infliction of a penalty, a construction which would tend to favour the infliction of the penalty is to be avoided unless it is clear. The authorities on this question are discussed elsewhere. Thus, any tension (and I am far from holding expressly that there is any) between the terms “principal” and “only” in the same Section which might be thought to lead to unclarity or ambiguity, must inure to the benefit of the Club, and not of the Authority.
Moreover, s.9, like any Section of an Act of the Oireachtas must be construed on the basis that it permits and certainly that it does not prevent, a person or entity to whom it applies from complying with the general law of the land.
The relevance of this last observation is that it is argued by the Authority that, since the Club actually provides facilities and services to women golfers, it cannot be described as catering “only” to the needs of male golfers. Quite apart from the question of whether the adjective “principal” permits this additional purpose, there is the salient fact that for the Club not to provide services to women golfers on the same basis as it provides them to male non-members would be a breach of the law.
Section 5 of the Equal Status Act, 2000 provides, insofar as relevant:
“5(1) 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.” (Emphasis added)
As I understand it, the Club provides facilities for non-members to play Golf on the payment of a green fee. As far as I am aware every Golf Club does this, whether with or without conditions. It cannot be denied that female golfers are a section of the “public generally”. If therefore male golfers are permitted to play golf on the club’s premises despite not being members of the Club, female golfers must also be permitted to do so. To put this in another way, the Club must, by law, cater for their needs in that regard. From the same Section it appears that the Club must also cater for the needs of women golfers in relation to facilities and supply of refreshments, to the same extent that it caters for those of male golfers.
More generally, Section 5 of the Act of 2000 deals with a person, including a club, in his dealings with the “public generally”. On the other hand, Sections 8 and 9 deal with the Club’s internal affairs, in relation to members or potential members. This distinction is mirrored in s.5(2)(b). This subparagraph is one of a number which sets out circumstances in which subsection (1) of s.5 does not apply. Subparagraph (b) provides an exclusion as follows:
“A service related to a matter provided under s.6, or a service offered to its members by a club in respect of which s.8 applies.”
Section 6 of the Act deals with the provision of accommodation and is not immediately relevant here. However, the second phrase of the above subparagraph draws precisely the distinction which I have been endeavouring to expound above: a distinction between legislation requiring non-discrimination in the provision of services to the “public generally” and a service offered by a club internally to its own members.
In my opinion it cannot be realistically said that the Club is in breach of any requirement to have as its “principal purpose” that of catering “only” to the needs of men (or women, or any other exempt group), because it complies with the law of the land in making services available to the “public generally” on a non-discriminatory basis.
Section 9 is designed expressly to permit a club to discriminate, without penalty, in the matter of who it admits to membership and otherwise. It would be a wholly improper and unlawful interpretation of that Section to hold that, in order to avail of it, the Club seeking its protection would have to breach the law in another way. I have no doubt that the legislature did not intend this effect.
(H) European law
Having regard to the incorporation of the European Convention on Human Rights into Irish law effected by the Human Rights Act, 2003, it is relevant to consider the decisions of the Court of Human Rights. Their broad similarity with the Irish decisions permits this to be done quite briefly. The matter is dealt with in Article 11 of the Convention. In Sigurjohnsson v. Iceland [1993] 16 EHRR 462 the Strasbourg Court held, quite consistently with the Irish cases cited above, that freedom of association necessarily involved the correlative negative right to refuse to associate and that therefore an Icelandic law which required taxi drivers to join an association was a violation of Article 11. It was noted that breaching the Icelandic law “was likely to bring about the revocation of the applicant’s licence”. He was thus subject to a form of compulsion “which must be considered incompatible with Article 11”. The decision of the court in Young James and Webster v. The United Kingdom [1982] 14 EHRR 38 is remarkable for its similarity to the Educational Company case cited above. A requirement on British rail employees to join a union on the threat of dismissal was regarded by the court as “a form of compulsion which strikes at the very substance of the freedom guaranteed by Article 11”. In a case with considerable echoes of Meskell, Wilson and Ors. v. The United Kingdom [2005] 35 EHRR 523 it was held that a financial benefit offered to workers who decided to cease conducting collective bargaining through a union “constituted a disincentive or restraint on the use by employees of union membership to protect their interest and accordingly the failure by the U.K. to outlaw such a position was a violation of Article 11”.
Turning for a moment to the law of the European Union, the respondents’ counsel on the present appeal emphasised Council directive 2004/113/EC which implements the principle of equal treatment between men and women in relation to the access to the supply of goods and services. Counsel emphasised the statement by the Commission that “the directive should not apply to the enjoyment of services provided by private clubs which are open to the members of only one sex”. (Emphasis added) Counsel also emphasised certain of the recitals to the directive in particular Recital 3 which stated:
“While prohibiting discrimination, it is important to respect other fundamental rights and freedoms including the protection of private and family life and transactions carried out in that context and the freedom of religion”.
Recital 13 says:
“The prohibition of discrimination should apply to persons providing goods and services, which are available to the public and which are offered outside the area of private and family life and the transactions carried out in that context. It should not apply to the content of media or advertising or to public or private education”.
Recital 16 says:
“Differences in treatment may be accepted only if they are justified by a legitimate aim. A legitimate aim may be the protection of victims of sex related violence (in the case of establishment of single shelters), reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person’s home), the promotion of gender equality or the interests of men or women (for example single sex voluntary bodies), the freedom of association (in cases of membership of single sex private clubs and the organisation of sporting activities (for example single sex sports events). Any limitation should nevertheless be appropriate and necessary in accordance with the criteria derived from the case law of the Courts of Justice of the European Communities”.
It is clear from the foregoing references that EU law protects the position of one-gender private clubs. But it is of course possible that Irish law in this regard is more restrictive than European law, whether or not such restriction would pass muster in Strasbourg or in Luxembourg.
“Needs”.
In the way in which the Equality Agency advanced its case against the club, the construction of the word “needs” takes centre stage. To come within the Section the club must be such that “its principal purpose is to cater only for the needs of persons of a particular gender” etc. It must be quite clear that having a “principal” purpose is not inconsistent with the existence of other purposes as well. Indeed, so to describe one purpose positively implies the existence of other purposes. A principal teacher, a principal partner, or the Civil Service rank of Principal Officer are more or less familiar terms: each implies that there are other teachers, partners and officers, of whom however the one designated with the adjective “principal” is in a position of primacy. Despite the form of words sometimes used by the learned trial judge, I do not think it can be said that the club’s purpose or principal purpose is to play golf: it is to provide facilities for the playing of golf by gentlemen. This does not prevent it from having other ancillary purposes, but, by reason of the deployment of the word “only” these must be linked to the playing of golf by men. I am unconvinced that the word “needs” should be interpreted as meaning absolute necessities or something of that sort: golf itself is not in that category.
There may be a tension between the words “principal”, a word implying a plurality of objects and “only”, implying singularity: but if so that is a defect in the Act and serves only to create ambiguity or obscurity, which must enure against the authority and in favour of the constitutional right to associate. More likely, “only” relates to the gender or other distinguishing feature, such as being Bulgarian, or a traveller, which permits exclusive association.
I entirely agree with the learned trial judge that the wording and basic structure of s.9(1)(a) must be given the same meaning whether it relates to persons availing of the “gender exception”, or persons availing of the “nationality” exception or any of the others, and the same meaning in relation to a men only club and a ladies only club. Similarly, the wording must be interpreted in an identical manner when one is considering, say, a “Bulgarians only club” or a “Nigerians only club”. There is no warrant for treating the words in a different manner, and to do so would itself, ironically, constitute a discrimination.
That said, I regard the interpretation proposed by the Authority, that the club can do nothing except things which are essential to permit the association in the club of Bulgarians, or whatever group is in question with one another, so that the exception does not apply to the Bulgarian Bridge Club, as wholly wrongheaded and as evidencing both a technical error and a strangely limited knowledge of human nature and of words in their current usage. If one assembles a club of Bulgarians, or persons aged between 12 and 18, or persons over the age of 65, travellers, or ladies or gentlemen, one cannot expect the members simply to sit around reflecting on whatever it is they have in common. On the contrary, whether or not the club in its title and constitution is linked to a particular activity (such as golf, bridge, snooker, or the reading and discussion of books) the group of individuals once assembled will naturally do something. They may do a variety of things. This is a fact of universal experience and arises from the nature of social interaction between human beings as observed everywhere and at all times. Many people derive great enjoyment from membership of a golf club, or a rugby club, even though they are far from proficient at the game in question and may indeed not play it at all. Their pleasure is in association with others. But this association requires some activity to coalesce around. Anyone who has ever been involved in a youth club, or a club for pensioners, knows this: if there are no activities there will shortly be no club. Section 9 of the Act preserves the right of at least twelve groups of people to associate on an exclusive basis i.e. to the exclusion of others. When people associate it is an incident of human nature that they will do something together. If one brings together a group of young children at a child’s birthday party, it is predictable that they will chase each other, shout and run about. It would be a cruel host, and it would make for an unsuccessful party, to inform the children that their license to be on the premises was limited solely to the celebration of a birthday and did not include a license to shout or run about since that was not absolutely necessary to the celebration of the birthday. But this, in effect, is what the Equality Authority is saying here.
Moreover, there are activities which are so intrinsically linked with particular groups that they are in fact part of what makes them a group. For example, what is more quintessentially Welsh than unaccompanied singing by male voices? If the Dublin Welsh Male Voice Choir were a club, it could benefit from s.9 on at least two grounds: as catering to a single gender; and as catering to persons of a particular, shared national origin. But as soon as the persons united by these two characteristics designate themselves also as a choir then, according to the argument the Authority felt compelled to make, they would lose the protection of s.9: the statute contains no exemption for singing, even singing of a distinctively and nationally characteristic form, associated throughout the world with the Valleysof Wales.
I do not believe that the Act, properly construed, compels so inhumane and so absurd a result.
(H) An Island of agreement.
If there was one thing on which the authority, the club, and the Attorney General all appeared agreed it was that the effect of s.9 is to provide exemptions for various groups from the terms of s.8. The effect of this is to permit such groups to associate on an exclusive basis, that is to the exclusion of others, without risk to their ability to make drinks available in their premises and at their meetings. The law presumes that statutory words have some effect: it presumes them not to be meaningless (see Bennion, op. cit.). That is why it is so significant that the authority were unable to point to any club, real or imaginary, which could come within the exemption undoubtedly intended to be provided by s.9, if that Section is to be interpreted as the authority wish. If that is so, then the Section is meaningless, otiose and redundant. Nor am I impressed by the argument that the Section was perhaps designed to deal with some hypothetical situation not yet either arisen or even capable of being described. That argument might be made of any manifestly redundant Section and the process of statutory interpretation must be a rational one.
On the other hand, I am in entire agreement with the learned trial judge that the arguments advanced on behalf of the Golf Club provide a consistent account of s.9 which does not deprive s.8 of efficacy and which extends protection to clubs some of which will have enjoyed the protection of the law and the Constitution for as long as the latter document has existed, and of the law for much longer.
(I) Dictionary definitions.
It is desirable at this point to set out the dictionary definitions of certain of the terms discussed above.
The word “principal” as an adjective, which it is in the Statute, connotes “first or highest in rank; most important”. The Oxford dictionary quotes as a recent use of it the phrase “the principal source of information”: it will be observed that this plainly implies that are or may be other such sources.
The term “need”, the singular of “needs”, considered as a noun, is defined “a condition of lacking or requiring some necessary thing, either physically or (now) psychologically…”. (Emphasis added)
These dictionary definitions are all taken from the shorter Oxford English Dictionary, 1993. Of particular significance is the extension of the term “need” or “needs” to include that which is psychologically, as well as physically necessary. This meaning strongly supports the view of the meaning of the term “needs” adopted by the learned trial judge, with which I respectfully agree. Air, food and drink are “needs” in the sense of things necessary to life in a way which poetry, grand opera or football can never aspire to be. But these things, and no doubt many others, are “needs” of some people in a sense which is no less real for being psychological in nature. Indeed, as we have seen, the authority itself at one point conceded that cultural and recreational needs might be included within the term as it is used in the Statute. I believe that they were right in this and are wrong in the excessively narrow construction to which they have since retreated. Furthermore, I do not believe that their interpretation reflects the meaning of the word “needs” as it is now used, as recognised by the Oxford Dictionary.
Commentary on the Statutes.
I accept what is said in the “Irish Current Law Statutes Annotated” note to the 2000 Act, that s.9 was “intended to protect rights of freedom of association, the government having been advised by the Attorney General that the previous provision does not sufficiently protect such rights.” This, indeed, has the manifest effect of cutting down the scope of the category “discriminating club” created by s.8. I also consider it necessary, for the reasons set out at pages 858-866 of Mr. Benion’s work, to ascribe some sensible meaning to the provision. The provision creates limitations on the meaning of the term “discriminating club” and it is necessary to construe the Section accordingly. The authority contended that it was unnecessary that s.9(1) should have any particular meaning which is presently ascertainable because it may, for all one knows, have been enacted to deal with some unimagined but theoretically feasible situation which one cannot even guess at. I reject this as an aid to construction as it seems to me to deprive the enactment of any significant present effect by the speculation that it may have only some presently unknown effect. That is nonsense as the extracts from the Statutes Annotated (above) makes clear.
The need to construe the Section as having some meaning is what makes it significant that the authority has been unable to give an example of any club, or any type of club, which could be within the authority’s preferred meaning of s.9(1)(a).
(K) The nub of the dispute: “needs”.
As noted above the construction of this single word lay at the centre of the dispute between the parties. Neither side contended in a serious way for any meaning other than the ordinary and natural grammatical meaning of the words of the subsection. The club said that it was a gentlemens’ golf club; a golf club for gentlemen. The Authority said that this could not be within s.9(1), although a gentlemens’ club could be: what excludes Portmarnock Golf Club from s.9(1), in the Authority’s view, was that it provided facilities for the game of golf which is not a “need” of men, or of any group mentioned in s.9. It was this verynarrow construction which led to all the submissions about a club for Bulgarians as opposed to a Bridge Club for Bulgarians and such like.
In my view the ordinary natural and literal meaning of the word “needs” is that set out in the shorter Oxford English Dictionary. It is broad enough to embrace social, cultural and sporting needs, as well as more basic needs for things such as air, food and water. In my view the Authority’s construction of the term “needs” is a narrow, outdated and unnatural one. Persons “of a particular… national origin” are amongst the groups who may associate exclusively by virtue of s.9(1) the authority itself at one point conceded what is to my mind self evident, that the “needs” of such a group must clearly involve social and cultural needs, felt necessities, as well as purely physical needs. Furthermore, in the plain meaning of the statutory words the body seen as catering for the “needs” of the various groups mentioned is a “Club”. It is the ordinary experience of mankind that such a body, once assembled, will engage in activities, whether the club is one of school children or of old age pensioners. In my opinion it would take words of the plainest meaning to prohibit a club organised on any of the bases specifically mentioned in s.9(1)(a) from engaging in any ordinary and legal activity which its members might enjoy.
I would add that the extremely narrow interpretation of s.9 advanced by the Equality Authority appears to me to be inconsistent with what was said by the former Supreme Court in National Union of Railwaymen v. Sullivan [1947] IR 77. Expounding Article 40.6 of the Constitution the Court concluded that:
“Each citizen is free to associate with others of his choice for any purpose agreed upon by him and them”.
This passage appears to me to make nonsense of the contention of the Authority that, in the case of a club which is prevented from being a discriminating club by the terms of s.9 of the Act of 2000, there can be no purpose to the association of persons within one of the statutory categories, except the association itself. In Sullivan, the former Supreme Court assumed that voluntary association of persons had some purpose or activity, social, sporting, intellectual, economic or otherwise. In my view this is a sensible assumption, it is one vindicated by ordinary experience of life.
I would add that the legislature has seen fit to provide an exemption, also, in the case of clubs for persons of a particular religious belief, and clubs for persons who have no religious beliefs. It would seem extraordinary if, having decided to associate with others on the basis of shared views on religious or metaphysical topics, the members of such clubs could do absolutely nothing by way of expression of their shared views, not even shared, structured exposition of their devotional or atheistical preferences.
I would dismiss the appeal and affirm the decision of the High Court on the construction of s.9(1)(a)
(L) The constitutional issue.
In my opinion, having regard to the conclusion I have reached as to the meaning of the relevant statutory provisions, no constitutional issue arises which it is necessary or proper for this court to determine. As the learned trial judge pointed out, there is ample authority for the proposition that a court should not embark upon a constitutional issue if the dispute between the parties can be resolved otherwise. I may say that I fully understand why, nevertheless, he addressed the Constitution issue: he considered that it would be economical of time to do so in case his decision were taken further. But I cannot consider that an adequate reason for embarking, without necessity, on a constitutional “comment”.
The club’s proceedings make it quite clear that it is only in the event of their losing on the issue of the construction of the statute that they wish to agitate the constitutional questions. This is a perfectly proper attitude: they would have been open to legitimate criticism had they asked the court to decide on the constitutionality of the statute without first seeking to establish whether if, on its true meaning, they could claim the benefit of s.9.
It is further to be noted that the learned trial judge did not make an order on the constitutional issues, presumably because they are hypothetical only, and described his own statements on the constitutional topics merely as “comments”. But he made an order for the costs of the issue. It is not desirable that comments from an authoritative source on the constitutional issues should exist, as it were, in a vacuum. I would therefore set aside so much of the judgment of the learned trial judge that consists of commentary on the constitutional issues raised, and affirm the balance of the judgment, that set out up to p.22 of the approved text. I would also discharge the order for the costs of the constitutional issue.
JUDGMENT of Mr. Justice Geoghegan delivered 3rd day of November 2009
This appeal relates to two separate sets of proceedings and categories of litigation involving on the one hand the Equality Authority and on the other hand Portmarnock Golf Club. The personal names in the titles of the two respective sets of proceedings are simply names of officers or trustees of PortmarnockGolf Club. In terms of relevant parties, I will henceforth be referring for simplicity to the Equality Authority, “the Club” and to a limited extent, the Attorney General. The two sets of proceedings arise in the following context.
By a civil summons in the District Court, the Equality Authority, pursuant to the provisions of section 8(3) of the Equal Status Act, 2000 made a claim for a determination by the District Court that the club was a “discriminating club” for the purposes of that section and for an order suspending the club’s certificate of registration under the Registration of Clubs Acts, 1904 to 1999 which certificate enabled the club, subject to the Acts, to sell intoxicating liquor. The application duly came on for hearing in the District Court before Judge Mary Collins and she delivered a judgment on the 20th February, 2004. The learned District Court judge had the benefit of written and oral submissions and she was addressed in court by Mr. Donal O’Donnell, S.C., counsel for the club. It is clear from the terms of her judgment that she gave consideration to the submissions but, having done so, she came to the conclusion that she should make the determination sought. I will be explaining the issues which she had to consider later on in my judgment. At this stage, it is sufficient to state that the club was dissatisfied with the judge’s decision and appealed it by way of Case Stated to the High Court.
The appeal came on for hearing in the High Court before O’Higgins J. who held that the learned District Court judge was incorrect in her interpretation of the relevant provisions of the Act. He was of the view that, whilst, if section 8 stood alone, the club would be a “discriminating club”, “it was not a “discriminating club” having regard to statutory exemptions contained in section 9(1)(a) of the Act. The relevant parts of these sections are helpfully set out in the judgment of Denham J.
In addition to appealing the decision of the District Court by way of Case Stated, the club in the names of its two trustees instituted original High Court proceedings by way of plenary summons seeking various declarations as to the alleged correct interpretation of the relevant provisions of sections 8 and 9 of the Act of 2000 and seeking, in the event that the High Court upheld the view of the District Court, a declaration that the provisions of sections 8, 9 and 10 of the EqualStatus Act, 2000 were invalid having regard to four different specified provisions of the Constitution. The summons also sought damages for breach of statutory duty and breach of the plaintiffs’ constitutional rights.
Sensibly, the two sets of High Court proceedings were brought on for hearing together before O’Higgins J. The learned High Court judge essentially dealt with two issues. The first was whether the determination of the District Court was appropriate having regard to the exemptions contained in section 9(1)(a) of the EqualStatus Act, 2000, a matter which I will be fully explaining later. The second was whether if the determination was correct, the relevant sections were unconstitutional. The judge decided that the District Court determination was wrong and that the club fell within the above mentioned exemption. That being so, the question of the constitutionality of the relevant provisions did not arise. Nevertheless, O’Higgins J. went on to express the view that the sections were in fact valid having regard to the Constitution. In taking this latter step which was probably well intentioned with the idea that the Supreme Court on an appeal could deal with the constitutionality issue if it considered that the decision of the High Court on the other issue was incorrect, it must be said that that procedure was contrary to the established jurisprudence of this court. At any rate, it is not entirely clear what the exact status is of that part of the judgment in which the learned High Court judge deals with the constitutionality issue, given that the order drawn up seems only to refer to the appeal by way of Case Stated.
I do not intend to express any views on either the procedural or substantive aspects of the judgment dealing with the constitutionality issue. The court has already indicated to the parties that before considering those issues, if they should arise it will first determine, what I might describe, as the issues of statutory interpretation.
In this connection, I should expressly mention that the Equality Authority has appealed to this court from the decision on the statutory interpretation issue and the club has appealed the purported decision on the constitutionality issue.
Before dealing specifically with the statutory issue which is the only issue I have to consider, there are some further introductory remarks which I think it appropriate to make. The method by which the Oireachtas has chosen to encourage (and in reality to force) “discriminating clubs” to abandon the “discrimination” is not merely unusual but quite extraordinary. The sanction is the future prohibition on the sale of intoxicating liquor even though that trade had nothing whatsoever to do with any alleged “discrimination”. Furthermore, the effect of the provision is that upon a lawful determination of the kind made by the District Court in this case, the “discriminating” club may continue for ever “discriminating” if it is satisfied to lose its club registration and, therefore, the authority to sell liquor. In the case of ordinary trading with the public and not in an internal club context “discrimination” can actually be prohibited by order. But the Act provides for the unusual indirect means of enforcement in relation to “discrimination” within the internal arrangements of a club. Although the solution arrived at by the Oireachtas is undoubtedly unusual, it is not difficult to discern the reason for its adoption. The elaborate draftsmanship of sections 8, 9 and 10 with all their qualifications and exemptions etc. is clearly designed to avoid unconstitutionality having regard to the well established constitutionally protected right to freedom of association. I think it obvious that the Oireachtas was nervous and in my view, rightly nervous of infringing that right. There is, therefore, an element of what I might describe as “tiptoeing” in the draftsmanship which in turn has resulted in real problems of interpretation.
The freedom of association recognised as an inherent right by the Constitution, though not, of course, an unqualified right, is highly relevant to the interpretation of these sections quite apart from its relevance to arguments on the constitutionality of the provisions. The club’s written submissions (and followed up in the oral submissions) referred to the wholly different manner of dealing with services to the public on the one hand and “discrimination” within the internal organisation of registered clubs on the other hand. I fully agree with the observation in the written submissions which reads as follows:
“This change of regime, it is submitted, can only be explained as a clear reflection of an awareness that in respect of the membership of private clubs, the constitutional freedom of association is directly engaged. Accordingly, it is submitted that it is particularly appropriate to interpret sections 8, 9 and 10 on the basis that they are designed to seek to avoid unjustified intrusion on constitutional rights in general and the freedom of association in particular.”
In a footnote the written submissions refer to NUJ v. Sisk [1992] 2 I.R. 184 at 195 in which McCarthy J. in the Supreme Court made the following observation:
“In my view, the right of free association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it.”
That quote from McCarthy J. seems to me to be certainly relevant to this case and the difficulties of interpretation involved.
For reasons which I will be elaborating upon, I have come to the firm view that the judgment and for the most part the reasoning of O’Higgins J. in the High Court was correct and that the appeal of the Equality Authority should be dismissed.
To explain why I have formed this view, it is necessary that I refer briefly to the relevant statutory provisions. For a more detailed treatment, resort can be had to the High Court judgment.
A treatment of how the Equal Status Act, 2000 affects clubs must necessarily begin with a reference to two statutory definitions contained in section 2 of the Act. These are “discriminate” and “discriminatory grounds”. “Discriminate” is defined by reference to a meaning given to it in sections 3(1) or 4(1) of the Act. Those subsections are in turn basically uncontroversial in the meaning they ascribe to “discriminate” and nothing would seem to turn on them for the purposes of the issues in this case. It is necessary, however, to explain in more detail what is meant by “discriminatory grounds”. These are set out in section 3(2) of the Act. They are, in effect, grounds based on gender, marital status, family status, sexual orientation, religion, age, disability, race, membership of the Traveller community and what is described as “victimisation ground” which is essentially an unfair procedures ground. Section 5 deals with disposal of goods and the provision of services. Section 6 deals with the disposal of premises and the provision of accommodation and section 7 with educational establishments. There are then enforcement provisions contained in the Act for the most part of a conventional nature ensuring compliance with those sections or compensating for lack of compliance.
As already mentioned this case relates to “discriminating clubs” which for the most part are dealt with in sections 8, 9 and 10 of the Act and provide for a unique sanctions regime i.e. the removal of registration under the Registration of Clubs Acts, 1904 to 1999. I would, however, reiterate that in so far as relations with the public are concerned i.e. persons other than the club’s own members, the normal remedies apply. In embarking on curbs on private associations not involving the public in general, a person or body doing so is immediately treading on dangerous constitutional territory even though the freedom of association recognised and upheld by the Constitution can never be absolute. As I have already surmised, it seems reasonably clear that this is the reason why a different regime is adopted for the purposes of sections 8, 9 and 10.
The scheme of those sections is as follows. Section 8 provides that a registered club shall be considered to be a “discriminating club” if it has any rule, policy or practice which discriminates against a member or an applicant for membership or if a person involved in the management of the club discriminates against a member or an applicant for membership in relation to the affairs of the club. Without prejudice to the generality of those provisions certain acts are to be regarded as “evidence that the club is a discriminating club”. These are:
(i) refusing to admit a person to membership;
(ii) providing different terms and conditions of membership for members or applicants for membership;
(iii) terminating the membership of a person or subjecting a member to any other sanction; or
(iv) refusing or failing, in contravention of section 4(1), to do all that is reasonable to accommodate the needs of a member, or an applicant for membership, with a disability.
The section then goes on to provide for an application to the District Court of the kind that was brought in this case seeking a determination that the club is a “discriminating club”. If the court makes such a determination and it is the first such order, the court has to include in the order a provision suspending the certificate of registration of the club for a period not exceeding thirty days. Where the court however makes any subsequent such order, the club by virtue of section 10 of the Act is effectively precluded from claiming club registration until the discrimination has been removed.
If section 8 stood alone the decision of the District Court in this case would have been correct and the decision of the High Court reversing it erroneous. But section 8 does not stand alone. Section 9 contains important exemptions and indeed they are of such importance that for a proper understanding of the Act’s regime relating to “discriminating clubs”, it is essential to read and consider the two sections together. There is one point of differentiation, however, which in my viewis relevant in the interpretation of section 9 as distinct from the interpretation of section 8. It seems reasonable to assume that an exempting section such as section 9 was not dealing with purely theoretical and potentially non-existent clubs but was concerned with actual categories of clubs which did exist within the State. This seems to have been a point to which the learned High Court judge rightly attached considerable importance. I will return to it in due course. First of all, I will outline the provisions of section 9.
Subsection (1)(a) of that section is the key provision as far as the issues in this case are concerned. It reads as follows:
“9. – (1) For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that –
(a) If its principal purpose is to cater only for the needs of –
(i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,
(ii) persons who are members of the Traveller community, or
(iii) persons who have no religious belief,
it refuses membership to other persons, …”
It is the opening words of this sub-paragraph which give rise to the difficulty of interpretation. The learned District Court judge made the determination that the club was a “discriminating club” based on the second last paragraph of her judgment which neatly encapsulates the view she took. This paragraph reads as follows:
“The principal purpose of the club is to play golf. The ordinary words of the statute do not ascribe to men’s golf a special need. A literal approach is appropriate in this case and therefore other canons of construction are not needed. I propose to rely on the presumption of constitutionality.”
This approach is adopted by the Equality Authority but is strongly disputed by counsel for the club. A fundamental point of disagreement is that the club argues that the expression “principal purpose” relates to the category of persons whose needs are catered for and not to the activities of the club. I have come to the conclusion that this latter approach is correct. It has been rightly submitted by both sides that analysis of the words and their meaning within the context in which they are used is of vital importance. Such analysis is particularly material if it is applied to the entire phrase “its principal purpose is to cater only for the needs of” but to that end separate consideration of the meaning of the words “principal”, “purpose”, “cater”, “only” and above all “needs” is helpful. I am satisfied, for instance, that when read in its context, “needs” certainly does not mean “special necessary requirements” in some objective sense. It is of some interest that in the revised 10th edition of the Concise Oxford Dictionary published in 2001 “need” as a verb is somewhat differently defined than “need” as a noun. “Need” as a verb is defined (inter alia) as “require (something) because it is essential or very important rather than just desirable” whereas “need” as a noun is defined as “1 circumstances in which something is necessary; necessity. 2. A thing that is wanted or required.” Put simply “need” as a noun may, depending on context, mean an essential objective requirement or simply a subjective requirement in the broadest sense which may include a social or cultural requirement. I do not believe that “needs” in section 9 was ever intended to mean more than requirements in that second sense. Indeed I link this interpretation with the word “cater”. One does not normally speak of catering for necessities. One might speak of providing for necessities. On the other hand “cater” would be the more usual word where simple requirements are involved. .
Crucially, however, I believe that the entire phrase must be considered as it stands rather than by reference, except to a limited extent, to the separate words. Within the interpretation that I am satisfied is correct, the principal purpose of the club is to cater for the golfing needs of persons of a particular gender only i.e. males. If the argument of the Equality Authority is correct it is virtually impossible to envisage what kind of clubs of a single gender the Oireachtas had in mind for exemption, a point to which O’Higgins J. correctly attached considerable importance. Even if it is accepted that a so-called “gentlemen’s club” which did not permit of female members is exempt under section 9 whilst a sports club of some kind of single gender is not, extraordinary anomalies arise. A gentlemen’s club that had a squash court facility would be exempt but a male only squash club would not. That this is unlikely to have been the intention of the Oireachtas is highlighted when one comes to consider the other exemptions. The example was considered in the High Court of a club for Bulgarians only. The EqualityAuthority was and is forced to argue that a football club for Bulgarians only would be a discriminating club whereas a club for Bulgarians only but with no particular specified activity other than sociability would be exempt.
It is clear from the judgment of the High Court that as the case was argued before that court, a different approach to exemption from the provisions of section 8 was adopted by counsel for the Attorney General than that adopted by counsel for the Equality Authority. Referring to the Attorney General’s submissions, the learned High Court judge said the following in his judgment:
“It is conceded by him that a gentlemen’s club or ladies club – and not only those confined to those whose objects had a logical connection with male or female could be exempt from the provisions of section 8 of the Act. It is difficult to see how a ladies club or a gentlemen’s club might be exempt from the provisions of section 8 of the Act while a gentleman’s golf club or ladies golf club cannot avail of such exemptions.”
The Equality Authority argued in the High Court and before this court that there must be a logical connection between the objects of the club claiming to be exempt and the exclusive gender of the membership. But the learned High Court judge rightly considered it “significant that the court was not provided with any example of an existing club of that type.” Farfetched theoretical or even mythical examples were offered such as a club for men who had a perceived grievance concerning how justice was administered in the family courts and who wished to give mutual support to one another in some practical fashion such as babysitting were put forward. To my mind, the learned High Court judge if anything was extraordinarily tolerant in his assessment of these examples. It is quite absurd to suggest that the gender exception in section 9 was intended by the Oireachtas to cover only farfetched theoretical examples of clubs that did not even exist, to say nothing of the fact that even if such clubs did exist it would be highly unlikely that they would be “registered” clubs with the consequent right to have a bar supplying liquor to each other and their visitors. I have already made clear my view that the section 9 exemptions were intended for real existing concrete situations.
It is also clear from the judgment of the High Court that counsel for the Equality Authority in argument before that court conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a particular nationality or ethnic or national origin the word “needs” would have to be construed broadly so as to include the cultural needs of such persons. The learned High Court judge, however, rightly took the view that it would be wrong to apply a wider definition of “needs” to some exemptions than to others.
The club, in its submissions, points out also a factor that is not without significance. Section 9(1)(a) of the Act does not include all the discriminatory grounds set out in section 3(2). Omitted are “race” and “colour”. It follows that a club established for the principal purpose of catering only for the needs of persons of a particular race or colour would not be entitled to the exemption under section 9(1) which would mean it would not be able to refuse membership to other persons.
I have not up to now mentioned the fact that women may play golf in Portmarnock club by paying a green fee and may use the bar facilities etc. In that instance, however, the club is simply providing external facilities. Indeed, it means that they are not discriminating in the provision of services as such. Entitlements of female non-members to play golf in Portmarnock is not a point that is either helpful in argument to the club or to the Equality Authority on the points at issue. It is neutral evidence.
What is of significance, however, is that the exemption under section 9 does not apply to race or colour. This to some extent reinforces the argument of the club that the exemption is intended to be widely interpreted in relation to the other grounds of discrimination under section 8.
Paragraph 25 of the written submissions of the club to this court summarises the position correctly. The paragraph is worth quoting and reads as follows:
“The club’s submission as to the proper interpretation of sections 8 and 9 makes full sense against this factual background. Section 9(1)(a) is a total exception from the requirements of section 8(2)(a)(i) and 8(2)(b)(i), save that a club can neither (A) choose or refuse members on the basis of race or colour nor (B) choose positively to exclude members on the basis of a proscribed ground. However it is permissible for a club to include on a proscribed ground (other than race or colour) even if that incidentally results in the exclusion of a group defined by a proscribed ground.”
As the learned High Court judge pointed out the exemption becomes almost meaningless if the Equality Authority’s interpretation is correct. On the other hand, if the Equality Authority’s interpretation is not correct, that does not mean that gender discrimination may not render a club a “discriminating club” within the meaning of section 8 and not exempt by section 9. Persons admitted to membership of a club may be discriminated within such club by virtue of one of the prohibited grounds. As counsel for the Portmarnock club point out, for instance it is well-known that there may be what they describe as “dual structure” golf clubs with separate rules for men and women as to the days and times for playing etc. Section 9 would not be relevant to this type of discrimination as it applies only to single structure clubs.
The learned District Court judge, in her judgment, referred to the traditional principles of statutory interpretation as set out in the judgment of Blayney J. in Howard v. The Commissioner of Public Works [1994] I I.R. 309. Even when adopting the traditional literal interpretation, however, a court does not do so in a vacuum. If there are problems of interpretation it must always bear in mind, context. Like the learned High Court judge and with respect to the learned District Court judge, I find the arguments of the club more convincing for the reasons which I have indicated and I would, therefore, dismiss the appeal.
Judgment delivered the 3rd day of November, 2009 by Denham J.
1. In the High Court two cases, which arise out of the same set of facts, were taken together. There were two principal issues: (i) the interpretation of sections of the Equal Status Act, 2000, and (ii) the constitutionality of the Equal Status Act, 2000.
2. This Court decided to proceed first on the issue of statutory interpretation, which is essentially the issue arising on the case stated from Mary Collins, Judge of the District Court. However, because the issues are somewhat interlinked, while the State is not a party to the case stated, the Court indicated that it would hear any submissions which the State wished to make on the interpretation of the Equal Status Act, 2000, referred to as “the Act of 2000”.
Case Stated
3. The case stated arose pursuant to s.2 of the Summary Jurisdiction Act 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961. At sittings of the District Court, at Court 54, Richmond Hospital, North Brunswick Street, Dublin 7, on the 28th November, 2003, and at Court 40, Dolphin House, Dublin 2, on the 19th January, 2004, Portmarnock Golf Club, Daniel Lynch, Colin Harnett, T.M. Healy, Joseph Leyden, Joseph McAleece, W.P. Twamley and R.C. Cuddy, the defendants/respondents, and hereinafter referred to as “Portmarnock”, appeared to answer a complaint by The Equality Authority, the plaintiff, and hereinafter referred to as “the Authority”.
4. The complaint was made pursuant to s.8 of the Act of 2000. The Authority sought a determination of the court that Portmarnock is a discriminatory club for the purpose of s.8 of the Act of 2000, and for an order suspending the certificate of registration of the Club for a period not exceeding thirty days.
5. Evidence was given to the District Court on behalf of Portmarnock by the Secretary Manager of the Club and the Captain of the Club. Facts were proved, admitted or agreed, and held by the District Court, as follows.
Facts
6. Portmarnock, founded in 1894, is one of the oldest golf clubs in Ireland and is affiliated to the Golfing Union of Ireland, the body which regulates men’s golf in Ireland.
7. Portmarnock has for many years been the holder of a certificate of registration under the Registration of Clubs Act, 1904 to 1999, referred to herein as a “drinks licence”, and during that time has not been the subject of complaint or prosecution by An Garda Síochána in respect of the provision of intoxicating liquor on its premises.
8. Evidence was given that there were 662 members and 625 associate members of Portmarnock, all of whom are men. Under its rules, since it was established in 1894, Portmarnock consists of members and associate members who are “gentlemen properly elected” and who conform with the rules of amateur status prescribed by the Royal and Ancient Golf Club of St. Andrews.
9. Women may play golf at Portmarnock either with or without a member on identical terms to those applicable to all non-members. Women may play the course at Portmarnock on seven days a week on payment of green fees at the times permitted for such play. There are at least three competitions played at Portmarnock each year in which women take part as guests. Portmarnock provides changing facilities and locker rooms specifically for women as part of the clubhouse complex. Women are entitled to access a bar and restaurant and other clubhouse facilities on an equal basis to men, with the exception of the men’s locker rooms and toilets. A score card is available to women golfers playing the course and Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies’ Golfing Union, the body which regulates women’s golf in Ireland.
10. On the 17th April, 2003 the Chief Executive of the Authority decided to initiate proceedings against Portmarnock. That decision was made pursuant to a board minute of the 6th November, 2001.
District Court
11. On the 20th February, 2004, the District Court held that Portmarnock is a discriminating club within the meaning of s.8 of the Act of 2000.
12. On the 18th May, 2004, the District Court made an order under s.8(7)(a) of the Act of 2000 suspending the certificate of registration of Portmarnock for a period of seven days.
13. The opinion of the High Court was sought as to whether the District Court was correct in law in making the above stated determinations.
Plenary Summons
14. The second set of proceedings were brought by Robert C. Cuddy and David Keane suing in their capacity as trustees of Portmarnock, and hereinafter referred to as “the trustees”. These proceedings were commenced by way of plenary summons. The Authority, Ireland and the Attorney General were named as defendants.
15. In the second case the trustees sought:-
(a) A declaration that Portmarnock is not a discriminating club within the meaning of that term in s.8 of the Act of 2000.
(b) Further, or in the alternative, a declaration that by reason of the provisions of s.9(1)(a) of the Act of 2000 Portmarnock shall not be considered to be a “discriminating club” for the purposes of s.8 of the Act of 2000.
(c) A declaration that it is not open to the Authority to make any application to the District Court pursuant to s.8(3) of the Act of 2000 requesting that the District Court make a determination as to whether Portmarnock is a “discriminating club” within the meaning of that term in s.8 of the Act of 2000.
(d) An order restraining the Authority, its servants or agents, from making any application to the District Court pursuant to s.8(3) of the Act of 2000 requesting that the District Court make a determination as to whether Portmarnock is a “discriminating club” within the meaning of that term in s.8 of the Act of 2000.
(e) Further, or in the alternative, if the provisions of s.9(1)(a) of the Act of 2000 do not, on their proper construction, apply to Portmarnock, and/or if Portmarnock is a “discriminating club” for the purposes of s.8 of the Act of 2000, the provisions of ss.8, 9 and 10 of the Act of 2000 are invalid having regard to the provisions of Articles 40.1, 40.3, 40.6.1 and 43 of the Constitution of Ireland.
(f) Damages for breach of statutory duty, for breach of Portmarnock’s constitutional rights; interest and costs were also sought.
The High Court
16. The High Court (O’Higgins J.) held that the two proceedings before the High Court fell to be decided on two grounds. The first ground was based on the interpretation of ss.8 and 9 of the Act of 2000. The second related to the constitutionality of sections of the Act of 2000. The learned High Court judge dealt first with the interpretation of the relevant sections of the Act of 2000 and then considered arguments on the issue of the constitutionality of the legislation.
17. On the issue of the interpretation of the Act of 2000 O’Higgins J. concluded:-
“In my view therefore on a correct interpretation of the section Portmarnock Golf Club – whose principal purpose is to cater only for the needs of male golfers comes within the exceptions of s.8 of the Equality Act (sic) provided for by s.9.”
The High Court declared that by reason of the provisions of s.9 of the Act of 2000 Portmarnock:-
“… shall not be considered a discriminating Club for the purposes of section 8 of the Equal Status Act 2000.”
18. The learned High Court judge then referred to the constitutional issue, stating:-
“I have reached a conclusion on the interpretation of the relevant section of the Equal Status Act 2000 without the necessity of making that decision on the basis that such interpretation was necessary in order to uphold the constitutionality of the Act. It is unnecessary therefore to decide the Act on constitutional grounds and there is ample authority in these circumstances that the Court should not do so (see Murphy v. Roche [1987] I.R. 106, Brady v. Donegal County Council [1989] 1 I.L.R.M. 282 and McDaid v. Sheedy [1991] 1 I.R. 1). However, in deference to the arguments made in court and for the purposes of expedition in the event of a different conclusion being made elsewhere, I consider it appropriate to make some comments on the constitutional arguments.”
The learned trial judge then proceeded to consider and make comments on the constitutional issues.
Notice of Appeal
19. The Authority filed a notice of appeal with 28 grounds of appeal. Reference was made to ss.8 and 9 of the Act of 2000 and it was claimed that the learned trial judge erred in his interpretation and application of these sections.
20. The trustees also filed an appeal against the judgment of the learned trial judge. Their twenty one grounds of appeal included the grounds that:- (a) the learned High Court judge erred in proceeding to deliver a judgment setting out his “comments” on the issues concerning the constitutionality of ss.8, 9 and 10 of the Act of 2000 notwithstanding his conclusions on the correct interpretation of those provisions on foot of the case stated; (b) the learned High Court judge erred in proceeding to deliver judgment on the constitutional issues and arguments when it was not necessary for him to do so having regard to his conclusions on the interpretation issues; (c) the High Court erred in proceeding to deliver judgment on the constitutional issues when the issues between the parties could and ought to have been determined by resolution of issues of law, including the interpretation of the Act of 2000, other than the constitutional law issues.
Issue
21. This Court decided to consider first the issue of the construction of the Act of 2000. Counsel acting on behalf of the parties were requested to address only the issue of the interpretation of the statute. Therefore, the issue before the Court is the interpretation of the relevant sections of the Act of 2000.
Law
22. The Act of 2000 is described in the long title as an Act to promote equality and to prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally, or a section of the public, has access, to provide for investigating and remedying certain discrimination and other unlawful activities, amongst other matters. Section 3 defines discrimination for the purpose of the Act. Section 4 covers discrimination on the ground of disability. Section 5(1) refers to the disposal of goods and the provision of services, prohibiting discrimination in disposing of goods to the public generally or a section of the public or in providing a service. While discrimination in the disposal of goods and services to the public is prohibited in general, there are exceptions. Section 5(2)(a) provides that s.5(1) does not apply in respect of a service offered to its members by a club in respect of which s.8 applies. Also section 5(2)(g) provides that s.5(1) does not apply in respect of differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender. Clearly this refers to services such as single sex changing rooms. The specialist nature of the exceptions is seen in s.5(2)(h) which provides that s.5(1) does not apply in respect of:-
“differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests.”
This refers to the special needs of groups, to disadvantaged groups, where the discrimination is reasonably necessary. For example, where the State provides language classes for foreign nationals, nationals are excluded. Similarly, s.5(2)(i) states that s.5(1) does not apply in respect of:-
“differences in the treatment of persons on the gender, age or disability ground or on the ground of race, reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment.”
This discrimination is allowed on the grounds, inter alia, of gender, where it is reasonably required on the basis of authenticity, etc. in connection with a dramatic performance or other entertainment. This brings to mind an entertainment traditionally provide by a gender, prohibiting another – reasonably – because of tradition, authenticity or custom. Perhaps sumo wrestling by gentlemen and belly dancing by ladies might be somewhat frivolous illustrations. However, s.5 does not govern the issue in this case. Although, perhaps it sheds some light on the exclusions from the rule against discrimination in that they are limited, they protect disadvantaged or special groups, and they uphold ethnic and traditional customs. The section is not applicable to the facts of this case which are expressly governed by the words of section 8 and section 9.
Section 6 prohibits discrimination in the disposal of any estate or interest in premises, the termination of any tenancy or other interests in premises, and the provision of accommodation and related services. Section 7 relates to discrimination in education and educational establishments.
23. Section 8 is at the core of this case. This section relates to discriminating clubs and provides for intervention when the club holds a drink licence, i.e. is registered under the Registration of Club Acts. The section does not apply to a club without a drinks licence. Thus clubs without a drinks licence are not covered by the section and consequently may have any type of membership it wishes. However, a club which has the privilege of a licence may not discriminate if they wish to keep their licence.
Section 8
24. Section 8 provides:-
“(1) In this section—
“certificate of registration”, in relation to a club, means the certificate of registration of the club under the Registration of Clubs Acts, 1904 to 1999; “club” means a club that has applied for or holds a certificate of registration.
(2) For the purposes of this section—
(a) a club shall be considered to be a discriminating club if—
(i) it has any rule, policy or practice which discriminates against a member or an applicant for membership, or
(ii) …
(b) without prejudice to the generality of paragraph (a), any of the following acts, if done by a club or a person involved in its management on any of the discriminatory grounds, is evidence that the club is a discriminating club:
(i) refusing to admit a person to membership;
(ii) providing different terms and conditions of membership for members or applicants for membership;
(iii) …
(iv) …
(3) Any person, including the Authority … may, on application to the District Court … request that the Court make a determination as to whether a club is a discriminating club.
(4) …
(5) …
(6) After considering the representations, the [District] Court shall—
(a) make an order in writing setting out its determination as to whether or not the club is a discriminating club, and
(b) cause a copy of the order to be transmitted to the Minister.
(7) (a) Where—
(i) the [District] Court makes an order under subsection (6)(a) setting out its determination that a club is a discriminating club, and
(ii) the order is the first such order in relation to the club,
the [District] Court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days.
…
(8) (Provision for appeal to Circuit Court)
(9) (Provision for period of suspension of certificate of registration)
(10) …
(11) An order under this section suspending the certificate of registration of a club shall, while it is in force, have effect for the purposes of the Registration of Clubs Acts, 1904 to 1999, as if no certificate under those Acts had been granted in respect of the club for the period of suspension.
…”
Section 9
25. Section 9 makes provision for non-discriminating clubs. It provides:-
“(1) For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that—
(a) if its principal purpose is to cater only for the needs of —
(i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,
(ii) persons who are members of the Traveller community, or
(iii) persons who have no religious belief,
it refuses membership to other persons,
[Emphasis added]
(b) it confines access to a membership benefit or privilege to members within the category of a particular gender or age, where—
(i) it is not practicable for members outside the category to enjoy the benefit or privilege at the same time as members within the category, and
(ii) arrangements have been made by the club which offer the same or a reasonably equivalent benefit or privilege both to members within the category and to members outside the category,
[Emphasis added]
(c) it has different types of membership, access to which is not based on any discriminatory ground,
(d) for the purpose of reducing or eliminating the effect of any rule or practice of the club (whether adopted before or after the commencement of this section) restricting access to particular types of membership to persons of a particular gender it offers concessionary rates, fees or membership arrangements to persons who were or are disadvantaged by any such rule or practice, or
(e) it provides different treatment to members in the category of a particular gender, age, disability, nationality or national origin in relation to sporting facilities or events and the different treatment is relevant to the purpose of the facilities or events and is reasonably necessary.”
Portmarnock’s Membership
26. The issue in this case arises primarily because of rule 3 of Portmarnock’s rules, which provides that Portmarnock shall consist of members and associate members who shall be “gentlemen properly elected”. Women are not permitted to become members or associate members of the Club. Women may, however, play golf there either with or without a member on the payment of a green fee. Portmarnock provides changing facilities and locker rooms for women, and women are entitled to access a bar and restaurant and all other Clubhouse facilities available at Portmarnock. A ladies’ scorecard is available to women golfers and Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies’ Golfing Union, the body which regulates women’s golf in Ireland.
High Court Judgment
27. The High Court pointed out that:-
” … both parties argued as to the correct interpretation and meaning of the “principal purpose” in that section. The plaintiffs on behalf of PortmarnockGolf Club argue that the principal purpose of the Club is to cater only for the needs of persons of a particular gender, that is male golfers. The Club refuses membership to any other persons.”
The learned trial judge stated that the question is not whether the legislation permits single gender clubs – as it does – but whether Portmarnock is one of the type of single gender clubs envisaged by section 9. The High Court referred to Portmarnock’s argument that a correct interpretation of the Act of 2000 has the effect of removing all clubs whose principal purpose is to cater only for the needs of persons of a particular gender from the ambit of s.8 of the Act. It was submitted that while s.8 targeted gender discrimination, amongst other forms of discrimination, s.9 provided for exceptions. The learned High Court judge stated:-
“This interpretation presupposes that all clubs are for some purpose, and the plaintiffs submit the exception provided for in s. 9 is not dependent on the activities of the club, but rather on the category of the persons whose needs are catered for by the club. If the principal purpose of the club is to cater for the needs of persons falling within the exempted category then the club is exempt regardless of its activities. The plaintiffs argue for a relatively broad interpretation of the word “needs” in s. 9 and submit that it includes the social, cultural and recreational needs. It is submitted that such interpretation is necessary for a sensible reading of the section.”
The learned trial judge held that:-
“In attempting to interpret the meaning of the gender based exception in s. 9 of the Equal Status Act, it is instructive and helpful to ask what kind of single gender clubs are contemplated by the Act as falling into the exception specifically provided for in s. 9 of the Act. In view of her finding that the purpose of the club was to play golf and that mens golf did not constitute a “special need” the learned District Judge did not find it necessary to address this issue. Although the Equality Authority submitted that there must be a logical connection between the objects of the club and gender, it is significant that the court was not provided with any example of an existing club of that type. No convincing example was given of any theoretical club which might fit into the definition contended for by the Equality Authority. The example proffered of a club for men who have a perceived grievance concerning the administration of justice in the family courts, and who wished to provide mutual support in some practical fashion such as babysitting, is not at all convincing. That example does not fall within the logical connection test argued for by the Equality Authority because there is nothing gender specific in a perceived grievance that men are not treated properly in the family courts. There is nothing gender specific in relation to the practical assistance of babysitting. In the example proffered by the Equality Authority the logical connection test is not satisfied.
Counsel for the Equality Authority adopted the finding of the District Judge that:
‘the ordinary words of the statute do not ascribe to mens golf a special need’ and said ‘that a golf club did not cater for the ‘needs’ of men’.
The argument of counsel and the finding of the District Court would in my view be readily acceptable were the definition of the word “needs” to be construed very narrowly to mean only “requirements”, but the definition as set out in the District Court decision itself also extends to “that which is wanted” – a much broader and less stringent criterion than “requirements”. In my view an unduly stringent interpretation of the word “needs” would render quite meaningless the s. 9 based exceptions in the case of persons of a particular nationality or ethnic or national origin (another category of persons encompassed by the provisions of s. 9 of the Act). It is difficult to see how persons could have different “needs” based on nationality if the word “needs” were to be narrowly construed as being “requirements”. For example, in the case of an Italian national it is difficult to see what his or her requirement referable only to nationality might be, that would differ from the requirements of non-Italians if the word “needs” were to be narrowly construed. Indeed, counsel for the Equality Authority rightly conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a particular “nationality or ethnic or national origin” the word “needs” would have to be construed broadly so as to include the cultural needs of the nationality in question. I agree. However, if the word “needs” is to be interpreted in such a non-restrictive fashion in relation to clubs catering for persons of a particular nationality, it cannot be given a more restrictive interpretation when applied to single gender clubs in the same section of the same Act. I cannot see how cultural needs fall within the definition of needs in relation to a person of a particular nationality, while at the same time the sporting needs in relation to persons of a particular gender would be excluded. There are even those who would go so far as to equate sport with culture, although – perhaps fortunately – that argument was not advanced in the present case.”
Rules of Portmarnock Golf Club
28. The rules of Portmarnock in relation to membership provide:-
“3. The Club shall consist of Members and Associate Members, as defined below, who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status, for the time being, prescribed by The Royal and Ancient Golf Club of St Andrews.”
In other words, Portmarnock confines its membership to gentlemen.
29. The issue as to whether Portmarnock is a discriminating club under the statute turns on the construction of s.8 and s.9 of the Act of 2000. While section 8 prohibits discrimination, exceptions are provided for in section 9.
Submissions
30. Written and oral submissions were made on behalf of the parties.
30.1 Extensive written submissions were made on behalf of the Authority. The Authority submitted that the Act of 2000 seeks to address discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community. It was submitted that the Act of 2000 was adopted in order to comply more fully with Ireland’s obligations under the 1979 United Nations Convention on the Elimination of all Forms of Discrimination Against Women and to enable Ireland to ratify the 1966 United Nations Convention on the Elimination of all Forms of Racial Discrimination. While the Act of 2000 prohibits discrimination in a number of areas, these proceedings deal specifically with clubs which usually have over 150 members. The Act of 2000 established the concept of “discriminating clubs”, which hold certificates of registration under the Registration of Clubs Acts 1904 to 1999 being necessary for the sale of alcohol.
The Authority submitted that the Act of 2000 aimed to address discrimination in specific fields of Irish society. One such field was the membership of recreational and sporting clubs and in particular golf clubs, many of whom allowed women only a limited membership and others which completely barred women. It was submitted that Portmarnock prohibits women from becoming members and that it is only if Portmarnock can avail of the exemption provided by s.9 of the Act of 2000 that it can avoid the consequences of being a “discriminating club” for the purposes of the Act of 2000. It was submitted by the Authority that the meaning of the statute is plain and that Portmarnock is a discriminating club under the Act of 2000. It was submitted that a literal interpretation of the Act of 2000 which gives the words of s.8 and s.9 their ordinary meaning results in the single conclusion that Portmarnock is a discriminating club under the Act of 2000. Further, it was submitted, that even if there were a need to depart from the literal meaning of the words used it is clear that the purpose of the Act is to promote equality and prohibit discrimination. It was argued that Portmarnock discriminated against women but that it seeks to justify this under section 9. It was submitted that a purposive or teleological interpretation of the Act of 2000 can only support the interpretation which results in Portmarnock being found to be a discriminating club. Counsel submitted that Portmarnock is a discriminating club for the purposes of s.8 of the Act of 2000 and cannot avail of the exception provided by section 9.
30.2 Extensive written submissions were made also on behalf of Portmarnock. It was pointed out that the issue raised by the appeal was the true interpretation of section 9(1)(a) of the Act of 2000. It was submitted that the interpretation of s.9 by the judgment of the High Court was impeccable. It was submitted that the clear and obvious meaning of s.9(1)(a) of the Act of 2000 is that clubs may choose to include members on discriminatory grounds (other than race and colour) even if that method of inclusion necessarily excludes a certain group or groups identifiable by reference to discriminatory grounds. However, a club is not permitted to target a particular group for exclusion from membership. Nor is a club permitted, having chosen to associate with a particular membership, to discriminate within that membership on any of the proscribed grounds, save as expressly permitted by the Act of 2000. It was submitted that this interpretation correctly identifies the mischief at which s.8 is aimed, while preserving meaningful scope to the exception drawn by section 9(1)(a).
Mr Donal O’Donnell S.C., in oral and written submissions, advanced the legal argument for Portmarnock. Counsel submitted that the mischief to which the Act was directed was clear, it was concerned that within clubs there was discrimination; women could not use the bar, etc. Counsel submitted that s.8 does not permit different treatment of members and he proceeded to address issues of dual membership within clubs and submitted that that was the mischief to which the Act of 2000 was addressed. While this was skilfully argued, and such mischief is covered by the Act of 2000, I am of the view that the mischief to which the Act was directed was not so limited.
Counsel drew the Court’s attention to the EU context, Council Directive 2004/113/E.C. Attention was drawn to recitals, including Recital (i) which refers to respect for human rights, fundamental freedom, the rule of law and constitutional traditions. Recital 16 was raised, which refers to differences in treatment being justified only by a legitimate aim: such as single sex shelters, single voluntary bodies, freedom of association (including single sex private clubs) and the organisation of sporting events: any limitation should be appropriate and necessary in accordance with the criteria of case law from the European Court of Justice. Counsel submitted that the Act of 2000 has to be read as achieving the aims of the Directive.
While I agree with counsel’s general analysis, however, the facts of a case have to be analysed to consider whether there has been discrimination under the Act of 2000. Thus in this case the facts of Portmarnock are analysed under the requirements of section 9(1)(a). Whether or not there is similar legislation in other jurisdictions does not assist the statutory interpretation of the Act of 2000 in this State.
Counsel also submitted that if there was an ambiguity in the Act of 2000 the Court would have to adopt the interpretation advanced on behalf of Portmarnockbecause it impinges less upon the right of association. As I find no ambiguity in s.9(1)(a) this issue does not arise.
Counsel referred to the constitutional context. He submitted that if Portmarnock were not to win the case it would be a denial of the freedom of association, or a regulation of that right, which would be disproportionate to any permissible aim. Reference was made to cases on the constitutional right of association here, in the United States of America and in Canada.
At issue before this Court at this time is the construction of s.9(1)(a) of the Act of 2000. In essence it is whether Portmarnock is a discriminating club under the legislation or not. The constitutionality of the Act of 2000 is not before the Court. Consequently, it is neither necessary nor appropriate at this time to consider the constitutionality of the legislation.
The issue in this appeal is the construction of s.9(1)(a) of the Act of 2000. In addressing that issue I have considered carefully and borne in mind the written and oral submissions made to the Court on behalf of the parties.
Decision
31. The issue before the Court is the interpretation of ss.8 and 9 of the Act of 2000. Having construed the sections it is then necessary to apply that law to the facts of the case.
Section 8
32. Section 8 defines and refers to discriminating clubs. The section does not apply to all clubs, however it does apply to those which hold a drinks licence. The statute does not apply to a club which does not have a drinks licence. In other words the sanction put in place by the Oireachtas is the withdrawal of a drinks licence.
33. Section 8 establishes a general rule of law that a club which holds a drinks licence may not discriminate. Under section 8(2)(a) a club is defined as being a discriminating club if it has any rule, policy or practice which discriminates against a member or an applicant for membership. Section 8(2)(b) lists a number of acts any of which, if done by a club, is evidence that a club is a discriminating club. Included in the list are: (i) the act of refusing to admit a person to membership; and (ii) providing different terms and conditions of membership for members or applicants for membership.
34. Discrimination is defined in s.3 of the Act of 2000. Section 3(2) provides that, as between two persons, discriminating grounds include that one is male and the other female – the gender ground.
35. Thus section 8 provides a general rule that, in the relevant clubs, discrimination is illegal and this includes gender discrimination.
Construing Statutes
36. The ordinary rules of statutory interpretation apply to construing the words of the Act of 2000. In Howard v. The Commissioners of Public Works [1994] 1 I.R. 101, at p.151, Blayney J. stated the general principles to be applied and adopted Craies on Statute Law 7th Ed., (1971) at p.65, as follows:-
“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver.”
In D.B. v. Minister for Health [2003] 3 IR 12 McGuinness J. stated at pp.49 and 50 that:-
“It may, I think, be safe to sum up the judicial dicta in this way. In the interpretation of statutes the starting point should be the literal approach – the plain ordinary meaning of the words used. The purposive approach may also be of considerable assistance, frequently, but not invariably, where the literal approach leads to ambiguity, lack of clarity, self-contradiction, or even absurdity. In the interpretation of a section it is also necessary to consider the Act as a whole. As was stated by Keane J. (as he then was) in Mulcahy v. Minister for the Marine (High Court 4th November, 1994):
‘While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.'”
Following the well trodden path laid by common law on the interpretation of statutes, I will first consider the literal meaning of the words. If the words are precise and unambiguous then it is necessary only to interpret the words in their ordinary and natural meaning. If the literal approach leads to ambiguity or an absurdity, then I will apply the purposive approach, and consider the Act of 2000 as a whole.
Section 8 considered
37. Under section 8 Portmarnock is a “club” as it holds a certificate of registration, a drinks licence. In accordance with s.8 a club shall be considered to be a discriminating club if it has any rule which discriminates against a member or an applicant for membership. Any of the following acts, if done by the club, is evidence that it is a discriminating club – for example, refusing to admit a person to membership, providing different terms and conditions of membership for members or applicants for membership.
38. Under the rules of Portmarnock only “gentlemen” may be members. Ladies are excluded from membership by the rules. This is gender discrimination. Portmarnock is in breach of the law against discrimination as established under section 8. Portmarnock is a discriminating club under section 8.
Section 9 considered
39. The decision in this case rests on the words of section 9. Section 9 makes provision for some exceptions to the general rule against discrimination established in section 8. The question is whether Portmarnock comes within the exception provided. Section 9 provides that in certain instances a club shall not be considered to be a discriminating club under section 8. These instances arise if its principal purpose is to cater only for the needs of (i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin, (ii) persons who are members of the Travelling Community, or (iii) persons who have no religious belief, and it refuses membership to other persons. This case centres around the first exception – that it shall not be considered to be a discriminating club if its principal purpose is to cater only for the needs of persons of a particular gender.
40. Clearly section 9 makes provision for single gender clubs. However, these are limited to the terms set out in section 9. Section 9(1)(a) makes provision for non-discriminating clubs, and permits discrimination in certain circumstances. The portions of the statute relevant to this case, in s.9(1)(a), are as follows:-
“… a club shall not be considered to be a discriminating club by reason only that—
(a) if its principal purpose is to cater only for the needs of—
(i) persons of a particular gender …
it refuses membership to other persons.”
[Emphasis added]
Key words are “principal purpose”, “cater only” and “needs”.
“Principal purpose”
41. The legislation permits a club to discriminate if its “principal purpose” is to cater only for the needs of persons of a particular gender. Therefore, it is necessary to identify the principal purpose of Portmarnock.
42. It is relevant to note that the legislation does not refer to the “purpose” or “purposes” of the club. Rather the legislation refers specifically to the “principal purpose”. Thus under the statute it is necessary to identify the principal purpose of Portmarnock, which does not mean that there may not be other purposes, and to find out whether that principal purpose is to cater only for the needs of men.
43. The learned trial judge accepted submissions made on behalf of Portmarnock. These included the submissions that although discrimination, including on the grounds of gender, was clearly targeted by s.8 of the Act of 2000 in respect of clubs in general, that s.9 provided exceptions if the principal purpose of the club is to cater for the needs of persons of a particular gender. The learned trial judge accepted the submission that this presupposes that all clubs are for some purpose. The learned trial judge referred to Portmarnock’s submission that the exception provided for in s.9 is not dependent on the activities of the club, but rather on the category of the persons whose needs are catered for by the club, that if the principal purpose of the club is to cater for the needs of persons falling within the exempted category then the club is exempt regardless of its activities. The Club argued for a relatively broad interpretation of “needs” in s.9, that it included social, cultural and recreational needs.
44. I respectfully disagree with the learned High Court judge and I am of the view that he fell into error in construing the legislation on the presupposition that all clubs are for some purpose. Under the Act of 2000 it is necessary to determine the principal purpose of a club from the facts and there may be no presumption that all clubs are for a purpose or to commence from that presumption. The analysis should start from the facts of the case to determine the principal purpose of a club. The words of s.9 providing that a club shall not be considered a discriminating club are clear. They exempt a club:
“if its principal purpose is to cater only for the needs of …”
persons of a particular gender.
There is no ambiguity in these words. Nor is there any room under the statute for a presumption or presupposition as to some purpose. Consequently, I am satisfied that the learned trial judge erred in his presupposition and in his construction of these words.
45. To construe section 9, and to apply it, it is necessary to determine the principal purpose of Portmarnock.
46. To identify the principal purpose of Portmarnock I shall consider its rules. The first rule of Portmarnock is that the name shall be “Portmarnock Golf Club”. Thus the name states its location and a purpose – golf.
47. The second rule has the heading “Game”. It states that the rules of golf for Portmarnock shall be the rules of golf, as approved from time to time by the Royal and Ancient Golf Club of St. Andrews. This rule is thus also addressed to the issue of the playing of golf, although inferences may be drawn from it as to whom it is referring.
48. Rule 3 deals with membership. It provides that the Club shall consist of members and associate members, who shall be “gentlemen properly elected” and who shall conform with the rules of amateur status prescribed by the Royal and Ancient Golf Club of St. Andrews.
49. There is also provision for other members, all being men or boys. There are details as to how members may be admitted, as to subscriptions and entrance fees, as to officers, management, accounts, general meetings, change of rules, notices, breach of discipline.
50. As was found by the learned trial judge, while women are not permitted to become members or associate members of Portmarnock, women may play golf there, either with or without a member, on the payment of a green fee. Portmarnock provides changing facilities and locker rooms for women. Women are entitled to access a bar and restaurant and other clubhouse facilities. A ladies scorecard is available to women golfers. Also, Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies’ Golfing Union. It is clear that women are fully catered for to play golf at Portmarnock.
51. Having considered the rules I am satisfied that primarily they refer to a golf club in Portmarnock, called Portmarnock Golf Club. The next question is whether this principal purpose is qualified by the remaining words of the phrase in s.9(1)(a), being “to cater only for the needs of” men.
“To cater only for the needs of” men
52. Referring to the relevant words of s.9(1)(a), they state that a club will not be a discriminating club if its principal purpose is to cater only for the needs of a particular gender, in this case, men. Thus Portmarnock would not be a discriminating club if its principal purpose is to cater only for the needs of men.
53. The words “to cater” are defined in the Concise Oxford Dictionary 8th Edit. as to supply food, provide meals for, provide entertainment for, to pander to. The words “to cater” are words in general use and are clear and precise. They usually are applied in relation to the provision of food. If this narrow construction were taken it could be related only to the restaurant etc. However, the High Court found that women are entitled to access a bar and restaurant and all other clubhouse facilities on an equal basis to men. Thus on the facts women are “catered for” in the provision of food also.
In general, and in the particulars in this case, the words “to cater” may be construed as having a wider dimension than just the provision of food. It appears to me that the words refer to “making a provision for”.
54. It is notable that s.9(1)(a) has the word “only” after the words “to cater”. It is a limiting word. It identified that the club would be catering “only” for a specific group. Thus, in an issue of gender discrimination, it would be catering “only” for one gender. However, as the facts of the case indicate, Portmarnock caters for men and women, but differently. Women are not excluded from the Golf Club. They are excluded from membership.
55. This brings me on to the further qualifying words of s.9(1)(a) being “the needs of”. It is notable that the term used is “needs”. The word “needs” is defined in the Concise Oxford Dictionary 8th Edit. as “of necessity”, and reference is made to the phrase “needs must”. This definition is consistent with the clear meaning of the word in general use. The word raises the concept of a necessity, of what must be, of an inexorable requirement. It is not simply a choice.
56. Section 9(1)(a) provides that there may be single gender clubs when the principal purpose is to cater only for the needs of a single gender. There should be a logical connection between the objects of the club and the gender. There was an example given to, and referred by, the High Court as “a club for men who have a perceived grievance concerning the administration of justice in the family courts and who wished to provide mutual support in some practical fashion such as babysitting”. This was dismissed as “not at all convincing”. I would not dismiss such an example out of hand.
Application of the facts under section 9
57. I am of the view that on the face of the rules the principal purpose of Portmarnock is the playing of golf. Further, it does not cater only for the needs of men. It caters for men and for women but in different ways. Both men and women may play golf and use facilities and the Clubhouse, but only men may be members.
58. The words of s.9(1)(a) are clear and precise. Thus it is necessary only to interpret the words in their natural and ordinary meaning. Giving the words their natural and ordinary meaning they do not include Portmarnock. The principal purpose of Portmarnock is golf. It does not cater only for men. It caters for women also, in a different manner. To obtain the protection of s.9(1)(a) there should be a logical connection between the objects of the club and the gender. In this case Portmarnock’s principal object is golf and there is not logical connection between that object and the gender on the facts. There are no “needs” connected to the men who are gentlemen members such as to necessitate the club and enable it receive the protection and be an exception to the general rule as provided for in section 9 of the Act of 2000.
59. However, if there were any ambiguity, which I do not find, the Act of 2000 should be interpreted purposively. The Act of 2000 should be interpreted in accordance with the intent of the legislature. The Act of 2000 was a remedial social statute. Its purpose was to promote equality and prohibit certain forms of discrimination.
60. Section 8 lays down the general rule prohibiting discrimination, including gender discrimination. Section 9 provides some exceptions. The exceptions should not be interpreted so broadly as to negate the rule set down in section 8. Rather, the exceptions in section 8 should be construed narrowly.
61. Section 9(1)(a) is an exception to the broad rule against discrimination set out in section 8. The words of s.9(1)(a) are limiting. On the facts of this case they provide an exception only if Portmarnock’s principal purpose is to cater only for the needs of men. It is my view that Portmarnock is not covered by s.9(1)(a) as its principal purpose is golf.
Several arguments addressed by the High Court
62. The learned trial judge dealt specifically with several arguments, to which I shall refer in the same order.
(i) The fact that Portmarnock caters for women golfers as well as men is a relevant factor. I am satisfied that this is relevant in analysing the facts and in determining whether it is a club with the principal purpose “to cater only for the needs” of men. Portmarnock caters for men and women. It caters more fully for men than women, but that is not the test set by the statute – which is to “cater only for the needs of” men.
(ii) Rule 14(4) is relevant in the analysis of the principal purpose of the Club. That rule provides “The Club, being primarily devoted to golf, being an athletic purpose, may admit persons under the age of eighteen years as Members but no excisable liquor shall be sold or supplied in the Club premises to any person under the age of eighteen years be they Members or not …” The rule specifically states that Portmarnock is primarily devoted to golf. The word “primarily” is similar to the term “principal purpose”. Further, the fact that it is a golf club is underscored by the reference “being an athletic purpose”. Indeed, the wording of this rule essentially states that Portmarnock is “primarily” devoted to golf, being its “purpose”.
(iii) Section 8 of the Act of 2000 is a powerful general rule against discrimination. Section 9 provides for some exceptions and is limited in its application.
(iv) The long title in the Act of 2000 states that it is an Act to promote equality and prohibit inter alia types of discrimination – it is to remedy certain discrimination and other unlawful activities. Consequently, as it is remedial legislation the Court should adopt a purposive approach in interpreting the Act, if necessary. I am satisfied that it is not necessary to take that step in this case as the words of the section are clear and precise and do not need the assistance of taking a purposive approach.
63. I am satisfied that on each of these issues it is clear that the analysis, as stated earlier, of the principal purpose of Portmarnock is applicable. On such analysis Portmarnock’s principal purpose is golf. Consequently, Portmarnock is a discriminating club under the Act of 2000.
64. Reference was made by counsel to s.235 of the Taxes Consolidation Act 1997 – which applies to sole purpose amateur games, of which Portmarnockbenefits. The section provides that an appropriate body is any body whose sole purpose is amateur games/sport. This is consistent with the finding that the principal purpose of Portmarnock is golf.
Conclusion
65. A club may be established as an association of persons with a common interest. They may share an activity, such as sailing or golf. They may offer members amenities, such as a restaurant and a bar. Section 8 of the Act of 2000 applies to such associations if they have a drinks licence, in which case discrimination is forbidden. However, exceptions are identified in s.9, where discrimination is permitted. While the general rule of s.8 is broadly stated the exceptions are limited by the terms of section 9.
66. I adopt a literal interpretation to the words of s.8 and s.9(1)(a) of the Act of 2000. Section 8 prohibits discrimination, including discrimination on the basis of gender. However, exceptions are provided for in s.9(1)(a), which makes provision for single gender clubs. This is a specific exception to the general rule stated in section 8. To obtain the status of an exception a club has to comply with the terms of section 9(1)(a).
67. For the reasons given I am of the view that Portmarnock’s principal purpose is golf, consequently, it does not come within the terms of s.9(1)(a) of the Act of 2000. Therefore, it is not a permitted exception to the rule against discrimination. Thus Portmarnock is a discriminating club.
68. The approach taken by the learned High Court judge in construing s.9(1)(a) of the Act of 2000 was based on a presupposition or presumption that all clubs are for a purpose and on that basis he proceeded to consider the issue of the category of persons catered for. Such an approach is to ignore the clear and precise words of section 9(1)(a). Portmarnock’s submission is to presume that clubs are for a purpose. This is an error. Section 9(1)(a) contains no such presumption or presupposition. Rather it requires that the principal purpose be identified. On its identification, if the principal is “to cater only for the needs of” men then a club may be an exception under s.9(1)(a) and a non discriminating club.
69. However, for the reasons given, I have found that the principal purpose of Portmarnock is golf. Further, that Portmarnock caters for men and women. Portmarnock does not cater “only” for the “needs” of men. By the facilities it offers to men and women the facts show that it is a sports club for golf. The rules themselves indicate that it is primarily a golf club.
70. Portmarnock Golf Club is exactly what its name says – a golf club in Portmarnock. It caters for men and women in different ways. Portmarnock is not a club which comes within the terms of section 9(1)(a). Consequently, I would allow the appeal. I would hold that the District Court was correct in law in finding that Portmarnock is a discriminating club.
Constitutional issue
71. The second issue, that of the constitutionality of the Act of 2000 was not before the Court and does not arise.
Double construction rule
72. The issue of the constitutionality of the Act of 2000, was not before the Court at this time. There is, of course, the presumption that the Act of 2000 is constitutional. If there were two or more interpretations open on the words of s.9(1)(a), one constitutional and the other unconstitutional, then the interpretation that it is in accordance with the Constitution would prevail. However, this does not arise in this case as the words of s.9(1)(a) are clear and precise and there is no ambiguity. There are not two or more possible interpretations of the words, nor is there another construction reasonably open, in light of the clear and precise words and their ordinary meaning.
73. I am satisfied that the correct interpretation of s.9(1)(a) means that Portmarnock is not covered by that exception and is a discriminating club. I do not consider that there is any ambiguity. Consequently, it would not be correct to seek another interpretation or apply any further principles of construction of statutes.
74. The Constitution provides for freedom of association. The citizens have a right to form associations. This is, of course, not an absolute right. Laws may be passed to regulate and control in the public interest. The Act of 2000 is an Act to promote equality and prohibit certain types of discrimination. Section 8 and section 9 address the matter of discriminating clubs. At this time the correct interpretation of this statute, the intent of the Oireachtas, is the only issue. No issue of the constitutional validity of the Act of 2000 is before the Court.
75. While the learned High Court judge obviously had the best of intentions, he erred, in view of his interpretation of s.9(1)(a), in proceeding to consider and set out his “comments” on the constitutionality of sections of the Act of 2000.
Judgment delivered the 3rd day of November 2009 by Mr Justice Fennelly
1. Portmarnock Golf Club is a national institution; it is the best known golf club in the country and is renowned internationally. Its membership is restricted to men. The central question on these appeals is whether the principal purpose of the Club is the playing of golf or whether, as the club contends, its principal purpose is to cater only for the needs of men. The answer to this question determines whether Portmarnock is entitled to remain registered as a club.
2. The appeals are taken by the Equality Authority from the High Court judgment and orders of O’Higgins J in two separate proceedings. Firstly, the EqualityAuthority had applied successfully to the District Court for determinations pursuant to the Equal Status Act, 2000 that Portmarnock is a discriminating club which would have the effect of depriving it of its registration as a club enjoying the right to supply intoxicating liquor to its members. Sale of intoxicating liquor in a club is, of course, not permitted. The learned District Judge held in favour of the Equality Authority but stated a case to the High Court.
3. In parallel, Portmarnock issued proceedings in the High Court seeking declarations that it is not a discriminating club and, alternatively, that the relevant legislation is unconstitutional. Portmarnock also argued that the double construction rule would require the relevant legislation be interpreted so as not to infringe its members’ constitutional right to freedom of association. Alternatively, Portmarnock argued that the legislation was unconstitutional.
4. O’Higgins J heard the case stated and the plenary proceedings together. No evidence was called in the High Court. The parties agreed to accept the facts as found in the District Court. O’Higgins J decided in favour of Portmarnock. He held that it is not a discriminating club. He did not resort to the double construction rule. Nonetheless, he went on to consider the constitutional challenge. He found that, if the constitutionality of the Act required to be considered, he would dismiss Portmarnock’s claim of unconstitutionality.
5. The Equality Authority has appealed against the judgment of O’Higgins J on the interpretation of the section. Portmarnock has brought an appeal against the dismissal of its constitutional claim. This does not now arise, in view of the decision of the majority of the Court.
6. The Court has decided to deal, firstly, with the appeal of the Equality Authority against the decision of O’Higgins J with regard to the correct interpretation of the relevant sections. That is the sole subject of this judgment. I merely wish to emphasise from the outset that I deal only with the questions of statutory interpretation which arise.
The facts
7. The relevant facts are taken from the judgment of the District Court.
8. Portmarnock was founded in 1894. It had 626 members and 625 associate members at the date of the District Court hearing. The Club is affiliated to the Golfing Union of Ireland.
9. Rule 3 of the Rules provides:
“The Club shall consist of Members and Associate Members, as defined below, who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status, for the time being, prescribed by the Royal and Ancient Golf Club of St Andrews.”
Rule 14.4 refers to the fact that the “Club [is] primarily devoted to golf.”
10. Women are permitted to play golf at Portmarnock either with or without a member on identical terms to those applicable to male non-members. Women may play the course at Portmarnock on seven days of the week upon payment of green fees at the times permitted for such play. At least three competitions are played at Portmarnock Golf Club in each year in which women take part as guests.
11. The club provides changing facilities and locker rooms specifically for women as part of the clubhouse complex. Women have access to the bar and restaurant and all other clubhouse facilities (except the male locker rooms) at Portmarnock on an equal basis with men. Presumably, however, women, not being members, and like male non-members, may not purchase intoxicating liquor, though this was not adverted to at the hearing. A ladies’ scorecard is available to women playing the course and the club itself facilitates the playing of golf by women under the rules of the Irish Ladies Golfing Union, the body which regulates golf played by women in Ireland.
12. The club enjoys tax exemption under Section 235 of the Taxes Consolidation Act 1997. That section refers to an approved body of persons who may be granted tax exemptions. An approved body is defined to mean “any body of persons established for and existing for the sole purpose of promoting athletic or amateur games or sport…” (emphasis added).
13. Portmarnock has, for many years, been the holder of a Certificate of Registration under the Registration of Clubs Acts, 1904-1999.
14. No other facts have been proved. It has been stated in the written submissions of Portmarnock that it is one of only two among 400 golf clubs in Ireland which restricts its membership to men, though there is no evidence of this fact.
The legislation
15. The Equal Status Act, 2000, according to its long title, is “an act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access…” By that Act, equality policy moved from the area of employment law and entered a number of other areas of economic activity, in particular, the disposal of goods and the provision of services to the public (see section 5). These provisions apply to clubs only to the extent that they supply goods or services to the public. There is even a specific provision to make it clear that section 5 does not apply where a club supplies services to its own members (see section 5(2)(b)).
16. This case is concerned only with the quite distinct and self-contained provisions of sections 8 and 9, although it is necessary, in considering them, to have regard to definitions regarding discrimination which are used generally in the Act.
17. These are contained in section 3. Section 3(2) lists what, “as between two persons” are held to be “discriminatory grounds.” Depending on how one counts them, there are nine or more, including gender, marital status, family status, sexual orientation, religious belief, age, race or colour or membership of the Traveller Community. Section 3(1) provides that “discrimination shall be taken to occur,” where a person is treated less favourably by reference to membership of any of the categories set out in section 3(2). This simplified account of section 3 sufficiently serves the purpose of this judgment. It is a given that Portmarnock’smembership rule discriminates on the ground of gender. The Club admits only “gentlemen.”
18. The provisions designed to deprive certain clubs of their continued registration under the Registration of Clubs Acts are contained in sections 8 and 9. Section 8 defines a “club” as “a club which has applied for or holds a certificate of registration.” Section 8(2) (a) provides that “a club shall be considered to be a discriminating club if…it has any rule, policy or practice which discriminates against a member or an applicant for membership……” Portmarnock’s rule restricting membership to gentlemen is caught by that provision, which is reinforced by section 8(2)(b)(i) by virtue of which it is evidence that a club is a discriminating club if it commits the act of “refusing to admit a person to membership…”
19. Portmarnock, therefore, is a “discriminating club” as defined by section 8. However, section 9 provides that a club “shall not be considered to be a discriminating club,” if it satisfies one or other of the provisions of section 9(1)(a) and “refuses membership to other persons.”
20. The entire appeal turns on whether Portmarnock satisfies the first of those statutory requirements.
21. The object of these provisions and the consequences of being a discriminating club appear from section 8. The section lays down the procedure. Any person, including the Equality Authority, may apply, pursuant to sub-section 3, to the District Court for “a determination as to whether a club is a discriminating club.” There are provisions as to service set out in sub-section 5 so as to enable interested persons “a reasonable opportunity to make representations.” The following provisions govern the decision of the District Court:
(6) After considering the representations, the Court shall—
(a) make an order in writing setting out its determination as to whether or not the club is a discriminating club, and
(b) cause a copy of the order to be transmitted to the Minister.
(7) (a) Where—
(i) the Court makes an order under subsection (6)(a) setting out its determination that a club is a discriminating club, and
(ii) the order is the first such order in relation to the club,
the Court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days.
(b) Where the Court makes any subsequent such order, section 10 shall apply and have effect in relation to it.
22. Section 8 (7) provides that where a court makes a determination that a club is a discriminating club and that order is the first such order in relation to the club then the court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding thirty days.
23. Section 10 provides, inter alia, that “while an order under section 8 determining that a club is a discriminating club remains in effect, no certificate of registration under those Acts shall be granted to or renewed for the benefit of the club…”
24. The net effect of these provisions is to enable a registered club, found to be a discriminating club to suffer, firstly, the temporary and later potentially the permanent loss of its certificate of registration.
25. Section 9 of the Equal Status Act provides, in relevant part:
1) For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that—
(a) if its principal purpose is to cater only for the needs of—
(i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,
(ii) persons who are members of the Traveller community, or
(iii) persons who have no religious belief,
it refuses membership to other persons…
26. Portmarnock has maintained at all times that, although it comes within the definition of a discriminating club pursuant to section 8, it is “not to be considered to be” one, since “its principal purpose is to cater only for the needs of” men.
27. That is the case in a nutshell. The principal purpose of Portmarnock Golf Club is not, the Club says, the playing of golf, but rather to “cater only for the needs of” men.
The District Court Proceedings
28. The Equality Authority applied to the District Court on 10th June 2003 for a determination that Portmarnock Golf Club is a discriminating club and that its certificate of registration be suspended for a period not exceeding thirty days. The defendants were Portmarnock and its principal officers.
29. District Judge Mary Collins heard the application on 28th November 2003 and 19th January 2004. Evidence was given, inter alia, by the Secretary Manager and the Captain of the Club. The learned judge made findings of fact, as summarised above. Certain correspondence was agreed.
30. Judge Collins delivered judgment on the 20th of February 2004. She made a determination that Portmarnock Golf Club is a discriminating club within the meaning of Section 8 of the Equal Status Act 2000. On the 18th of May 2004 she made an order under Section 8 (7) (a) of the Equal Status Act 2000 suspending the Certificate of Registration of Portmarnock Golf Club for a period of seven days. Judge Collins concluded her judgment:
“The Equal Status Act is an Act to promote equality and prohibit discrimination. I propose attributing to Section 9 the ordinary meaning in the Oxford English Dictionary. The relevant words of Section 9(1) are “principal purpose” and “to cater only for the needs of” that which is in “principal” [sic] is first in importance. The “purpose” is the object towards which one strives. To “cater for” is to provide what is needed or required and “need” is that which is wanted or required. I think the words are clear.
The principal purpose of the club is to play golf. The ordinary words of the statute do not ascribe to men’s golf a special need. A literal approach is appropriate in this case and therefore other canons of construction are not needed. I propose to rely on the presumption of constitutionality.
Accordingly the Defendants is a discriminating club for the purposes of the Equal Status Act 2000 and does not come within the exemptions provided therein.”
31. The reference by the learned judge to ascribing “to men’s golf a special need” seems to arise from an argument attributed in the course of her judgment to the Captain of the Club that the principal purpose of Portmarnock was the “playing of men’s golf.” It is not clear whether that argument was advanced by counsel for Portmarnock in the District Court. It is clear, however, that it was not the stance adopted by Portmarnock either in the High Court or in this Court.
32. The learned District Judge has stated a case to the High Court pursuant to section 2 of the Summary Jurisdiction Act, 1857 as amended by section 51 of the Courts (Supplemental Provisions) Act, 1961, seeking its opinion as to whether she was correct in law to make the above-mentioned determination and order.
The plenary proceedings
33. On 11th June 2003, the above-named plaintiffs instituted plenary proceedings on behalf of Portmarnock against the Equality Authority, Ireland and the Attorney General in which they claimed:
(1) A Declaration that Portmarnock Golf Club is not a discriminating club within the meaning of Section 8 of The Equal Status Act 2000.
(2) A Declaration that by reason of the provisions of Section 9 (1) (a) of The Equal Status Act 2000 that the club shall not be considered to be a discriminating club for the purposes of Section 8 of the said Act.
(3) Further and in the alternative if the provisions of Section 9 (1) (a) of the 2000 Act do not, on their proper construction, apply to the club and/or the club is considered to be a discriminating club for the purposes of Section 8 of the Act, the provisions of Sections 8, 9 and 10 in so much as they purport to apply to single gender sporting clubs are invalid having regard to the provisions of the Constitution of Ireland.
(4) Alternatively a Declaration that Sections 8, 9 and 10 of The Equal Status Act 2000 in so much as they apply or purport to apply the prohibition contained in Section 8 to single gender sporting clubs, are incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms and in particular Article 11 thereof.
34. The first two declarations relate to the subject-matter of the District Court decision. That court is designated by statute as the proper forum for the determination of whether any particular registered club is a discriminating club. The Act assigned that jurisdiction to the District Court, which was the only court having jurisdiction to make the determination in question and any consequential order. The question of whether the learned District Judge was correct in law was appropriately stated by her to the High Court. No evidence was heard in the High Court, where the hearing proceeded on the basis of the facts as found in the District Court. In reality, the entire matter proceeded within the framework of the case stated.
35. The third and fourth questions could arise only in the event that the Equality Authority succeeds in its appeal to this Court. In view of the decision of the majority of the Court, they do not now arise.
The High Court judgment
36. The High Court judgment and, it seems to me, the entire decision in the case, turns on the question of “principal purpose.”
37. O’Higgins J noted the submission of the Equality Authority that the principal purpose of the Club was to play golf and not to cater only for the needs of persons of one gender. He said that the Club had argued that its principal purpose is “to cater only for the needs of a particular gender, that is male golfers.” Apart altogether from the obvious difficulty of defining “male golfers,” rather than men or women, as a gender, I believe the learned judge was mistaken in attributing this argument to Portmarnock at all. Mr Donal O’Donnell, Senior Counsel, on behalf of the Club has been quite consistent, subject to one modification to which I will refer, in the way he has put the matter. He submitted both to the High Court and to this Court that the learned District Judge was wrong to determine that the principal purpose of the Club was the playing of golf. He argued that the principal purpose of the Club was to cater only for the needs of men. I have referred to a modification. At one point in oral argument, Mr O’Donnell submitted that “the purpose of the Club is the playing of golf by its members.”
38. Subject to the interpolation of the word “golfers,” O’Higgins J accepted Portmarnock’s interpretation of section 9, saying: that its “principal purpose is to cater only for the needs of male golfers.” He held that this came within the exceptions to section 8 provided by section 9.
39. In reaching this conclusion, the learned judge was influenced by an argument, which has been a constant theme of Portmarnock’s case, namely that he was given no plausible example of any existing club which might, in theory, fall within the exemption provided by section 9. He rejected any notion of a purposive interpretation or any resort to the remedial character of the legislation or the objective of achieving equality. He did not accept that the interpretation of section 9 advanced by Portmarnock would be so broad as to defeat the purpose of the Act. In his opinion the interpretation of section 9 of the Act advanced by Portmarnock “recognises the fact that there is nothing inherently undesirable with [sic] persons seeking – in a social context – the society of persons of the same gender or the same nationality or the same religion.” Thus, he considered:
“In a tolerant and free and increasingly diverse society, it is not surprising that the type of exemptions envisaged in s. 9 were enacted – as a result of which – in terms of registered clubs – it is permissible to have – exclusively – a bridge club for Bulgarians, a chess club for Catholics, a wine club for women and a golf club for gentlemen.”
40. In this way, the learned judge equated the purpose of a club with its membership rather than with its activity, which becomes a merely descriptive term.
The appeal
41. The issues on the appeal, insofar as the interpretation of the Act is concerned, are effectively the same as those which were considered so extensively by O’Higgins J.
42. O’Higgins J found it unnecessary to consider the double-construction rule, since he thought the interpretation of the section to be clear. I propose to consider the interpretation of the section without resort to the principle of double construction.
43. While the Equal Status Act is aimed generally at the elimination of discrimination, inter alia, on grounds of gender, the provisions of sections 8 and 9 are completely self-contained. They address uniquely the private and internal rules of clubs having a certificate of registration under the Registration of Clubs Acts. They do not restrict or limit the right of groups of persons to form associations limited to persons having particular characteristics. They do, however, where they apply, provide for the significant sanction of the termination of the right to supply intoxicating liquor to their members.
44. Section 8 of the Act commences by limiting its scope only to those clubs which hold a certificate of Registration of Clubs Acts, 1904 to 1999. Thus, the legislation applies only to a members’ club having at least one hundred and fifty members and occupying its own premises of which it is “the tenant and proprietor and occupier.” In the same way as normal licensed premises, those premises must be shown to be suitable for the supply and consumption of intoxicating liquor. (see section 1 of the Registration of Clubs (Ireland) Act, 1904).
45. It is not in dispute that Portmarnock is a “discriminating club” within the meaning of section 8, because it has a “rule, policy or practice which discriminates against a member or an applicant for membership.” In this case, rule 3 limits membership to “gentlemen properly elected.” Part of the argument for Portmarnock is that section 8 (as distinct from section 9) contemplates discriminatory admission rules in the case of clubs not limited to a single gender, for example a quota limiting the number of members of one gender (or other discriminating category). This is relevant to a point concerning the effect of section 9 in depriving section 8 of meaning and I will refer to it later.
46. In any event, the clear effect of section 8 is to make it possible for a discriminating club to be deprived of its certificate of registration, initially for a limited period and potentially permanently so long as it remains a discriminating club. This is indisputably a significant sanction.
47. However, the entire focus of the debate has, at all stages, centred not on section 8 but on section 9(1)(a), whose provisions are set out above. A registered club is not to be considered a discriminating club for the purposes of section 8—citing only words relevant to this case— by reason only that…if its principal purpose is to cater only for the needs of…persons of a particular gender………it refuses membership to other persons……”
48. The provision centres around four terms: principal purpose; caters; only and needs.
49. A registered club will clearly have a purpose or purposes. There may be a principal purpose with subsidiary purposes; there may be no principal purpose. Counsel for the Club consistently argued for a distinction between the purpose or purposes of a club and its activity. On this argument, golf is merely the activity carried on in Portmarnock, but is not its purpose. As I will explain, I am unpersuaded by the notion that the principal purpose of Portmarnock Golf Club is other than the playing of golf. It is unreal and implausible to suggest that the principal purpose of a Golf Club is not the playing of golf.
50. There are a number of compelling indications, some of them statutory, of clubs being considered as having a purpose, a primary purpose or a principal purpose.
51. Bearing in mind that sections 8 and 9 apply only to registered clubs, it is material that the Registration of Clubs Acts have always contemplated clubs as having a purpose or purposes. Section 2 of the Registration of Clubs Act, 1904 requires an application for a certificate of registration to state “the name and object of the club.” Section 4(k) as amended by section 42 of the Intoxicating Liquor Act, 1988 provides that “no person under the age of eighteen shall be admitted a member of a club, unless the club is one primarily devoted to some athletic purpose” (emphasis added).
52. Section 9 contemplates a club which has as “its principal purpose to cater only for the needs of……persons of a particular gender…”
53. Thus, the first and obvious question is: what is the “principal purpose” of Portmarnock Golf Club? That is a question of fact. The relevant finding of fact made by the learned District Judge was: “The principal purpose of the club is to play golf.” With great respect to the sophistication of the arguments advanced on behalf of the Club, which criticised the District Court for its “simple, if not simplistic interpretation,” it is difficult to find fault with this finding. It is a simple determination of an issue of fact, which was within the jurisdiction of the learned District Judge. It is in any event quite obviously correct.
54. If the Oireachtas in 1988, by amending section 4(k) of the Act of 1904, envisaged a club being “primarily devoted to some athletic purpose,” why could a club, not be considered in an Act of 2000, to have an athletic purpose, specifically playing the game of golf, as its principal purpose? The answer, in any event, provided by Rule 14.4 of the Club Rules, which, in compliance with section 4(k) provides:
“The Club, being primarily devoted to golf, being an athletic purpose, may admit persons under the age of eighteen years……”
By its own Rules, therefore, the Club states that golf is a purpose, in its case an athletic purpose, and that it is a purpose to which the Club is “primarily devoted.”
55. This is so obvious a conclusion that one hesitates to labour the point. Portmarnock has quite properly and lawfully adopted a rule permitting it to admit members under the age of eighteen years. But a registered club may do that only if it is primarily devoted to an athletic purpose.
56. The District Court also made a finding that Portmarnock is included in a list of sporting bodies maintained by the Revenue Commissioners for the purposes of section 235 of the Taxes Consolidation Act 1997. That section enables “approved bodies” to benefit from exemption from income tax in respect of so much of their income as is shown to the satisfaction of the Revenue Commissioners to be income which has been or will be applied to the “the sole purpose of promoting athletic or amateur games or sports.” In this way, golf becomes not only its “principal” but its “sole” purpose.
57. These are two examples of statutory provisions whose benefits have been properly and lawfully invoked by the Club, one of which requires that it be primarily devoted to an athletic purpose and the other that it be a “body of persons established for and existing for the sole purpose of promoting athletic or amateur games or sports.”
58. It is, moreover, a matter of simple common sense that the principal purpose of Portmarnock Golf Club is the playing of golf. When the farseeing founding members of Portmarnock came together in 1894 and led to the establishment of what is now the first and greatest of Irish golf clubs, what was their purpose if it was not the establishment of a golf club? Clearly, the answer is “none.” Any other answer would be preposterous.
59. In short, the finding of the District Court that the principal purpose of Portmarnock is to play golf is unimpeachable.
60. I turn then to address the respectively of the judgment of the learned High Court judge and the arguments of the Club.
61. O’Higgins J reached the conclusion that Portmarnock came within the exemption provided by section 9(1)(a) because: its “principal purpose is to cater only for the needs of male golfers.” As I have already pointed out, this was not—I would add for good and logical reasons—the argument advanced by Portmarnockeither in the High Court or in this Court. With great respect to his careful and considered judgment, it is clear that O’Higgins J fell into clear error when he treated “male golfers” as a gender. Section 9(1)(a) contemplates a club whose “principal purpose is to cater only for the needs of” (inter alia) “persons of a particular gender.” “Male golfers” are not a gender, though they belong to the male gender.
62. It is material to recall, however, that the learned District Judge noted the differently expressed contention of the Captain of Portmarnock Golf Club that “the principal purpose of Portmarnock Golf Club was the playing of men’s golf.” Presumably, he implied that there are distinct games of men’s golf and women’s golf. That may be so. I would not wish to debate a matter on which there has been no evidence and on which I have little knowledge and no skill. There was, however, evidence before the District Court to the effect that Portmarnock in fact provides fully for the playing of golf by women. Women play golf at Portmarnockeither with or without a (male) member on identical terms to those applicable to male non-members. The Club provides them with changing and locker room facilities and ladies’ score cards. Generally, according to the evidence, the Club facilities are available to women as they are to men. The one thing that cannot be done, of course, is to sell intoxicating liquor to non-members.
63. It is thus appropriate to consider the matter on the hypothesis that the Club’s principal purpose, as argued by its Captain, is the playing of “men’s golf.” That approach has the merit of relating the purpose (playing men’s golf) to “needs” related to that purpose. The “needs” referred to in the section must necessarily serve the principal purpose contemplated by the section. A club has members who have formed it for a purpose and who have needs flowing from that purpose. This is implicit in the trial judge’s reference to the “needs of male golfers.” Their “needs” relate to the playing of golf and the Club caters for them.
64. I appreciate that counsel for the Club has subjected the submissions of the Equality Authority on this point to extensive criticism. That submission was to the effect that, in order for a club to enjoy the exemption provided by section 9, there would have to be a link or nexus between the principal purpose of the Club and the category (here gender) to which membership was limited. It has been suggested that the Attorney General has adopted a different interpretation. In fact, the Attorney General has made no submissions to this Court on the issue of interpretation, though O’Higgins J records him as having taken a different stand on that issue in the High Court. That position appears to have been that “a gentlemen’s club or ladies club – and not only those confined to those whose objects had a logical connection with male or female could be exempt from the provisions of section 8 of the Act.” For reasons which I will explain, I prefer the approach there recorded.
65. The entire expression which has to be interpreted is: “its principal purpose is to cater only for the needs of” persons in which ever particular category is relevant. In that context, the word “cater” presents the least difficulty. It means to provide for or look after. In context, the word “needs” must of necessity relate to the principal purpose of the club. As to the meaning of the words, “needs,” I find the analysis of Geoghegan J persuasive, while I reach a different conclusion on the issue of “principal purpose.” I agree that “needs” may include subjective, including social or cultural, requirements.
66. The difficulty is the word “only.” Portmarnock’s principal purpose is the playing of golf; it caters for the needs of its members, who are, as a matter of fact, male golfers. It also caters, however, extensively, and (except in the matter of membership), on a generally equal basis, for the needs of female golfers. Therefore, Portmarnock does not cater “only” for the golfing needs of its members.
67. It follows that Portmarnock does not come within section 9(1)(a) of the Act. It remains a “discriminating club.”
68. The Club and the High Court Judge drew attention especially to the undoubted fact that single-gender clubs are recognised by section 9. It is not unfair to say that counsel for the Club very effectively turned the tables on the Equality Authority by insistently demanding that it produce examples of clubs which would satisfy the statutory test if Portmarnock did not.
69. In my view, the section provides a clear and simple answer to this question. For reasons I have already given, it is clear—in my view it is clear beyond argument—that the principal purpose of Portmarnock Club is the playing of golf.
70. Section 9 permits a registered club to restrict membership, as Portmarnock does, to male persons provided it meets the requirements of the section. Those requirements are comprised in the three words “cater,” “needs” and “only.” If a club has, as its principal purpose, to cater for the needs only of men, then it may restrict membership to men.
71. Thus, if it had been the fact that the principal purpose of Portmarnock was to cater for the needs only of male golfers, it would not be a discriminating club within the statutory definition. But, on the facts as found by the District Court, which are binding for the purposes of the case stated, it is patently not the case that Portmarnock caters only for male golfers. Thus, it fails to meet the statutory test laid down in section 9(1)(a). It is true that, while the Club could limit membership to males, it could not restrict the facility of green fees to male non-members, without infringing section 5 of the Act.
72. The Equality Authority submitted that the interpretation by of section 9 adopted by O’Higgins J. is such as to empty section 8 entirely of its content and effect. The breadth of the exemption available on the interpretation adopted by the High Court and by the majority of this Court was such that it would apply to virtually any club whose membership is limited to one of the categories of persons set out in section 9(1). This argument proceeds from the position adopted on behalf of the Club, namely that its principal purpose was to cater for the needs of its members. The playing of golf was not its purpose, but merely its activity. Hence, the words “cater” and “needs” are used merely as links between the purpose and the membership. The principal purpose and the members coincide. On this interpretation, the argument goes, there is little if any scope for the application of section 8. Mr O’Donnell, as mentioned above, in an attempted response to this point, submitted that section 8 has a different scope from section 9. He argued that it contemplates discriminatory admission rules in the case of clubs whose membership is not limited to a single gender or category He gave the example of a quota limiting the number of members of one gender (or other discriminating category). While that submission is technically correct, it lacks reality. At no other point in the proceedings was it suggested that any such clubs have existed. As a matter of common sense, they must be extremely rare. This point does not, therefore, diminish the force of the argument that the interpretation of section 9 propounded by the Club would empty section 8 of almost all meaning.
73. I would like finally to refer briefly to two criticisms of the Equality Authority which figured to some extent in the submissions of counsel for the Club both in written and oral submissions.
74. Counsel drew the attention of the Court to certain correspondence between the Minister and the Equality Authority. On 23rd June 2000, the Minister wrote to the Equality Authority requesting that it to draw up a Code of Practice pursuant to section 56 of the Employment Equality Act as applied to the Act of 2000 by section 39 and the Schedule to the latter statute. Such a code could relate to issues of discrimination pursuant to the latter Act. The Club complains that no such Code has been produced and states that this constitutes a breach of statutory duty by the Equality Authority. I confess to being at a complete loss to understand how that fact has any bearing on the present appeal. The point does not appear to have been raised in the District Court. It is not mentioned in the Case Stated. It is not mentioned in the judgment of the High Court. Even if it had been, it is utterly irrelevant to the question before the Court, namely whether Portmarnock is a discriminating club. The operation of section 8 is not dependant on the existence of a code of practice.
75. Another issue raised by the Club and canvassed at the hearing of the appeal was the position of the Masonic Order under the legislation. I find it objectionable that the interests of a body which is not before the Court and not represented should be debated at all. In any event, whether that or any other club or body is treated correctly under the legislation is, to my mind, also utterly irrelevant to the legal issue before the Court.
76. In my view, the meaning of the section is clear. It is certainly clear in its application to this case. The principal purpose of Portmarnock Golf Club is the playing of golf. To serve that purpose it caters for the needs of its members, who are, according to the rules of the Club, gentlemen. However, it is equally clear that its purpose is not to cater only for the needs of its gentlemen members. It also caters, so far as the playing of golf is concerned, equally for women, who have equal access to the club, except in the matter of membership. Thus, it does not satisfy the requirements
77. I would, therefore, allow the appeal and answer the case stated by saying that the District Court was correct to make the declaration which it did.
78. Like Denham J, I do not believe that there is any ambiguity in the section. For the reasons she has given in her judgment I am satisfied that the principle of double construction does not apply. It is also clear that the learned High Court judge was mistaken in entering on the issue of the constitutionality of the legislation, by reason of the authorities which he cited in his judgment, notably McDaid v Sheehy [1991] 1 I.R. 1.
DEC-S2003-056 Full Case Report
Shanahan v One Pico Restaurant
Ms Shanahan 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.
2. Dispute
This dispute concerns a claim by Ms Shanahan that she was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of her family status in that at lunchtime on 15/1/02 she was denied service in the respondent’s premises. The respondent does not deny that service was not provided, but states that it was on the basis of a restaurant policy not to serve persons accompanied by children under four years of age.
3. Summary of the Complainant’s case
To mark her mother’s first visit to Ireland, Ms Shanahan, a qualified chef herself, decided to take her mother for a lunchtime meal with others to allow her to sample ‘fine’ Irish cuisine. Her father-in-law made a reservation but on arrival the group was refused because Ms Shanahan had her five month old child with her.
4. Summary of the Respondent’s Case
The Respondent agrees that the party was refused because they had a baby with them. Their policy is not to allow children under four years of age into their premises during the day and at night the age limit is 10. This policy is based on a previous incident involving a child of two years of age after which other (business) customers complained and said they would not return. The respondent submitted that Section 5 (2)(h) might be relevant to this case.
5. Evidence of the Parties
Complainant – Ms Paola Shanahan
Ms Shanahan is an Italian who had been in Ireland for 10 years. She trained as a chef in Ireland. Shortly after the birth of Ms Shanahan’s baby, her mother came to Ireland for the first time.
To mark the occasion, and because of her chosen profession, Ms Shanahan decided to take her mother to a nice restaurant to allow her to sample Irish cuisine and fine food.
Ms Shanahan’s husband knew staff at One Pico restaurant having been involved in taking pictures of the restaurant for the Bailey’s book.
Ms Shanahan’s father-in-law made the booking for lunch on 15/1/2002, which was a Tuesday.
Ms Shanahan’s baby was five months old at the time and she carried the baby in her arms as she entered the restaurant with the group for lunch
The Manager informed them politely that they could not have lunch. Ms Shanahan’s perception of the manager’s approach was that he was cold and nonnegotiable.
Although her baby is a very content and quiet one, she had made arrangements to use her father-in-law’s office near the restaurant, should the baby become unsettled for any reason.
She was very embarrassed and disappointed at the reception. Her group had been kept in the hall. She was particularly embarrassed since her Mother did not speak any English which meant that what was going on had to be explained to her.
Neither Ms Shanahan nor her Mother could understand the restaurant’s approach since this would not happen in Italy.
The group left and went to another (named) restaurant in the area and were received without difficulty.
Ms Shanahan said that in her opinion the purpose of a restaurant was to have somewhere to go with others to enjoy fine food. She could not understand why this should be restricted to a particular section of society.
After the incident Ms Shanahan contacted 15 restaurants by phone, including some fine food restaurants, and was informed by all of them that the presence of a baby would not present a problem.
After her first complaint to One Pico Restaurant Ms Shanahan received an invitation to dine at the restaurant at some later date. Ms Shanahan pointed out that there had been four adults in her group for lunch but the invitation was for two people only and made no reference to her baby.
One Pico Restaurant’s card makes no mention of the restaurant having a strictly business purpose; it simply states the quality of the food served. Ms Shanahan pointed out that it is not useful to have the policy relating to children under 4 years of age noted on menus since if you cannot get in you cannot see the menu.
Ms Shanahan pointed out that her baby did not need anything from the restaurant, he could not even sit in a high chair at that time. Ms A Shanahan, complainant’s Mother-in-Law Ms Shanahan had nothing further to add to her daughter-in-law’s version of events except to repeat the embarrassment felt by the entire group at having to leave and the embarrassment at having to explain this approach to an Italian lady being welcomed to Ireland for the first time. Mr. Eamonn O’Reilly, Respondent
Mr O’Reilly did not contest the date or the format of the notification sent by Ms Shanahan.
One Pico Restaurant had originally been in Camden Street, where there had been an incident with a young child of about two years of age. The child appears to have disturbed other customers by moving around the restaurant. There were a number of complaints from corporate customers on the day stating that because of that incident they would not be back.
Mr. O’Reilly stated that the staff did approach the parents or those in charge of the child. He was unclear as to whether the reaction of the parents was adequate. The child’s group had not been asked to leave. On foot of that incident One Pico Restaurant decided not to allow young children in again. It is not appropriate for a baby to be present during corporate lunchs. The actual age-limit of four evolved after that incident. They rely on parents of children over four to be responsible. At night the age limit is over 10 years of age.
When planning the move to the new premises all of these issues were considered.
Mr. O’Reilly stated that he had approached the Restaurant Association of Ireland in relation to this complaint who declined to become directly involved.
One Pico Restaurant has a wine-license.
The principle target customer base is corporate and there are neither babychanging facilities nor high chairs in the Molesworth Place premises.
They have always presumed that similar restaurants operated the same policy. This policy is noted at the base of the menu.
Mr. O’Reilly said that if people call for a reservation and ask for a high chair, they will be told that the restaurant has no such facilities.
Mr. O’Reilly is in business with Mr. L. Crowe and they have another restaurant called Pacific in Sycamore Street. This restaurant caters for families. Another similar restaurant will open soon in Dawson Street.
When asked if the restaurant was still pursuing the policy, Mr. O’Reilly replied that they did not know what was the correct thing to do and asked for directions.
Mr. Larry Crowe, joint owner of One Pico Restaurant
Health and safety is an issue to be considered in these circumstances. They have a duty of care in relation to spillages.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(a) and 3 (2)(c) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
Section 3 (1)(a) provides that discrimination shall be taken to occur where: “On any of the grounds specified…….a person is treated less favourably than another person is, has been or would be treated”.
Section 3 (2) provides that: “As between any two persons, the discriminatory grounds … are …
(c) that one has family status and the other has not or that one has a different family status from the other…”
Family status is defined in Section 2 of the Act as follows: ”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, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
Section 5 (1) and 5(2)(h) are as follows:
“5. — (1) 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.
(2) Subsection (1) does not apply in respect of —
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,
(l) differences, not otherwise specifically provided for in this section, in the treatment of persons in respect of the disposal of goods, or the provision of a service, which can reasonably be regarded as foods or a service suitable only to the needs of certain persons.”
Section 15(1) of the Equal Status Act 2000 provides that : “… nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person 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 provision of 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.” At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (in this case the family status ground)
(b) Whether or not there was specific treatment of the complainant by the respondent
(c) Whether or not the treatment received by the complainant was less favourable than the treatment someone that does not have family status or that 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.
7. Conclusions of the Equality Officer
7.1. Prima facie case
Ms Shanahan is a mother whose baby was 5 months old and in her charge on the date of the incident. I am satisfied therefore that the family status ground is applicable to her in relation to this incident.
Ms Shanahan claims she was refused access to the restaurant on 15/1/2002. This was not disputed by the respondent, who subsequently responded to her in writing explaining their policy of no children under 4 years of age. This satisfies the requirement at (b) above.
In relation to (c) above, I will now consider if the treatment of the complainant was less favourable than someone who does not have family status or has a different family status would have been treated. The policy operated by the respondent is one of nonadmittanceof children under four years of age and consequently of non-admittance of those in the company of children less than four years of age. If the complainant is compared with a person who, on presenting themselves for service at One Pico Restaurant, does not have family status, (that is a person who does not have responsibility as a parent or primary carer), or with a person who has a different family status, (for example a lady who is pregnant or a person who is a primary carer of a person of over 18 with a disability), it is clear that this policy would not have been applicable and service would not have been refused on that basis. Therefore Ms Shanahan has been treated less favourably than both a person who does not have family status and a person who has a different family status.
It is interesting to note that this case is based on the family status ground, even though Ms Shanahan’s refusal was based not on the fact that she was a parent, but on the fact that she had a child under four years of age with her. While other adults admitted may also have been parents, and therefore have a general responsibility as a parent, they were not accompanied by their children and therefore would have been admitted. However, in Ms Shanahan’s case, the child she had with her distinguished her as a parent or person in loco parentis and it is clear that she had responsibility as a parent in the context of the incident.
I am satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7.2. Respondent’s rebuttal
The respondent did not contest that the incident happened and that the statutory notification procedures had been complied with in accordance with the Equal Status Act, 2000. The respondent relied on the following arguments:
An earlier unsupported report of an incident involving a child of about two years of age
Duty of care under Health and Safety legislation
They have other restaurants that are for family use
Lack of facilities for young children
The target customer base and Section 5 (2)(h) of the Equal Status Act, 2000
Earlier Incident
The respondent submitted that the bulk of their business, or perhaps that business which they wished to nurture, was corporate. They felt that the presence of a baby was not conducive to business being carried on at lunch time. This opinion was based on an incident that occurred while the restaurant was based in Camden Street. On that occasion a child was running around and the parents were approached and informed that the child’s behaviour was not appropriate. The respondent did not give any indication that the parents’ response was not adequate, but pointed out that the business customers on that day had indicated that they were unhappy and that they would not return. It is not clear if these customers were unhappy with the child’s presence or with the level of control exercised by both the manager of the restaurant and/or the parents. The child’s party was not asked to leave. On the basis of this incident it was decided to avoid the issue by not allowing children under four into the restaurant. When considering their options in relation to the new premises, the respondent decided to continue to exclude all children under the age of four years of age. It appears that the respondent decided, on the basis of one incident, to refuse those who brought children under four. This defence is somewhat similar to that contained in Section 15(1) of the Equal Status Act, 2000 (quoted above) which suggests that where the service provider, having the appropriate experience and responsibility is entitled to refuse to serve someone whom that person considers may pose a risk of disorderly conduct. However this defence only relates to a customer who may have caused difficulties in the past or whose behaviour reasonably suggests that such a risk exists.
It is useful to ask at this stage who is the customer. In this case the baby required no service from the restaurant, other than being allowed to be present on the premises. Ms Shanahan was the customer, and there was no suggestion that to serve Ms Shanahan would have led a reasonable person with the relevant experience to the conclusion that she would behave in a disorderly manner. However, Ms Shanahan was refused because of her association with a baby. Could serving Ms Shanahan have led to a risk of disorderly behaviour by the baby?
A five month old baby is not comparable with older children who can run around, and after all the policy was based on an incident where a child was moving around. Most people would accept that babies, in general, cry at some point and that some cry more than others. There is often no reason to expect a baby’s behaviour to be anything other than unpredictable. Could the crying of a child be seen as disorderly conduct? In the wording of section 15(1) ‘disorderly conduct or behaviour’ is sandwiched between (1) ‘criminal conduct or behaviour’ and (2) ‘damage to property’. Both of these are serious forms of behaviour and suggest an overall context for the sentence. I am not satisfied that a child’s crying is in the same order of magnitude or that it constitutes the implied form of behaviour. However, even if one accepts that it is, the section suggests that the person must have reasonably believed that the provision of the service would produce a substantial risk of the disorderly conduct. In general it is not the service received, or not, from the service provider that makes a young baby cry. To refuse all those who present themselves with a child under four on the basis of one incident is not reasonable, since it does not afford the parent(s) or those in loco parentis the opportunity to attend to any difficulties arising. This is exacerbated by the fact that those with children over four years of age are afforded this opportunity. Indeed the setting of the age limit at four years of age seems arbitrary.
In the instant case Ms Shanahan said that her baby was very quiet and content. She also said that arrangements had been made to have somewhere to take the child should he have become fractious or upset for any reason. A blanket refusal such as this does not sit well with section 15(1) for all of the reasons mentioned above, but particularly because it does not provide for the assessment of the customer in each instance. I am satisfied that Section 15(1) does not provide a defence in this case.
Health & Safety
The respondent raised the issue of health and safety but in response to a request they did not point to any particular provision to rely upon. The respondent has another restaurant where families are welcome and a second is at an advanced stage of preparation. Since health and safety considerations in relation to children under 4 appear to be an issue only with their One Pico restaurant and not the other restaurant, this argument cannot be sustained without evidence of some form to justify the difference. None was presented. The size of the restaurant was mentioned but not from a Health and Safety perspective. Size in fact may well be irrelevant, since even a large premises may present Health and Safety difficulties if overcrowded. Other restaurants that are for family use The respondent explained that they had another restaurant and a third at an advanced stage of preparation. Families are and will be welcome in these restaurants. However, in this case it was the ‘fine dining’ that One Pico offered that was required for the occasion given the complainant’s work background and the first visit of her mother to this country. Lack of facilities for young children
The lack of facilities, including changing facilities and high chairs, was presented as a reason for not serving those with children under four. However, this lack of facilities appears to be a direct consequence of the respondent’s decision to implement the policy, since once the decision to implement the policy was arrived at there was no apparent need to provide such facilities, even when planning the new premises. In other words the lack of facilities results from the policy and not vice versa, therefore this cannot be relied upon as a justification of the policy in this case. The target customer base and Section 5 (h) of the Equal Status Act, 2000 Section 5 (2)(h) (quoted above) states that treating persons who belong to a particular category differently is acceptable where one is promoting the special interests of those in that category. This promotion must be for a bona fide purpose and undertaken in a bona fide manner. It is unclear who the relevant category of person(s) is intended to be. In my view it cannot be used to justify treating Ms Shanahan differently since One Pico Restaurant was clearly not promoting her special interests. The section talks about the differences of treatment and since it does not indicate whether this treatment should be more favourable or less favourable, it appears that it might apply to both. On the basis that the treatment must flow from the promotion of the special interests of persons in the category, it is my opinion that this sub-section of the Equal Status Act, 2000 will normally, if not always, relate to the justification of more favourable treatment of a particular category of persons.
Perhaps the respondent meant this to refer to his corporate clients as he stated that these were his target customers, suggesting therefore that it is acceptable to treat them differently. This raises several difficulties.
Is the service provided for the principal purpose of promoting corporate special interests?
Is this promotion for a bona fide purpose?
Is it undertaken in a bona fide manner?
Is the difference in treatment reasonably necessary?
However, a more fundamental difficulty relates to the identification of the appropriate category of persons because, in fact, the respondent welcomes all those without children under the age of four. While it may have been the respondent’s intention to prevent children from disturbing his business clients, the group treated more favourably is much larger. Parents, and those in loco parentis, of children under four who wish to eat in the company of these children, for whatever reason, are precluded from eating in One PicoRestaurant, in addition to the children under four themselves1. Therefore, the people who are being treated more favourably than the complainant are all of those who are not in the company of children under four when requesting a meal, not only corporate customers.
Since neither arguments nor evidence were brought before me
as to what the special interests of such an diverse group might be,
that the services are provided for the principal purpose of promoting those special interests, and
that the promotion was for a bona fide purpose and undertaken in a bona fide manner,
I am satisfied that this section cannot be relied upon to justify the less favourable treatment of the complainant in this case. Section 5(2)(l) of the Equal Status Act, 2000 For the sake of a thorough consideration of this issue I have considered Section 5(2)(l) also. This section (quoted above) appears to suggest that where the goods or service being provided are suitable to the needs of certain persons only, then different treatment of persons not in that category is acceptable. Is fine food only suitable to the needs of certain persons? In my view it is suitable for any person who can enjoy the food. The section does not define what constitutes “the needs” of a person. While all people require or need food on an ongoing basis, it is a moot point whether fine cuisine addresses a need for any person. It is perhaps more of a luxury than a need. However, even if one accepts that the provision of fine cuisine is a service which satisfies the section, it is necessary to 1 On the basis of section 3(3) it is not illegal to treat those under 18 less favourably on the grounds of their age. look at the category of persons whose needs it addresses. The provision of fine dining is not a service which is suitable to the needs of only corporate customers. Fine dining is suitable to all of those who wish to enjoy fine food and it seems logical that the provision of fine food is not suitable to the needs of a child of five months. However, as established above, it was not the baby who was the customer in this case and there is no provision in the Equal Status Act, 2000, which provides that, where family status is applicable to a person, such a person should be seen as an indistinguishable part of a parent-child group. Ms Shanahan was the customer, and she had deliberately sought a restaurant serving fine cuisine both because of her work background and her mother’s visit. The provision of fine food was exactly what had been identified by Ms Shanahan as suitable for her needs in that instance.
Were I to suggest that a parent and child make up an unbreakable unit in terms of the Act, this would in my opinion undermine the protection offered by the family status ground in the Equal Status Act, 2000. To suggest that could be used to reduce the rights of a person accompanied by a child to the level of protection offered by the Act for a person under 18 on the age ground, i.e. zero. The Equal Status Act, 2000 specifically provides for the rights of parents and those in loco parentis in Section 3(2)(c) by making this a discriminatory ground. This is the only ground that is directly by association with another person, i.e. the child. While discrimination on all of the other grounds may be claimed ‘by association’ in accordance with section 3(1)(b)(i), this is tempered by Section 3(1)(b)(ii) which suggests that where the treatment of the person being associated with is not discriminatory, then it cannot constitute discrimination by association for someone else. There is no such mitigating subsection in relation to the “family status” ground. Therefore, to suggest that the rights of a person accompanied by a child should be reduced to zero would be to entirely undermine the intention of the Legislature in creating the family status ground.
I am satisfied that section 5(2)(l) cannot be relied upon to justify the less favourable treatment of the complainant in this case.
I find that the respondent has failed to rebut the prima facie case of discrimination as established, and that Ms Shanahan was discriminated against by the respondent on the family status ground in this case. This finding is based on the circumstances surrounding the incident and particular services involved in this case only.
8. Decision DEC-S2003-056
I find that the complainant was discriminated against on the family status ground contrary to section 3(1), and section 3(2)(c) of the Equal Status Act, 2000, and in terms of section 5(1) of that Act.
8.1. Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
8.2. Order
I hereby order:
8.2.1. That €400 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration:
The embarrassment created by the refusal of service.
The annoyance caused by the undoing of plans made for the occasion.
The fact that Ms Shanahan was inconvenienced for a short time only, since she found an alternative restaurant in which to dine after the incident.
8.3. Recommendation
Given the amount of confusion that appears to exist in the Restaurant business in relation to the Equal Status Act, 2000 it may be useful, in the interests of giving clarity, for the appropriate representative body to develop a code of practice for service providers in the restaurant business, perhaps in conjunction with the Equality Authority.
Bernadette Treanor
Equality Officer
30 June 2003DEC-S2009-001 – Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2009-001
Grogan v Crocketts on the Quay, Ballina
Date of Issue 13 January 2009
File Ref ES/2003/671
Equal Status Acts 2000 – 2008
Decision DEC-S2009-001
Key words
Equal Status Act 2000 – Direct discrimination, section 3(1)(a) – Family Status ground, section 3(2)(c) – Supply of goods and services, section 5(1) – Refusal of service in a Pub/Restaurant – Establishment of a prima facie case – Non attendance at Hearing by respondents – Intoxicating Liquor Act, 2003 (Commencement) Order 2003
1 Delegation under the Equal Status Acts, 2000 – 2007
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. On 9 January 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 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 Acts, 2000 – 2007.
2 Dispute
This dispute concerns a complaint by Michael Grogan that he and his family were discriminated against on the family status ground by the proprietors of Crocketts on the Quay, Ballina when they were refused a meal at 6.50 pm on Sunday 20 July 2003.
3 Summary of Hearing
3.1 The Hearing of this complaint was scheduled for 10am on 15 October 2008. On 13 October 2008 the respondent, Mr Paul Murphy, informed the Equality Officer by phone that he was not proposing to attend the Hearing to answer such “a ridiculous allegation”. In response, it was explained that the Hearing would proceed as planned as equality legislation required that a Hearing be convened to enable the complainant to put their case and also to provide the respondent with an opportunity to rebut any allegation made. Mr Murphy was also informed that if he was not in attendance that the complainant’s evidence would be heard on the day and would be taken into account by the Equality Officer in making his decision.
On 15 October 2008, the complainant arrived for the Hearing at 10am as required. As there was no sign of the respondent, the commencement of the Hearing was delayed for 30 minutes in case he had been detained en-route.
3.2 When the respondent had not appeared by 10.30 am, I convened the Hearing explaining that, despite the fact that the respondent was not in attendance, that in cases under the Equal Status Acts the onus was still on the complainant to provide evidence establishing a prima facie case.
The complainant then described how he and his family had visited Crocketts on the Quay in Ballina for a meal at 6.50pm on Sunday 20 July 2003 after a day at the beach. On arrival they were informed that the restaurant had a strict policy that all children must be off the premises by 7.30pm and that, as there was insufficient time for them to order and eat their meals by 7.30pm that evening, that they could not be accommodated. The complainant said that he found the incident very humiliating as he had been a regular there before and many customers on the night would have known him.
3.3 At the Hearing, the complainant’s solicitor made reference to the Intoxicating Liquor Act 2003 and stated that, to her knowledge, its provisions relating to children in pubs had not yet come into force on 20 July 2003. Accordingly, she believed that the complainant had suffered discrimination on the family status ground contrary to the provisions of the Equal Status Act 2000.
4 Conclusions of the Equality Officer
4.1 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 may 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.
Accordingly, despite the fact that the respondent did not attend the Hearing in this case, the onus is still on the complainant to establish a prima facie case before any consideration can be given as to whether discrimination occurred.
4.2 In the case before me, the complainant maintains that on 20 July 2003 it was contrary to the provisions of the Equal Status Act 2000 to refuse children admission to a licensed premises. In the past, similar such cases have been brought before the Tribunal. In both the case of Maughan v The Glimmer Man (DEC-S2001-20), involving an incident that occurred on 2 November 2000 and Travers and Maunsell v The Ball Alley (DEC-S2003-109/110) relating to an incident that occurred on 11 May 2001, the Equality Officer found that the complainants had suffered discrimination contrary to the provisions of the Equal Status Act on being asked to leave the pub in question because of having children in their company.
4.3 The case before me, however, happened some years later in mid 2003 at a time when the Intoxicating Liquor Acts were being revised in an effort to provide more clarity in the area of publicans’ rights with regard to restricting access to children. For this reason, I consider that it is appropriate to examine the timeframe that was involved in amending the Intoxicating Liquor Acts in 2003 and its relevance to the incident under discussion in this case.
4.4 The Intoxicating Liquor Act 2003 (No 31 of 2003), which provided publicans with the discretion to restrict the presence of persons under 18 on their premises (under Section 14), was enacted on 14 July 2003, a week before the refusal in this case.
However, the relevant Commencement Order (S.I. No. 362 of 2003) only provided for the enactment of Section 14 with effect from 29 September 2003indicating that on 20 July 2003, publicans still had not been legally granted the discretion to restrict the presence of persons under 18 years of age.
4.5 In light of the above, I am satisfied that the respondents acted in contravention of the Equal Status Act 2000 in refusing access to the complainant’s children on 20 July 2003. As the respondents did not take the opportunity to rebut the allegation at Hearing, I find in favour of the complainant in the matter.
5 Decision
I find that a prima facie case has been established on the family status ground in terms of sections 3(1) and 3(2)(c) of the Equal Status Acts 2000 – 2008 and that the respondents have failed to rebut the allegation.
I award the complainant the sum of €600 for the upset and humiliation caused on the night.
Brian O’Byrne
Equality Officer
13 January 2009
DEC-S2004-201 Full Case Report
O’Donoghue v Hibernian General Insurance
Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act, 2000, the Director has delegated this complaint to me Mary O’Callaghan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000. The hearing of the case took place over two successive days on 22nd and 23rd of July 2004.
1. Dispute
1.1 This dispute concerns a claim by the complainant Mr. Geoffrey O’Donoghue that he was discriminated against on the ground of age when he sought two insurance quotations using two different ages on the Hibernian Insurance Web based on-line motor insurance quotation and proposal facility on 27th November 2002. Mr. O’Donoghue alleges that the treatment he received was contrary to Section 3 (2) (f) [the age ground] of the Equal Status Acts, 2000 – 2004.
1.2 The respondent maintains that the quotations offered to the complainant reflect the element of risk which was calculated through the use of their actuarial modelling system, a statistical model which is in common use throughout the insurance industry. They maintain that any other difference that is apparent in the quotations arose from commercial factors which the company would apply in order to maintain competitiveness in various sectors of the insurance market.
2. Summary of the Complainant’s Case
2.1 The complainant who was 31 years of age in November 2002 said that as the time for the renewal of his motor insurance was approaching he utilised the Hibernian Direct Online facility to get a motor insurance quotation. He said that he decided to input the quotation request twice with just one variable changed between the two quotation enquiries. The only variable which changed between the two quotations was that of age. While he inputted his actual age of 31 years in one application he used the age of 41 years in the other, thus requesting a quotation based on he being 10 years older, all other factors being equal. The resulting quotes showed a difference of 21% in the premiums being charged by the company, the lower quotation being for the older proposer. The quotations offered were €799.71 for Mr. O’Donoghue at the age of 31 years and €658.79 for Mr. O’Donoghue at the age of 41 years. He said that he thought that the difference between the two quotes was excessively wide. He subsequently was given a lower quotation from another insurer (named) and took out a policy with that company. Initially he said that he did not consider discrimination as the cause of the difference quoted by Hibernian. He decided to check further for an explanation for the difference including writing a letter to the respondent company. The response to this letter, issued on 9th January 2003 informed him that “Hibernian is satisfied that in your particular case on the basis of our own confidential actuarial and statistical data and our reasonable underwriting factors our decision is justified within the terms of Section 5(2)(d) of the Equal Status Act, 2000.”
2.2 The complainant said that upon receiving the quotations from the insurance company he consulted the report of the Motor Insurance Advisory Board (MIAB) to assess whether the different amounts being quoted could be explained by the analysis in that report. The Motor Insurance Advisory Board was reconstituted under the remit of the Department of Enterprise Trade and Employment in 1998 and reported to the Minister of State at that Department in March 2002. The report contains an analysis of Motor Insurance data drawn from across the insurance industry in Ireland. Included in the analysis are tables presented, which the complainant submitted outline the risk attaching to drivers of different age groups for both Comprehensive and Third Party Fire and Theft insurance. The complainant submitted tables from the report which he highlighted as showing that if there was a greater risk attaching to the different age groups, which he submitted in his quotation requests, that difference would favour a lower quotation for Mr. O’Donoghue at 31 years of age rather than that for Mr. O’Donoghue at 41 years of age, as the claims cost attaching to the younger policy holder was shown to be lower. Among the tables and graphs drawn from the report he submitted a table showing that the claim cost to the insurer was less for the younger driver. He said that this information led him to the suspicion that the difference in his quotes from Hibernian Direct represents discrimination on the ground of age on the part of the insurance company. He said that he had written to the company on foot of this information and received a response which he did not consider a satisfactory response to his queries.
2.3 Mr. O’Donoghue said that he was relying on the MIAB data in support of his case of discrimination against the respondent Hibernian General Insurance particularly in the absence of other data which might support his case. He maintained that he would require access to the entire Hibernian SQL database if he were to fully assess the basis for his quotes. He maintained that the insurance company in setting its premium rates discriminated against younger drivers.
2.4 In response to the respondent’s case, the complainant asserted that the actuarial model used by the insurance company in determining the risk associated with different driver characteristics (GLM) made it difficult for him to prove discrimination as he stated that this method could not be used to prove discrimination. The complainant said that the report submitted by the respondent insurance company was misleading and painted a picture that favoured the respondent’s case. He submitted at the hearing that a more recent enquiry on the insurance company’s Web based system, using the same ages as in the November 2002 quotations, produced quotations with just a 14% difference in premiums quoted between the two ages, compared with the 21% difference which was between the quotations received in November 2002.
2.5 The complainant said that in providing the evidence of the two quotes received though Hibernian’s on-line direct quote system, he had established a prima facie case of discrimination on the age ground which the respondent would have to rebut if his claim of discrimination against the insurance company was to fail.
3. Summary of the Respondents Case
3.1 The respondent is a motor and general insurance provider in the Irish market and is a company in the AVIVA group of companies. The respondent indicated that it was relying on Section 5 (2) (d) of the Equal Status Acts 2000-2004 in its defence. Section 5(1) of the Equal Status Act 2000 states: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” Section 5(2)(d) of the Equal Status Act 2000 states: “Subsection (1) does not apply in respect of -…………………… (d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment -(i) is effected by reference to
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors,
And
(ii) is reasonable having regard to the data or other relevant factors” In an initial response to this complaint the company commissioned independent actuarial consultants to examine the MIAB data submitted by the complainant and this was presented in a report submitted to the Tribunal and copied to the complainant in advance of the hearing of this case. This report was prepared for the respondent by Mr David O’Connor of Tillinghast-Towers Perrin who appeared as a witness for the respondent at the hearing
3.2 Summary of the evidence of Mr. David O’Connor
Mr. O’ Connor is an actuary and heads the Irish office of Tillinghast-Towers Perrin. Mr O’ Connor said that his company was engaged by the respondent to review the data submitted by the complainant and to prepare a response in the light of a review of the respondent company’s approach to rating.
Mr O’ Connor said that his first observation of the complainant’s submission which was that the data submitted was incomplete and that it had a tendency to beselective which made the data appear to support the complainant’s claim beyond
what is in the data.
He said that the MIAB report, data from which the complainant’s submission was drawn, did not consider certain factors such as extra young driver exposure by age
of policy holder which could explain the higher claims cost for that age group. He
said that higher premiums could be charged for that proportion of the age group
with named young drivers to cover the extra risk.
Mr. O’Connor said that the MIAB data related to known reported claims and
estimates of the cost of those claims. He said that this information was deficient
and pointed to the limitations of the MIAB analysis outlined on page 726 of the
MIAB report which is a response to a submission by the Irish Insurance
Federation in June of 2000.1
In relation to his review of the respondent’s rating procedure he said it comprised
three sub components:
i Statistical process, identifying risk relativities using Generalised Linear Modelling (GLM).
ii Continuous re-evaluation through special investigation to identify differences
arising in business and statistical processes.
iii Focus on corporate objectives in relation to volume of business, cost, and business planning.
Mr. O’Connor stressed the importance of statistical modelling in rate setting and
said that a misinterpretation of the statistics would lead to a misalignment of risk
and rates resulting in either a loss of market share to competitors or an over
burden to the insurer in terms of cost, both of which could threaten the solvency of
the company. He said that the interpretation of risk must be accurate.
Mr O’ Connor said that GLM the model used by Hibernian shows the significance
of specific risk factors. He said that GLM is used industry wide in Ireland and the
UK and in the United States. He said that nothing had emerged which explains
risk better than GLM.
1MIAB response to IIF Document of 20 June 2000- Motor Insurance Advisory Board Report, Government of Ireland 2002, Stationary Office Dublin p726.
Mr O’ Connor said that data on such a system was constantly changing with the
addition of new data as claims were being recorded.
In response to a question about the narrowing of the difference between the
quotations provided by the complainant for the two age groups, between the
quotes complained of and the latter 14% quotation difference, Mr. O’ Connor said
that he did not find the drop to be exceptional.
3.3 Summary of the Evidence of Mr. Brian Huston
Mr. Huston is a qualified actuary and is a Director of Hibernian General Insurance with particular responsibility for pricing. Mr. Huston gave evidence regarding premium setting at Hibernian with reference to the complainant’s case.
Mr. Huston said that the company’s data collection for rate setting is in accordance with industry practice. At the time of a customer proposal the data on that customer is collected and any claims from that customer are added to the customer files as they arise. This allows the company to determine its claims exposure.
He said that the statistical approach to risk assessment and rate setting became the
industry standard from the 1980s when a UK insurer became insolvent due to poor
risk assessment. He said that from that time onward companies started to look to
statistical models to determine the risk associated with various customer characteristics and at this stage the company considers 20 risk factors including
age in relation to setting premiums for customers. He said that age was an
important factor in this.
Mr Huston said that the company was particularly conscious of the high claims
risk associated with young drivers. As a point of information, to illustrate this he
said that in an effort to bring the risk down and consequently the cost of insurance
for the younger drivers on its books, the company had recently introduced a
scheme called “Ignition” which provided driver education to young drivers and on
successful completion of the scheme the young driver would be offered insurance
at a lower rate than that which would be offered to drivers who had not completed
the scheme. This was because the scheme had produced positive results for the
company in terms of a reduction in claims to the company from younger drivers.
Mr. Huston said that the cost of providing the driver education was borne by
Hibernian. This scheme did not apply in the complainant’s case.
Mr Huston said that the MIAB data was not used by Hibernian in calculating
premiums as the MIAB presented data drawn from the experiences of a number of
insurance companies across the insurance industry whereas Hibernian utilised data
from its own experience in the insurance market.
Mr Huston said the company used the GLM model for determining risk and this
model allowed them to identify the impact of individual risk factors on claims
cost. He said that using this model, the risk associated with the age of a driver
could be isolated from other risk factors for example, car or engine type or the
area in which the driver lived. He said if the age variable alone had been the
determinant of the premiums quoted to the complainant in 2002, the actual
difference in premium quoted would have been 29% rather than the 21%
difference quoted to the complainant the lower age being a 29% greater risk.
He said that the premium quoted to the complainant therefore differed less than it
should have if the difference in the premium was based on age alone. Mr Huston
said that commercial factors intervened to narrow the gap such as the need to
protect market share in this part of the motor insurance market.
Mr Huston said that the provision of an on-line quotation facility was something
that the company moved into in line with other companies as a means of getting
new customers. He said that he regarded it as a facility for customers
Mr Huston said the GLM program used by Hibernian was provided by EMB
Consultancy of London and that he had worked in association with Mr. Michael
Brockman of that firm for a number of years in applying the GLM program
supplied by EMB, EMBLEM in Hibernian Insurance. Mr. Huston described the
system as dynamic as it changed with the addition of new data on customer
claims. The system was reviewed through investigations run by Mr. Brockman’s
company periodically to ensure that the measurement of specific risks was as
accurate as possible.
3.4 Summary of the Evidence of Mr. Michael Brockman
Mr. Michael Brockman is a partner in EMB Consultancy LLP of London and is an experienced actuary having worked in the insurance industry for a number of years prior to becoming a co-founder member of EMB Consultancy which is the largest non-life independent actuarial consultancy in the UK. Mr. Brockman has published several papers on the application of GLM (Generalised Linear Models) in the motor insurance industry and has developed the EMBLEM software based on his knowledge and experience in this area. EMB supplies this software to a number of insurers including Hibernian.
Mr Brockman said that he considered GLM to be the best statistical method in determining the risk associated with individual risk variables in motor insurance.
He said that it is the method used almost exclusively by all of the major insurers in
the UK and Ireland and submitted that although not yet the preferred method in
the United States it was becoming increasingly more popular among insurers
there.
Mr Brockman said that he did a GLM analysis, for the age variable, for the
hearing of this case, of the data held by Hibernian, that would have been utilised
for determining the quotations received by the complainant. This analysis showed
a 27% difference in risk between the two ages quoted, rather than the 29%
difference as said by Mr. Huston but still a full 6 percentage points higher than the
21% difference quoted to Mr. O’Donoghue on-line in November 2002.
Mr. Brockman submitted that particular rating factors do not operate in isolation
and that premium differences could be accounted for by interactions of rating
factors for example young drivers with high performance vehicles and older
drivers with high performance vehicles. He said the difference would reflect the
expected difference in driving behaviour between young and old policyholders
with respect to different vehicle types.
He submitted that the impact of named drivers can have a flattening effect on an
age related premium curve but this would be reflected in higher premiums being
charged to policy holders with named drivers
Mr. Brockman said that in determining a sound pricing basis the insurer has to
consider (1) the personal characteristics of the driver; (2) the vehicle, and (3) the
environment in which the vehicle is driven. Insurance companies have to identify
factors as proxies for behaviour patterns of drivers.
EMBLEM tracks these factors. It is important for insurance companies to gauge
what the true relationships of factors such as age are to driver behaviour. Mr.
Brockman said that software is required to unravel the different factors and isolate
and identify the risk associated with each factor.
Mr. Brockman agreed with the respondent witnesses that commercial factors may
also intervene in the determination of different premiums to be charged to customers.
Mr. Brockman said that Ireland, the UK and Holland were the most competitive
insurance markets in the world.
When asked to rank age among the various rating factors used by insurers, Mr.
Brockman said that in his opinion age would be in the top three after claims
history (no claims discount) and the cc of the vehicle.
Mr. Brockman was asked if he agreed with Mr. David O’Connor that GLM is the
best method in determining rating for insurers. He said that he hadn’t found
anything more stable and predictive than GLM.
Mr Brockman said that he understood the MIAB data aggregated claims
information and thus in his view the impact of different factors could be lost. He
submitted that “Simple cross tabulated data of overall claim frequency and overall
average costs, such as those produced by the MIAB, cannot be used as a reliable
measure of rating differentials by age or any other factor.” He further submitted
that more advanced statistical means are required.
Mr Brockman said that EMB the company of which he is a partner reviewed the
Hibernian accident data for the years 1994-1999. This is the data used to
formulate the complainant’s quotes. It represented 699,000 policy years of data.
GLM was used to derive the risk differentials for each rating factor. A further
analysis was undertaken by the company for Hibernian on the most recent data
available for statistical analysis and which represents 1.2 million policy years of
data. Mr. Brockman submitted that the analysis was carried out professionally and
“the results yielded provide an accurate reflection of the different risk premium
differential of the various policyholder segments.” Mr Brockman also provided
graphs of the data used by Hibernian showing the difference in the risk attaching
to age in isolation across a range of ages. At the request of the complainant a
further graph of the same data was provided using age intervals specified by the
complainant.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case. In order to do so the complainant must satisfy three criteria in relation to his complaint. He must (1) establish he is covered by a discriminatory ground (in this case age ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not covered by the discriminatory ground would have received in similar circumstances.
4.2 In this case I am satisfied that the complainant is covered by the age ground and satisfies the first of the three criteria outlined above. In his provision to the Tribunal of copies of the two quotes received in November 2002, I am satisfied that he was subjected to specific treatment by the respondent company. The third test to be satisfied in order to establish a prima facie case of discrimination is the test of less favourable treatment in similar circumstances. In this case consideration of this test must be made with reference to section 5 (2) (d) of the Equal Status Acts 2000-2004 which provides for certain factors to be considered in determining the provision insurance policies or pensions. If, therefore, the respondent can show that his treatment of the complainant in connection with the provision of insurance cover was effected with reference to
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors,
And
(ii) is reasonable having regard to the data or other relevant factors, then Section 5.1 of the Acts shall not apply and the complainant will have failed to establish a prima facie case of discrimination…
4.3 The complainant in this case has said that he was offered premiums at rates which differed by 21% according to the age of the proposer all other factors being equal. He has argued that the report of the Motor Insurance Advisory Body shows that the 21% difference is not supported by the data collected by that body in the preparation of its report. Therefore, relying on this data in the absence of “entire data and software used by the actuarial staff of Hibernian in their everyday work of determining the risk that a prospective client presents to the insurer.”, data which was requested by the complainant at the hearing of this matter to be provided to the Tribunal, the complainant has concluded that the difference in the two quotes constitutes discrimination under the Acts. The complainant has also criticised the data provided by the respondent as being selective in its support of their case.
4.4 In this case the respondent has submitted that the MIAB data submitted by the complainant in support of his claim is not used by the company in setting premiums as it would be inappropriate to do so as the data is drawn from a number of insurers and is aggregated, thus either masking or ignoring some of the factors that need to be considered in assessing claims risk associated with particular cohorts of customers. The respondent says that it relies on its own claims experience and utilises the statistical modelling technique of Generalised Linear Models (GLM) in determining the correct premium that should be offered to particular customers. They have argued that premiums are arrived at utilising this technique which it is argued is the most reliable method available for determining risk. Other factors which may affect the premium quoted to a customer are applied for commercial reasons and in the case of the complainant worked to reduce the difference between the quotes sought by the complainant in his on-line proposal.
4.5 I have to assess whether the method employed by the respondent provides actuarial or statistical data upon which it is reasonable to rely in setting the premiums quoted to the complainant in this case.
4.6 Firstly, I wish to address the request made by the complainant for the respondent to provide the Tribunal with its entire data and software used by the actuarial staff of Hibernian in their everyday work of determining the risk that a prospective client presents to the insurer. This was requested by the complainant in writing on the second day of the hearing of this matter. In determining my information needs for deciding this case, I have concluded that the material in the complainant’s request went far beyond that which would assist me in reaching a conclusion as to whether the respondent’s actions in the provision of the quotes was discriminatory on the ground of age. I am conscious that the complainant, if he required the information in advance of preparing his own case before the Tribunal, had several months to seek it, including the time when the hearing was adjourned twice at his request and also when the hearing was adjourned at the request of the respondent. He did not choose to do so in the time before the complaint came to hearing before the Tribunal. I also note that other specific information requested by the complainant of the respondent was provided to the complainant by the respondent through the Tribunal in advance of the hearing and at the hearing. Subsequent to the hearing further clarification on evidence submitted at the hearing was provided to the complainant at his request. Taking all of these facts into consideration I determined that it would not be appropriate to accede to the complainant’s request in these circumstances.
4.7 In relation to the quotes provided to the complainant in November 2002, the key question in relation to whether they were discriminatory on the age ground rests on the reliability of the actuarial or statistical data provided by the respondent. This data concerning the risk attached to the various rating factors which underpinned the quotes provided on-line to the complainant was derived using the statistical method called Generalised Linear Modelling (GLM). The respondents have submitted that this method represents the best method in determining risk differentials associated with the various rating factors used by insurers. They have also submitted that rather than looking to industry wide source data such as that available to the MIAB for their analysis, the company relies on its own claims history. The data drawn upon by the company comprises data on policy holders representing 699,000 policy years including the claims made on those policies. The application of the GLM program allows individual factors to be isolated and the risk attaching to them identified and weighted. The company also applies commercial considerations in its analysis in the interest of maintaining its market share in particular sectors of the motor insurance market. In considering whether it was reasonable to rely on this approach to rate setting I am cognisant of the requirements of Section 5(2)(d) of the Equal Status Acts 2000-2004 which exempts from the provisions of Section 5(1) of the Acts treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment is effected by reference to –
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors,
And
(ii) is reasonable having regard to the data or other relevant factors
4.8 I relation to (I) above I have given careful consideration to the fact that the data utilised by the company is drawn from the respondent company’s own claims history rather than the MIAB data which is drawn from a number of different insurers operating in Ireland including Hibernian and which according to that report represent 72% of the market. The differences in claims cost to policy holders at the two ages under consideration here certainly suggest a different outcome in terms of the premium that would be quoted to the complainant if that data were to be drawn upon as the basis for the quotes offered to him. The essence of actuarial analysis is the assessment of risk and the setting of prices for policy holders based on that risk assessment. The Collins English Dictionary and Thesaurus Defines an actuary as “a person qualified to calculate commercial risks and probabilities involving uncertain future events…”2
2 Collins English Dictionary and Thesaurus, 21st Century Edition, Harper Collins Publishers 2000
4.9 I recognise the work of the MIAB to be a valuable contribution to understanding of the Irish insurance industry and on the relationship of claims cost to pricing in this market. I understand that as a result of the Board’s findings many measures have been adopted which are aimed at reducing the costs of premiums to policy holders.
4.10 However, in considering this case, I have considered that it is reasonable that MIAB data would not be the source data drawn upon by the company in relation to quotation requests made by the complainant in November 2002 and it was reasonable for the company to utilise its own claims history. In taking this view I can only rely on the actuarial evidence placed before me in this particular case, consisting essentially of the reliance on the MIAB report by the complainant and evidence from a number of expert witnesses on behalf of the respondent which was not countered by expert testimony on behalf of the complainant. I have based my conclusion on the following:
1. It is reasonable that an insurer should draw on actuarial data from a source that allows it to align its claims risk to its actual claims record and taking reasonable commercial factors into consideration, then to set the premium. I have concluded that the data from its own client base offers the appropriate method for achieving this. Utilising data from a source that incorporates data provided by other insurers operating in the market and who, for their own commercial reasons, may accept different levels of claims exposure may not be an acceptable source for one individual company to base its premiums on.
2. That the data presented in report of the MIAB was not intended to be the source book of data upon which insurers should calculate premiums but rather was in the context of the report as a whole, a basis on which problems relating to the cost of motor insurance across the market could be addressed.
4.11 I am conscious, however, that the concerns about commercial secrecy also work to restrict the level of transparency through which a potential customer can analyse the basis for the premium quoted and I consider that as full an explanation for the determinants of the quotation as is possible should be available to the customer on request. I consider the respondent’s initial correspondence to the complainant fell short of this standard and I recommend that the company should address this issue.
4.12 With regard to the actuarial techniques utilised to determine the risk, I am satisfied from my investigations that GLM is a widely used and reasonable statistical method to apply and that it does represent a means to accurately identify the weighting to be associated with individual risk variables. In this case, utilising theresults provided of EMB’s analysis of the 1994-1999 Hibernian data, i.e., the data which informed the quotations under consideration here, the risk difference between the two quotations was 27% based on age alone rather than the 21% difference in premiums quoted. The quoted differential was narrower, according to the respondent, due to the application of commercial factors which worked in favour of the younger of the proposers being considered in this case. Such commercial factors are considered in the light of (II) above and the evidence has been that they worked to create a more favourable rather than a less favourable quotation for the complainant. The complainant did not dispute the accuracy of the difference which emerged from the particular statistical analysis of the data but rather proposed that the data source used by the respondent lent itself to discriminatory premiums which the application of GLM did not show.
4.13 In a previous case before the Tribunal regarding the provision of motor insurance to a driver who was over 70 years of age the Equality Officer stated “…. It is clear that reliable actuarial and statistical data is essential to the insurance industry in conducting risk assessment and I note that the data provided by the respondents,………does indicate that higher claims costs are more likely to arise from accidents involving elderly drivers than those involving middle aged drivers. On this basis, I consider that there is a case to be made for a company quoting proportionately higher premiums to older drivers based on the results of their actuarial reviews…”3
3 DEC-S2003-116, Jim Ross v Royal and Sun Alliance Insurance Plc. p18
4.14 The point being made here is that where the results of actuarial reviews conducted by insurers show that higher claims costs are more likely to arise from claims from a particular cohort of claimants there is a case to be made for proportionately higher premiums to be quoted to that group based on the results of the review. I have concluded that on the balance of probabilities, in the light of all of the evidence presented in this particular case that the difference in the quotes provided to Mr. O’Donoghue, the complainant was effected by reference to –
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors,
And
(ii) is reasonable having regard to the data or other relevant factors and is in accordance with Section 5(2) (d) of the Equal Status Acts 2000-2004. Even if less favourable treatment was established under Section 5(1) of the Act, the meeting of the conditions set out in Section 5 (2) (d) dictate that such treatment is not discriminatory. However, it is not clear from the evidence that the complainant a person of different age with similar risk levels would be quoted a lower premium. I conclude, therefore that the complainant has not provided sufficient evidence that he was treated less favourably for the purposes of discrimination as set out in Section 3
(1) (f) of the Equal Status Acts 2000-2004.
5. Decision
5.1 I find, therefore, that the complainant has not established a prima facie case of discrimination on the age ground and that his complaint is not upheld.
Mary O’Callaghan
Equality Officer
21st December 2004
Equal Status Acts 2000 to 2008
Decision Number
DEC-S2009-033
A Complainant v A Life Insurance Provider
Case ref ES/2006/0057
Issued 15 May 2009
DEC-S2009-033
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d) – Discrimination on the ground of disability, section 4 – Disposal of goods and provision of services, section 5(1) – relevant underwriting or commercial factors, section 5(2)(d)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A complainant referred a claim of unlawful discrimination to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004 on 25 May 2006. In accordance with her 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. The case was delegated for investigation, in accordance with section 25(1) of the Acts, on 29 July 2008. A hearing, as part of the investigation, was held in Dublin on 6 November 2008. Date for final submission was 15 December 2008.
2. Dispute
2.1. The dispute concerned a complaint of unlawful discrimination by the complainant on the disability ground in relation to the granting of life insurance cover. The complainant maintained that the respondent treated her contrary to section 3(1) and 5(1) of the Acts on the ground of her disability on 5 May 2006 when her application for a life insurance policy was refused. The respondent was notified on 20 May 2006.
3. Case for the complainant
3.1. The complainant submitted that, because of her past medical history, the respondent declined her application for life insurance cover. The complainant, who had suffered reactive depression after a road traffic accident, applied for a mortgage and the required life insurance cover to go with the mortgage in late February or early March 2006. She submitted that she disclosed on her application form that she had suffered from post traumatic stress disorder and depression. She submitted that she had also included her employment status (the complainant works as a professional). She further stated that she received a letter from the respondent dated 5 May 2006 which notified her that the plan which she had applied for had not yet issued and that there were still issues pending.
3.2. The complainant submitted that she discovered in May 2006 – via her mortgage broker – that the respondent had declined her application and that consequently her mortgage application had been turned down. She submitted that there was no communication with the respondent until 15 July 2006 when, in response to an ODEI 5 form that the complainant had sent to the respondent, she received a letter from the respondent. The complainant submitted that it was only on receipt of this letter that she was informed directly by the respondent that her policy application had been turned down and that her General Practitioner had been informed in writing of the reasons for the decision to turn down her application. From this letter the complainant gleaned that the respondent declined the complainant’s application on the following grounds:
· the complainant has a history of depression for which she is still receiving treatment;
· she had taken two overdoses since 2004; and
· the respondent had noted that she has a history of binge drinking and drug misuse.
The letter stated that it “was standard practice for the life offices, in general to decline applications for Life Cover in such circumstances”.
3.3. The complainant denied in direct evidence that she took two overdoses since 2004 or that she was still receiving treatment for depression. She further submitted that she has never been diagnosed as being alcohol of drug dependent. It was submitted that the complainant was injured in a car crash in 2002 and that subsequent to this accident the complainant developed post traumatic stress disorder, anxiety and depression. It was further submitted that the complainant took two overdoses under the influence of alcohol between 2003 and 2004.
3.4. The complainant submitted that she believed that the respondent did not provide her with reasonable accommodation to ensure that she was able to meet the insurance requirements for her mortgage. The complainant submitted that in her view the respondent should have commissioned a psychiatrist’s report that might have illustrated that the complainant was in no way suicidal and that the incident in 2004 was impulsive and something that the complainant seriously regretted.
3.5. The complainant also submitted that she believed that the fact that the respondent did not contact her directly but used her broker to inform her of the policy refusal was bad communication.
3.6. A witness for the complainant also stated that when she had sought life insurance cover, the insurer had arranged a meeting with a medical professional whose assessment, she maintained, enabled her to get the mortgage cover that she required. The witness stated that she believed that the respondent should have offered the complainant with similar treatment.
4. Case for the respondent
4.1. The respondent denied any claim that it discriminated against the complainant on the ground of her disability. The respondent also refuted any claims in relation to any allegation of failure to provide the complainant with reasonable accommodation. The respondent is fully satisfied that its procedures are fully compliant with the requirements of the Equal Status Acts. The respondent further submitted that its actions are in accordance with section 5(2)(d) of the Acts.
4.2. The respondent submitted that the company’s philosophy is to grant the benefits of life insurance cover to as many customers as possible. This must, it was submitted, be done in compliance with best insurance practice and in the best interest of the policy holders by ensuring that the respondent’s claims experience is in line with pricing.
4.3. The respondent submitted that in assessing risks, the respondent relied on the information provided on the application form as well as any additional questionnaires that may be necessary. It was submitted that the respondent also seeks medical reports depending on individual applications. The respondent further submits that the provision of insurance service is covered under section 5(2)(d) which allows for difference in treatment of persons in relation to insurance policies where such difference of treatment is effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely or on other relevant commercial or underwriting factors. The respondent submitted that, in accordance with this provision, the respondent is permitted to treat differently lives that may present a statistically increased risk of an insured event occurring.
4.4. The respondent submitted that based on the information obtained from the complainant’s application form and from her General Practitioner, they were unable to offer her this type of insurance cover because of her past medical history. The respondent submits that it referred the matter to their international reinsurers who share the risk with the respondent. It was submitted that the reinsurers supported the respondent’s decision to decline the complainant’s application. The respondent submitted that it must follow internationally accepted underwriting guidelines.
4.5. The respondent also submitted that all of its underwriting staff is fully trained and adhere to similar underwriting procedures and standards to all applications. It further submitted that the decision of the respondent to decline cover was consistent with the materials submitted to the investigation. The respondent submits that it acknowledges that the letter sent to the complainant’s General Practitioner was incorrect in that the complainant did not have “two overdoses since 2004”. The respondent acknowledges that the complainant had two overdose/self harm episodes in 2002 and 2004. This withstanding, the respondent submitted, it is clear that the underwriting assessment was based on the true facts emerging from the medical facts emerging from the medical history furnished by the complainant’s General Practitioner.
4.6. The respondent submitted that since the decriminalisation of suicide in 1993 most life insurance cover policies have a suicide exclusion clause for deaths within the first year; however, if the contract was to be assigned as part of a mortgage – such as the cover the complainant was applying for – then such an exclusion clause does not apply. The respondent submitted that the complainant’s medical history coupled with alcohol and cannabis use presented her as a greater risk of a further suicide/self harm episodes. This risk was assessed at the time of the application to be above a level for which the respondent could get reassurance.
4.7. It was further submitted that, in an underwriting context, the applicant and a person who did not have her medical history are not in a comparable situation. Underwriting concerns the assessment of risk and a person who presents a higher risk is not comparable to a person who does not.
4.8. The respondent submitted that in practice 92-95% of all applicants are accepted for life cover at standard rates, some 4-7% are offered cover subject to an additional change and the remaining 1-2% are refused cover either temporarily or permanently. The 1-2% of those who are refused cover fall into three broad categories:
(i) recent diagnosis or surgery,
(ii) investigations pending into symptoms,
(iii) excessive on-going risk. For example, where the illness is chronic in that it is well established and treatment is unlikely to improve the outlook. Ongoingdepression/anxiety with incidents of self harm in the past is considered to one such excessive on-going risk.
4.9. The respondent submitted that it is important to note that the complainant’s application was not rejected immediately on her disclosure of her medical history. The respondent submitted that it engaged to obtain further information on the complainant as the factors disclosed were relevant to its underwriting process. The respondent submitted that it commissioned a report from the complainant’s own General Practitioner. This information, which was paid for by the respondent, included details from her treating psychiatrist. The respondent acknowledges that the complainant believes that the respondent should have commissioned a report from a psychiatrist. The respondent submitted that the cost of such a report is several hundred euro and that it would be unreasonable for them to obtain such a report when the information already available to them precluded any offer of cover. It was also submitted that the complainant’s notes received from her General Practitioner had comments by a named Consultant Psychiatrists stating that the complainant has been “doing very well”. These comments were made prior to her second self harm episode.
4.10. The respondent also submitted that the complainant would be welcome to seek life insurance cover now that more time has lapsed without further episodes.
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 she wishes to rely in asserting that she had suffered discriminatory treatment. It is only where such a prima facie case has been established that this onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making this decision I have taken cognisance of both oral and written submissions made by the parties. Parties agreed that the complainant is covered by the disability ground as defined in section 2(1) of the Acts.
5.3. I note that it was submitted that in assessing the risk of a claim occurring the respondent takes into account each individual’s risk profile. A risk profile is made up of a number of factors such as the applicant’s medical history, hobbies, alcohol use and smoking, lifestyle factors, etc. It was submitted that it is accepted that this is common practice and that it is commercially reasonable for insurers to assess risk accordingly. It is clear that the above information is relevant for the type of insurance sought. Having examined the complainant’s application form it is clear that she was honest in declaring her medical history in the relevant section of the form. This declaration clearly states that she was taking anti-depressant medication. It is also clear that the medical notes submitted by her own General Practitioner contain statements from a named Consultant Psychiatrist referring to an overdose/self harm episode and to the fact that there had been hash and other drugs in her blood. I also note that it is noted on her medical notes, recorded by the attending doctor, that the complainant had stated that the episode occurred when she had been binge drinking. While I note that the complainant stated in direct evidence that she denied any drug misuse and that it had been subsequently agreed by her doctors that the blood samples were mistaken, the evidence before me is that her medical notes forwarded to the respondent certainly stated these issues. While I note that complainant is of the opinion that respondent should have known or found out whether the medical notes were accurate and that the respondent should have given the complainant a chance to clarify these matters, I do not find this to be a reasonable expectation. What is of relevance is whether it was reasonable for the respondent to rely on the information submitted to it by the complainant’s own General Practitioner and having considered all of the relevant facts of this case I am satisfied that this is a reasonable practice.
5.4. It was submitted that section 5(2)(d) of the Acts allows for differences in treatment of persons when assessing risk provided that, in this case, the insurer can show that it is reasonable to rely on the data used in the assessment and that it is reasonable to have regard to such data. I am satisfied that the insurer is not operating a blanket policy of excluding people who have had mental health difficulties including self harm and/or suicidal tendencies. I am also satisfied that the respondent has a considered approach in determining whether any individual is given cover and that this approach is applied in a transparent and concise manner. I am also satisfied that in this case the respondent is relying on data that it has reason to rely on and that the data used is of relevance when assessing risk. Having examined the evidence submitted by the respondent I find that the practice the respondent engages in is reasonable based on the information they have in relation to the complainant’s health status. I find that this is in accordance with section 5(2)(d) of the Acts.
5.5. I also note that there was some disagreement in relation whether individuals who have had para-suicide episodes are of an increased risk of repeat. I am satisfied that the studies used by the respondent are of such authority that it is reasonable to regard them.
5.6. The complainant submitted that the respondent had failed to provide her with reasonable accommodation as required by section 4(1) of the Acts. It was submitted that the respondent might have organised to meet with the complainant or to have an independent medical assessment carried out and that this would clarified any mistakes and shown the respondent that the complainant was not an excessive on-going risk. Having considered the facts of this case I find that the respondent did all that was reasonable by obtaining and paying for a report from the complainant’s General Practitioner.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment contrary to sections 3(1) and 5(1) on the ground of his disability. This treatment has been successfully rebutted by the respondent. Therefore, the complaint fails and I find in favour of the respondent.
_________________
Tara Coogan
Equality Officer
15 May 2009
Ross v Royal & Sun Alliance Insurance Plc
1. Dispute
1.1 This dispute concerns a complaint by Mr Jim Ross that he was discriminated against, contrary to the Equal Status Act 2000, by Royal and Sun Alliance Insurance plc. The complainant maintains that he was discriminated against on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 This dispute concerns a complaint by Jim Ross that he sought a car insurance quotation from Royal & Sun Alliance Insurance plc by telephone on 9 January 2001 but was refused a quotation because of his age (77)
3.. Summary of Respondent’s Case
3.1 The respondents totally reject that they operate a discriminatory policy on the grounds of age. They acknowledge that Mr Ross was refused a quotation but argue that the refusal was not unlawful as it falls within an exception provided under the Equal Status Act, where the difference in the treatment of persons in relation to insurance policies is not deemed to be discriminatory if “it is effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely, or other relevant underwriting or commercial factors, and is reasonable having regard to the data or other relevant factors.”
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5.1 Basis for Complainant’s Case
Mr Jim Ross was born on 4 July 1923
In 2000, he purchased a new car. However, when he went to renew his insurance
premium, his existing insurance company quoted him a premium which, in his opinion, was exorbitant.
As a result, he decided to “shop around” for a better insurance deal
On 9 January 2001, he phoned the Royal & Sun Alliance for a quotation
At the outset, the staff member asked him for his name, address and age
When he told the staff member that he was 77 years of age, he was informed that the company did not quote for new business for people over 70
Although he had a 7 year “No Claims Bonus” at the time, he was not asked about it
Mr Ross informed the staff member that he had previously been an agent for the Royal
Insurance Company up until his retirement but this did not influence the decision
Evidence of Ms Dorothea Dowling, Chairperson, Motor Insurance Advisory Board
Ms Dowling has been on the MIAB board since 1998
The MIAB was asked in 1998 to monitor developments in motor insurance costs and to provide analysis of the factors influencing changes in motor insurance premium rates, following complaints of anti-competitive practices in the industry
Following a survey in early 2001, the MIAB wrote to 5 of the 26 licensed insurers who appeared not to be cooperating with the Declined Cases Agreement’s requirement that “No proposer is to be refused a quotation on the basis of age”
In a written responce to the MIAB’s letter, the RSA stated “in respect of older drivers …… we do not quote unless there is a 5 year bonus in place”.
In light of the above statement to the MIAB, Ms Dowling said that she was astonished to hear subsequently that the complainant, Mr Ross, had been refused a quote by the RSA.
Ms Dowling considers that the Declined Cases Agreements is a viable method of providing insurance cover and explained that, under the system, the only people likely not to get insurance are those with previous convictions or those suffering from specific disabilities
Declined Cases Agreements
During the course of the Hearings, reference was made to the Declined Cases Agreements (DCA) of June 1981 which established a Declined Cases Committee,consisting of representatives from the insurance industry. It was explained that the DCAs were designed to spread the burden of risk equally amongst insurance companies. Under the Agreements, insurers accepted in principle the obligation upon them to afford proper facilities to the insuring public and it was agreed that insurers would not decline to provide insurance to individual proposers who had approached at least five insurers and had not been able to obtain insurance.
To effect this Agreement, a Declined Cases Committee was established for the purposes of administering the Agreement. The Committee had a number of powers including the power to nominate companies, on a rota basis, to provide insurance and, in cases where the Committee formed the opinion that premiums or terms were excessive, to indicate the maximum premium to be imposed
Evidence of Mr Cyril Connolly, Statistician and Member of the MIAB
Mr Connolly was heavily involved in preparing the Motor Insurance Advisory Board’s Report on the Motor Insurance Industry in 2002
He had specific responsibility for the statistical data contained therein and he is very familiar with statistics, trends and issues pertaining to the motor insurance industry
Mr Connolly has examined the RSA Statistical Reports provided for the 1994- 1997 years and the 1999 year and came to the conclusion that the data could notbe relied upon for informative conclusions as “there was something wrong with the mechanism used to produce data”.
He came to this conclusion having found a number of inconsistencies in the data itself and the manner by which results were obtained
Mr Connolly stated that, from his examination of the statistics, the over-70s data appeared to be consistent with the average for the whole portfolio.
He also said that he could find no evidence in the RSA accident statistics to show that there was more volatility in the over 70’s age category
5.2 Respondents’ Evidence
Evidence of Mr Philip Behan, RSA Pricing and Development Manager
Mr Behan was employed as Underwriting Manager with Sun Alliance from 1988 up until the company’s merger with Royal Insurance in 1996. He since became Pricing and Development Manager with the merged company, Royal and Sun Alliance.
In 1992, Mr Behan undertook a study of Sun Alliance’s Irish market accident statistics for the period 1985 to 1992, with a view towards formulating new age groups for quotation purposes based on the risk factors involved.
His 1992 analysis of the ages of those involved in accidents, indicated that the larger claims tended to involve clients at the extreme ends of the age spectrum.
Mr Behan explained that injury claims were noticeably higher at the younger and older ends of the scale
Mr Behan said that it was clear from his analysis that it would be imprudent to continue to take on new business from anyone over 70 years of age. Even if older clients were taken on at a higher premium, he considered that this could lead to an imbalance of risks.
Based on his analysis, Mr Behan submitted a report to Senior Management recommending that the practice of offering quotations to new customers over 70 be reviewed.
On the basis of his recommendation, the company decided in 1992 to stop taking on new business from anyone over 70 years of age. This decision did not, however, affect existing clients who continued to receive cover on reaching 70 years of age.
Mr Behan explained that Sun Alliance had a high level of older drivers on its books at the time. This situation had arisen from a campaign which the company had run in 1985 to attract experienced drivers in the 35 to 75 age category.
At the Hearing, Mr Behan said that the statistics on which he made his report in 1992 were no longer available but that he could provide statistics from 1994 which, he maintained, closely mirrored the 1985 to 1992 figures.
The decision to restrict insurance to under 70’s was reviewed annually by the company since 1992 and this practice continued after Royal Insurance merged with Sun Alliance in 1996
Mr Behan stated that the annual review of statistics throughout the 1990s affirmed the 1992 decision
In October 2000, a further statistical report was prepared by Mr Behan based on actuarial evidence and statistics from the company’s Irish records for 1999, which, he claimed, again showed that insurance claim costs accelerated in line with age in the over 70’s bracket
Mr Behan said that this report reaffirmed the 1992 decision not to seek new business from people over 70
Mr Behan stated that it was the October 2000 review, that grounded the decision to refuse Mr Ross a quotation in January 2001. This review was based on the company’s statistical data from the Irish market for the 1999 year.
The RSA was only able to compile its report based on data from 1999 as the data from 1997 and 1998 was not fully available on computer. As a result, it was not used as it was considered somewhat unreliable
In 2003, a further actuarial review was carried out which again affirmed the 1992 decision and the emerging figures in 2003 also supported the 2000 assessment
In compiling his reports over the years, Mr Behan said that he also took into account other factors such as market forces and the situation in other countries. In this regard, he regularly liaised with colleagues working abroad with a view to comparing practices and trends.
In an effort to emphasise the difficulties experienced by risk assessors, Mr Behan explained that nowadays, it can take 4 years to establish the true outcome of a claim
In support of their case, the RSA introduced in evidence RSA Statistical Reports for period 1994-1997, for October 2000 and for April 2003. However, on close inspection at the Hearing on 19 May 2003, it was established that some of the figures in the reports for the 1994-1997 years simply “did not add up”.
Having examined the figures in question, Mr Behan acknowledged at the Hearing that some of the numerical calculations in the reports (which appeared to have been computer generated) were not accurate but he was unable to offer an explanation for this.
In early 2003, the RSA began to use a new statistical software package into which the 1999 data was entered for comparison purposes. The ensuing comparison between the 2000 and 2003 analysis of the same data showed significant divergencies in the results obtained in certain categories
On the basis of the 2003 analysis, Mr Behan acknowledged that the 2000 Statistical Report may have been based, to some degree, on inaccurate information leading to the performance of older drivers being viewed in a different light under some headings when compared with the 2003 analysis
Mr Behan insisted, however, that the 2003 figures would not have changed his view as to whether new business from over 70’s should be taken on by the company
Mr Behan stressed also that his function was to conduct risk assessments on the basis of the most accurate and up-to-date information available to him at the time and insisted that his assessments over the past ten years had all been done on this basis
While accepting that the RSA reports contained some errors, Mr Behan insisted that his analysis was sound and based on solid underwriting and commercial factors and he stood over his recommendation to the RSA not to accept new over-70’s business
The RSA is a small insurance company and cannot afford to take blows from a volatile sector of the insurance market.
The RSA already has a higher proportion of over 70 drivers on its books than most other insurance companies
Evidence of Mr Rigby, Deputy General Manager of RSA in 1999
Mr Rigby was the Deputy General manager of RSA during the 1990s until he retired in 1999
During this time the RSA prepared annual statistical packages and carried out quarterly business reviews
RSA relied on Philip Behan’s reports for underwriting purposes
Mr Rigby often regularly discussed Mr Behan’s draft reports with him before they were finalised
It was Mr Rigby’s function to evaluate the risk involved in continuing to offer cover to anyone over 70
He said that it was clear in the early 1990s that the provision of insurance cover to older clients was demonstrably unprofitable and that, as time progressed, there was increased deterioration in profit levels
Mr Rigby acknowledged that the RSA had “burned its fingers” in the mature market in the 1980s and fully supported the decision in 1992 to re-evaluate its position with regard to its over-70s custom
When reference was made to the Declined Cases Agreement, Mr Rigby stated that he had no recollection of the RSA ever been required to provide insurance to someone over 70 under the terms of that Agreement.
Evidence of Mr Ken Keenan, Manager, Personal Financial Services
Mr Keenan took over responsibility for the RSA’s underwriting of the private motor business in November 2000
On his arrival he carried out an extensive analysis of Mr Behan’s October 2000 report and satisfied himself that Mr Behan’s report was based on the best statistical evidence available and that Mr Behan was correct in recommending continuance of the RSA’s over 70s policy
Mr Keenan believed that, in not providing insurance for new over 70’s business, the company’s existing over 70’s customers benefited from lower insurance rates brought about by the RSA’s ability to contain exposure in this volatile segment of the market.
When his attention was drawn to the quotation in the MIAB Report from a RSA letter stating that “in respect of older drivers …… we do not quote unless there is a 5 year bonus in place”, Mr Keenan said that he had not known about that letter but acknowledged that it did give a misleading impression about the RSA’s willingness to quote for new “over 70’s” business.
Evidence of Mr David O’Connor. Tillinghast, Actuarial Consultants
Mr O’Connor is an Expert Risk Assessor with 30 years experience in the insurance business
Mr O’Connor believes that it is essential for insurance companies to carefully select risks because of the high volatility in the sector and recommends that companies restrict over-exposure in volatile sectors
Mr O’Connor would advise strongly against an insurance company taking on a particular risk group as it goes against the basic principle of diversification
It is clear from his own research and experience that greater risks exist at the extreme ends of the age bands
Mr Denis Bergin, Retired Insurance Expert
Mr Bergin was involved in insurance underwriting since 1951
He has examined the RSA data that is available and found it very thorough and impressive
He has also been impressed with the risk management decisions made by RSA over the years
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(f) of the Act specifies the age ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused an insurance quotation by Royal and Sun Alliance on 9 January 2001. I, therefore, must decide whether the treatment afforded the complainant in being refused an insurance quotation constituted discrimination under the provisions of the Equal Status Act 2000.
6.2 Another matter to be considered is the respondents argument that the Equal Status Act 2000 provides an exemption for insurance companies under Section 5(2)(d) where a decision to treat people differently is effected by actuarial or statistical data. The respondents claim that they are entitled under Section 5(2)(d) to treat people of different ages differently in relation to insurance policies where the treatment is “effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely, or other relevant underwriting or commercial factors, and is reasonable having regard to the data or other relevant factors” The respondents argue that this provision in Section 5(2)(d) is “an exemption” from the provisions of Section 5(1) which prohibits discrimination. The complainant, for his part, maintains that the refusal was not consistent with statistical or actuarial data but was a decision imposed arbitrarily on people over 70 years of age.
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the age ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at Labour Court, High Court and Supreme Court level. In this regard, it is important to note that a shift in the burden of proof was applied as a matter of law in Irish discrimination cases long before European Community law developed the idea, so this practice is not dependent on EC discrimination law applying in the context of the Equal Status Act 2000.
7.3 Both the Labour Court and Equality Officers applied the practice of shifting the burden of proof in discrimination cases, long before any European Community caselaw required them to do so. This practice was adopted as far back as 1983 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court) and 1986 ( Dublin Corporation vGibney, EE 5/1986 Equality Officer), and was a consistent practice across a spectrum of cases (see Curtin, Irish Employment Equality Law, 1989 p. 222 et seq.) European Court of Justice caselaw did not address the issue of the shift in the burden of proof for the first time till Danfoss (Case no C-109/88, 1989 ) and Enderby (Enderby v Frenchay Health Authority and Sec of State for Health, C-127/92, 1993 ). The shift in the burden of proof would, therefore, seem to have been an indigenous development in Irish discrimination law, which was in advance of Community law. The practice of shifting the burden of proof in discrimination cases, although this time following European Community caselaw, was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson 1998 2 IR 162 and by the High Court in Conlon v University of Limerick 1999 2 ILRM 131. . While these were both indirect discrimination cases, it seems that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
7.4 The burden of proof issue has more recently been addressed in Irish caselaw in a 2003 “age” case under the new equality legislation ( O’Mahony and others V The Revenue Commissioners (Labour Court Determination No. EDA 033). In that case, which was taken under the Employment Equality Act 1998, the Labour Court, in applying the burden of proof test, stated that “the Court must consider if the complainants have established the primary facts on which they place reliance in furtherance of the complaint of discrimination. If those facts are established the Court must then consider if they are of sufficient significance to raise a presumption of discrimination. If that evidential burden is not discharged the complainant cannot succeed. If that burden is discharged it then becomes a matter for the respondent to prove, on the balance of probabilities, that the complainant’s age was not a factor that influenced their exclusion from the panel.” On the basis of the foregoing, I can see no obvious reason why the principle of shifting the burden of proof should not be extended to complaints arising under the Equal Status Act 2000 on any of the new grounds.
7.5 With regard to (a) above in paragraph 7.1, the complainant has satisfied me that he was over 70 years of age when he was refused an insurance quotation by the Royal and Sun Alliance. In relation to (b), the respondents accept that the complainant was refused a quotation. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment a person of a different age would have received, in similar circumstances.
7.6 Section 5(2)(d) of the Equal Status Act 2000 The respondents argue in this case that the Equal Status Act 2000 provides an exemption for insurance companies under Section 5(2)(d) and that the RSA’s refusal to provide Mr Ross with a quotation was covered by this exemption. Section 5(1) of the Equal Status Act 2000 states: “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” Section 5(2)(d) of the Equal Status Act 2000 states: “Subsection (1) does not apply in respect of – (d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment –
(i) is effected by reference to
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors, and
(ii) is reasonable having regard to the data or other relevant factors”
7.7 Therefore, in order to show that they are covered by the Section 5(2)(d) exemption, I consider that the respondents must show that the difference in treatment afforded Mr Ross was (1) “effected by reference to actuarial or statistical data” which was “obtained from a source on which it is reasonable to rely” AND “is reasonable having regard to the data or other relevant factors” OR (2 “is effected by reference to other relevant underwriting or commercial factors” AND “is reasonable having regard to the data or other relevant factors” . In order to fall within the Section 5(2)(d) exemption, I consider that the respondents must show that they fully satisfy either test (1) or test (2) above.
7.8 In regard to test (1) above, the respondents maintain that they are covered by the Section 5(2) exemption in this case, as Mr Philip Behan utilised the latest and most accurate information available to him at the time, in recommending to the RSA, from 1992 onwards, that the company should cease to quote for new business in the over-70’s age bracket. While acknowledging that there may have been some inaccuracies in the data used over the years, the respondents maintain that Mr Behan acted in a professional manner at all times. In deliberating on the evidence before me, I have no reason to doubt that Mr Behan acted in an entirely professional manner in conducting his reviews and that every effort was made, on each occasion, to ensure the integrity of the statistics used. I am, therefore, satisfied that Mr Behan’s findings complied with the first part of test (1) in that they were “effected by reference to actuarial or statistical data”. This then raises the question as to whether the actuarial or statistical data used between 1992 and 1999 came from “a source on which it is reasonable to rely”. In this regard, I note that the source and the integrity of the statistics have now been called into question with the admission that (a) the 1992 figures are no longer available, (b) that there were “black holes” in respect of periods between 1992 and 1998 where the relevant data relied on was incomplete or is no longer available and (c) that the 1999 figures now show different outcomes when processed through a different software package. On the basis of this information, I find that there is insufficient evidence before me to convince me that the actuarial or statistical data, which guided the respondent’s over-70s policy, “was obtained from a source on which it is reasonable to rely” or that their decision was “reasonable having regard to the data or other relevant factors”. Accordingly, I consider that the respondents have not fully satisfied the test at (1) above.
7.9 With regard to the test at (2) above, the respondents have identified a number of underwriting and commercial factors which influenced their policy decision on over-70s, such as the older age profile of the company’s customers compared to other insurers, their small share of the motor insurance market and the need for averaging-out risks. Section 5(2)(d) states, however, that where the treatment is effected by reference to other relevant underwriting or commercial factors that it must also be “reasonable having regard to the data or other relevant factors”. In my opinion, there are many other considerations, apart from those identified above, that should be taken into account when assessing a person’s suitability for insurance cover. These considerations include, among others, the person’s health, their driving experience, their previous claims history and the condition/age of their car. These to me are “other relevant factors” that should be taken into account in making such decisions. Another “relevant underwriting or commercial factor” which I consider needs to be taken into account is the fact that insurance companies have signed up to the Declined Cases Agreement which specifically states that “No Insurer shall decline a risk on the grounds of age of driver alone”. In the case before me, it is clear that the RSA does not take into account all of the relevant factors referred to above nor does it address the individuality of each request for a quotation. Instead, the RSA applies an “across the board” policy of refusing quotations to persons over 70 years of age, with no regard for a person’s particular circumstances or the company’s own obligations under the Declined Cases Agreement. For these reasons, I find that I cannot accept that the company’s policy “is reasonable having regard to … other relevant factors”. Accordingly, I find that the respondents have also failed to satisfy the test at (2) above and I have concluded that their over-70s policy does not fall within the exemption provided for under Section 5(2)(d) of the Equal Status Act 2000.
7.10 In their submission, the respondents claim that the “over 70s” are a very volatile segment of the market and that, if the respondent had to substantially increase its exposure to this age group, from taking on new business, this would have an adverse impact on their overall capital allocation and also increase the cost of reinsurance. They also claim that, as a small motor insurer, attracting a large volume of business in the 71 plus age group would risk threatening its viability. In addition, they maintain that increased exposure in this market would threaten the continuation of cover for existing customers who would be facing a very large premium increase. They argue, therefore, that by not accepting new business in this age group, the respondent can control its exposure. Clearly there is some substance in the respondent’s claim that a large increase in exposure in the over 70s market could be damaging to business. Whether this increase is likely to materialise, however, if the respondents opened their books to new business in the over 70s market, is a matter which I consider needs to be examined. In this regard, I note that I have little or no evidence before me which attempts to quantify the number of “floating” over 70 drivers who are seeking to change insurers. The respondents themselves have said that the industry practice has traditionally been to “look after your old customers” and not to compete for new business in this area . I also note that the respondents have given no indication as to the number of customers they have refused over the years based on their “no over 70s” policy nor have they tried to identify the volume of business that is likely to be generated if they were to begin accepting new over 70s business. On this point, I also note that, in referring to the Declined Cases Agreement, the respondents own witness, Mr Rigby, has stated that, to his knowledge, the Declined Cases Committee have never referred a new over-70s customer back to the RSA for the provision of insurance.On the basis of the above, I find that I have little or no evidence to support the view that there is a large market of “floating” over 70s customers out there who are seeking to change insurer. Indeed, Mr Rigby’s evidence would seem to suggest the contrary, that the number of such customers are few and far between. I, therefore, find that there is insufficient evidence before me to support the respondents’ claim that any change in its over-70s policy would expose the company to a risk which was likely to threaten its viability and lead to large premium increases for existing customers.
7.11 Notwithstanding the above findings, it is clear that reliable actuarial and statistical data is essential to the insurance industry in conducting risk assessment and I note that the data provided by the respondents, despite its flaws, does indicate that higher claim costs are more likely to arise from accidents involving elderly drivers than those involving middle-aged drivers. On this basis, I consider that there is a case to be made for a company quoting proportionately higher premiums to older drivers, based on the results of their actuarial reviews. What cannot be accepted is the complete refusal of a quotation based solely on a person’s age.
7.12 During the course of the Hearings, much analysis took place of the statistical and actuarial data used by Mr Behan in the period 1992 to 2000. In analysing the statistical data at the two Hearings, the parties entered into a long and indepth debate over the detail contained in the reports. Comparisons were drawn between different reports and questions were raised about loss ratios, burning costs, average costs etc. During the course of this debate, great emphasis was placed on the commercially sensitive nature of the statistical data under discussion and there was general agreement amongst all present that it would be prudent if the specific detail of the data under consideration was not included in the Equality Officer’s Decision. For this reason, specific details of the statistical evidence submitted by the respondents and considered at the Hearings has been omitted from this decision.
7.12 I find that a prima facie case of discrimination on the age ground has been established by the complainant, resulting in the burden of proof shifting to the respondents. I also find that the respondents have failed to rebut the allegation.
8 Decision
8.1 I find that the respondents, in not being able to produce full details of the actuarial or statistical data that had guided their “over-70s” policy, have failed to satisfy me that the data came “from a source on which it was reasonable to rely”. I also find that that the respondents’ “over 70s” policy was not “reasonable having regard to the data or other relevant factors” as it did not take all relevant factors into account in considering individual requests but simply applied an “across the board” policy of refusing quotations to persons over 70 years of age. Accordingly, I find that the respondents are not covered by the exemption provided for under Section 5(2)(d) of the Act.
8.2 I find that the complainant has established a prima facie case of discrimination on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in relation to the treatment he received in being refused a motor insurance quotation by Royal and Sun Alliance on 9 January 2001. I also find that the respondents have failed to rebut the allegation.
8.3 In considering the level of redress that is most appropriate, I am mindful of the following:
More than most, the RSA has reason to want to reduce the number of older customers on its books as the company already has a higher proportion of over 70 drivers than other companies, as a result of its campaign in the 1980’s to attract more mature drivers.
It is clear that the RSA does not completely discriminate against people over 70, as its policy is to continue to insure its existing customers when they turn 70.
As matters stand, the Declined Cases Agreement provides insurance seekers with a form of “safety net” in that some insurance company will eventually be required to offer them insurance. In the knowledge that this system is in place, it is possible that some insurance companies may not fully comprehend the discriminatory implications of refusing a quotation on the grounds of age.
8.3 As I have found that discrimination has occurred in this instance, I order that the Royal and Sun Alliance pay the complainant the sum of €2000 (roughly the cost equivalent to Mr Ross of three years insurance) for the loss of amenity suffered. 8.4 In light of this Decision, I would also suggest that the RSA and other insurance companies review any existing practices that are still in place where an individual is refused a quotation simply on the grounds of his/her age.
Brian O’Byrne
Equality Officer
19 September 2003
DEC-S2006-071 – Full Case Report
Burke v Lynskey Ryan Insurance Limited, Galway
Headnotes
Equal Status Act, 2000 – Discrimination, Section 3(1)(a) – Age ground, Section 3(2)(f) – Disposal of goods and provision of services, Section 5 (1) – Agency/Vicarious liability, Section 42(2)
1. Dispute
1.1 This dispute concerns a claim by Nicholas Burke that on 5 September 2003 he was treated in a discriminatory manner by the respondent, contrary to Section 5, in terms of Section 3(1) (a) and 3(2) (f) of the Equal Status Act 2000. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Complainant’s Case
2.1 This case relates to an allegedly discriminatory refusal by the respondent on 05/09/2003 to quote the complainant for motor insurance, specifically public service vehicle insurance, on the age ground.
3. Respondent’s case
3.1 The respondent accepts the facts as stated by the complainant in relation to the alleged incident of discrimination but has argued that their refusal to quote the complainant for car insurance cannot be discriminatory as they were merely an agent passing on information to the complainant from a named underwriter.
4. Conclusions of the Equality Officer
4.1 In section 2 of the Equal Status Act 2000, dealing with interpretation, ‘service’means a service or facility of any nature which is available to the public generally or a section of the public and this includes facilities for insurance. I am satisfied that the respondents were making insurance facilities available to the public at the time of the incident and as such were providing a service in terms of the Act.
It is not contested that the respondents told the complainant that they could not provide a quote for motor insurance. It is argued that it was not because of the complainant’s age but because of the refusal of the underwriter to provide an insurance quote for the complainant. However, in refusing to quote the complainant the respondents were restricting the provision of a service, even if they did so as agent for an underwriting company.
4.2 Vicarious Liability
Section 42(2) states
“(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.”
4.3 It is not contested that the respondents were acting as an agent for a named underwriter in dealing with the complainant’s inquiries for car insurance. The respondents are therefore liable in this matter on foot of their agency activities. The named underwriters were not named as a respondent in this matter by the complainant and have not been joined in this matter as co-respondents, I cannot therefore take their actions into consideration in this matter.
4.4 The underwriting policy document of the named underwriter indicates preferred risks. It also states that if a risk falls outside those preferred risks that the agent should forward a completed proposal form to them for consideration. The respondent did not request a completed proposal form from the complainant at any time.
5. Decision
5.1 Having carefully considered all of the facts of this matter I am satisfied that the respondent, in stating to the complainant that they would not provide a quote for motor insurance to him because of his age, discriminated against the complainant on the age ground, contrary to section 3 (1) (a) of the Equal Status Act 2000 in terms of Section 3(2)(f) and Section 5 of that Act.
6. Redress
6.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
6.2 Under Section 27 (1) (a) I hereby order that €2,000 be paid to Nicholas Burke, complainant, by the respondent for the effects of the discrimination.
Under Section 27(1)(b) I hereby order that the respondent arrange for comprehensive training of all members of staff, including the Directors of the respondent company, in the terms and application of the Equal Status Acts 2000-2004, such training to have commenced within three months from the date of this Decision.
__________________________
Dolores Kavanagh
Equality Officer
17 October 2006
DEC-S2008-116 – Full Case Report
King v The Voluntary Health Insurance Board
File Ref: ES/2005/0944
Date of Issue: 11th December, 2008
Case Summary
Keywords
Equal Status Acts, 2000-2004 – Section 3(1)(a) – Direct discrimination, Section 3(1)(a) – Gender Ground, Section 3(2)(a) – Disposal of Goods and Services, Section 5(1)
Dispute
This dispute concerns a complaint by Mr. Martin King that he was discriminated against by the respondent on the Gender ground in terms of Sections 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004.
Complainant’s case
The complainant claims that he has been subjected to discrimination by the respondent on the basis that he is obliged to pay for a benefit, namely maternity related benefits, as part of his insurance cover which he cannot possibly avail of due to his gender.
Respondent’s case
The respondent submitted that it is statutorily obliged to include maternity benefit in every health insurance contract that it offers, and that it is not legally permitted to charge a lower premium to a specific gender for a health insurance contract. The respondent submitted that the gender neutral nature of its policies is required by legislation and it therefore submits that it is legally required to offer a health insurance contract, which must include maternity cover, at the same rate to both men and women. The respondent also relied upon the exemptions that are provided for in sections 5(2)(d)(i)(II) and 14(1)(b) in its defence in this case. The respondent also raised a jurisdictional issue that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts.
Decision
The Equality Officer found that the complaint had been referred to the Tribunal within six months of the most recent occurrence of the alleged prohibited conduct, and accordingly, that the complaint is admissible under Section 21(6) of the Equal Status Acts. In relation to the substantive issue, the Equality Officer found that the specific treatment complained of by the complainant in the present case was required by an enactment and therefore, falls within the exemption provided for in Section 14(1)(a)(i) of the Equal Status Acts. The Equality Officer, therefore, found that the complainant has failed to establish a prima facie case of discrimination on the Gender ground in terms of Sections 3(1) and 3(2)(a) of the Equal Status Acts.
Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2008-116
Keywords
Equal Status Acts, 2000-2004 – Section 3(1)(a) – Direct discrimination, Section 3(1)(a) – Gender Ground, Section 3(2)(a) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2004
This complaint was referred to the Director of the Equality Tribunal on 2nd December, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, 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 to 2008. The hearing of the case took place on 4th November, 2008.
1. Dispute
1.1 This dispute concerns a complaint by the complainant, Mr. Martin King, that he was discriminated against by the respondent on the Gender ground in terms of Sections 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004 on the basis that he was being charged by the respondent for an insured benefit, namely maternity related benefits, as part of his health insurance cover which he claims that he cannot avail of due to his gender.
2. Summary of the Complainant’s Case
2.1 The complainant has been a member of the Voluntary Health Insurance since the early 1970’s and was a subscriber to Plan D cover at the time of the alleged incident of discrimination on 25 October, 2005. The complainant contacted the respondent by telephone on this date to obtain certain information regarding his health insurance cover and it came to his attention for the first time during the course of this telephone conversation that he was paying for maternity related benefits as part of his policy. The complainant requested to have this aspect of cover removed from his health insurance policy so that he could afford other benefits but he was informed by the respondent that he was prohibited from doing this as the maternity related benefits were a composite part of the overall insurance plan. The complainant claims that he is being discriminated against by the respondent on the basis that he is obliged to pay for a benefit, namely maternity related benefits, as part of his insurance cover which he cannot possibly avail of due to his gender.
2.2 The complainant contends that pregnancy is not a medical condition or a state of illness per se but rather it is a perfectly normal state for females choosing to have children. The complainant further contends that the making of financial provision for the costs of an illness is an insurable risk whereas pregnancy, in insurance terms, is not a risk. He submits that the respondent, by virtue of its policy payment arrangements, is requiring him as a male to make provision for females to avail of a service rather than a treatment for an illness or unhealthy condition and by doing so, it is operating a marketing stratagem (or inducement) for people of child bearing age to enter one of its health insurance plans. The complainant claims that the respondent is operating a discriminatory practice by requiring males to pay for the insurance of women who are exercising their choice to be in the natural state of pregnancy. The complainant submitted that the respondent should be prevented from applying such a levy on male subscribers in order to support the cost of what amounts to a marketing stratagem or promotional inducement.
2.3 In response to the issue that has been raised by the respondent that the complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts, the complainant stated that he initially became aware that he was being charged for maternity related benefits as part of his insurance cover when he contacted the respondent by telephone on 25th October, 2005. The complainant claims that he has never read the informational documentation in relation to his policy that the respondent claims was forwarded to him prior to the renewal of his health insurance contract and therefore, was not aware that he was required to pay for maternity related benefits as part of his cover.
3. Summary of the Respondent’s Case
3.1 The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of his gender. The respondent was established by statute in 1957 and it is mandated with the making and carrying out of a scheme of voluntary health insurance for defraying the cost to subscribers of medical, surgical, hospital and other health services. The respondent provides a defined level of cover for medically necessary procedures and in doing so it offers a number of plans which offer cover varying from basic level to a more generous level of cover. The respondent submitted that it is statutorily obliged to charge the same premium per plan for males and females irrespective of their gender and therefore, once a member selects a certain plan, he or she will be charged the same premium regardless of gender. The respondent submitted that every insurance contract or plan, including Plan D to which the complainant is a subscriber, has maternity cover. The respondent accepts that the complainant, as a male cannot avail of maternity benefits, however it submitted that this Plan also covers a wide range of medical illnesses peculiar to males only, for example, prostate cancer and procedures of the male genital tract. The respondent submits that to single out one aspect of cover is entirely unrepresentative of the likelihood or level of claim made on the insurance policy and when the plan is looked at as a whole it is clear, therefore, that what the complainant may lose on the one hand, he gains on the other, and vice versa. The respondent submits, therefore, that there is no less favourable treatment of a male in the situation of the complainant in the overall cover provided by Plan B.
3.2 In a written submission and at the hearing of the complaint, the following points were made on behalf of the respondent:
· The respondent submits that if there is any difference in treatment, it is required by an enactment, namely the Health Insurance Acts, 1994 to 2003 and the Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996, and thus falls within the exemption that is provided for in section 14(1)(a)(i) of the Equal Status Acts, 2000 to 2008. The respondent submits that it is abundantly clear that the combined effect of the aforementioned legislation requires the respondent to include maternity benefit in every health insurance contract that it offers and that the respondent is not legally permitted to charge a lower premium to a man for a health insurance contract. The respondent submits that it is therefore legally required to offer a health insurance contract, which must include cover for maternity benefit, at the same price to men and women.
· The respondent submitted that if there is any difference in treatment, it is effected by reference to relevant commercial or underwriting factors and thus falls within the exemption in section 5(2)(d)(i)(II) of the Equal Status Acts, 2000 to 2008. The respondent submits that to operate a commercially viable insurance system which can offer a minimum level of private medical insurance at an affordable price and on similar quality conditions, underwriting and commercial factors require, inter alia, that good maternity cover be provided, and that not only is this entirely reasonable, but also provides a positive social good. The respondent submits that the solidarity or non-discrimination between males and females in the insurance contracts, which is part of open enrolment (i.e. the legal obligation of Private Medical Insurance insurers to offer a health insurance contract to any person requesting a contract), is not only entirely reasonable but is also acknowledged by the European Court of First Instance in the BUPA case[1], as promoting the social good of affordable health insurance for all. The respondent therefore submits that the gender neutral nature of the plans, even though they provide maternity cover in all plans, is permitted by the Equal Status Acts.
· The respondent submits that even if it is found that the complainant has been treated less favourably than a comparable female, that the support of maternity and birth are permitted under section 14(1)(b) of the Equal Status Acts, 2000 to 2008. The respondent submits that women as a group are disadvantaged by the social and financial cost of maternity and childbirth and therefore, the provision of maternity cover is a positive measure which promotes equality for women and caters for the special needs of women which are attendant on maternity and childbirth. The measure is also to some small extent reducing the financial burden of pregnancy and childbirth. The respondent submits that this is clearly expressly permitted in accordance with Section 14(1)(b) of the Equal Status Acts.
3.3 The respondent also raised a jurisdictional issue that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts. The respondent submitted that the date of occurrence of the alleged incident of discrimination was the date when the complainant first subscribed to Plan D cover on 22 July, 1991. Alternatively, the respondent submitted that the very latest date on which the alleged incident could have occurred was 1 February, 2005 i.e. the renewal date of the complainant’s membership. The respondent claims that it issued informational material to the complainant prior to the renewal of his membership (on 1 February, 2005) which clearly outlined that maternity cover was included in the premium, and it therefore submits that the complainant would have been fully aware of the existence of this aspect of the cover within his plan at that juncture. The respondent submitted that, by taking either of the aforementioned dates as the date of occurrence of the alleged discrimination renders the complaint outside of the six month time-limit and therefore, the complaint should be deemed inadmissible.
4. Conclusions of the Equality Officer regarding the issue of Time-Limits
4.1 The respondent has submitted that the present complaint was not submitted within the six month time limit as prescribed in Section 21(6) of the Equal Status Acts, 2000 to 2004, and it therefore submits that the complaint should be deemed inadmissible. Section 21 of the Equal Status Acts makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the notification and referral of complaints which date respectively:
Section 21(2)– “2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months of the last such occurrence”, and
Section 21(6)- “6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence”.
The provisions of the Acts clearly envisage a single act of discrimination or a chain of two or more similar acts of discrimination. In the present case, I note that the complainant was a subscriber to Plan D cover (which included maternity benefits) since 22 July, 1991 and his contract for health insurance was renewed on an annual basis on 1 February of each year (with the last such renewal of the contract prior to the referral of the present complaint being effected on 1 February, 2005). The present complaint was notified to the respondent on 25 October, 2005 and it was referred by the complainant to the Equality Tribunal on 2 December, 2005. Therefore, the question that I must decide in order to determine the admissibility, or otherwise, of the complaint in the present case, is whether the inclusion of the alleged discriminatory term in the health insurance contact to which the complainant subscribed i.e. the inclusion of maternity related benefits, constitutes a once-off or single act of discrimination or did it continue for the duration of the contract of insurance between the respective parties.
4.2 In considering whether the inclusion of an alleged discriminatory term in a contract of insurance, constitutes a single act or an ongoing discriminatory act or policy, I have taken note of the decision of the House of Lords in Barclays Bank –v- Kapur[2]. In this case the plaintiffs were East African Asians who had moved to Britain in the 1970s after being effectively expelled from East Africa. In East Africa they had worked with banks related to Barclays, and on their move to the UK they took up employment with Barclays there. The bank admitted them to its occupational pension scheme, but it explicitly said that it would not credit them for the years already served with its related banks in Africa. It did, however, credit employees of European origin who had joined it about the same time with their previous service in different banks. In 1987, the plaintiffs filed a race discrimination claim with an industrial tribunal. The bank argued that they were time-barred, because the key decision not to credit was made some 15 years before the claim. (The contract of employment had also been made before the Race Relations Act, 1976 came into force). The House of Lords (per Lord Griffiths) accepted that the plaintiffs could not rely on the provision dealing with inclusion of an unlawful term in a contract, because it [implicitly] applied only to contracts coming into force after the 1976 Act. However, it held that the decision not to credit them should be seen as “an act extending over a period”, and that accordingly, it continued throughout their employment. I am satisfied that this case, albeit not a binding precedent, is of persuasive value in terms of my decision on this issue in the present case, and that it supports the proposition that a discriminatory term which was not unlawful at the time it was made may, nonetheless, also constitute a continuing policy and be unlawful on that basis.
4.3 I have also taken into consideration the decision of the Equality Officer in the case of Green –v- Quinn Direct[3] in which the complainant claimed that his contract for motor insurance with the respondent discriminated against him on the grounds of his age. The respondent objected on the basis that the contract was made in July, 2000 when the Equal Status Act was not yet in force, however the complainant argued that the contract represented ongoing discrimination as it continued in force for a year. The Equality Officer decided in this case that “the alleged act of discrimination was not ongoing and that it was a once-off act which occurred in July, 2000, before the Equal Status Act came into operation”. However, it is important to note that this case was decided under the provisions of the Equal Status Act, 2000, which did not contain any specific provisions as to how the date of discrimination should be identified in the case of an act, contractual term, policy or provision which continued in force over a period of time.
4.4 In considering this issue further, I have taken cognisance of Section 21(11) of the Equal Status Acts, 2000 to 2004 (which was inserted by the Equality Act, 2004) and which provides:
“For the purposes of this section prohibited conduct occurs –
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period”
I note that these provisions were inserted into the legislation by the Equality Act, 2004 which occurred subsequent to the decision of the Equality Officer in the Green case. I am of the view that the inclusion of these provisions in the Equal Status Acts have provided for greater clarity regarding the manner in which the date of discrimination should be interpreted in the case of an act, contractual term, policy or provision which continued in force over a period of time (as is the situation in the present case). Having regard to the provisions of Section 21(11), I am satisfied that the complainant was involved in an ongoing contractual relationship with the respondent at the time of the alleged incident of discrimination on 25 October, 2005 by virtue of the health insurance policy to which he was subscriber. I am of the view that the alleged discriminatory term in the complainant’s contract of insurance, i.e. the inclusion of maternity related benefits, was an ongoing term in this policy throughout the duration of the contract between the parties. I am therefore satisfied that this term should be construed as continuing throughout the duration of the contact of insurance between the complainant and respondent for the purpose of determining whether the present complaint has been referred within the applicable time limits provided for in Section 21 of the Equal Status Acts.
4.5 Having regard to the foregoing, I am satisfied that the alleged discriminatory term in the present complaint falls within the scope of Section 21(11) of the Equal Status Acts for the purpose of determining the date of the most recent occurrence of the alleged prohibited conduct i.e. 25 October, 2005. I therefore find that the present complaint has been referred to the Tribunal within six months of the most recent occurrence of the alleged prohibited conduct, and accordingly, I find that the complaint is admissible under Section 21(6) of the Equal Status Acts. I will now proceed to consider the substantive complaint that has been referred for decision in the present case.
5. Conclusions of the Equality Officer regarding the substantive issue
5.1 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 can rely in asserting that prohibited conduct has occurred in relation to him. 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.
5.2 In the present case, the complainant claims that he has been subjected to discrimination by the respondent on the basis that he is obliged to pay for a benefit, namely maternity related benefits, as part of his insurance cover which he cannot possibly avail of due to his gender. The respondent submitted that it is statutorily obliged to include maternity benefits in every health insurance contract that it offers, and that it is not legally permitted to charge a lower premium to a specific gender for a health insurance contract. The respondent submitted that the gender neutral nature of its policies is required by the Health Insurance Acts, 1994 to 2003 and the Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996, and it therefore submits that it is legally required to offer a health insurance contract, which must include maternity cover, at the same rate to both men and women. In considering this issue, I am satisfied that the Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996 makes provision for a minimum range of benefits, including maternity benefits, which all health insurance providers are obliged to provide for its subscribers in every health insurance contract that they offer (paragraph 2 of Schedule A and items 2185-2207 of Table C.2 of Schedule C). I also note that Section 7(2)(a) of the Health Insurance Acts, 1994 to 2003 provides:
“7.-(2) Without prejudice to the generality of subsection (1), premiums payable under health
insurance contracts shall not be varied by reference to –
(a) the age, sex or sexual orientation or the suffering or prospective suffering of a person
from a chronic disease, illness or medical condition of a particular kind”
Having regard to the aforementioned legislative provisions, I am satisfied that the respondent is required to include a minimum and specific range of benefits in all of its health insurance contracts, which includes maternity related benefits, and that it is obliged in accordance with the provisions of the Health Insurance Acts to charge the same premium to all of its subscribers for these health insurance contracts regardless of their gender.
5.3 Section 14(1)(a)(i) of the Equal Status Acts, 2000 to 2008 provides that:
“14.- (1) Nothing in this Act shall be construed as prohibiting – ”
(a) the taking of any action that is required by or under –
(i) any enactment or order of a court”
Having regard to the aforementioned provisions of the Equal Status Acts, it is therefore clear that any action which is required by law cannot be deemed to be discriminatory. As I have already stated, I am satisfied that the respondent, in accordance with its obligations under the Health Insurance Acts, 1994 to 2003 and Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996, is obliged to offer a minimum range of benefits, including maternity related benefits, to all subscribers of its health insurance contracts and furthermore, that it is legally obliged to charge the same premium for these contracts irrespective of the specific gender of the subscriber. I therefore find that the specific treatment complained of by the complainant in the present case is required by the aforementioned legislative provisions. Accordingly, as the respondent was complying with an action that was required by an enactment, I find that it’s actions cannot be deemed to be discriminatory in the present case.
5.4 In the circumstances, it is not necessary for me to consider the other possible exemptions advanced by the respondent in this case.
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. I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of Sections 3(1) and 3(2)(a) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
11th December, 2008
[1]British United Provident Association Limited (BUPA) and Others –v- Commission of the European Communities – Case T-289/03
[2]Barclays Bank –v- Kapur and others [House of Lords] [1991] 2 AC 355
Association Belge des Consommateurs Test-Achats and Others (Social policy)
[2011] EUECJ C-236/09 [2011] Pens LR 145, [2011] EUECJ C-236/09, EU:C:2011:100, [2011] Eq LR 409, [2011] Lloyd’s Rep IR 296, [2011] CEC 1107, [2012] All ER (EC) 441, [2011] ECR I-773, [2011] 2 CMLR 38, [2012] 1 WLR 1933, ECLI:EU:C:2011:100Legal context
European Union (‘EU’) law
3 Directive 2004/113 was adopted on the basis of Article 13(1) EC. Recitals 1, 4, 5, 12, 15, 18 and 19 in the preamble to that directive are worded as follows:
‘(1) In accordance with Article 6 of the Treaty on European Union, the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States, and respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on 4 November 1950] and as they result from the constitutional traditions common to the Member States as general principles of Community law.
…
(4) Equality between men and women is a fundamental principle of the European Union. Articles 21 and 23 of the Charter of Fundamental Rights of the European Union (“the Charter”) prohibit any discrimination on grounds of sex and require equality between men and women to be ensured in all areas.
(5) Article 2 of the Treaty establishing the European Community provides that promoting such equality is one of the Community’s essential tasks. Similarly, Article 3(2) of the Treaty requires the Community to aim to eliminate inequalities and to promote equality between men and women in all its activities.
…
(12) To prevent discrimination based on sex, this Directive should apply to both direct discrimination and indirect discrimination. Direct discrimination occurs only when one person is treated less favourably, on grounds of sex, than another person in a comparable situation. Accordingly, for example, differences between men and women in the provision of healthcare services, which result from the physical differences between men and women, do not relate to comparable situations and therefore, do not constitute discrimination.
…
(15) There are already a number of existing legal instruments for the implementation of the principle of equal treatment between men and women in matters of employment and occupation. Therefore, this Directive should not apply in this field. The same reasoning applies to matters of self-employment insofar as they are covered by existing legal instruments. The Directive should apply only to insurance and pensions which are private, voluntary and separate from the employment relationship.
…
(18) The use of actuarial factors related to sex is widespread in the provision of insurance and other related financial services. In order to ensure equal treatment between men and women, the use of sex as an actuarial factor should not result in differences in individuals’ premiums and benefits. To avoid a sudden readjustment of the market, the implementation of this rule should apply only to new contracts concluded after the date of transposition of this Directive.
(19) Certain categories of risks may vary between the sexes. In some cases, sex is one but not necessarily the only determining factor in the assessment of risks insured. For contracts insuring those types of risks, Member States may decide to permit exemptions from the rule of unisex premiums and benefits, as long as they can ensure that underlying actuarial and statistical data on which the calculations are based, are reliable, regularly up-dated and available to the public. Exemptions are allowed only where national legislation has not already applied the unisex rule. Five years after transposition of this Directive, Member States should re-examine the justification for these exemptions, taking into account the most recent actuarial and statistical data and a report by the Commission three years after the date of transposition of this Directive.’
4 The purpose of Directive 2004/113 is defined as follows in Article 1 of that directive:
‘The purpose of this Directive is to lay down a framework for combating discrimination based on sex in access to and supply of goods and services, with a view to putting into effect in the Member States the principle of equal treatment between men and women.’
5 Article 4(1) of Directive 2004/113 provides:
‘1. For the purposes of this Directive, the principle of equal treatment between men and women shall mean that:
(a) there shall be no direct discrimination based on sex, including less favourable treatment of women for reasons of pregnancy and maternity;
(b) there shall be no indirect discrimination based on sex.’
6 Article 5 of Directive 2004/113, which is entitled ‘Actuarial factors’, provides:
‘1. Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.
2. Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16, and shall forward the results of this review to the Commission.
3. In any event, costs related to pregnancy and maternity shall not result in differences in individuals’ premiums and benefits.
Member States may defer implementation of the measures necessary to comply with this paragraph until two years after 21 December 2007 at the latest. In that case the Member States concerned shall immediately inform the Commission.’
7 Article 16 of that directive, which is entitled ‘Reports’, provides:
‘1. Member States shall communicate all available information concerning the application of this Directive to the Commission, by 21 December 2009 and every five years thereafter.
The Commission shall draw up a summary report, which shall include a review of the current practices of Member States in relation to Article 5 with regard to the use of sex as a factor in the calculation of premiums and benefits. It shall submit this report to the European Parliament and to the Council no later than 21 December 2010. Where appropriate, the Commission shall accompany its report with proposals to modify the Directive.
2. The Commission’s report shall take into account the viewpoints of relevant stakeholders.’
8 Under Article 17(1) of Directive 2004/113, Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by 21 December 2007 at the latest and to communicate the text of those provisions to the Commission forthwith.
National law
9 Article 2 of the Law of 21 December 2007 states that that law implements Directive 2004/113.
10 Article 3 of that law sets out the provision which replaces Article 10 of the Law of 10 May 2007 combating discrimination between men and women, which concerned the treatment of gender in insurance matters.
11 The new Article 10 of the Law of 10 May 2007 is worded as follows:
‘1. By way of derogation from Article 8, a direct proportionate distinction may be drawn on the basis of gender for the purposes of calculating insurance premiums and benefits where sex is a determining factor in the assessment of risk on the basis of relevant and accurate actuarial and statistical data.
That derogation shall apply only to life assurance contracts within the meaning of Article 97 of the Law of 25 June 1992 on non-marine insurance contracts.
2. With effect from 21 December 2007, costs related to pregnancy and maternity may not under any circumstances continue to result in differences in insurance premiums and benefits.
3. The Banking, Finance and Insurance Committee shall collect the actuarial and statistical data referred to in paragraph 1, publish them by 20 June 2008, then publish updates every two years, and post them on its website. This data shall be updated every two years.
The Banking, Finance and Insurance Committee shall be authorised to require the institutions, undertakings and individuals concerned to supply the data required for this purpose. It shall specify which data are to be sent, how and in what form.
4. The Banking, Finance and Insurance Committee shall provide the European Commission with the data at its disposal in accordance with this article by 21 December 2009 at the latest. It shall forward the data to the European Commission whenever they are updated.
5. The legislative Chambers shall, by 1 March 2011, assess the application of this article on the basis of the data referred to in paragraphs 3 and 4, the European Commission report referred to in Article 16 of Directive 2004/113/EC, and the situation in the other Member States of the European Union.
That assessment shall be made on the basis of a report submitted to the legislative Chambers by an Assessment Committee within two years.
By decree deliberated in the Council of Ministers, the King shall lay down the more detailed rules relating to the composition and appointment of the Assessment Committee, as well as the form and content of the report.
The Committee shall report in particular on the effects of this article on the market situation and shall also examine segmentation criteria other than those related to sex.
6. This provision shall not apply to insurance contracts concluded under a supplementary social security scheme. Such contracts shall be subject exclusively to Article 12.’
The facts in the main proceedings and the questions referred for a preliminary ruling
12 The applicants in the main proceedings brought an action before the Cour constitutionnelle (Constitutional Court) (Belgium) for annulment of the Law of 21 December 2007 transposing Directive 2004/113 into Belgian law.
13 They claimed that the Law of 21 December 2007, which implements the derogation provided for in Article 5(2) of Directive 2004/113, is contrary to the principle of equality between men and women.
14 In so far as the Law of 21 December 2007 makes use of the derogation provided for under Article 5(2) of Directive 2004/113, the Cour constitutionnelle decided, on the view that the action before it raises an issue concerning the validity of a provision of an EU directive, to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Is Article 5(2) of Directive 2004/113 … compatible with Article 6(2) [EU] and, more specifically, with the principle of equality and non-discrimination guaranteed by that provision?
2. If the answer to the first question is negative, is Article 5(2) of the Directive also incompatible with Article 6(2) [EU] if its application is restricted to life assurance contracts?’
Consideration of the questions referred
15 By its first question, the national court asks, in substance, whether Article 5(2) of Directive 2004/113 is valid in the light of the principle of equal treatment for men and women.
16 Article 6(2) EU, to which the national court refers in its questions and which is mentioned in recital 1 to Directive 2004/113, provides that the European Union is to respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law. Those fundamental rights are incorporated in the Charter, which, with effect from 1 December 2009, has the same legal status as the Treaties.
17 Articles 21 and 23 of the Charter state, respectively, that any discrimination based on sex is prohibited and that equality between men and women must be ensured in all areas. Since recital 4 to Directive 2004/113 expressly refers to Articles 21 and 23 of the Charter, the validity of Article 5(2) of that directive must be assessed in the light of those provisions (see, to that effect, Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-0000, BAILII: [2010] EUECJ C-92/09 , paragraph 46).
18 The right to equal treatment for men and women is the subject of provisions in the FEU Treaty. First, under Article 157(1) TFEU, each Member State must ensure that the principle of equal pay for men and women for equal work or work of equal value is applied. Secondly, Article 19(1) TFEU provides that, after obtaining the consent of the European Parliament, the Council may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
19 While Article 157(1) TFEU establishes the principle of equal treatment for men and women in a specific area, Article 19(1) TFEU confers on the Council competence which it must exercise in accordance, inter alia, with the second subparagraph of Article 3(3) TEU, which provides that the European Union is to combat social exclusion and discrimination and to promote social justice and protection, equality between men and women, solidarity between generations and protection of the rights of the child, and with Article 8 TFEU, under which, in all its activities, the European Union is to aim to eliminate inequalities, and to promote equality, between men and women.
20 In the progressive achievement of that equality, it is the EU legislature which, in the light of the task conferred on the European Union by the second subparagraph of Article 3(3) TEU and Article 8 TFEU, determines when it will take action, having regard to the development of economic and social conditions within the European Union.
21 However, when such action is decided upon, it must contribute, in a coherent manner, to the achievement of the intended objective, without prejudice to the possibility of providing for transitional periods or derogations of limited scope.
22 As is stated in recital 18 to Directive 2004/113, the use of actuarial factors related to sex was widespread in the provision of insurance services at the time when the directive was adopted.
23 Consequently, it was permissible for the EU legislature to implement the principle of equality for men and women – more specifically, the application of the rule of unisex premiums and benefits – gradually, with appropriate transitional periods.
24 Thus it was that the EU legislature provided in Article 5(1) of Directive 2004/113 that the differences in premiums and benefits arising from the use of sex as a factor in the calculation thereof must be abolished by 21 December 2007 at the latest.
25 By way of derogation from the general rule requiring unisex premiums and benefits established by Article 5(1) of Directive 2004/113, Article 5(2) of that directive grants certain Member States – those in which national law did not yet apply that rule at the time when Directive 2004/113 was adopted – the option of deciding before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risks based on relevant and accurate actuarial and statistical data.
26 Under Article 5(2) of Directive 2004/113, any decision to make use of that option is to be reviewed five years after 21 December 2007, account being taken of a Commission report. However, given that Directive 2004/113 is silent as to the length of time during which those differences may continue to be applied, Member States which have made use of the option are permitted to allow insurers to apply the unequal treatment without any temporal limitation.
27 The Council expresses its doubts as to whether, in the context of certain branches of private insurance, the respective situations of men and women policyholders may be regarded as comparable, given that, from the point of view of the modus operandi of insurers, in accordance with which risks are placed in categories on the basis of statistics, the levels of insured risk may be different for men and for women. The Council argues that the option provided for in Article 5(2) of Directive 2004/113 is intended merely to make it possible not to treat different situations in the same way.
28 The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraph 23).
29 In that regard, it should be pointed out that the comparability of situations must be assessed in the light of the subject-matter and purpose of the EU measure which makes the distinction in question (see, to that effect, Arcelor Atlantique et Lorraine and Others, paragraph 26). In the present case, that distinction is made by Article 5(2) of Directive 2004/113.
30 It is not disputed that the purpose of Directive 2004/113 in the insurance services sector is, as is reflected in Article 5(1) of that directive, the application of unisex rules on premiums and benefits. Recital 18 to Directive 2004/113 expressly states that, in order to guarantee equal treatment between men and women, the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals. Recital 19 to that directive describes the option granted to Member States not to apply the rule of unisex premiums and benefits as an option to permit ‘exemptions’. Accordingly, Directive 2004/113 is based on the premiss that, for the purposes of applying the principle of equal treatment for men and women, enshrined in Articles 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable.
31 Accordingly, there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for in Article 5(2) of Directive 2004/113, to persist indefinitely.
32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.
33 That provision must therefore be considered to be invalid upon the expiry of an appropriate transitional period.
34 In the light of the above, the answer to the first question is that Article 5(2) of Directive 2004/113 is invalid with effect from 21 December 2012.
35 In view of that answer, there is no need to address the second question.
Costs
36 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Article 5(2) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services is invalid with effect from 21 December 2012.
[Signatures]
DEC-S2008-112 –
Mr. X v Health Service Executive
Keywords
Equal Status Acts, 2000-2008 – Section 3(1) – Direct discrimination, Section 3(1)(a) – Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 29th November, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, 2000 to 2004, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 21st October, 2008.
1. Dispute
1.1 The complainant claims that he was discriminated against on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 in that the respondent failed to do all that was reasonable to accommodate his needs as a person with a disability by providing special facilities that would enable him to access the services of a psychologist as part of his treatment for schizophrenia.
2. Summary of the Complainant’s Case
2.1 The complainant was diagnosed as suffering from schizophrenia in December, 2002 at which stage he was referred as a patient to the respondent for treatment for this condition. The complainant’s mother stated in evidence that she became aware that the best practice nationally and internationally for the treatment of schizophrenia involved treatment by a psychologist (and more specifically Cognitive Behaviour Therapy). It is the complainant’s case that he was denied access to a psychologist as part of the treatment for his illness as the medical team that was providing this treatment, on behalf of the respondent, did not have access to the services of a psychologist at that particular time. The complainant claims that he was being denied the most effective means of treatment for his illness and he contended that if he had been suffering from any illness, other than a mental illness, that he would have received the appropriate treatment. The complainant also claims that the particular area of the HSE in which he resides was inadequately funded and he submitted that if he was residing in any other area of the country he would have received the appropriate inclusive treatment for his illness.
2.2 The complainant also claims that he requested the treatment of a psychologist be made available to him under the National Treatment Purchase Fund, however this request was also denied on the basis that mental illnesses were not covered by this scheme. The complainant claims that after a period of intense lobbying the services of a psychologist were eventually made available to him during the summer of 2006 and that he received approx. 10 sessions of Cognitive Behaviour Treatment at that juncture which were of enormous benefit in the treatment of his illness. The complainant stated that he is presently receiving Cognitive Behaviour Therapy on a private basis which has been funded by the respondent, however he claims that he should have been in receipt of this treatment throughout the duration of his illness. The complainant claims that he has been subjected to discrimination on the grounds of his disability on the basis of the respondent’s failure to provide the appropriate treatment for his illness.
3. Summary of the Respondent’s Case
3.1 The respondent submitted that the complainant was initially referred to its Mid-Eastern Sector as a patient in December, 2002 and he began a course of ongoing treatment for schizophrenia at that juncture. The respondent claims that this course of treatment was administered under the supervision of Dr. X, whose initial prognosis was that the complainant’s illness should be treated by way of medication. The respondent accepted that the medical team which was treating the complainant did not have access to the services of a psychologist (as a result of budgetary constraints) at that juncture, however, it submitted that the complainant’s treatment was being administered in accordance with the instructions and prognosis of his medical team. The respondent submitted that it was the clinical judgement of the complainant’s medical team that he did not require treatment by a psychologist (i.e. Cognitive Behaviour Treatment) at that particular juncture.
3.2 The respondent submitted that the complainant’s doctor, Dr. X, initially formed the view in March, 2005 that the complainant may benefit from the treatment of a psychologist and he sought funding in order to obtain private treatment for the complainant by a psychologist as there was not a psychologist available to the medical team that was treating the complainant. The respondent submitted that there was insufficient funding available to obtain private treatment for the complainant at that time, however, the services of a psychologist became available to the complainant’s medical team in January, 2006. The complainant was referred to this clinical psychologist in January, 2006, on the instructions of his medical team, but was unable to commence treatment at that stage due to the deterioration in his medical condition which required that he be hospitalised for a period of time. However, the complainant subsequently commenced a period of treatment in June, 2006 with the psychologist which was available to his medical team, which consisted of twelve separate sessions. The respondent also submitted that the National Treatment Purchase Fund is an independent statutory agency that was established for the purpose of providing faster treatments to patients who have been waiting longest on public hospital in-patient waiting lists for surgery, and it stated that this scheme does not cover treatment for mental illnesses. The respondent submitted that it did not have any role or authority in terms of the manner in which treatment was administered under this scheme.
3.3 The respondent claims that the treatment afforded to the complainant was administered in accordance with the clinical judgement and instructions of his medical team and it totally denies that it has discriminated against the complainant on the grounds of his disability in terms of the treatment that has been provided in order to treat his illness. The respondent stated that the complainant continues to be a patient of the respondent and it submitted that he is receiving ongoing treatment from his medical team in relation to his illness.
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 he can rely in asserting that prohibited conduct has occurred in relation to him. 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.
4.2 In the present case, it was accepted by both parties that the complainant is suffering from schizophrenia and I am therefore satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts, 2000 to 2008. It was also agreed by both parties that the complainant was referred to the respondent as a patient in December, 2002 and that he was in receipt of ongoing care and treatment for his illness, thereafter, under the care of a medical team with administrative responsibility to the respondent. The complainant claims that he was denied access to the services of a psychologist as an integral part of his treatment and he therefore claims that he was subjected to discrimination by the respondent on the grounds of his disability. The respondent denies that it discriminated against the complainant and it claims that the treatment for his illness was administered in accordance with the clinical judgement of the medical team that was providing care for him on its behalf. Therefore, the question that I must decide in the present case is whether the complainant was subjected to less favourable treatment by the respondent on the grounds of his disability in terms of the manner in which the treatment of his illness was administered by the respondent.
4.3 In considering this issue, I have taken cognizance of Section 16(2) of the Equal Status Acts, 2000 to 2008 which provides:
“Treating a person differently does not constitute discrimination where the person –
(a) is so treated solely in the exercise of a clinical judgment in connection
with the diagnosis of illness or his or her medical treatment”
Having regard to the aforementioned provisions of the Equal Status Acts, it is therefore clear that treating a person differently while exercising clinical judgement in connection with that person’s treatment cannot constitute discrimination within the meaning of the legislation. In the present case, the complainant commenced treatment for his illness in December, 2002 and I have noted the evidence of Dr. X, the consultant in charge of the medical team which was administering the complainant’s treatment, that it was not until March, 2005 that he initially formed the view, in the exercise of his clinical judgement, that the complainant may benefit from the treatment of a psychologist (i.e. Cognitive Behaviour Therapy). I note that the medical team which was treating the complainant at this juncture did not have access to the services of a psychologist as a result of budgetary constraints and that a psychologist did not become available to the team until January, 2006. It is therefore clear that there was a period of time between March, 2005 and January, 2006 within which the services of a psychologist was not available to the complainant as part of the ongoing treatment of his illness due to financial constraints and inadequate staffing resources. However, I am satisfied that the inability of the respondent to obtain the services of a psychologist due to financial constraints or inadequate staffing resources was an administrative issue within the respondent organisation and that it does not amount to less favourable treatment of the complainant within the meaning of the Equal Status Acts on the grounds of his disability.
4.4 Having regard to the evidence adduced, I am satisfied that the complainant was referred to a psychologist on the instructions of his medical team, as soon as one became available in January, 2006, albeit that he did not commence this treatment until June, 2006 as a result of a deterioration in his medical condition. In the circumstances, I am satisfied that the manner and method of the medical treatment that was administered to the complainant, as part of the ongoing care of his illness, was carried out in accordance with the clinical judgement of the medical team that were carrying out this treatment on behalf of the respondent. I have not been presented with any evidence from which I could conclude that the manner in which this medical treatment was administered was done so for any reason other than it was deemed necessary and appropriate by his medical team in the exercise of its clinical judgement in connection with the treatment of his illness. Having regard to the provisions of Section 16(2) of the Equal Status Acts, I therefore find that the treatment afforded to the complainant in the present case did not amount to discrimination within the meaning of this legislation. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.
4.5 I have also noted the complainant has claimed that he requested treatment by a psychologist for his illness under the terms of the National Treatment Purchase Fund and he claims that the respondent refused this request on the basis that the treatment of mental illnesses were not covered by this scheme. In considering this issue, I note that the National Treatment Purchase Fund is an independent statutory agency that was established for the purpose of providing treatment to patients who have been on public hospital waiting lists for surgery. I am satisfied that the named respondent in the present proceedings, namely the Health Service Executive, does not have any role or authority in terms of the manner in which treatment is administered under this scheme and accordingly, I find that I do not have jurisdiction to investigate this matter in the present case.
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 disability ground in terms of Sections 3(1), 4(1) and 3(2)(g) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
2nd December, 2008
DEC-S2006-069 – Full Case Report
Hallinan v Donnell
Mr. Hallinan 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
The complainant was admitted to Mayo General Hospital in June 2002. His complaint to the tribunal relates to his treatment by the respondent doctor while in hospital. Mr. Hallinan is quadriplegic and he stated that while in hospital he knew his breathing was becoming difficult so he asked for physiotherapy to relieve this. This was not immediately forthcoming despite his requests and no clear explanation was given. He also asked for x-rays and these took five days. Mr. Hallinan believes that this delay is too much when a patient is seriously ill. When physiotherapy was given the complainant was happy with the treatment received. At all times he was also happy with the service received from the nursing staff. Mr. Hallinan stated that he has been going to the hospital for 19 years and that there should have been a clear recognition of his needs. He also alleges that when he wrote to the doctor after his stay in hospital he received no reply. Mr. Hallinan alleges that the treatment he received from the doctor was unacceptable and amounted to discrimination. He has brought his complaint under the disability ground in the Equal Status Act, 2000. He has also claimed victimisation.
Summary of the Respondent’s Case
Dr. O’Donnell saw the complainant on the day after he was admitted. In his opinion Mr. Hallinan does not appreciate how serious his condition was. There was a difficulty with his respiratory system but there was also a difficulty with his digestive system. Both problems were serious and the treatment of one created difficulties for the treatment of the other. One problem needed more urgent treatment and physiotherapy may have resulted in increasing the fluid in his chest. X-rays are only a part of the overall clinical assessment. He felt there was no need for a final x-ray. Dr. O’Donnell pointed out that the slowness in relation to an x-ray report is the same for all patients whether disabled or not. Dr. O’Donnell apologised for his tardiness in responding to the complainants letter. When he returned from holidays he had to prioritise his work. He pointed out that he was equally slow in getting to all of his correspondence.
Conclusions of the Equality Officer
I am satisfied and the respondent agreed that the complainant is disabled. It was also agreed that the complainant was in the care of the respondent doctor for a period during his stay in hospital in 2002. What is in dispute is whether or not some forms of treatment and x-rays were withheld because the complainant is disabled and whether or not the doctor’s lack of response to the complainant’s correspondence was because the complainant is disabled.
In respect of the physiotherapy treatment and the x-rays, these form part of a doctor’s assessment and treatment of a patient. Doctors use their clinical judgment in assessing a patient. X-rays are only one contribution to the assessment process and physiotherapy is a treatment which may be considered appropriate for a particular patient following assessment. Section 16 (2) of the Equal Status Act, 2000 states:
“16(2) Treating a person differently does not constitute discrimination where the person –
(a) is so treated solely in the exercise of a clinical judgment in connection with the diagnosis of illness or his or her medical treatment,……”
Mr. Hallinan feels that his treatment by Dr. O’Donnell was unfavourable. However, treating a person differently while exercising clinical judgment in connection with that person’s diagnosis or treatment cannot amount to discrimination under the Equal Status Act, 2000, based on Section 16.
In respect of the lack of response to the complainant’s correspondence, and based on the evidence presented to me, I am satisfied that Dr. O’Donnell, in similar circumstances, would have treated correspondence from a non-disabled person in a similar fashion. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.
I am satisfied that Mr. Hallinan has also failed to show that there was any less favourable treatment on foot of any action taken under the Equal Status Act, 2000. I find, therefore, that he has failed to establish a prima facie case on the victimisation ground as defined by Section 3 of the Equal Status Act, 2000.
Vicarious Liability
Had Dr. O’Donnell been found to have discriminated against the complainant in matters other than his clinical decisions the Western Health Board may have been vicariously liable. While it was argued at the hearing that such doctors operate independently, this appears to be relevant only to clinical issues. Where the issue arises in relation to correspondence or other administrative matters the Board (now the HSE) may be found liable. It was clear to me that no provisions were in place to ensure that the Health Board was informed of such matters arising nor were there procedures in place which could be followed by a doctor in these circumstances. Since the complainant has failed to establish a prima facie case of discrimination I cannot direct the HSE to take any course of action. However, a review of such matters would seem worthwhile.
Decision DEC-S2006-069
Since the complainant has failed to establish a prima facie case of discrimination on the disability ground this decision is in favour of the respondent.
Bernadette Treanor
Equality Officer
15th September 2006
DEC-S2009-072 – Full Case Report
Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISION
NO: DEC-S2009-072
Traynor v HSE
Date of Issue: 15 October 2009
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – Traveller community ground, section 3(2)(i) – Provision of goods and services, section 5(1) – Reasonable accommodation, section 4(1) – Certain activities not discrimination, section 16(2)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Christopher Traynor referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 24 July 2007. In accordance with her 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. An investigation, in accordance with section 25(1) of the Acts, commenced on 12 December 2008. An oral hearing, as part of the investigation was scheduled for 21 July 2009. The Director granted the complainant a brief adjournment on 20 July 2009. The hearing was held in Dublin on 12 October 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability and membership of the Traveller community ground. Mr. Traynor (“the complainant”) maintains that the Health Service Executive (“the respondent”) treated him less favourably on the above grounds contrary to section 3(1) and 5(1) on 24 July 2007 in that the complainant was not immediately referred to a pharmacy re methadone treatment despite the fact that, according to the complainant, a pharmacy was available. Furthermore, the complainant submitted that he was not treated with dignity and respect. The respondent was notified on 19 July 2007.
3. Case for the complainant
3.1. The complainant is a member of the Traveller community and is a person who has misused drugs.
3.2. The complainant submitted that a named addiction counsellor told him on behalf of the respondent that none of the chemists in Dundalk were taking on more clients for methadone treatment so that he would have to wait before he could be placed on such a programme. The complainant submitted that a named voluntary drugs worker (not in any way associated with the respondent) told the complainant on 24 May 2007 that he had found a chemist who was willing to take the complainant on for methadone treatment. The complainant stated at the hearing that this named drugs worker told the complainant that when he was told that the complainant needed to be placed on a waiting list, the named drugs worker decided to check whether this was the case. It was submitted that he approached a recently opened named chemist around Dundalk and, according to the named drugs worker, the named pharmacist was happy to take the complainant and another named person on for treatment.
3.3. It was stated that the named drugs worker then contacted the complainant’s mother and told her the positive news. It was submitted that the complainant’s mother then rang a named addiction counsellor working for the respondent and told her that the named drugs worker had found a chemist who was happy to take the complainant on. According to the complainant, the complainant’s mother was told by the named addiction counsellor that she was not in a position to authorise this, that there were policies and procedures that needed to be followed and that she would have to check with someone else and get back to her.
3.4. The complainant submitted that the drugs worker then rang the same addiction counsellor and enquired what appeared to be a problem. It was submitted that the drugs worker told the complainant that the addiction counsellor replied that the complainant could not receive treatment in the named chemist as the complainant was not suitable and that the complainant would be receiving treatment in a larger chemist that would have greater security. The complainant submitted that the drugs worker balked at this as he had only been talking to the named chemist approximately 30 minutes earlier and the named chemist had been perfectly happy to take the complainant on as a client. He submitted that the named drugs worker enquired whether the named addiction counsellor had convinced the named pharmacist not to take the complainant on and it was submitted that the named drugs worker suspected that the named addiction counsellor making the named pharmacist believe that the complainant was a dangerous criminal. It was submitted that the named drugs worker told the named addiction counsellor that a number of his clients had been unhappy about the way she was treating them and that the named addiction counsellor did not care about the people that she was working with.
3.5. The complainant submitted that the named drugs worker had returned to the named chemist on 25 May 2007 to ask what had happened between him and the Health Service Executive. It was submitted that the named pharmacist had told him that the named addiction counsellor had rang him the previous day and told him not to take on the complainant because he was up for armed robberies and that he [the complainant] knew all the local ‘scumbags’ in the area. It was submitted that the counsellor had no right to say what the pharmacist allegedly told the drugs worker that she had said.
3.6. The complainant’s representative submitted that the complainant was not generally unhappy with the service he has received and continues to receive from the respondent. The complainant’s claim is specifically about the incident that allegedly took place between the named pharmacist and the voluntary drug worker.
4. Case for the respondent
4.1. The respondent submitted as way of background that the complainant has been availing of the service for a number of years. It was submitted that the complainant had been treated exactly like any other person seeking methadone treatment would have been treated at the time of the alleged incident. It was submitted that at the time pharmacist were staging a go-slow protest which was creating some difficulties for the respondent.
4.2. It was submitted that the appropriate level of information concerning clients seeking to avail of methadone treatment is exchanged with a pharmacy in accordance with The Pharmaceutical Society of Ireland Guidelines on the Treatment of Opioid Misusers. It was submitted that the respondent also enquires about the client’s preferences bearing in mind that they may not want their family pharmacist knowing about the treatment, etc.
4.3. The Health Service Executive vehemently refutes that the complainant’s claim that he was discriminated against on the grounds of his membership of the Traveller community. It was submitted that the complainant was not referred to a pharmacy immediately as there were compelling medical reasons for a delay. The General Practitioner, who assessed the complainant at the time, gave evidence to this effect.
4.4. It was submitted that the respondent currently has 42 clients receiving methadone treatment. 5 of these persons are Travellers.
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. It is agreed that the complainant is a member of the Traveller community. The complainant withdrew his complaint of discrimination on the disability ground at the day of the hearing.
5.3. While the Tribunal can be somewhat more relaxed about rules of evidence than the courts, I find that the level of hearsay presented to me in this case has to be commented upon. The Tribunal cannot place any value on evidence that is entirely based on hearsay. While I note that hearsay can be of value when supporting a specific fact relevant to the proceedings that does not require the Tribunal to consider or accept the truth of any of the statement’s assertions, I find that this is not the case in the present complaint. The entire case is built upon an alleged conversation that took place between an well intentioned bystander (the volunteer drugs worker) who, so it would appear, was mistrustful of the respondent’s reasons for not immediately dispensing methadone to the complainant. I have no way assessing whether any of this was actually said or whether this was simply inferred by the bystander because the respondent told him that the pharmacist was no longer willing to take him on a patient. It is not also clear whether this bystander’s unorthodox approach of making direct contact with the named pharmacist placed the named pharmacist in a position where it was easier for him to say that he would take on the complainant provided that the respondent agreed.
5.4. I have been presented with no compelling reason to believe that the respondent addiction counsellor had any reason to deny the complainant a service by alluding to an ‘armed robbery’ as some strange analogy to membership of the Traveller community. While I note that the complainant does not suggest that such analogy exists, the entire case seems to rest on an alleged conversation that took place between two people who were not at the hearing. It appears that based on this alleged conversation, the bystander decided that the only reason why the respondent would lie to the named pharmacist is because the complainant is a member of the Traveller community. It was presented to me that this is because the respondent has no respect for Travellers and decided to sabotage the complainant by stating that he was ‘up for armed robbery’. I do not find this a compelling argument.
5.5. The lack of evidence provided for this investigation places the Tribunal in a position where all I can do is infer the following:
1. I am satisfied that a contact between the respondent and the named pharmacist took place as a result of the named drug workers involvement. I am satisfied that the respondent contacted the named pharmacist. I am also satisfied that while normally the pharmacist would have been the one to contact the respondent, the fact that a go-slow was in operation and pharmacists were refusing to take on new methadone users, it is understandable that the respondent would have proactively contacted someone willing to take on new methadone users, especially as the named pharmacist was new to area and would therefore not had any expertise of the procedures and practices between the respondent and any pharmacy providing this service on their behalf.
2. The named drug addiction counsellor (for the respondent) did speak with the named pharmacist. I find the respondent’s evidence about this conversation more compelling despite the fact that she cannot be certain of exactly what had been said. I do not accept that a professional dealing with another unknown professional would refer to the complainant as a person “who hangs with scumbags” or would state that the complainant was “up for armed robberies” when there is nothing in his file to state that this was the case. I am satisfied that the respondent did relay information about the complainant (including minor offences) in accordance with set guidelines. I have been presented with no evidence to support an argument that an armed robbery was discussed at all. The Tribunal was told by the respondent that the pharmacist had decided that he was not quite ready to take on the complainant as his first methadone client and, in the circumstances, this seems a perfectly reasonable decision.
3. I am satisfied that the respondent had decided to delay the complainant’s methadone treatment for reasons that fall under section 16(2), that is, the General Practitioner, who assessed the complainant’s suitability for the methadone treatment programme, was exercising clinical judgment when delaying the complainant from methadone treatment. I am satisfied, having heard his evidence, that there were genuine medical reasons which meant that it would have been unsafe to treat the complainant with methadone immediately.
4. That as soon as the complainant was cleared by the above General Practitioner to enter the programme on 21 June 2007, he began his treatment programme on 28 June 2007.
5.6. I have been presented with no evidence to provide a nexus between membership of the Traveller ground and the alleged less favourable treatment. Furthermore, I have been presented no evidence that the complainant was in receipt of less favourable treatment. I find that the complainant was treated exactly like anyone else looking for methadone treatment would have been treated in similar circumstances.
5.7. I note that the respondent denies having any knowledge that the complainant is a member of Traveller community. It was submitted that while the service currently collates information about some of the grounds, this was not done when the complainant became a service-user. I note that the complainant was introduced to the service by his home-school liaison teacher when the complainant was 17. It was submitted that his mother is not a Traveller and the complainant, who grew up in England, lives in a standard housing estate. I do not accept that it is clear to anyone that the complainant is a Traveller without having been told of the fact. The complainant submitted that his father is well known in the area and that he associates with known Travellers. This may be the case. I accept that the fact that the voluntary drugs worker is apparently a known advocate for Travellers and that him advocating for the complainant may have created an association for those who know this person. Nevertheless, my findings in paragraph 5.6. stand.
5.8. Having examined the guidelines issued by the Pharmaceutical Society of Ireland in relation to the treatment of a client in receipt of a methadone treatment programme, I am satisfied that the respondent acted according to these rules and issued information accordingly. I have been presented with no evidence to support an argument that the information forwarded by the respondent to the named pharmacy was less favourable than information would have been forwarded pertaining to a person who is not a Traveller.
5.9. While I note that the complainant submitted in his notification form that he believed the treatment he received from the respondent amounts to discrimination, slander of a person’s character and a serious breach of confidentiality between client and counsellor, this Tribunal only has jurisdiction to deal with the matter of discrimination.
Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 5(1) on the ground of his membership of the Traveller community. Therefore, the complaint fails.
________________
Tara Coogan
Equality Officer
15 October 2009
DEC-S2012-007- Full Case Report
The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-007
Parties
Complainant A and Complainant B v Caledonian Life
Case refs: ES/2011/0010 and 0011
Issued: 20 February 2012
Keywords:
Equal Status Acts 2000 to 2008- Disability- Failure to Provide Reasonable Accommodation – Provision of good and services – Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Complainant A and Complainant B (hereafter “the complainants”) referred a claim through their next-friend and father to the Director of the Equality Tribunal under the Equal Status Acts on 24 January 2011. The respondent was notified of this complaint in accordance with the Acts on 10 September 2010. The Director exercising his powers under the Acts 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 17 November 2011. An oral hearing, as part of the investigation was held in Dublin on 1 February 2011.
2. Dispute
2.1. The dispute concerns complaints of unlawful discrimination on the disability ground. The complainants submitted that Caledonian Life (“the respondent”) discriminated against them, including a failure to provide the complainants with reasonable accommodation, on the disability ground by not providing Life Assurance cover to the complainants from November 2008 to 27 July 2010 and by refusing to accept any further applications for Life Assurance for the complainants.
3. Case for the complainants
3.1. The complainants are twin brothers aged over 21 years. Both Complainant A and Complainant B were diagnosed with autism spectrum disorder when they were about 2 and half years of age. The complainants’ application for life assurance, submitted on their behalf by their mother, was refused because of the complainants’ medical condition.
3.2. The complainants’ next friend had only found out about the refusal to grant the insurance through a third party. The broker that the complainants’ wife had dealt with initially had omitted to inform the complainants’ parents that the respondent had refused to grant insurance cover to either complainant.
3.3. It was submitted that the respondent omitted to provide reasonable accommodation by not seeking more updated information about the complainants. It was submitted that complainant A and B were seen as the same people despite the fact that they are two distinct human beings. The respondent made assumptions about the complainants and their capacity to enter into a contract.
3.4. It was submitted that the complainants have been able to open bank accounts, get passports, medical cards, social welfare payments, sky television, etc. Also, the complainants’ grandmother was able to take out policies for the complainants when they were 3 years of age and there was no need for the complainants then to enter into a contract.
3.5. The complainants refute the medical evidence used to justify the refusal to grant life cover to persons with autism.
4. Case for the respondent
4.1. The respondent is a provider of insurance. The complainants had sought to avail of convertible term assurance. In the event of the death of such policyholder the sum assured will be paid to a beneficiary. Convertible term assurance provides life cover at a fixed rate of payments for a fixed period of time (term). The policy holder has a “conversion option”, which he or she can exercise at any time during the term of the policy.
4.2. It was submitted that an application for Convertible Life Assurance for both Complainant A and Complainant B was received by the respondent on or about 17 November 2008. The application forms were signed by the complainants’ mother. The respondent sought private medical reports to assess the complainants’ disclosed medical condition. On receipt of this, the respondent came to the conclusion that the disclosed condition would be classified as severe. The respondent wrote to the complainants’ parents informing them that it was unable to provide life assurance for the complainants.
4.3. On 19 June 2009 the complainants’ next friend submitted a complaint to the respondent. The matter was revisited by the respondent but the decision to refuse to provide cover was upheld. It was submitted that the respondent had referred the matter to its Reassurer who had also refused to grant cover on the grounds that the mortality rate for persons with autism is three times higher than for the standard group. The decision not to grant cover was communicated on 23 June 2009.
4.4. It was submitted that the complaint is out of time pursuant to section 21(6). The final response in this matter was submitted to the complainants’ next friend on 23 June 2009. Subsequently the complainants’ next friend referred a claim to the Financial Services Ombudsman. A finding against the complainants’ next friend was issued from that office on 22 June 2010. The complainant lodged his notice with the respondent on 12 October 2010, some 14 months after the final response.
4.5. Without prejudice to the foregoing, the respondent relied on section 16(2)(b) of these Acts as justification for the refusal to provide the cover requested. In making this decision the complainant relied on the complainants own medical records.
4.6. Without prejudice to the foregoing the respondent relied on section 5(2)(d) of these Acts as justification for the refusal to provide the cover requested. In making this decision the respondent relied on the complainants own medical records indicating the presence of severe autism and episodes of self-injurious behaviour (more so in relation to complainant A).
4.7. It was submitted that the respondent had offered to insure the life of the complainants’ father and mother instead of the complainants and writing the policy in trust for the benefit of the complainants. This offer has been rejected. It was submitted that the complainants’ next friend and mother have not sought to explore this alternative option.
4.8. The respondent acknowledged that the manner in which the broker had dealt or omitted to communicate the respondent’s refusal to grant the insurance was regrettable and unnecessary. For this unnecessary discourtesy the respondent apologised to the complainant’s next friend and assured him that it would not happen again.
4.9. The respondent relied on Mr A v A Life Assurance Company DEC-S2011-008. It was submitted that the respondent refusal to grant cover was made following the consideration of a number of factors including the type of insurance sought and the level of cover sought. The respondent is entitled to take commercial and underwriting facts into account when making such decisions.
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. Firstly, the preliminary issue of time limits. I am satisfied, having heard the full facts of this case, that while it is clear that the actual decision to refuse the cover in the summer of 2009 is clearly out of time, it is clear that the respondent is relying in its defence on an on-going policy concerning its life assurance policies. This policy relates to the requirement that the person who is insured by such policy must have a capacity to enter into such contract. It is clear that the existence of this policy means that the complainants – should they seek the cover again in the future and their medical condition remains the same – would not have cover provided to them. I am therefore satisfied that I have jurisdiction to investigate this complaint in relation to this policy only. That is I will be investigating whether the complainant had objective reasons to assert that the complainants, individually, lacked the capacity to enter into such contract.
5.3. The parties agreed to the facts of this case. It was accepted that Autism is a disability within the meaning of the Acts and the respondent does not deny that the action complained of occurred.
5.4. I am satisfied that the respondent had relied on medical evidence submitted by the complainants’ general practitioner. Consent for this had been provided in the application forms (by the complainants’ mother). I am satisfied that these reports were used to determine that both Complainant A and Complainant B lack the capacity to understand the nature of the contract and the intricacies of life insurance and therefore the respondent found that it cannot enter into such a contract with them. Section 16(2) states that: “treating a person differently does not constitute discrimination where the person —
(a) not applicable here
(b) is incapable of entering into an enforceable contract or of giving an informed consent and for that reason the treatment is reasonable in the particular case.
It became clear at the hearing that the complainants’ next friend had not fully known the extent of the records that the respondent had sought and received. It is clear that the medical evidence provided was not as old as the complainants’ next friend had been assumed. The records indicate that in 2005 that both complainant A and B: “suffer from severe learning disability and Autism”. The records, on headed paper, have been signed by a Consultant Child and Adolescent Psychiatrist. The same doctor had made the initial diagnosis when the complainants were young children. While it is clear that the assessment relied upon here had not been carried out specifically for the purposes of assessing whether the complainants have the capacity to enter in to a contract, it is clear that the respondent is entitled to draw the conclusion that the disclosed condition is severe.
5.5. It is also important to note that the complainants’ next friend evaluated his son’s developmental age to be somewhere between 9-12 years of age. While I appreciate that the complainants’ next friend may not be an expert on the autism spectrum disorder universally, it is clear to me that he is an expert when it comes to his own sons. He also submitted that the complainants are both non-verbal and cannot write. I am satisfied that the complainants’ parents had communicated these facts to the respondent in a letter dated 19 June 2009.
5.6. In the circumstances of this case it is not clear how the issue of reasonable accommodation could arise. While the complainants’ next friend submitted that the respondent ought to have obtained more medical reports supporting their decision that the complainants are not able to enter into said contracts it is clear from the existing medical evidence that such an assessment could not provide any alternative solution.
5.7. I am satisfied that respondent views the nature of the contract required here as such that it must be satisfied that the person entering into this contract is giving informed consent about the bargain that s/he is entering into. The respondent is entitled to hold this opinion. I am satisfied that the respondent’s treatment of the complainants has been reasonable in the circumstances of this case.
6. Decision
In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. Complainant A and Complainant B have established a prima facie case of less favourable treatment on the disability ground. The inference has successfully been rebutted by the respondent.
6.3. Complainant A and Complainant B have failed to establish a prima facie case failure to provide reasonable accommodation.
DEC-S2012-007- Full Case Report
The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-007
Parties
Complainant A and Complainant B v Caledonian Life
Case refs: ES/2011/0010 and 0011
Issued: 20 February 2012
Keywords:
Equal Status Acts 2000 to 2008- Disability- Failure to Provide Reasonable Accommodation – Provision of good and services – Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Complainant A and Complainant B (hereafter “the complainants”) referred a claim through their next-friend and father to the Director of the Equality Tribunal under the Equal Status Acts on 24 January 2011. The respondent was notified of this complaint in accordance with the Acts on 10 September 2010. The Director exercising his powers under the Acts 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 17 November 2011. An oral hearing, as part of the investigation was held in Dublin on 1 February 2011.
2. Dispute
2.1. The dispute concerns complaints of unlawful discrimination on the disability ground. The complainants submitted that Caledonian Life (“the respondent”) discriminated against them, including a failure to provide the complainants with reasonable accommodation, on the disability ground by not providing Life Assurance cover to the complainants from November 2008 to 27 July 2010 and by refusing to accept any further applications for Life Assurance for the complainants.
3. Case for the complainants
3.1. The complainants are twin brothers aged over 21 years. Both Complainant A and Complainant B were diagnosed with autism spectrum disorder when they were about 2 and half years of age. The complainants’ application for life assurance, submitted on their behalf by their mother, was refused because of the complainants’ medical condition.
3.2. The complainants’ next friend had only found out about the refusal to grant the insurance through a third party. The broker that the complainants’ wife had dealt with initially had omitted to inform the complainants’ parents that the respondent had refused to grant insurance cover to either complainant.
3.3. It was submitted that the respondent omitted to provide reasonable accommodation by not seeking more updated information about the complainants. It was submitted that complainant A and B were seen as the same people despite the fact that they are two distinct human beings. The respondent made assumptions about the complainants and their capacity to enter into a contract.
3.4. It was submitted that the complainants have been able to open bank accounts, get passports, medical cards, social welfare payments, sky television, etc. Also, the complainants’ grandmother was able to take out policies for the complainants when they were 3 years of age and there was no need for the complainants then to enter into a contract.
3.5. The complainants refute the medical evidence used to justify the refusal to grant life cover to persons with autism.
4. Case for the respondent
4.1. The respondent is a provider of insurance. The complainants had sought to avail of convertible term assurance. In the event of the death of such policyholder the sum assured will be paid to a beneficiary. Convertible term assurance provides life cover at a fixed rate of payments for a fixed period of time (term). The policy holder has a “conversion option”, which he or she can exercise at any time during the term of the policy.
4.2. It was submitted that an application for Convertible Life Assurance for both Complainant A and Complainant B was received by the respondent on or about 17 November 2008. The application forms were signed by the complainants’ mother. The respondent sought private medical reports to assess the complainants’ disclosed medical condition. On receipt of this, the respondent came to the conclusion that the disclosed condition would be classified as severe. The respondent wrote to the complainants’ parents informing them that it was unable to provide life assurance for the complainants.
4.3. On 19 June 2009 the complainants’ next friend submitted a complaint to the respondent. The matter was revisited by the respondent but the decision to refuse to provide cover was upheld. It was submitted that the respondent had referred the matter to its Reassurer who had also refused to grant cover on the grounds that the mortality rate for persons with autism is three times higher than for the standard group. The decision not to grant cover was communicated on 23 June 2009.
4.4. It was submitted that the complaint is out of time pursuant to section 21(6). The final response in this matter was submitted to the complainants’ next friend on 23 June 2009. Subsequently the complainants’ next friend referred a claim to the Financial Services Ombudsman. A finding against the complainants’ next friend was issued from that office on 22 June 2010. The complainant lodged his notice with the respondent on 12 October 2010, some 14 months after the final response.
4.5. Without prejudice to the foregoing, the respondent relied on section 16(2)(b) of these Acts as justification for the refusal to provide the cover requested. In making this decision the complainant relied on the complainants own medical records.
4.6. Without prejudice to the foregoing the respondent relied on section 5(2)(d) of these Acts as justification for the refusal to provide the cover requested. In making this decision the respondent relied on the complainants own medical records indicating the presence of severe autism and episodes of self-injurious behaviour (more so in relation to complainant A).
4.7. It was submitted that the respondent had offered to insure the life of the complainants’ father and mother instead of the complainants and writing the policy in trust for the benefit of the complainants. This offer has been rejected. It was submitted that the complainants’ next friend and mother have not sought to explore this alternative option.
4.8. The respondent acknowledged that the manner in which the broker had dealt or omitted to communicate the respondent’s refusal to grant the insurance was regrettable and unnecessary. For this unnecessary discourtesy the respondent apologised to the complainant’s next friend and assured him that it would not happen again.
4.9. The respondent relied on Mr A v A Life Assurance Company DEC-S2011-008. It was submitted that the respondent refusal to grant cover was made following the consideration of a number of factors including the type of insurance sought and the level of cover sought. The respondent is entitled to take commercial and underwriting facts into account when making such decisions.
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. Firstly, the preliminary issue of time limits. I am satisfied, having heard the full facts of this case, that while it is clear that the actual decision to refuse the cover in the summer of 2009 is clearly out of time, it is clear that the respondent is relying in its defence on an on-going policy concerning its life assurance policies. This policy relates to the requirement that the person who is insured by such policy must have a capacity to enter into such contract. It is clear that the existence of this policy means that the complainants – should they seek the cover again in the future and their medical condition remains the same – would not have cover provided to them. I am therefore satisfied that I have jurisdiction to investigate this complaint in relation to this policy only. That is I will be investigating whether the complainant had objective reasons to assert that the complainants, individually, lacked the capacity to enter into such contract.
5.3. The parties agreed to the facts of this case. It was accepted that Autism is a disability within the meaning of the Acts and the respondent does not deny that the action complained of occurred.
5.4. I am satisfied that the respondent had relied on medical evidence submitted by the complainants’ general practitioner. Consent for this had been provided in the application forms (by the complainants’ mother). I am satisfied that these reports were used to determine that both Complainant A and Complainant B lack the capacity to understand the nature of the contract and the intricacies of life insurance and therefore the respondent found that it cannot enter into such a contract with them. Section 16(2) states that: “treating a person differently does not constitute discrimination where the person —
(a) not applicable here
(b) is incapable of entering into an enforceable contract or of giving an informed consent and for that reason the treatment is reasonable in the particular case.
It became clear at the hearing that the complainants’ next friend had not fully known the extent of the records that the respondent had sought and received. It is clear that the medical evidence provided was not as old as the complainants’ next friend had been assumed. The records indicate that in 2005 that both complainant A and B: “suffer from severe learning disability and Autism”. The records, on headed paper, have been signed by a Consultant Child and Adolescent Psychiatrist. The same doctor had made the initial diagnosis when the complainants were young children. While it is clear that the assessment relied upon here had not been carried out specifically for the purposes of assessing whether the complainants have the capacity to enter in to a contract, it is clear that the respondent is entitled to draw the conclusion that the disclosed condition is severe.
5.5. It is also important to note that the complainants’ next friend evaluated his son’s developmental age to be somewhere between 9-12 years of age. While I appreciate that the complainants’ next friend may not be an expert on the autism spectrum disorder universally, it is clear to me that he is an expert when it comes to his own sons. He also submitted that the complainants are both non-verbal and cannot write. I am satisfied that the complainants’ parents had communicated these facts to the respondent in a letter dated 19 June 2009.
5.6. In the circumstances of this case it is not clear how the issue of reasonable accommodation could arise. While the complainants’ next friend submitted that the respondent ought to have obtained more medical reports supporting their decision that the complainants are not able to enter into said contracts it is clear from the existing medical evidence that such an assessment could not provide any alternative solution.
5.7. I am satisfied that respondent views the nature of the contract required here as such that it must be satisfied that the person entering into this contract is giving informed consent about the bargain that s/he is entering into. The respondent is entitled to hold this opinion. I am satisfied that the respondent’s treatment of the complainants has been reasonable in the circumstances of this case.
6. Decision
In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. Complainant A and Complainant B have established a prima facie case of less favourable treatment on the disability ground. The inference has successfully been rebutted by the respondent.
6.3. Complainant A and Complainant B have failed to establish a prima facie case failure to provide reasonable accommodation.
[3]DEC-S2001-024 – David Green –v- Quinn-Direct Insurance Ltd.
DEC-S2003-034-035
Full Case Report
Mongan V The Firhouse Inn, Dublin
1. Dispute
1.1 This dispute concerns claims by Martin and Margaret Mongan that they were refused service in the respondent premises on 29 June, 2001 on the grounds that they are members of the Traveller community. The respondent accepts that the complainants were refused service but states that the refusal was in accordance with Section 15(1) and/or 15(2) of the Equal Status Act 2000 and did not therefore constitute discrimination under the Act.
2. Summary of Complainant’s Case.
2.1 The complainants, in the company of two others, went to the respondent premises on 29 June, 2001 between 6-6.30 in the evening. Martin Mongan went to the bar to order drinks and was refused service. He was told that service was being refused on “bosses orders”.
3. Summary of Respondent’s Case
3.1 The respondent states that for a considerable period of time before the complainants entered the premises there had been ongoing heated disputes between local residents and Travellers about where Travellers had chosen to halt. A great deal of destruction had been caused in the locality by certain Travellers who were halted on unofficial halting sites. When the complainants entered the pub the barman was immediately alert to the fact that the pub fell silent and that everyone in the pub was staring at the complainants group. He felt that a hostile situation was about to develop, through no fault of the complainants who were unknown to him, but that he had to make a split second decision and act fast to get them off the premises in order to avert trouble.
4. Evidence of the Parties
4.1. Complainant’s Evidence
Martin Mongan, complainant.
Mr. Mongan stated that:-
Following a christening he and his wife, in the company of two others, entered the respondent premises at around 6-6.30 in the evening on 29 June, 2001. The others sat down while he went to the bar to order drinks. The bar was full and was very busy.
The barman refused service saying that the group were not to be served “on bosses orders”.
The complainants had never been to the premises before and felt that the only reason they were not being served was because they were Travellers.
The complainants were camped, along with some fourteen other caravans, in a field in Firhouse near the respondent premises and it was for that reason that they chose to go to that pub. It was not an official halting site on which they were located.
The complainants were not aware of any tensions in the area between Travellers and local residents. However, on entering the respondent premises Martin Mongan was aware of immediate tension. People stopped talking and stared at the complainants group. He felt that there was “an atmosphere” when they entered.
When the group left the Firhouse Inn they went to another premises in Rathfarnham (named) and were served without difficulty.
4.2 Respondent’s Evidence
At the opening of the Hearing, Mr. Paul Carroll, B.L., acting on behalf of the respondent, submitted that the respondent would be relying on Sections 15(1) and 15(2) of the Equal Status Act 2000 in relation to the refusal of service to the complainants in this matter.
Jason Hughes, Barman, Firhouse Inn
Mr. Hughes stated that:-
He was aware that there had been ongoing hostility between local residents in the Firhouse area and Travellers for weeks before the refusal of service to the complainants. The hostility had arisen because Travellers had halted on local property, including sports facilities for local teams. These were not official halting sites.
The issue of the illegal halting by Travellers had been discussed openly and at length by patrons of the Firhouse Inn and it was clear that resentment existed about the way that access had been blocked to sports facilities. There was also a great deal of hostility expressed by patrons about the litter being left by Travellers in the area and damage to land on which they were halted which rendered football pitches etc unplayable. Due to asbestos left by the Travellers on the football grounds it would be months before they could be used by locals.
Prior to the above events Travellers had often stopped at local official halting sites and frequented the pubs in the area with no difficulty, including the Firhouse Inn. They were served in the latter in the same way that any other patron was served.
When the complainants and their companions entered the premises on 29 June, 2001 Mr. Hughes immediately noticed a change in atmosphere for the worse. Other patrons stopped talking and stared at the complainant’s group.
Mr. Hughes made a split second decision not to serve the group, not because of anything that they had done, but because he immediately sensed that trouble would develop if they remained on the premises and violence might erupt.
Mr. Hughes was concerned with the implications for the licensing of the premises of trouble did arise and the refusal to serve the group was made solely on the basis of the hostile atmosphere which he perceived.
Gerry McGlynn, Assistant Manager, Firhouse Inn
Mr. McGlynn stated that:-
He has been working in the Firhouse Inn for some twenty years.
He was not personally present when the complainants were refused service but came on the scene shortly after and was asked by Martin Mongan for the name of the barman who had refused him.
Prior to 29 June 2001 Travellers had been served on the premises on an ongoing basis. While certain Travellers were not recognisable as such, others were.
One week before the refusal to the complainants a group of Travellers had been drinking on the premises all day. Initially they had been very friendly and had chatted freely with Mr. McGlynn. However, by the end of the evening they had begun to fight among themselves. They were refused further service and asked to leave. When they refused to leave and it was necessary to call the Gardaí to get them off the premises.
Travellers had been served since the refusal to the complainants, several of whom were known well locally and tensions with the locals, such as those which existed at the time when the complainants sought service, did not arise.
Mr. McGlynn was aware of the tensions locally arising from Travellers halting on unofficial sites nearby. It was difficult not to be aware of them as he lived in the area close to the pub.
Mr. Niall Morton, Manager, Firhouse Inn
Mr. Morton stated that:-
The Firhouse Inn is a family owned, traditional style, local establishment. There has never been a policy of refusing or restricting service to anyone or any group in the premises unless there is good reason to do so, such as disorderly conduct etc. There have never been any objections to the license of the premises.
No instruction had ever issued not to serve Travellers in the premises, but the staff would regularly be admonished to keep things under control on the premises, e.g when large groups such as football teams came in and there was a danger that they would become excessively boisterous.
Mr. Morton submitted a newspaper clipping which showed that a member of the Traveller community, (named) who had been served in the premises months after the refusal involving the complainants, had been arrested for causing a disturbance in the vicinity of the Firhouse Inn.
In the ordinary course of events the only time a customer is barred indefinitely from the Firhouse Inn is for serious misbehaviour or bad conduct on their part. In the cases at hand exceptional circumstances led to the refusal.
Mr. Morton submitted eight separate newspaper articles dealing with the issue of the use by certain Travellers of the grounds/lands in the Ballyboden/Firhouse area as an unofficial halting site, immediately prior to the complainants arrival in the area.
These articles deal largely with the litter and damage left by the Travellers concerned in their wake and the consequent outrage of local residents. They clearly demonstrate that feelings were running very high in the area and that local residents were incensed by the actions of those Travellers who had halted on local playing pitches. The area and the pitches were rendered unplayable and unsafe by, among other things, a large quantity of asbestos which had been left on the playing pitches by the Travellers in question.
5 Matters for consideration
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) or and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1)(a) provides that discrimination shall be taken to occur where: “On any of the grounds specified…….a person is treated less favourably than another person is, has been or would be treated”.
5.3 Section 3 (2) provides that: “As between any two persons , the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ……… (i) that one is a member of the Traveller community and the other is not.”
5.4 Section 5 (1) states 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 “.
5.5 Section 15(1) of the Equal Status Act 2000 provides that ….nothing in this Act prohibiting discrimination, shall be construed as requiring a person…. 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 provision of 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.
5.6 Section 15(2) of the Equal Status Act 2000 states 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 Licensing Acts, 1833 to 1999, shall not constitute discrimination”.
6. Conclusions of the Equality Officer
6.1 In the cases at hand there is clear agreement between the parties that the complainants were refused service in the respondent premises. The complainants stated that they were halted on an unofficial halting site directly across the road from where the destruction had occurred. While the complainants felt that the hostile atmosphere which they experienced on entering the pub was simply because they were recognised as Travellers by the patrons of the premises, I am satisfied, having taken all of the evidence into consideration that the hostility of the other patrons had been engendered by the nature and scale of the destruction caused by a relatively small number of Travellers who had shown complete disregard for local facilities at the time in question. I am satisfied that the patrons of the Firhouse Inn on the evening in question recognised the complainants as Travellers and immediately associated them, not simply with other Travellers but, rather, with Travellers who had caused a great deal of destruction in the area. It was the destruction that had been caused, not the Traveller status of those who perpetrated it, that gave rise, ultimately to the hostility. I am satisfied that a non-Traveller similarly associated, wrongly or otherwise, with a group of non-Travellers who had caused such destruction would have been treated in the same manner.
In any event, I am satisfied that the barman, Mr. Hughes did not have time to analyse matters on the evening in question. Rather, he acted instantly to deal with a perceived, and I am satisfied, substantial risk of imminent violence on the premises. He was immediately aware that the complainant’s continued presence in the establishment was the source of that substantial risk and he acted to remove the risk. This is not in any way to condone the reaction of the patrons of the Firhouse Inn to the complainants who appear to have been entirely innocent in this matter, but the fact remains that the refusal was not made on a discriminatory ground and was in accordance with Section 15(1) of the Equal Status Act.
6.2 The barman who actually refused service stated in evidence that he was concerned with the licensing implications for the premises should trouble arise. Mr. Hughes is acquainted with a number of Travellers who live locally and has no difficulty whatsoever serving Travellers in normal circumstances. The complainants are completely unknown to him and he has no reason to believe that they would not have conducted themselves in an appropriate manner had they stayed on the premises. He did not serve them purely and simply because it was immediately obvious that a potentially explosive situation existed, given the mood of the other patrons. I found the evidence given by Mr. Hughes compelling in this regard. The complainant, Martin Mongan, also perceived the atmosphere described by the barman, although he was not aware of the precise reasons for it, and most likely felt that it was simply because he and his companions were Travellers.
6.2 I am satisfied that the refusal was genuinely based on the perception by the barman, Mr. Hughes, that the complainant’s presence could give rise to serious difficulties because of the hostility and animosity on the part of other patrons towards those members of the Traveller community who had caused serious destruction in the immediate area in the recent past. The locals were clearly associating the complainants with that destruction and, should they have been allowed to act on their animosity, there was clear danger to the well being of the complainants.
I would emphasise in the strongest possible terms that the complainants had neither done nor said anything to provoke the reaction which gave rise to the refusal, and in fact the refusal was made for their protection in the face of the existing hostility from local residents. The hostility and strong emotions caused a prejudiced reaction towards the complainants on the part of the local residents despite the fact that no evidence was presented to associate the complainants with the actual destruction which was caused by certain Travellers in the area at the time. However, Section 5(1) of the Equal Status Act is concerned with discrimination by service providers only.
I am satisfied that the barman, Mr. Hughes, acted in good faith for the sole purpose of ensuring compliance with the Licensing Acts 1833-1999 and that Section 15(2) of the Equal Status Act, 2000 is applicable in these cases. The respondent has established to my satisfaction that Travellers were served in the premises before the occurrences which gave rise to the animosity on the part of the locals and after the date of the alleged discrimination in the cases at hand. The barman, Mr. Hughes, has established to my satisfaction that he felt no prejudice towards the complainants and that he was genuinely concerned that, should violence erupt, the premises would be held liable under the Licensing Acts, specifically Section 13 of the Licensing Act 1872, for not having prevented such violence.
7 Decision
I find that the refusal of service to the complainants was made in accordance with Section 15(1) and 15(2) of the Equal Status Act 2000 and did not therefore constitute discrimination. I find therefore in favour of the respondent.
__________________________
Dolores Kavanagh
Equality Officer
12 May, 2003
DEC-S2011-024- Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-024
McDonagh v Heatons
File Reference: ES/2011/0038
Date of Issue: 29th June 2011
Key words: Equal Status Acts, Member of Traveller community, Discrimination, Victimisation, No prima facie case
Delegation under the relevant legislation
1.1. This case concerns a complaint by Ms Ina McDonagh that she was discriminated against by Heatons Ltd on the Traveller community ground contrary to 5(1) of the Equal Status Acts 2000 – 2008 [hereinafter referred to as ‘the Acts’]. She also claims victimisation within the meaning of the Acts. On 30th May 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Acts. On 17th October 2010, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2008 and under these Acts, the Director delegated the case to me, Orlaith Mannion, 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 is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 9thth February 2011.
2. Summary of the complainant’s case
2.1. Ms McDonagh submits that she tried to enter the shop on 5th November 2008 but she was prevented from doing so by the security guard employed by the respondent. She maintains that she felt embarrassed and insulted. She submits the security guard refused to give an answer as to why she was not allowed to shop in Heatons. Her husband enquired from the Manager as to why she was not even allowed into the shop. They were asked to submit her complaint in writing. Ms McDonagh maintains that the reason was because she was a Traveller and was associated with the bad behaviour of other Travellers.
2.2. Ms McDonagh’s legal representative wrote to the respondent on the following day seeking an apology. No response was received. The complainant submits that because of this letter she thought she would be allowed back into the shop but in January 2009 she was refused entry again. Again she maintains this is because she is a Traveller.
2.3. The complainant submits that she feels victimised as Castlebar is a small town and Heatons is one of her favourite shops. Ms McDonagh contends that she is of limited means and Heatons provides good value especially regarding children’s clothes.
3. Summary of the respondent’s case
3.1 No written submission was received by the respondent. In oral evidence, the respondent’s security guard, Mr H said that the complainant was a welcome customer until the 21st March 2008 when he submits that he discovered her taking tags off clothes which she had not yet purchased. Mr H said that he approached Ms McDonagh in a calm way and told her that her permission to shop in the store had been revoked. Mr H stated that ‘all hell broke loose then’ and she became very abusive. According to Mr H, on 30th October 2008 the complainant and her husband tried again to enter the store again. He allowed the husband in as he was not barred. On entering the store, Mr McDonagh asked to speak to the manager who told him that his wife would have to put her complaint in writing.
3.2 On 4th November 2008, the complainant was refused entry to the store again. Mr H said that she became aggressive and started shouting into the shop. The Gardaí were called on this occasion. Mr H also admits that she was not allowed into the store on 4th January 2009 either. Mr H said that Ms McDonagh was not barred for discriminatory reasons. Mr H stated that he would have acted in the same way if a settled person had behaved in this manner. Mr H submitted that she was barred because she was causing damage to Heatons’ property and was obstructing business. He made a report of the various incidents and they were faxed to the Director of Security for the Heatons Group. Mr H has been a security guard for 10 years; he maintains that he would not have retained his position for this length of time if he was not able to judge which situations a customer should be asked to leave and the situations in which they should not.
3.3 The respondent submits it is entitled to avail of the defence in Section 15 (1) of the Acts which allows a service-provider to refuse service where there is a substantial risk of disorderly conduct or damage to property.
4. Conclusions of the Equality Officer
4.1 Section 38A of the Acts sets out the burden of proof:
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 There are two issues for me to decide:
(i) Was the complainant discriminated against regarding provision of a service on the Traveller community ground?
(ii) Was the complainant victimised within the meaning of Section 3(2)(h) of the Acts?
Discrimination on the Traveller community ground
4.3 The crucial incident in this case is not the 30th October but the 21st March where Ms McDonagh was initially barred from the store. When cross-examined on this issue, Ms McDonagh did not deny she was barred on 21st March but said that it was for discriminatory reasons. She denies taking the tags off the clothes but said that she was merely trying to tidy up clothes on the rail. There is a significant conflict of evidence between both sides on this issue. I found Mr H to be a cogent witness and, on the balance of probabilities, I prefer his recollection of events in relation to this issue. I find that the respondent is entitled to avail of Section 15 (1) of the Acts:
For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, 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 premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, 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 or the premises or accommodation are located. [my emphasis]
I am satisfied that Mr H is a reasonable person with significant experience in the security industry and that he genuinely believed Ms McDonagh’s behaviour was causing a substantial risk of disorderly conduct and damage to the property of the respondent. I am satisfied that if an other person engaging in the same behaviour, who was not a member of the Traveller community, would have been treated in the same way.
4.4 There is little disagreement between both sides on the facts of the subsequent incidents. It is common case that on 30th October 2008 Mr McDonagh was allowed into the respondent’s department store but the complainant was not. In relation to this incident, the complainant cannot argue discriminatory treatment, as alleged in her ES1 form, because her husband is also a Traveller. It is agreed that the complainant was also refused access to the shop on 4th November and 4th January 2009 and that the Gardaí were called on the first occasion. I find that the respondent continued to believe that the complainant posed a substantial risk of disorderly conduct and/or damage to the property of the respondent and therefore she continued to be refused service. I am satisfied that a person who was not a member of the Traveller community would be treated in a similar way. Therefore, the complainant has failed to establish a prima facie case of discrimination within the meaning of Section 3 of the Acts.
Victimisation
4.5 Section 3 (2)(j) makes provision for victimisation:
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”).
Ms McDonagh submits that she feels victimised because she is not allowed to shop in Heatons Department Store. However, the definition of victimisation in these Acts differs from the colloquial meaning. To prove victimisation in the circumstances of this case, Ms McDonagh would have to show that she was treated less favourably as a result of making a complaint of discrimination to the Tribunal or given notice of same to the respondent. Ms McDonagh was barred from the premises before her legal representative gave notice of her intention to make a complaint under the Acts on 6th November 2008 and before her complaint to the Tribunal on 30th March 2009. While the complainant continued to be barred after lodging her claims I am satisfied it is for the reasons outlined in Paragraph 4.3 and 4.4. Therefore, the complainant has failed to establish a link between the respondent’s treatment of her and her making a complaint of discrimination under the Acts.
Decision
5. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
(i) I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground contrary to Section 5 (1) of the Equal Status Acts.
(ii) I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground
Accordingly, the complainant’s case fails.
_______________
Orlaith Mannion
Equality Officer
DEC-S2001-002
Conroy v Mr Luke Carney, Carney’s Bar, Ballinrobe
Headnotes
Equal Status Act 2000 – Direct discrimination, section 3(1) – Membership of the Traveller
community, section 3(2)(i) – Supply of goods and services, section 5(1) – Service in pubs –
Hypothetical Comparator – Risk of criminal and disorderly conduct, section 15 .
Background
This dispute concerns a complaint by Mr Tom Conroy that he was discriminated against by Mr
Luke Carney, owner of Carney’s Bar, Ballinrobe on the grounds that he was a member of the
Traveller Community. The case revolves around an incident in Carney’s Bar on 30 October 2000
when the complainant states that he entered the pub and was told by the respondent that he was not
being served. The complainant states that no reason for this decision was conveyed to him on the
night. The respondent maintains that Mr Conroy was refused because he had evidence that he was a
trouble-maker and not because he was a member of the Traveller community.
The complainant maintains that he was discriminated against on the Traveller community ground in
terms of sections 3(1)(a) 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. The respondent
argues that he was entitled to refuse service to the complainant under section 15 of the Act
Conclusions of the Equality Officer
The Equality Officer found that the complainant had established a prima facie case and that the
burden of proof had shifted to the respondent. The respondent maintained that he restricted service
to the complainant because he believed that a threat of disorderly behaviour existed on the night in
question. The Equality Officer found that there was insufficient evidence to substantiate this claim
and concluded that the publican’s actions was based on a bias he has against Travellers and that his
actions constituted discrimination on the grounds of membership of the Traveller community.
Decision
The Equality Officer found that the complainant had been discriminated against on the Traveller
community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Act 2000 in that he
was not provided with a service which is generally available to the public, contrary to Section 5(1)
of the Act.
3
The Equality Officer found in favour of the complainant and ordered that the respondent pay him the
sum of £1000 (Euro 1270) for the humiliation and embarrassment suffered by him.
Equality Officer Decision DEC-S2001-002
Complaint under the Equal Status Act 2000
Mr Tom Conroy
(Represented by Michael McDarby, Solicitor)
v
Mr Luke Carney, Carney’s Bar, Ballinrobe
(Represented by Sean Foy, Solicitor)
1. Dispute
1.1 This dispute concerns a complaint by Mr Tom Conroy that he was discriminated against,
contrary to the Equal Status Act 2000, by Mr Luke Carney, owner of Carney’s Bar, Ballinrobe.
The complainant maintains that he was discriminated against on the Traveller community ground in
terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in that he was not provided with a
service which is generally available to the public contrary to Section 5(1) of the Act.
2. Background
2.1 Mr Conroy states that on Thursday 30 October 2000 he entered Carney’s Bar, Ballinrobe
around 10.30pm. Mr Luke Carney, the owner, was on duty that night. When Mr Conroy called for
a drink, he says that he was told by Mr Carney that he was not serving him and was not given a
reason. Mr Carney maintains that Mr Conroy was refused because he was a trouble-maker and not
because he was a member of the Traveller community.
3. Summary of the Complainant’s Case
3.1 Mr Conroy states that, on Thursday 30 October 2000, he and his wife were at home when
they decided to go out to Carney’s Bar for a drink. He states that he had only been in Carney’s Bar
once before (in August 2000) but, on that occasion, he had been refused service by Mr Carney. Mr
Conroy says that no explanation was given but that he believes that it was because he was a
Traveller. As the Equal Status Act 2000 had come into force some days previously, Mr Conroy
believed that on 30 October 2000, Mr Carney would serve him. On his arrival in the pub around
10.30pm, Mr Conroy states that he asked Mr Carney for a drink but that he was told by Mr
Carney that he was not serving him and again no reason was given.
4
The complainant states that he tried to bring the provisions of the new Equal Status Act to Mr
Carney’s attention but that Mr Carney simply answered “No”. Mr Conroy states that he then left
Carney’s Bar.
In support of his claim that he was discriminated against, Mr Conroy introduced two witnesses at
the Hearing who recounted a situation some years earlier where they say they were treated in similar
fashion by Mr Carney.
Mr Conroy contends that the action of Mr Carney on the night of 30 October 2000 constituted
discriminatory treatment under the Equal Status Act on the grounds of his membership of the
Traveller community.
4. Summary of Respondent’s Case
4.1 Mr Carney strongly rejects the claim that Mr Conroy was not served simply because of his
membership of the Traveller community. Mr Carney maintains that Mr Conroy is a well-known
trouble-maker in the area. Mr Carney states that the reason he did not serve Mr Conroy was
because one of his regular customers had been the victim of a vicious assault by Mr Conroy in an
incident in a Takeaway in the town some months earlier. Mr Carney says that he did not want this
customer to have to confront Mr Conroy on his premises and that this was the sole reason he
refused to serve Mr Conroy.
In support of his assertion that Mr Conroy was a troublemaker, Mr Carney called on a local Garda
Sergeant to give evidence at the Hearing and also produced evidence that Mr Conroy had a
previous conviction for being drunk and disorderly. The respondent admitted, however, that the
latter fact was unknown to him at the time he refused to serve the complainant.
Mr Carney insists that he does not have an anti-Traveller policy in operation and that all
well-behaved customers are welcome in his pub.
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)(i) of the Act specifies the Traveller community
ground as one of the grounds covered by the Act.
In this particular instance, the complainant claims that he was discriminated against on the grounds of
his membership of the Traveller community contrary to Sections 3(1) and 3(2)(i) of the Equal Status
Act, 2000 in not being served in Carney’s Bar on the night of 30 October 2000. 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.
5
As the outline facts of the case have been agreed, the first question to be answered is whether the
complainant was treated less favourably in being refused service in a situation where a non-Traveller
in similar relevant circumstances would have been served. In order to prove that less favourable
treatment was involved, some form of comparator is, therefore, required.
For his part, the respondent states that the sole reason that he refused the complainant service was
that he was afraid that providing him with service would produce a risk of disorderly conduct. The
respondent maintains that under Section 15 of the Equal Status Act 2000, he was entitled to adopt
this stance as he had evidence to substantiate his belief that the complainant was likely to be the
cause of trouble.
Section 15(1) of the Equal Status Act 2000 provides that nothing in the Act prohibiting
discrimination, shall be construed as requiring a person to provide services to another person 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 provision of 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.
6 Evidence Provided by the Parties
6.1 In support of his case, Mr Carney referred back to an incident on the night of 16 April
2000 where, he maintains, Mr Conroy seriously assaulted a regular customer of his in a
Takeaway in Ballinrobe. On hearing of this alleged assault, Mr Carney stated that he decided
not to serve Mr Conroy on his premises as he wished to avoid a situation where the two
individuals came face to face again, with the likelihood of further trouble occurring.
6.2 At the Hearing of this case on 15 March 2001, Mr Conroy described himself as a
settled Traveller, married with 4 children. He has always lived in Ballinrobe and works as a
Security Officer for a Security firm in Galway. At the Hearing. Mr Conroy produced 4 character
references from prominent members of the local community.
Mr Conroy said that he was not a regular drinker and had only visited Carney’s Bar once since
Mr Carney took it over 5 years beforehand. On that occasion (August 2000), he states that Mr
Carney refused him service with no explanation given.
Mr Carney is also a native of Ballinrobe. He described his Bar as more of a restaurant than a
pub. He employs 8 permanent and 10 temporary staff. He said that providing meals accounted
for over 80% of his business. He estimated that he provided up to 2000 meals per week, mainly
to office workers at lunch time. Meals are served from 10.30 am to 9 pm and normally the
premises closed before 11 pm. He stated that he does not have a regular drink trade at night
time.
6.3 The events of 30 October 2000, when the alleged act of discrimination occurred, were
explored first at the Hearing. Mr Conroy described how at about 10.30 that evening, he
6
suggested to his wife that they might go out for a drink. He recalls mentioning the fact that the
Equal Status Act was now in force and that they should have no difficulty getting served.
He states that on his arrival in Carney’s Bar, Mr Carney was cleaning tables in the lounge. He
says he asked for a lucozade but Mr Carney responded “Sorry no drink”. Mr Conroy states
that, as other customers were present, he asked Mr Carney whether he could discuss the matter
with him privately at the end of the bar (he stated that he wanted to bring the provisions of the
Equal Status Act to his attention). Mr Conroy states that Mr Carney refused to discuss the
matter and repeated that he was not serving him. Mr Conroy states that he then left the
premises.
For his part, Mr Carney recalls Mr Conroy entering the premises on 30 October. He agrees
with Mr Conroy’s account of events, except that he says that Mr Conroy asked for “a pint”. He
recalls refusing to serve Mr Conroy and states that the reason he did so was because he was
aware that Mr Conroy had been involved in an alleged assault on another customer recently. Mr
Carney stated that he did not consider himself to be in any personal danger on the night but that
he feared that a situation could arise with other customers who were friends of the customer who
was allegedly assaulted (for the purposes of this Decision, I will refer to this customer as Mr A
from now on). Both parties agree that Mr A was not present in Carney’s Bar on 30 October
2000.
Mr Carney described Mr A as a prominent local business man who was a regular customer of
his. Mr Conroy said that he knew who Mr A was but was not closely acquainted with him.
6.4 The events of 16 April 2000 were explored in detail at the Hearing. Mr Conroy
provided his own testimony of what happened while the respondents called Garda Sgt James
Carroll as a witness. Sgt Carroll had been on duty in Ballinrobe on the night in question.
Mr Conroy states that he had gone out that night to Mooney’s Pub with his wife. He says he was
drinking lucozade. Towards the end of the evening they left the Pub and, after a discussion in the
street, decided to go to the local Takeaway. While in the Takeaway, Mr Conroy says that Mr A
came in and started making certain accusations against him. Mr Conroy says that Mr A was
intoxicated at the time and that he then got aggressive and started to assault Mr Conroy,
resulting in the breaking of his glasses. Mr Conroy says that in the scuffle that followed Mr A
received some cuts to his head and face. Mr Conroy states that Mr A then left the Takeaway
but that he remained.
Mr Carney states that he was outside his pub around 12.30 am when he noticed Mr A down the
street covered in blood. Mr Carney did not talk to Mr A at that point. However, Mr Carney
states that Mr A had been in his restaurant earlier for a meal and had left at 10 pm. He says that
he does not know where Mr A was between 10 pm and 12.30 am.
Sergeant Carroll then testified that he had been on foot patrol in Ballinrobe that night. He states
that he remembers the day – it was 16 April 2000 and there was a Traveller funeral in the town
that day. Some time prior to midnight, Mr Conroy came to his attention when he says that he
7
saw him and his wife out in the street having a heated discussion. He did not approach them at
that time.
At around 12.30 am, Sergeant Carroll states that he came across Mr A on the footpath,
covered in blood. He recalls that Mr A appeared to be intoxicated. When he asked what had
happened, he says that Mr A claimed that he had been assaulted by Mr Conroy in the
Takeaway. He invited Mr A to accompany him to the Takeaway. He says that, at first, Mr A
was reluctant to do so saying that he was “in fear of that man”. Eventually Mr A agreed to return
to the Takeaway where Sergeant Carroll states that Mr A identified Mr Conroy as the person
who assaulted him.
Sergeant Carroll says that he then approached Mr Conroy and asked him if he had assaulted Mr
A. Sergeant Carroll states that Mr Conroy responded that Mr A had assaulted him first and had
broken his glasses. Sergeant Carroll’s recollection of Mr Conroy at the time is that he appeared
to have had some drink taken (which is contrary to Mr Conroy’s claim that he had only drunk
lucozade) but that he behaved in a composed manner and was coherent when speaking to him.
He does not recall Mr Conroy showing him his broken glasses but believes that Mr Conroy had
no glasses on him at the time.
At that point, Sergeant Carroll states that trouble started in the Takeaway between two other
men which required him to call for assistance. On account of this disturbance, Sergeant Carroll
was unable to deal further with Mr Conroy and Mr A at that time. Over the coming days
Sergeant Carroll states that he visited both parties to ascertain whether either wished him to
make a statement. He says that both parties declined and no further action was taken by the
Gardai in the matter.
6.5 Mr Carney states that it was on account of the above incident that he had decided not to
serve Mr Conroy in his pub. Full details of the events of 16 April had been recounted to him by
Mr A in the weeks that followed. On the basis of the information supplied to him, Mr Carney
states that he decided not to serve Mr Conroy as he believed that allowing him on the premises,
would be an affront to Mr A and also likely to incite trouble between Mr Conroy and Mr A and
possibly other customers. Mr Carney states that he was justified in taking this stance under
Section 15 of the Equal Status Act as he felt that there was a risk of disorderly behaviour.
6.6 In defence of his action, Mr Carney also produced evidence that Mr Conroy had a
conviction in 1997 for drunk and disorderly behaviour. When pressed on this point, Mr Conroy
admitted that this was correct but stated that this related to an incident 2 days before Christmas
1997 when he was found staggering home late at night. Mr Conroy admitted that he was drunk
on the night but says that he was not disorderly, and he maintains that this was borne out by the
fact that he was only fined £10.
Mr Carney also referred to a conversation he had subsequent to 30 October 2000 with another
publican in Ballinrobe. This publican informed Mr Carney that Mr Conroy had acted
aggressively towards him in the street and threatened him that he would take action against him
under the Equal Status Act if he continued to refuse him service. Mr Conroy admitted speaking
to the publican in question, who had refused to serve him a lucozade previously. However, Mr
8
Conroy’s maintains that the reason he spoke to the other publican in the street was to remind him
that the Equal Status Act was coming into force and that he should change his policy with regard
to serving Travellers.
6.7 Mr Carney stated that he does not operate a policy of discrimination against Travellers.
He states that he personally would find it difficult to distinguish between Travellers and settled
people who enter his pub and that this is particularly so on market days when both farmers and
Travellers would come in dressed in old clothes and wellingtons.
At present, Mr Carney states that 7 or 8 people are barred of whom, to his knowledge, only 2
are Travellers.
This point was taken up at the Hearing when the complainant’s solicitor asked Mr Carney
whether he usually served “non-violent” Travellers. Mr Carney stated that he did.
The complainant’s solicitor then asked two witnesses who had accompanied Mr Conroy to the
Hearing to describe a particular incident which occurred in May 1996. These witnesses were a
settled married Traveller couple who stated that they had lived in Ballinrobe all their lives. The
husband stated that he grew up with Mr Carney. They played together on the same local team
and even worked together for ten years.
The couple recalled an incident on the evening of Sunday 25 May 1996 when they were out for
a walk. They remembered the day as the Connaught Football Final was played that afternoon
and Mayo had beaten Galway. On passing Carney’s Pub, they recognised a car outside
belonging to a settled friend that they had not seen in ages. When they entered the pub, they say
that they joined their friend and another settled gentleman at the bar for a chat. They did not ask
for a drink as they were not planning to stay. They say that after a few minutes Mr Carney
arrived in the pub (he had been at the match). The husband states that he said hello to Mr
Carney but got no response. Mr Carney went into the rear of the pub.
The husband stated that, almost immediately, their friend was told that there was a phonecall for
him at the other end of the bar. When he came back, the husband says that their friend was in
bad humour and he told them that Mr Carney had rang from the kitchen and had asked him
“Why did you bring that pair into the pub? “. They say that their friend then informed them that
Mr Carney had insisted that they all leave the pub, They then left the pub with their friend. At the
Hearing, the wife said that she could not believe what had happened as they had known Mr
Carney for years and that the only explanation she could think of for Mr Carney’s actions was
because they were Travellers.
The next day, the husband says he called to Mr Carney to establish why he had been barred. He
says that Mr Carney stated that it was because he was “with someone who was barred and that,
as it was his premises, he could serve who he liked”.
At the Hearing, Mr Carney was asked whether he recalled the incident. He said that he did and
insisted that the only reason they were all asked to leave was because their friend was already
9
barred. Mr Carney admitted, however, that the other gentleman in their company was allowed
remain on in the pub that evening.
6.8 At the Hearing, the complainant’s solicitor asked to be allowed address a number of
questions to Mr Carney, through the Chair. Firstly he enquired whether Mr Carney had been
aware of Mr Conroy’s 1997 conviction prior to 30 October 2000. Mr Carney replied that he
had not. Secondly, he asked when Mr Carney had spoken to the other publican about Mr
Conroy. Mr Carney confirmed that this also happened after 30 October 2000. Thirdly he
elicited from Mr Carney that the alleged assault in the Takeaway was the only incident that he
knew of where Mr Conroy had allegedly been involved in an altercation.
The complainant’s solicitor then raised the issue of natural justice and suggested to Mr Carney
that perhaps he should have listened to both sides of the story before refusing Mr Conroy. The
solicitor also suggested to Mr Carney that the reason he had not been prepared to listen to Mr
Conroy was because he was a Traveller and the other party was a well-respected local
businessman and a good customer of his. In response, Mr Carney stated that he knew Mr A
well and had no reason to doubt his account of the alleged assault. Mr Carney insisted that he
had acted in good faith throughout and that he was entitled to take the approach he did in
accordance with Section 15 of the Act.
7 Conclusions of the Equality Officer
7.1 The complainant in this case maintains that Mr Carney’s decision to refuse him service was
based on a long-running prejudice he has against Travellers. In support of this claim, Mr Conroy
produced witnesses in an effort to show that Mr Carney has previously treated Travellers less
favourably than settled people. Having listened to the testimony of the witnesses at the Hearing and
Mr Carney’s response to their allegations, I am inclined to believe the former’s testimony more so
than the latter’s. Principally because of the fact that, while Mr Carney maintains that the husband and
wife were barred for being with someone who was already barred, it seems that the fourth member
of the group (a settled person) was not asked to leave.
From the evidence outlined above, I am satisfied that there is strong evidence that Mr Carney has in
the past displayed a personal prejudice towards Travellers. However, I note that the incident in
1996 occurred at a time when discrimination against Travellers was not unlawful and, therefore, I
am not prepared to consider this incident as an influencing factor in reaching a final decision on this
case.
7.2 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. In this particular case, the complainant
claims that he was treated less favourably on the grounds of his membership of the Traveller
community. The question to be answered, therefore, is whether the complainant was refused service
in a situation where a non-Traveller in similar relevant circumstances would have been served. In
order to prove that less favourable treatment was involved, some form of comparator is required.
10
Throughout this case, Mr Carney has argued that Mr Conroy was treated in the same manner as he
would treat any other customer whom he believed to be a “troublemaker”. Mr Carney maintains that
the fact the Mr Conroy was a Traveller was not a factor in him being refused service.
I note, however, that in this particular case, no evidence was produced by either party as to the
circumstances in which other individuals were barred from Mr Carney’s premises. It is difficult,
therefore, based on the facts available, to compare the treatment afforded to Mr Conroy with the
treatment afforded to other barred customers.
In order to properly evaluate Mr Conroy’s 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.
Hypothetical comparators have been introduced in a number of employment equality cases in recent
years where an actual comparator did not exist. For example, discriminatory questioning was an
issue in the case of Fleming v. Dr J Maloney, Blackrock Clinic (EE04/1996), where the only
actual comparators were other married women. During the course of the interview for a part-time
secretary position, the claimant was asked about child-minding arrangements for her children. In that
case, the Equality Officer found that, although no males applied for that post, a hypothetical male or
single female comparator could be used in deciding whether the questions put to the candidate were
discriminatory. The Equality Officer stated that “I accept that there were probably no male or
single female applicants for the post, however, I consider that the respondent discriminated
against the claimant when she asked her or allowed her to be asked questions which would
not be asked of a male or single female.”
Similarly, in Barrington v Medical Council, EE9/1988, although there were a number of male
applicants for the post, the Equality Officer did not examine in his recommendation whether they had
actually been asked the questions which the claimant complained of. Instead, he simply stated that
he was “satisfied that no male candidate would have been asked the questions which the
complainant was asked” thus using a hypothetical male comparator.
7.3 As stated earlier, no evidence has been produced to me by either party to indicate why
other individuals had been barred from Mr Carney’s establishment. I believe, therefore, that it is
necessary to introduce a hypothetical comparator at this point and ask the question as to whether
Mr Carney would have adopted a different stance if the incident on 16 April 2000 had involved two
prominent local businessmen who were both customers of his, in a situation where one of them had
made allegations of trouble making against the other. Would Mr Carney have accepted the word of
one and not listened to the other ?
Having considered this question in some depth, I believe that, in such circumstances, it is reasonable
to expect that Mr Carney would have, at the very least, afforded both parties an opportunity to tell
their side of the story. However, in Mr Conroy’s case, Mr Carney was not prepared to do this – he
says himself that he fully accepted his regular customer’s account of events and that he had no
11
interest in hearing Mr Conroy’s side of the story. I consider this to be because of a prejudice Mr
Carney has towards members of the Traveller community.
Mr Carney states that he does not have an anti-Traveller policy in place. As evidence of this, he
says that on market days he serves all-comers – he says that there is no distinction between farmers
and Travellers as they both tend to wear similar clothing. This action does not necessarily constitute
evidence of a positive policy towards Travellers. Another interpretation could be that the only
reason Mr Carney serves Travellers on market days is because he cannot distinguish them from
farmers.
7.4 Another persuasive aspect of this case, is the fact that when making his decision on 30
October 2000, the respondent relied totally on allegations made by Mr A about Mr Conroy. While
Mr Carney produced evidence at the Hearing about Mr Conroy’s previous conviction and his verbal
confrontation with another publican, he admits that he was not aware of these incidents on 30
October 2000. Therefore, the only information available to Mr Carney on 30 October 2000, with
regard to Mr Conroy’s character, was that obtained in the course of conversations with Mr A, and it
would appear that Mr Carney made his decision based solely on this information.
At the Hearing, the complainant’s solicitor asked Mr Carney why, in the interests of natural justice,
he did not afford Mr Conroy an opportunity to put his side of the story when he entered his
premises on 30 October 2000. Mr Carney’s reply was to the effect that Mr A was a regular client
of his and a prominent local business man and, as such, he had no reason to doubt him.
7.5 The respondent’s defence in this case is based entirely around Section 15 of the Equal
Status Act 2000. Mr Carney maintains that under Section 15 he was entitled to refuse Mr
Conroy service as, in his opinion, not to do so would produce a substantial risk of disorderly
conduct or behaviour.
Section 15(1) of the Equal Status Act 2000 provides that nothing in the Act prohibiting
discrimination, shall be construed as requiring a person to provide services to another person 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 provision of 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.
In reaching his conclusion, that serving Mr Conroy would produce a risk of disorderly
behaviour, Mr Carney has admitted that he relied entirely on the word of Mr A, a regular
customer of his. Mr Carney has also admitted that, on 30 October 2000, he was unaware of
Mr Conroy’s previous conviction and that he had not yet spoken to the other publican who had
been approached by Mr Conroy. Therefore, on the night in question, the only information that
Mr Carney had with regard to Mr Conroy’s character, was the information supplied by Mr A
about the events of 16 April 2000.
12
7.6 I also note that, in support of his case, Mr Carney called Sergeant Carroll to give
evidence about the events of 16 April 2000. On hearing this evidence, however, I must say that
I find it inconclusive. Sergeant Carroll has stated that circumstances on the night prevented him
from fully investigating the matter and, as neither party wished to make a statement afterwards,
the matter was not pursued any further. Indeed, if anything, the Sergeant’s testimony would
appear to favour the complainant more so than the respondent as Mr Conroy was described as
“coherent” while Mr A was described as “intoxicated”.
With regard to the night of the alleged discrimination, 30 October 2000, I note that Mr Carney
states that he feared trouble from Mr Conroy. From the evidence before me, it would appear
that Mr Carney was out on the floor cleaning tables when Mr Conroy arrived and that there
were only a few customers left in the bar. Both parties agree that Mr A was not on the premises
and no evidence has been produced to indicate that any of the remaining customers had any
grievance against Mr Conroy.
In the circumstances, I cannot accept Mr Carney’s contention that by serving Mr Conroy, he
was exposing himself to a substantial risk of disorderly conduct on the night of 30 October
2000. I have, therefore, formed the opinion that Mr Carney was not justified in reaching this
conclusion and, therefore, I consider that other motives played a part in his decision to refuse Mr
Conroy service.
7.7 From the evidence before me, I believe Mr Carney sees himself as a restaurateur more so
than a publican. His establishment caters for a quality clientele base. Mr Carney admits that most of
his turnover comes from serving meals to office workers rather than from serving alcohol to
customers. Travellers are not great contributors to Mr Carney’s business and I believe that he
regards them as something of a nuisance and a deterrent to the image of his business.
Having considered all of the above, I have come to the conclusion that Mr Carney’s action on 30
October 2000 was based on a clear bias against a member of the Traveller community. Mr Carney
was fully prepared to accept the uncorroborated evidence of a member of the settled community yet
he absolutely refused to listen to the Traveller’s version of events. To me this action constitutes
discrimination of the highest order. I, therefore, find that on 30 October 2000, the respondent
unlawfully discriminated against the complainant on the Traveller community ground, contrary to
Section 3(1) and Section 3(2)(i) of the Equal Status Act 2000.
8. Decision
8.1 Having fully considered all aspects of this case, I find that the complainant has established a
prima facie case of discrimination on the Traveller community ground. I also find that the respondent
has not provided sufficient evidence to rebut the claim that he operates a discriminatory policy
towards Travellers, nor has he provided proof that he applies the same rules and procedures to both
settled people and Travellers alike. I also find that the respondent has not provided sufficient
evidence to substantiate his claim that he was entitled to refuse service to the complainant under
Section 15 of the Equal Status Act.
13
Section 15 of the Equal Status Act is designed to protect a publican from having to provide a
service to an individual whom he genuinely believes is likely to produce a substantial risk of
criminal or disorderly behaviour. In this particular case, the respondent has relied totally on the
evidence of one customer to make his decision to refuse service to the complainant.
In addition, the Garda witness introduced by the respondent was unable to corroborate Mr A’s
allegations and the respondent failed to produce any other relevant evidence to support his claim that
the complainant was likely to be the cause of trouble. In addition, the publican was unaware at the
time, that the complainant had a previous conviction for disorderly conduct and, therefore, his
reliance on Section 15 was somewhat tenuous at best. If the respondent had known of the
complainant’s previous conviction on the night of the incident, it is possible that this fact may have
put a different complexion on the case.
This decision should not be seen as a deterrent to publicans from carrying on business in a
responsible manner. Publicans who can show that they apply the same rules to Travellers and settled
people alike, have nothing to fear from the Equal Status Act. Section 15 is designed to protect such
publicans from claims of discrimination, arising from a situation where the publican has refused
service to a “troublemaker” with a previous history of disorderly behaviour.
I would recommend, therefore, that publicans seriously consider drawing up a universal Code of
Practice, emphasising their commitment to non-discriminatory practices and setting out clearly the
rules which they apply to all customers and the type of behaviour that is likely to lead to a customer
being barred. The Code should also make it clear that these rules will be applied to all customers,
irrespective of their background.
Also, to avoid confusion over who exactly is barred at any given time, I believe that it is in publicans’
interests to keep their staff clearly informed, on a regular basis, of those individuals who are currently
barred from their premises and the reason they have been barred.
8.2 In relation to the events of 30 October 2000, I am satisfied that the complainant suffered
unlawful discrimination at the hands of Mr Carney within the meaning of the Equal Status Act 2000.
In particular, I find that Mr Conroy was discriminated against on the grounds of his membership of
the Traveller community contrary to sections 3(1) and 3(2)(i) of the Act.
I, therefore, find in favour of the complainant and order that Mr Carney pay the complainant the
sum of £1000 (Euro 1270) for the humiliation and embarrassment suffered by him.
Brian O’Byrne
Equality Officer
22 May 2001
14
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.
_____________
Gary O’Doherty
Equality Officer
Equal Status Act 2000
EQUALITY OFFICER DECISION NO: DEC – S2001-009
Moorehouse v Ayleswood Ltd
File Ref: ES/2001/02
Date of Issue: 1st October, 2001
1
Table of Contents
Summary 3
Dispute 4
Background 4
Summary of Complainant’s Case 4
Summary of Respondent’s Case 5
Evidence of the Parties
– Complainant’s Evidence 5
– Evidence of Mr Alan Clancy 6
– Evidence of Mr Joe McQuillan 7
– Evidence of Mr Feargal Doherty 8
– Evidence of Mr Mark Roche 8
Issues for Consideration 9
Issue of Traveller Identity 9
Did Respondent know Complainant was 9
A Traveller ?
Prima Facie Case 11
Conclusions of Equality Officer 11
Decision 14
2
Summary of Decision DEC-S2001-009
Mr Michael Moorehouse
( Represented by Haughtons Solicitors)
-vAyleswood
Ltd
(Represented by Malone & Martin, Solicitors)
Headnotes
Equal Status Act 2000 – direct discrimination – section 3(1)(a) – membership of the Traveller
community – section 5(1) – refusal of service in a pub – complainant previously barred –
respondent claimed it did not know he was a Traveller – section 15(1) and 15(2) defence.
Background
Mr Michael Moorehouse was a regular customer in a pub owned by the respondent called
Clancy’s in Bray, Co. Wicklow, for nine months up to November, 2000. In November, 2000,
he was refused service. He claimed that the reason for his refusal was based on his
membership of the Traveller community. This was denied by the respondent. It claimed that
the reason the complainant was refused service was because it only discovered in November,
2000, that the complainant had been barred from the pub in 1997 by the then manager of the
pub. The respondent also claimed that the manager of the pub who refused to serve the
complainant in November, 2000, did not know that the complainant was a member of the
Traveller community.
Conclusions of Equality Officer
The Equality Officer found that the manager of the pub knew that the complainant was a
member of the Traveller community and that the complainant had established a prima facie
case of discrimination. It was established that although the complainant was previously
barred from the pub in 1997, the decision to refuse him service in November 2000 was based
on hearsay. The Equality Officer was satisfied that the respondent could not rely on the
defences provided for in the Act to enable it to rebut the inference of discrimination.
Decision
The Equality Officer decided that the respondent discriminated against the complainant on
the basis of his membership of the Traveller community and awarded £500 (635 Euros)
compensation.
3
Equality Officer Decision DEC-S2001-009
Complaint under the Equal Status Act 2000
Mr Michael Moorehouse
(Represented by Haughtons, Solicitors)
-vAyleswood
Ltd
(Represented by Malone & Martin, Solicitors)
1. DISPUTE
This dispute concerns a claim by Mr Michael Moorehouse, represented by Haughtons
Solicitors, that Ayleswood Ltd, trading as Clancy’s Pub, represented by Malone &
Martin, Solicitors, discriminated against him in November, 2000, on the basis of his
membership of the Traveller community contrary to the Equal Status Act, 2000.
2. BACKGROUND
Ayleswood Ltd, is the owner of a pub called Clancy’s in Quinsboro Rd, Bray, Co
Wicklow. Mr Moorehouse claims that in November, 2000, he entered Clancy’s and
was refused service. Ayleswood Ltd accepts that Mr Moorhouse was refused service
in November, 2000, but claims that the reason he was refused was because he was
barred from the pub in 1997 and because his of past behaviour.
Any documents received were copied to both parties. Two oral hearings were held.
The first oral hearing was held on 8th March, 2001, but the claimant did not attend
and claimed that this was because of a family illness. The first hearing was adjourned
until 10th April, 2001, when the second oral hearing was held.
3. SUMMARY OF COMPLAINANT’S CASE
Mr Moorehouse claims that he was a regular in Clancy’s for nine months up to
November, 2000. He claims that on two occasions in November, 2000, he sought
service and that he was refused on each occasion.
On the first such occasion he claims that he was served a pint by a female member of
the bar staff and that after he paid for it and sat down, a male member of the bar staff
came over to him, took the pint away, told him to get out and said that he wouldn’t be
served there again.
On the second such occasion he claims that he entered the pub with a close relative
who told him that Mr Joe McQuillan, the manager of the pub, would not serve him
although his relative was not refused service.
Mr Moorehouse considers that the reason he was refused service was based on his
membership of the Traveller community.
4
4. SUMMARY OF RESPONDENT’S CASE
The respondent claims that the complainant was not refused service because he is a
member of the Traveller community. The respondent claims that its staff or
management did not know that the complainant is a member of the Traveller
community and, therefore, he could not have been discriminated against on this basis.
The respondent accepts that Mr Moorehouse was refused service by Mr McQuillan in
November, 2000 but has no recollection of the other refusal which he alleges. It
claims that the reason Mr Moorehouse was refused service was because he was barred
from the pub in 1997 by a former manager of the pub, Mr Feargal Doherty, who left
its employment around the start of 2000. It claims that Mr Moorehouse was served in
the pub for nine months up to November, 2000, because the staff did not know that he
had been previously barred by Mr Doherty.
It also claims that during the nine months when Mr Moorehouse was drinking in the
pub that there were a number of complaints about his behaviour such that a decision
to bar him was under consideration in any event when it was discovered that he was
previously barred from the pub in 1997.
The respondent claims that Mr Moorehouse is barred for life from other pubs.
The respondent claims that due to its obligations under the Health and Safety
legislation it has to run its premises properly to provide a safe environment for staff
and customers. It claims that if publicans serve people whom they know or ought to
know have a propensity for violence they will be exposed to insurance liability claims.
The respondent claims that on 24th December, 2000, the complainant was in the pub
and assaulted a member of staff when he was asked to leave.
5. EVIDENCE OF THE PARTIES
5.1 Complainant’s Evidence
Ms Margaret Moorehouse, the daughter of the complainant, spoke on his behalf at the
oral hearing because he is substantially aurally impaired since birth and has great
difficulty speaking in a manner which can be understood by other people. Any
questions for the complainant were interpreted to him by his daughter. His replies
were interpreted through her.
The complainant, through his daughter, stated that the first time he was in the pub was
when he started drinking there about 9 – 11 months before November 2000, but he was
not sure exactly when. He said that he drank there every second or third weekend at
night time. He said that he knew the bar staff to see and that they knew him.
He claimed that in early November, 2000, he does not know the exact date, he went
into the pub and ordered a pint from a female member of the bar staff aged about 20
years old, whose name he does not know. He said that he was served and sat down.
He claimed that a tall, bald barman whose name he does not know either came over
and took away the pint shortly afterwards. He claimed that the barman told him to get
5
out and said that he wouldn’t be served there again. The claimant said he was not
given any reason as to why he was being refused service on that occasion and that he
then left the pub. He claimed that that the barman who took the pint off him does not
like Travellers and that this was the reason why he was refused.
The complainant also stated that he was refused service in the pub on another
occasion in November, 2000. He said on that occasion he went into the pub with a
close relative and that the two of them went to the bar together to seek service. He
said that his relative told him that Mr Joe McQuillan, who was the manager of the pub
at the time, would not serve him (i.e. the complainant) and that he was barred. He said
that no reason was given and that he then left the pub.
The complainant said that he never told any of the bar staff that he was a Traveller and
that none of the bar staff ever told him that they were aware he was a Traveller. He is
aware that 3 or 4 other Travellers drink in the pub regularly including some of his
relatives. The complainant considers the reason for his being refused service was
based on his membership of the Traveller community.
The complainant denies that he is barred from any other pubs in the area.
In relation to the incident which occurred on 24th December, 2000, when the
respondent claims that the complainant assaulted a member of staff who asked him to
leave the pub, Mr Moorehouse accepted that he was there but disputed the version of
events outlined by the respondent. He said that the barman who asked him to leave
put his arm on him and that he shrugged his arm to get the barman’s hand off him. He
denied that the incident was any more serious than that.
The complainant stated that he has always considered himself to be a Traveller – as do
all of his relatives. He said that although he has been settled for long periods of his
life, including the last four years in Bray, he has in the past led a nomadic lifestyle.
Evidence of Mr Alan Clancy
5.2 Mr Clancy said that a company called Ayleswood Ltd owns Clancy’s pub and that he
is a Director of the company and a one third shareholder. There are two other
shareholders who own a third each.
Mr Clancy said that Ayleswood Ltd owns the pub since it opened in 1997. From 1995
to 1997 he was the manager of a pub next door to Clancy’s Pub called Dusty Millers.
Clancy’s Pub is in effect an extension of Dusty Miller’s although it has a separate
management and staff. Mr Clancy said he is not involved in the day to day
management of Clancy’s Pub. He said that ordering beer, staffing issues and barring
customers etc. is up to the manager of the pub. Mr Clancy said that Ayleswood Ltd
owns other pubs as well and he spends his time overseeing the management of all of
the chain. He said that he is in Clancy’s Pub practically every day in this overseeing
role and that he is well known to many of the customers as he regularly socialises there
himself also.
Mr Clancy said that he does not know the complainant personally and he did not know
him to be a member of the Traveller community. He said that a number of the pub’s
6
customers made complaints to him about Mr Moorehouse. He said he was told by
some customers that Mr Moorehouse was “not good for business”.
Mr Clancy said that Clancy’s Pub does not have a discriminatory policy against
Travellers and pointed out that a number Travellers are regular customers there.
Evidence of Mr Joe McQuillan
5.3 Mr Joe McQuillan said he was the manager of Clancy’s Pub in November, 2000. He
said that he was a barman in Clancy’s Pub before he became the manager, which was
around February/March 2000. He said that he did not recall the complainant drinking
in the pub while he was a barman but that as far as he could remember he started
drinking there around the time he became manager. He said that the complainant
went there most weekends at night time and that he never had any problems with him
up until November, 2000. He said that he did not know the complainant was a
member of the Traveller community.
He said that in November, 2000, Mr Feargal Doherty, who was the manager of the pub
before him, was in the pub socialising and saw Mr Moorehouse drinking there. He
said that Mr Doherty told him that he had previously barred Mr Moorehouse because
he was a troublemaker. Mr McQuillan said that this was the sole reason why he
refused service to Mr Moorehouse in November, 2000.
He said that the issue of Mr Moorehouse being barred was also discussed at a meeting
of the bar managers of all the pubs in the Ayleswood Ltd chain which happens at the
start of every month. Mr McQuillan said that Mr Clancy told him that some customers
had been complaining about Mr Moorehouse at one such meeting. Mr McQuillan said
he was not sure whether the meeting happened before or after he barred the
complainant.
He said that when he barred Mr Moorehouse he did it by asking a relative of the
complainant, to tell him that he would not be served in the pub any more. He said that
he did this because Mr Moorehouse is deaf and he thought that his relative would be
better able to communicate the message to Mr Moorehouse than himself. Mr
McQuillan said that the claimant left the pub after his relative gave him the message.
Mr McQuillan said that he did not recall the first incident described by the
complainant in which he alleged that he was refused service in November, 2000. He
said that there are no female bar staff in Clancy’s Pub. He also said that there are
female bar staff in Dusty Millers pub and that sometimes they cover for staff in
Clancy’s Pub during staff breaks. He said that these female staff are in their late teens
or early twenties. Mr McQuillan said he did not know who the male barman who
allegedly took the pint back from the complainant and told him to get out could be.
Mr McQuillan also said that he was not aware of any other people who had been
barred by Mr Doherty previously who were served in the pub during his own time as
manager. He said that if there had been any other people like that he would have
investigated to see why they were barred before deciding to bar them himself but that
he did not do this in the case of the complainant.
7
Evidence of Mr Feargal Doherty
5.4 Mr Feargal Doherty said that he became the manager of Clancy’s Pub in early 1997
when the pub opened. He said that the claimant tried to get served in the pub around
this time and he told him that he was refusing him service. Mr Doherty said that the
reason he refused the claimant was because he knew him to be a troublemaker. He
said that he was a barman in a different pub from 1988 to 1997. He said that he
remembers seeing the claimant entering that pub and being refused service there
around 1988 or 1989. He said that he was told by the staff and owners of the pub that
Mr Moorehouse had previously thrown stools and glasses around a pub and that he
was a troublemaker. Mr Doherty said that he only recalls seeing Mr Moorehouse on
that one occasion, that he does not know him otherwise and that he did not know he
was a member of the Traveller community. He said that when the claimant sought
service in Clancy’s Pub in 1997 he remembered him from the previous occasion when
he was refused from the other pub. He said he was able to remember him even though
such a long period of time had elapsed because in the bar trade staff are dealing with
people a lot and get a good memory for faces.
Mr Doherty said that when he left Clancy’s Pub at the start of 2000 to become the
manager of another pub in Ayleswood Ltd’s chain there was no formal appraisal or
information exchange to let the remaining staff know who he had barred. He said that
he used to drink in the pub himself on and off after that. He said one night around
November, 2000, he was there and when he saw Mr Moorehouse drinking there he
reported to Mr McQuilllan that he had previously barred him because he was a
troublemaker.
Evidence of Mr Mark Roche
5.5 Mr Mark Roche is a barman in Clancy’s Pub. He said that on 24th December, 2000,
he was on duty with another barman. He said that two young men came into the pub
and tried to get served and that he thought at least one of them was related to Mr
Moorehouse. He also said that he thought they were under the legal age to be served
alcohol and asked them for ID. The young men had no ID and said that they were
with the complainant. Mr Roche said that he then observed Mr Moorehouse sitting in
the pub in the company of two other men. He said that he knew the claimant was
barred although he did not know he was a member of the Traveller community. He
said that he approached him and politely and discreetly asked him to leave the
premises. Mr Roche said that the claimant then hit him in the jaw very hard and asked
him did he want to fight. Mr Roche said that Mr Moorehouse was then restrained by
the two men he was with and the two younger men and that he was subsequently
escorted off the premises by the pub’s doorman. The respondent’s solicitor said that
witnesses to this incident were available but they were not brought to the oral hearing
to give evidence.
Mr Roche said that the Gardai were called to this incident and that they told him that if
he wanted to press charges they would investigate it further. He said that he has not
yet made his mind up whether he wants to press charges or not.
ISSUES FOR CONSIDERATION
6. The issue for consideration in this complaint is whether or not Ayleswood Ltd
discriminated against Mr Michael Moorehouse on the basis of his membership of the
8
Traveller community in terms of section 3(1)(a) and contrary to section 5(1) of the
Equal Status Act, 2000, when he was refused service from Clancy’s Pub. 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.
ISSUE OF TRAVELLER IDENTITY
7. The first issue to be clarified in this case is whether Mr Michael Moorehouse is a
Traveller within the meaning defined in section 2 of the Act. This has to be clarified
first because if Mr Moorehouse is not a member of the Traveller community within
the meaning defined therein, his complaint cannot be considered under the Act. The
definition in section 2 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.
From this definition it is clear that for someone to be considered as a member of the
Traveller community that they do not have to be actively leading a nomadic way of
life. This is because the definition states that Travellers are people with a shared
history, culture and traditions “including historically, a nomadic way of life”. The
word “historically” in this context is important and can include people who were
nomadic in the past but who are now settled and the settled descendants of people
who led a nomadic way of life in the past.
At the oral hearing the complainant stated that he has always considered himself to be
a Traveller. He said that although he has been settled for long periods of his life,
including the last four years in Bray, he has in the past led a nomadic lifestyle. I am
satisfied that the complainant is a member of the Traveller community within the
meaning defined in the Act.
DID RESPONDENT KNOW COMPLAINANT WAS A TRAVELLER ?
8. I noted that during the oral hearing all of the witnesses on the respondent’s side stated
that they did not know that the complainant was a member of the Traveller
community. Since it was Mr McQuillan who refused Mr Moorehouse service in
November, 2000, it is his perception which is most important in this complaint. In
some cases it will be obvious whether someone is covered by a ground covered by the
Act. For example it will normally be patently obvious to a respondent if a person’s
gender is male or female. However, having said this I accept that respondents may
have difficulty identifying people who claim to be covered by the membership of the
Traveller community ground.
8.1 I have considered carefully whether the respondent’s witnesses were actually unaware
that Mr Moorehouse is a Traveller. I have taken particular account of the following
points which were provided in evidence at the oral hearing:
ß The complainant said at the oral hearing that he never told any of the bar
staff that he was a Traveller and that none of the bar staff ever told him
that they were aware that he was a Traveller,
ß the complainant was a regular in the pub for nine months and was known to many
of the staff of the pub,
9
ß a number of the complainant’s relatives who are also Travellers used to drink with
him in the pub.
ß Mr Clancy said that Clancy’s Pub does not have a discriminatory policy against
Travellers and that it serves a number of Travellers.
8.2 Although, Mr McQuillan said at the oral hearing that he only knew some Travellers
were regulars in the pub because they told him so, in my view it is not always
necessary for a Traveller to identify their status before they can be identified as such.
Indeed, I consider that many Travellers would be reluctant to identify themselves as
such for fear of being discriminated against on this basis.
As mentioned previously, Mr Moorehouse was a regular in the pub for nine months
and he drank in the company of other people who also consider themselves to be
Travellers. While I accept that in a lot of cases bar staff may not recognise an
individual or group who seek service for the first time in a pub to be Travellers, I find
it very difficult to believe that bar staff would not be able to identify a group of
Travellers, or the individuals within that group, as Travellers where they have been
drinking in a pub on a regular basis over a prolonged period of time. I recognise that
because of Mr Moorehouse’s aural impairment it is more difficult to identify him as a
Traveller than for a Traveller who is not aurally impaired.
Taking these facts and also the other evidence presented into account I am satisfied on
the balance of probabilities that Mr McQuillan knew that Mr Moorehouse is a
member of the Traveller community. Mr McQuillan was the manager of the pub for
most of the time when the complainant drank there and I consider that he would have
distinguished Mr Moorehouse to be a Traveller either through his own observations,
by comments to him from the staff of the pub or by comments to him from customers
of the pub. Mr Moorehouse’s association with the other Travellers who were regulars
in the pub would also have been a contributory factor in Mr McQuillan identifying
him as a Traveller.
8.3 I also consider that Mr Clancy knew the complainant to be a Traveller. This is
because he received complaints about Mr Moorehouse from customers of the pub. I
believe it is likely that when these complaints were conveyed to Mr Clancy the fact
Mr Moorehouse is a member of the Traveller community would have been known to
the other customers and conveyed to him.
8.4 I also think that the letter dated 6th March, 2001, from the respondent’s solicitors to
the complainant’s solicitors is relevant to this point. It states “your client was not
refused service because he was a member of the travelling community but because of
his previous conduct”. I consider that the way this is worded is significant. I have to
ask that if the respondent really did not think that the complainant was a member of
the Traveller community why did this letter not clearly state that this was the case.
Instead the form of words used would seem to suggest that the respondent knew the
complainant was a member of the Traveller community but was pointing out that this
was not the reason why he was refused service.
I have also noted that the respondent did not reply to the notification required by
section 21 of the Act which was sent to him on 22nd November, 2000. Indeed, the
10
respondent did not provide any reasons for refusing Mr Moorhouse service until 6th
March, 2001, which was over four months after the notification was sent and two days
before the first oral hearing was scheduled. Under Section 26 of the Act I am entitled
to “…. draw draw such inferences, if any, as seem appropriate from the failure to
reply ….” . For all of the reasons explained above I consider it appropriate in this case
to draw an inference that on the date in question the respondent knew that the
complainant was a member of the Traveller community.
PRIMA FACIE CASE
9. The definition of what constitutes discrimination is set out in Section 3(1) of the
Equal Status Act, 2000. It states that:
“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) ……….. a person is treated
less favourably than another person is, has been or would be treated.”
In Section 3(2) the “Traveller Community ground” is included among the
discriminatory grounds.
I have established that Mr Moorehouse is covered by the membership of the Traveller
community ground and that Mr McQuillan knew this to be the case when he refused
him service. In order for Mr Moorehouse to establish a prima facie case he has to
show that someone who is not a member of the Traveller community would have been
served by Mr McQuillan in the same circumstances. If he establishes a prima facie
case it is up to the respondent to rebut the inference of discrimination.
CONCLUSIONS OF EQUALITY OFFICER
10. The complainant stated at the oral hearing that he was refused service on two
unspecified dates in November, 2000, although this was not clear from the written
material which was submitted on his behalf to the respondent and myself before the
hearing. I have noted that the complainant seemed to be very confused about the
incident in which he alleges a bald barman took a pint from him after he was served
by a female member of staff. At first he said that a man served him and he did not
seem to be sure whether this incident occurred before or after the incident when Mr
McQuillan was involved. The respondent had no recollection of any such incident.
The only corroboratory evidence in relation to a refusal in November, 2000, is
regarding the incident in which Mr McQuillan refused service to the complainant.
Accordingly, I have decided to focus on this refusal.
10.1 As mentioned earlier, Mr McQuillan said that the sole reason he refused service to the
complainant was because Mr Feargal Doherty, who was the previous manager of
Clancy’s Pub, told him that he had barred the complainant in 1997 because he was a
troublemaker. Mr McQuillan said that he was also aware from Mr Clancy that a
number of customers had made complaints about Mr Moorehouse’s behaviour in the
pub. I am satisfied that he was aware of these complaints before he refused service to
Mr Moorehouse.
10.2 Mr Doherty was Mr McQuillan’s former boss and in November, 2000, he was
employed as a manager in a different pub in Ayleswood Limited’s chain. Mr Clancy
11
is a director of Ayleswood Limited. I recognise that Mr McQuillan may have felt
under pressure to bar Mr Moorehouse because of the comments he received from Mr
Doherty and Mr Clancy. However, at the oral hearing it was denied that the decision
to bar Mr Moorehouse was a corporate decision in any way. It was stressed that Mr
McQuillan was responsible for the day to day management of the pub and that he was
responsible for barring people. It was his decision and his decision alone to bar Mr
Moorehouse in November, 2000.
10.3 Although the complainant denied being barred in 1997, I am inclined to believe that
Mr Doherty did bar him at that time. This is because Mr Moorehouse, did not drink in
the pub until Mr Doherty had left and I consider it likely that this is more than just a
co-incidence.
10.4 I note that Mr Doherty’s decision to bar Mr Moorehouse was based on allegations
which other people made to him about his previous conduct a number of years
previously. I also note that Mr Doherty did not see Mr Moorehouse actually commit a
crime or be disorderly himself and no other evidence on this point was provided by
the respondent. I consider that Mr Doherty’s evidence about Mr Moorehouse’s
behaviour is based on hearsay and must be considered in this context.
10.5 I have noted that the respondent has also defended its refusal on the basis that the
complainant is barred for life from other pubs in the area. However, I have also noted
that no evidence was presented to support this, other than Mr Doherty’s evidence in
relation to one pub which I have dealt with in the preceding paragraph.
10.6 The respondent has also argued that the incident which occurred in the pub on 24th
December, 2000, supports the view that the complainant has a propensity for violence.
I consider that the evidence presented on this point is inconclusive and essentially
boils down to Mr Moorehouse’s word against Mr Roche’s. In any case this event
occurred after Mr Moorehouse was refused in November, 2000, and it was not a
contributory factor in his refusal by Mr McQuillan at the time. However, I have noted
that Mr Moorehouse did return to the pub on 24th December, 2000, in the full
knowledge that he was barred and that this occurred after he had initiated complaint
proceedings against the respondent under the Act.
On this point I would like to state that if it can be proven that someone assaulted a
member of a pub’s staff or a patron, either in a pub or in its vicinity, then I would not
expect a publican to continue serving such a person. I think it is important to note that
if publicans allege complainants have carried out violent assaults which constitute
criminal offences, and the complainants deny it, as in this case, that the allegations
have to be corroborated and it is a matter for the publican who is alleging the conduct
as a defence to produce the necessary evidence. In this case, if witnesses were
available to the incident involving the complainant and Mr Roche, and the matter was
reported to the Gardai, then hard evidence to that effect should have been brought to
my attention before or at the oral hearing.
10.7 Although the respondent did not mention them specifically, I consider that sections
15(1) and 15(2) of the Act were being invoked as defences for the complainant’s
refusal and I shall deal with both of these in turn.
12
10.8 Section 15(1) provides that the Act does not require a person to provide a service in
circumstances which would lead “ a reasonable individual having the responsibility,
knowledge and experience of the person to the belief …. 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 ….”. For this section to be successfully
invoked as a defence the respondent would have to show that there was a substantial
risk of criminal or disorderly conduct if Mr Moorehouse was served. This is quite a
strong test and I don’t believe it was passed in this case. This is because Mr
McQuillan had known the complainant during the nine months or so when he was a
regular in the pub and no evidence was provided of any criminal or disorderly
behaviour from him during that time. Mr McQuillan said that his decision to refuse
service was solely based on Mr Doherty’s evidence that the complainant was a
troublemaker. As I stated previously I consider this evidence to be based on hearsay.
I have weighed up Mr McQuillan’s knowledge of the complainant for nine months on
one hand and the information which was brought to his attention by Mr Doherty on
the other hand. I do not believe on the balance of probabilities that a reasonable
person would believe that there was a substantial risk of criminal or disorderly
conduct in Mr McQuillan continuing to serve the complainant.
10.9 Under the licensing laws publicans are required to run orderly houses. Section 15(2)
of the Equal Status 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”.
This doesn’t require a substantial risk so the test here is less severe but I don’t believe
that it has been passed in this complaint.
Mr McQuillan stated in evidence that during his time as manager of the pub he never
had any problems with Mr Moorehouse until November, 2000, when he had the
discussions with Mr Doherty and Mr Clancy. Mr McQuillan also stated in evidence
that he was not aware of any other people who had been barred by Mr Doherty
previously who were served in the pub during his own time as manager. He said that
if there had been any other people like that he would have investigated to see why
they were barred before deciding to bar them himself. I think the fact that Mr
McQuillan did not investigate to see why the complainant was barred is very
significant.
The only reason he put forward for not doing so was that he was aware of the
complaints made to Mr Clancy. I was given no information, despite repeated
questioning, as to the nature of the complaints apart from evidence by Mr Clancy that
some customers had told him that Mr Moorehouse was “not good for business”.
None of the other witnesses for the respondent, including Mr McQuillan, offered any
explanation as to the nature of the complaints either. Therefore, I have no idea what
the nature of the complaints were and I am not taking account of them in reaching my
decision.
13
I am satisfied on the basis of the evidence presented, notwithstanding the complaints
which Mr Clancy made him aware of, that Mr McQuillan would have investigated to
see why Mr Doherty barred Mr Moorehouse if he was not a member of the Traveller
community. If he had investigated he would then have had to make up his own mind
whether the information supplied to him warranted the complainant’s exclusion from
the pub. I therefore conclude that Mr McQuillan did not act in good faith when he
refused service to the complainant. If he had acted in good faith he would have
checked to see why Mr Moorehouse was barred by Mr Doherty in line with his stated
policy. I am satisfied that he discriminated against Mr Moorehouse on the basis of his
membership of the Traveller community by treating him less favourably than a
non-Traveller would have been treated in the same circumstances.
10.10 The respondent also claimed that the complainant was refused service because it
would be exposed to insurance claims if it served people it knew or ought to have
known have a propensity for violence. It was also claimed by the respondent that it is
obliged under the health and safety legislation to provide a safe environment for its
staff and customers although it did not mention precisely what parts of the legislation
it was relying on for this claim. As I stated earlier I am satisfied that Mr Doherty’s
evidence that the complainant is a troublemaker is based on hearsay. I am also
satisfied that a reasonable person, taking into account the obligations of the
respondent under the health and safety legislation which were made known to me and
its duty to protect itself from insurance liability claims, would not have concluded that
there was a substantial risk of criminal or disorderly conduct in serving the
complainant in November 2000, bearing in mind that he had been drinking there
regularly for nine months previously without any trouble.
DECISION
11. The complainant alleged that he was discriminated against by the respondent on two
unspecified occasions in November, 1999, when he was refused service in Clancy’s
Pub.
I find that insufficient evidence has been presented to substantiate his complaint in
relation to the incident which is alleged to have occurred on the first unspecified
occasion in November, 2000, when it is alleged that a male member of the bar staff
took a pint away from him and told him to leave the premises after a female member
of the bar staff had served him.
In relation to the incident which occurred on the second unspecified date in
November, 2000, I am satisfied that the complainant has established prima facie
evidence of discrimination on the basis of his membership of the Traveller community
and that the respondent has failed to rebut the inference of discrimination.
I am satisfied, on the basis of the evidence presented, that the reason the complainant
was refused service by Mr McQuillan in Clancy’s Pub on the second unspecified date
in November, 2000, was based on his membership of the Traveller community. He
was not treated as an individual in the same way that a non-Traveller would have been
treated in the same circumstances. I am satisfied that if the complainant was not a
Traveller that he would not have been discriminated against by the respondent and
14
that he would not have been refused service. It is my decision that Ayleswood
Limited discriminated against Mr Michael Moorehouse 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.
11.1 Under section 27(1)(a) of the Act the maximum amount I can award is £5,000 but I do
not think that this amount would be appropriate in this case. The Equal Status Act,
2000, only came into operation on 25th October, 2000, and the discriminatory act only
happened within a couple of weeks 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.
In determining the level of appropriate redress I have also taken into account that the
respondent does not appear to have a universal policy of discrimination against
members of the Traveller community. The complainant was served there for nine
months with no problems and both sides accepted that other Travellers are regular
customers there also. I have also taken into account that the complainant returned to
the pub on 24th December, 2000, in the full knowledge that the was barred and that
this was after he had initiated complaint proceedings under the Act. I order that
Ayleswood Limited pay £500 (635 Euros) to the complainant, Mr Michael
Moorehouse, as compensation for the stress and loss of amenity which he suffered.
Anthony Cummins
Equality Officer
1st October, 2001
DEC-S2004-190/191 Full Case Report
Osborne and Killeen V Skelly’s Pub
Delegation under the Equal Status Act, 2000
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 me Mary O’Callaghan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000. The hearing of the case took place in Dublin on 30th June 2004.
1. Dispute
1.1 This dispute concerns a claim by Mr. Wayne Osborne and Ms Stacey Killeen that they were discriminated on the grounds of their Family Status when they were refused entry with their children to Skelly’s Pub Artane, Dublin on 20th January, 2002. The complainants have alleged that the treatment they received was contrary to Section 3 (2) (c) of the Equal Status Act 2000 and in not being provided with a service which is generally available to the public they were subjected to treatment contrary to Section 5 (1) of the Act.
1.2 The Respondent maintains that the non admission of children to the premises results from restrictions attaching to the pub premises following a previous fire.
2. Summary of the Complainant’s Case
2.1 The complainants said that they went to Skelly’s pub on the afternoon of 20th January 2002 together with their children. They wanted to show the children the snooker tables. They were to meet another couple who were also bringing their children along. Skelly’s operates as a licensed premises and snooker hall. The complainants said that their children were aged 21/2 and 4 years at the time. They said that they drove the short distance from their home to the premises and when they got there they got out of the car. As they approached the entrance to Skelly’s they noticed a member of staff, who they named, outside the door repairing a light fitting. They said that the staff member told them that they could not go in to the premises as no children were allowed. The complainants said that while they were still standing by the entrance two young people who they took to be teenagers walked passed them holding snooker cues and walked into the premises. One of the complainants remarked that he thought that admitting unaccompanied young people was inappropriate. The complainants said that this was the first time they had gone to the premises with their children.
2.2 The complainants said that they went back to their car, phoned the friends they had arranged to meet and made alternative arrangements. They said that they went on to Tolka Park Sports Ground where they discussed what had happened with a member
of the bar staff there. They said that the barman told them that they should get the name of the man who had refused them and check out what they could do about it. Mr. Osborne said he returned to Skelly’s later and got the man’s name and had a short conversation with him. The staff member said that no children or underage people were allowed. The complainants said that they believed that this was discrimination against them because their children were with them. Ms. Killeen recalled that in years gone by she had gone into the premises when she was under age without difficulty. They said that they had not returned to Skelly’s to drink since then although Mr. Osborne had gone there to get some information in order to help him pursue this complaint.
3. Summary of the Respondent’s Case
3.1 The respondent said that he had been a director of the company running Skelly’s since 1990. The premises operated under a lease on the site of a former club which had been destroyed by fire some 10 years earlier and in which a large number of patrons were fatally injured. The pub business operated on a lease from the original owner of that club. He said that because of the history of the premises the fire chief had laid down very rigid conditions which had to be met before the premises was allowed to reopen. For this reason the management had adopted a strict house rule that no children would be allowed on the premises. He said that he was very aware that if there were any breaches of the fire regulations whatsoever his licence would be withdrawn. He also said he would not be insured for the presence of children on the premises.
3.2 He acknowledged that when the premises initially opened they used to let regular customers bring children onto the premises with them but they used to stay at the back of the hall. The strict no children policy had been in operation for 4-5 years. He said that Skelly’s could accommodate 200-300 patrons with the snooker room accommodating up to 60. He said that most of their customers were regulars who ranged in age up to about 70 years. He said that a rule of “over eighteens only” applied to the snooker hall. The respondent said that the rule was well known in the locality and that younger people used the local recreation centre “the Rec” which was located just across the road from Skelly’s as a venue for entertainment.
3.3 The respondent said that he knew Mr. Osborne to see from the locality and may have known his father. He said that he knew him as a customer of Skelly’s in the past and that there had never been any difficulties between them. He said that he was not on the premises on 20th January 2002 when the complainants arrived but he considered the staff member who had refused the complainants entry to be a very responsible member of staff who would have enforced the rules of the business. He said the staff member had since left his employment and now had a bar managerial position in another county.
3.4 The respondent said that the only reason the no children rule applied was to ensure that he did not risk his licence which was subjected to more than the usual restrictions because of the history of the premises. It was not a discriminatory measure.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainants have succeeded in establishing a prima facie case. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish they are covered by a discriminatory ground (in this case the Family Status ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants were less favourable than the treatment someone who was not covered by the discriminatory ground would have received in similar circumstances.
4.2 In this case the complainants went to Skelly’s accompanied by their children who were in their care at the time and this fulfils the first of the criteria outlined above. It is a fact agreed between the parties that the complainants were refused entry as there were children with them at the time they sought to enter the respondent’s premises and, therefore, the second criteria is satisfied. Thirdly it must be shown that the treatment of the complainants was less favourable than that which would be afforded to another person in similar circumstances who had sought to enter the premises but who did not have family status. It has been agreed by both parties to the complaint that the refusal occurred because they had children with them when they went to Skelly’s and therefore I conclude that the third criteria has been met and that the complainants have established a prima facie case of discrimination.
4.3 In circumstances where a prima facie case of discrimination has been established by the complainant, it is then assumed that the treatment received by the complainant is discriminatory. The burden of proof shifts to the respondent, who must then rebut the inference of discrimination to show that his actions were not discriminatory.
4.4 In effect this is the approach provided for by Council Directive 97/80/EC1 – the Burden of Proof Directive and has been enacted into Irish law by the Equality Act 2004 which applies the principle to decisions under the Equal Status Acts 2000-2004. The Labour Court and Equality Officers have employed the practice of shifting the burden of proof in discrimination cases under Irish Law since before any European Community legislation required it.2 In Dublin Corporation v Gibney the Equality Officer defined prima facie evidence as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred.”
1 Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex
2 See DEE 4/1983 (Labour Court) Bailieborough Community School.; EE 5/1986 (Equality Officer) Dublin Corporation v Gibney
4.5 Both the High Court and the Supreme Court have also applied the principle of shifting the burden of proof in accordance with European Community Law.3
5. Rebuttal
5.1 The respondent’s rebuttal centres on the particular premises where this incident occurred and the controls that need to be in place, governing its operation as a licensed premises. This results from the particularly tragic history of the premises and the operation of the licence there. The circumstances surrounding this particular premises are such that it would not be permitted to operate as a licensed premises without many precautions being taken to ensure the protection of patrons, particularly in relation to fire safety, which are over and above those that would apply to other similar premises without this particular history. The respondent has said that he is particularly sensitive to the requirements regarding safety which surround the granting of the license to operate the premises and it is for this reason the no children rule was put in place.
6. Decision
6.1 There have been a number of previous decisions by Equality Officers on the Family Status Ground. In Shanahan v One Pico DEC-S2003-056 and Curtis v Lotamore the Equality Officers found that in those cases the refusal to provide a service to parents while accompanied by their children was discriminatory.4
6.2 The respondent in this case has raised the situation where the conditions attaching to his license have led him to impose a ban on the presence of children on the premises at all times. In considering this evidence I must consider Section 15 (2) of the Equal Status Acts 2000-2004 which states “Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute
discrimination.” In concluding whether Section 15 (2) of the Equal Status Acts 2000-2004 applies to this case I am particularly mindful of the history of this premises. I note in particular DEC-S2003-109/110 Grainne Travers and Timothy Maunsell v The Ball Alley
House, another case in which family status was the ground of complaint, where the Equality Officer quite correctly stated that “In some situations, …, publicans have run into difficulties in cases where … over-broad measures have gone further than required by the licensing acts and did not take account of the parallel obligations imposed by the Equal Status Act.” 5
6.3 I do not, however, consider that this case is on all fours with those I have mentioned, given the unique circumstances of the licensed premises in question here and the decisions that the respondent might make in good faith regarding his license. I have concluded that the focus of the “good faith” action as provided for in section 15.2 of the Equal Status Act is on the honesty of the intention, even the making of an honest mistake, so long as it is taken for the sole purpose of ensuring compliance with
3 Nathan v Bailey Gibson (Supreme Ct.) 1998 2 IR 162; Conlon v University of Limerick (High Ct.) 1999 2 ILRM 131
4 Ms. Paola Shanahan v One Pico Restaurant DEC-S2003-056; Melanie Curtis v Lotamore Ltd. t/a The Barn Restaurant DEC-S2003-154.
5 DEC-S2003-109/110 Grainne Travers and Timothy Maunsell v The Ball Alley House
the Licensing Acts. In this case I found the respondent’s evidence of his intentions, at
the hearing and the history of his dealings with the fire authorities, convincing in this respect. The premises at the centre of this complaint, holds an unparalleled position in
recent history in terms of the tragedy that occurred there involving young people. I also note that the children in this case were ambulant, which was not the case of those in the other cases mentioned, where the infants were either in baby seats or in their mother’s arms. Because of this I have come to the conclusion that that the decision taken, not to allow children on the premises was a decision that was taken in good faith.
6.4 In the light of the previous cases mentioned and while there has been no written evidence of the requirement from the fire authorities regarding the presence of children, I am inclined to the view that the respondent was honest in his intention but may have been mistaken. While Section 15(2) exempts a mistake which has already occurred, it may not excuse a service provider from clarifying his legal obligations for the future when they are on notice that there is a question as to whether they are in fact complying correctly with the law. Therefore, I strongly recommend that the respondent contacts the fire authorities in order to clarify this specific issue. At this point I wish to echo the statement of the Equality Officer in DEC-S2003- 109/110 cited above, where he said “I note that new legislation is now in place (the Intoxicating Liquor Act 2003) which introduces a specific exception to the Equal Status Act 2000 whereby the exercise of a licensee’s discretion not to permit a person under 15 accompanied by parent or guardian to be in a bar at any time shall not of
itself constitute discrimination, and I hope that this new legislation will provide publicans with sufficient latitude to address the contentious issue of children in pubs.”
7. Decision
7.1 The incident under investigation here occurred prior to the enactment of the 2003 legislation and in such circumstances the provisions of the new legislation did not apply. However, I accept that in this case a decision was taken in “good faith” by the staff member regarding the matter for the purposes of protecting the pub license in the unique circumstances of this particular premises. I therefore, find for the respondent.
Mary O’Callaghan
Equality Officer
13th December 2004