Harassment
Cases
A v Y
DEC-S2009-058 – Full Case Report
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 11th July, 2006 under the Equal Status Acts, 2000 to 2004. On 11th April, 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 29th July, 2009. Final correspondence with the parties following the hearing took place on 4th August, 2009.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Mr. A, that he was discriminated against by the respondent, Mr. Y, Solicitor, on the grounds of his race in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 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 2008.
2. Summary of the Complainant’s Case
2.1 The complainant, Mr. A, was born in England and his mother was Irish and his father was a black African-American. He has resided in Ireland for the last number of years. The complainant had purchased window blinds from a company which subsequently transpired to be defective. He contacted the company which supplied the blinds on four separate occasions to complain about this matter and to seek a replacement of the blinds, however, the company ignored his requests and failed to deal with the matter to his satisfaction. The complainant decided that his only option to deal with this matter, in the circumstances, was to request a solicitor to write a letter to the company (which had supplied the blinds) requesting it either to replace the blinds, refund the money or to face litigation as he was of the opinion that the company was in breach of contract.
2.2 The complainant visited the respondent’s solicitor’s practice on 12th May, 2006 and requested him to write a letter in the aforementioned terms to the company on his behalf. The complainant claims that the respondent displayed hostility towards him from the moment he entered the room and he stated that the respondent was sniggering and making fun of him throughout the course of their meeting. The complainant claims that the respondent refused to write this letter and instead advised him to return to the company that had supplied the blinds in order to discuss the matter as he felt that the complainant had not exhausted all avenues in this regard. The complainant claims that the respondent also informed him that he was not prepared to write the letter in relation to this matter and he stated that the complainant should have returned to the solicitor who had acted on his behalf in relation to the conveyancing of his house. The complainant claims that the issue in relation to the conveyancing of his house was of no concern to the respondent and therefore, it should not have had any bearing or influence on his decision to refuse to write the letter.
2.3 The complainant stated that he did not contact the respondent in order to seek advice in relation to this matter but rather to request him to write a solicitor’s letter to the company (from which he had purchased the blinds) as it was obvious that all other avenues had already been exhausted given that he had been back to the company on four separate occasions. The complainant submitted that the respondent clearly did not want to represent him in relation to this matter and he claims that, by refusing to write this letter, the respondent denied him access to a professional service which he had a right to avail of. The complainant stated the reason that the respondent treated him in such a hostile manner and refused to write the letter which he sought was directly attributable to his race and he claims that this treatment amounted to racial discrimination within the meaning of the Equal Status Acts.
3. Summary of the Respondent’s Case
3.1 The respondent totally refutes the allegations that he discriminated against the complaint on the grounds of his race. The complainant visited the respondent’s solicitor’s practice on 12th May, 2006 and he informed the respondent that he had purchased blinds for his house and that these blinds had not been properly installed. The respondent advised the complainant that he should return to the company (where he had purchased the blinds) and explain clearly the nature of his difficulty with the blinds and request them on one final occasion to visit his home in order to rectify the matter. The complainant informed the respondent that he was not prepared to accept this advice and he requested the respondent to write a letter to the company threatening litigation if the matter was not resolved to his satisfaction. The respondent informed the complainant that he was not prepared to write this letter as he felt that the complainant had not exhausted all reasonable avenues to resolve the matter and he did not consider that it was necessary at that stage for a solicitor to be involved in the dispute.
3.2 The respondent submitted that, in his professional opinion, the complainant had a relatively straight forward consumer complaint and that it is not very cost effective for consumers to pursue such complaints by litigation. The respondent submitted that solicitors will often encourage people to deal with such matters themselves, directly with the supplier, after receiving details of their consumer rights. It was the respondent’s professional view that this would ultimately be the most effective and cost efficient means of disposing of the matter to the complainant’s satisfaction. The respondent stated that he gave this advice to the complainant and that he was not under any professional duty to act outside of his own advice. The respondent accepts that he made reference to the solicitor who had acted on behalf of the complainant in relation to the conveyancing of his house during the course of their meeting. However, the respondent submitted that such an enquiry is not unusual when a solicitor is faced with a new prospective client who is presenting with a small matter when that person would have carried out a much larger transaction with another firm of solicitors in the not too distant past. Indeed, it is often the case that a firm having carried out a transaction such as a house sale or purchase would be agreeable to carry out further small transactions for a client at a reduced cost or no cost whatsoever.
3.3 The respondent emphatically denies that he treated the complainant in a hostile or derogatory manner and he stated that the complainant was treated in the same courteous and professional manner in which all of his clients are treated. The respondent stated that he listened to the complainant’s issues as presented in detail and then provided professional legal advice to him which the complainant rejected as he was perfectly entitled to do so. The respondent submitted that he provided the complainant with his legal services in a non-discriminatory manner. The respondent also adduced evidence at the hearing from a number of witnesses (of non-national origin) who gave evidence that they had been provided with legal services by the respondent in the past. The respondent submitted that the evidence of these witnesses demonstrates that it does not discriminate against clients on the grounds of their race.
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 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 considering this issue, I am satisfied that the complainant is covered by the race ground within the meaning of section 3(2)(h) of the Equal Status Acts i.e. he was born in England and his father was a black African-American. I note that it was accepted by both parties that the complainant presented at the respondent’s office on 12th May, 2006 (without an appointment) and that he requested the respondent to write a solicitor’s letter to a company from which he had purchased blinds and which had subsequently transpired to be defective. It was also accepted by both parties that the respondent did not accede to the complainant’s request to write this letter but instead he advised the complainant to return to the company in order to discuss the issue with a view to resolving the matter.
4.3 The complainant claims that the respondent treated him in a hostile and derogatory manner during the course of this meeting and he contends that the reason the respondent refused to write the letter was directly attributable to his race. The respondent denies that the complainant was treated in a hostile or derogatory manner and it claims that he was afforded the same level of professional services as any other client would have been in similar circumstances irrespective of his racial origins. Therefore, the question that I must decide in the present case is whether the complainant was subjected to less favourable treatment on the grounds of his race in terms of the manner in which he was dealt with by the respondent when he visited its solicitor’s practice on 12th May, 2006 in order to avail of his professional legal services.
4.4 Having carefully considered the evidence of both parties, I have found the respondent’s evidence to be more compelling and I am satisfied that it represents a more accurate and credible account of the meeting that occurred between the parties on 12th May, 2006. In the circumstances, I am satisfied that the respondent afforded the complainant the opportunity on this occasion to fully disclose the details regarding the issues in question, and that having done so, he then provided the complainant with his considered professional advice regarding the manner in which he thought that the matter could be most effectively resolved. It is clear that the complainant did not agree with the nature of the response that he received from the respondent regarding this matter, and as a prospective client, I fully accept that he was entitled to either accept or refuse the advice proffered. However, notwithstanding this, I am satisfied that the complainant was, in fact, afforded access to the respondent’s professional services and also that the manner in which he was treated by the respondent on this occasion was in no way influenced by or attributable to his ethnic origins. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the respondent would have acted in a different or more favourable manner, in terms of the professional services that he provided or the manner in which these services were dispensed, if he had been dealing with a person of different ethnic origins to the complainant.
4.5 Having regard to the totality of the evidence adduced, I am satisfied that the complainant was not treated any less favourably than a person of a different race would have been treated, in similar circumstances, in terms of the manner in which he was dealt with by the respondent during the course of their meeting on 12th May, 2006. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground within the meaning 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 race ground in terms of Sections 3(1), 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
4th September, 2009
DEC-E2008-015 – Full Case Report
The Employment Equality Acts 1998 – 2007
Decision No:
DEC-E2008- 015
A Female Employee v A Recruitment Company
1. CLAIM
1.1 The case concerns a claim by a female employee that a recruitment company in Dublin, discriminated against her in terms of section 14(A)(1) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to her conditions of employment. She also claims that she was victimised within the meaning of section 74(2) of the Acts as she was dismissed following her complaint.
2. BACKGROUND
2.1 The complainant submits that she was discriminated against in that she was subjected to sexual harassment on a night out with work colleagues. She submits that when she complained of the sexual harassment, she was victimised by her employer as it dismissed her from her job. The respondent accepts that messages were sent from the complainant’s manager’s phone, however, the manager denies that he sent them.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 10 November 2005. A submission was received from the complainant on 10 November 2005. A submission was received from the respondent on 20 December 2005. On 16 March 2007, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A hearing of the claim was held on 28 November 2007. The complainant subsequently addressed the issue of victimisatory dismissal and a submission on the matter was received on 21 December 2007. The respondent provided a replying submission on 14 February 2008 and final submissions were received on 10 March 2008.
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
3.1 The complainant commenced employment with the respondent company on 2 August 2005. On the evening of Monday, 12 September 2005, the complainant together with a number of colleagues from the respondent company went for drinks after work. The group included the complainant’s manager, Mr. C. After a period, a number of people left the group. The persons who remained were the complainant, Mr. C, Mr. B and Mr. S. The group continued together until about 1am, at which point, Mr. C and Mr. B took their leave of the complainant and Mr. S. Mr. C and Mr. B at that point adjourned to another pub.
3.2 Following his departure, Mr. C sent a number of text messages to the complainant’s mobile phone including one of a sexual nature at 2.06am. Later when Mr. S took his leave of the complainant, she was invited to join Mr. B and Mr. C in the pub. The invitation was extended by text message to the complainant from the phone of Mr. C. The complainant duly joined Mr. B and Mr C in the pub. Also there at the time was a friend of Mr. B’s and the complainant began conversing with him.
3.3 Mr. C left the pub shortly after the complainant’s arrival there. Following his departure, a number of offensive text messages of a sexual nature were sent to the complainant’s mobile. The first message was received at 3.31am and the last was received at 4.10am. The complainant did not reply to the text messages. She had done nothing to encourage the messages and she was shocked and upset. She was extremenly concerned about going to work the next day and she showed the text messages to Mr. B and his friend.
3.4 The complainant did not sleep that night and was extremely upset. The next day, she decided not to go to work. She received a phone call from Ms. B, an employee of the respondent. She explained to the complainant that Mr. C had explained to her what had happened. She told her that Mr. C had gone to a party after he left the pub and had passed out. She says that the text messages had been sent by friends of his in jest whilst he was passed out.
3.5 Later that day, Mr. B sent a number of text messages to the complainant’s mobile telling her that the text messages sent to her the previous night had in fact been sent by a friend of Mr. C’s. Mr. B recommended that she should return to work and put the matter behind her. Mr B also suggested that he had sent a few text messages much earlier in the evening from Mr. C’s phone. Later in the day, the complainant received a text message from Ms. B advising the complainant that Mr. C had sent her an e-mail explaining exactly what had happened.
3.6 The complainant considered her options. The complainant was at a loss as to what to do as a complaint under the Grievance procedure would be to her immediate supervisor who was Mr. C. She considered that from the comments of Mr. B, it appeared that he was in some way attempting to corroborate Mr. C’s version of events. She felt that no realistic means of airing her grievance existed at work. The best solution offered to the complainant was to take a few days off and put the matter behind her.
3.7 The complainant received a further phone call from Ms. B on 15 September. In the course of the conversation, the complainant was advised that as far as Mr. C was concerned, he had done all that he could and that he needed to know whether the complainant intended to return to work. She submits that this was further evidence of the respondent’s failure and refusal to even contemplate investigating any complaint that the complainant might choose to make.
3.8 The complainant decided that for the time being she was unable to return to work. She was still deeply upset. She felt that her professional relationship with Mr. C had been substantially though not critically undermined and she felt deeply upset by the manner in which the matter had been dealt with by the respondent.
3.9 She contacted a solicitor and an initial letter of complaint dated 16 September 2005 was written by the complainant’s solicitor to the respondent company advising that it was the complainant’s intention to refer the matter to the Equality Tribunal. A reply was received on 21 September 2005. The letter suggests that a reference to the Equality Tribunal was inappropriate until the full internal complaints procedures and investigations had been exhausted.
3.10 In the letter dated 21 September 2005 from the respondent’s solicitors, it is suggested on behalf of the respondent that appropriate investigations into the complainant’s complaints would be instigated. It is not stipulated in the letter what the nature of the investigations might be. The complainant submits that what is purported in the complainant’s contract of employment to be a grievance policy is wholly inadequate and inappropriate.
3.11 The complainant through her solicitor wrote to the respondent’s solicitor by letter dated 6 October 2005. The complainant made certain proposals to the respondent in respect of the proper investigation of her complaint and in the hope and expectation that her proposals would be accepted by the respondent, indicated that she felt it possible that she might be able to return to work. The respondent through its solicitor wrote to the complainant by letter dated 12 October 2005 advising the complainant that her proposals in relation to an investigation had been rejected and that her employment had been terminated. Whilst that letter suggests that the complainant’s P45 had been sent to her, the complainant had not received it and only became aware of her dismissal after the letter dated 12 October 2005 was received by her solicitor.
3.12 The complainant also claims that her dismissal by the respondent was effected because she had given the company notice by letter dated 23 September 2005 of her intention to seek redress pursuant to the Equality legislation.
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
4.1 Mr. C admits that he left the pub shortly after the complainant arrived there. The respondent denies that Mr. C sent the complainant a number of text messages after his departure from the first pub.
4.2 Mr. C admits that messages were sent from his mobile phone to the complainant during the course of the evening, however he denies that he sent the messages. Mr. C alleges that a number of messages were sent by a work colleague of his during the earlier part of the evening. In respect of the later messages, he says that he went to a party at a friend’s house and at the party, he explained to a number of people that his phone had been used by a work colleague earlier in the evening to send text messages to the complainant and shortly afterwards when he fell asleep at the said party, a friend took his phone from his possession and sent further messages to the complainant.
4.3 Mr. C submits that on 13 September 2005, he sent the complainant an e-mail which detailed the circumstances surrounding the sending of the text messages. Following the sending of the e-mail, a response was received from a firm of solicitors acting on behalf of the complainant. The respondent responded on 21 September 2005 stating that no formal complaint had been made to the respondent and that it was inappropriate to refer the matter to the Equality Tribunal until an internal complaint had been made and the procedure within the company concluded. That letter also sought a return to work date from the complainant and suggested that she should return the following Monday. A response was received to that letter on 6 October 2005 wherein certain demands were made on the complainant’s behalf. As a consequence of the failure of the complainant to indicate that she would return to work on the agreed date, the respondent terminated her employment and posted her P45 to her.
4.4 The respondent submits that the complainant is someone who has engaged in explicit sexual banter with other employees in the respondent company and has had a casual sexual relationship with at least one employee during her time in the respondent’s company. As such the complainant’s reaction to the texts is inconsistent with her character and demeanour.
4.5 The respondent submits that the complainant has failed to mitigate her loss in respect of the within complaint. The respondent contends that the complainant refused to return to work and refused to enable the internal complaints procedure or an investigation to be carried out within the respondent company. The complainant was specifically requested on 21 September to return to work to enable the complaints procedure or an investigation to be carried out and this did not occur.
4.6 The respondent denies that the complainant was dismissed following receipt by the respondent of a letter dated 23 September 2005 which stated that she would seek redress under the Employment Equality legislation. The respondent submits that it has always maintained that the complainant was dismissed following her refusal to return to work and it was the respondent’s entitlement to dismiss the complainant on these grounds.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The claimant in this case alleges that the respondent discriminated against her in relation to her conditions of employment when she was sexually harassed by her manager on a night out from work on 12/13 September 2005. She claims that she was sent a number of explicit and suggestive text messages by her manager. Her manager accepts that messages were sent from his mobile phone but denies that he sent them. The complainant also claims that she was dismissed following her complaint to the respondent. I must firstly consider (i) whether the complainant has established on the balance of probability that she was sexually harassed. If I find that the complainant has established that she was sexually harassed, I must then consider (ii) whether the complainant’s employer is vicariously liable for the harassment. If I find that the complainant’s employer is vicariously liable, I must consider as a defence (iii) whether the respondent took reasonable action to prevent sexual harassment occurring in the workplace. I will consider whether the respondent dealt adequately with the complainant’s complaint of sexual harassment and I will also consider the complainant’s claim of victimisatory dismissal. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the complainant and respondent. Whilst the complainant was subjected to rigorous cross examination during the hearing, Mr. C, the complainant’s manager chose not to give evidence in relation to the events and I have not therefore, had the opportunity to hear any oral evidence from him and he was not cross examined.
5.2 The complainant alleges that the respondent discriminated against her in relation to her conditions of employment when she was sexually harassed by her manager on a night out from work on 12/13 September 2005. Section 14A(1) of the Employment Equality Acts 1998 and 2004 provides that where a male harasses a female colleague or vice versa, the sexual harassment constitutes discrimination by the employer on the gender ground in relation to the victim’s conditions of employment.
5.3 The respondent denies in its written submission that the complainant was sexually harassed by her manager, Mr. C and he denies that he personally sent text messages to the complainant. I note that particular statement is contradictory to the contents of an e-mail sent by Mr. C to the complainant on 13 September 2005 stating “Firstly, purely for fun [Mr. B] and myself sent you a few texts for fun as I was made aware that [J] and yourself have had a snog or two last Friday, harmless fun and quite frankly none of my business.” Although the respondent denies that Mr. C sent the texts to the complainant, it accepts that messages were sent by a work colleague from Mr. C’s phone during the earlier part of the evening. Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature at the workplace or in the course of an employee’s employment being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment constitutes sexual harassment of the complainant – 14A(7)(a). Section 14A(7)(b) provides that such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. I have considered the contents of the e-mail from the complainant’s manager dated 13 September 2005 and I have heard the complainant’s direct evidence in the matter and on the balance of probability, I find that the complainant was sexually harassed by the text messages sent to her from Mr. C’s phone.
5.4 In the Labour Court Determination in the case of A Company -v- A Worker [1], the company while refuting allegations of sexual harassment relied on a number of counter allegations put together by employees who had been accused by the claimant, alleging that she was a willing participant in sexual banter and conversation in the workplace. In that case, whilst the Labour Court accepted that there was some element of the complainant being a willing participant in sexual banter, it found that the treatment the claimant received and the atmosphere that was directed towards her to be totally unacceptable. The Labour Court went on to find in favour of the claimant that she was sexually harassed and discriminated against on the gender ground. In the light of that case, the question whether thecomplainant in the instant case engaged in sexual banter is irrelevant in deciding whether she was sexually harassed. However, I consider that the Labour Court case should not be interpreted as a finding that sexual banter is permissible in any workplace and I consider that in certain circumstances, it could in itself constitute sexual harassment within the meaning of section 14A of the Employment Equality Acts 1998 and 2007.
Vicarious liability
5.5 Section 15(1) of the Employment Equality Acts 1998 and 2004 provides:
‘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.’
I refer to section 56(4) of the Employment Equality Acts 1998 and 2007 which provides that an approved code of practice shall be admissible in evidence and if any provision of the code appears to be relevant to any question arising in any criminal or other proceedings including proceedings before the Director, it shall be taken into account in determining that question. The Employment Equality Act 1998 (Code of Practice)(Harassment) Order 2002 S.I. No. 78 of 2002 refers to non workplace sexual harassment and harassment. It states that the scope of the sexual harassment and harassment provisions extend beyond the workplace for example to conferences and training that occur outside the workplace. It further states that it may also extend to work-related social events. In this regard, I refer to a decision by one of my colleagues that harassment which occurred at a Christmas party was discrimination by the employer in that case.[2] In the present case, the manager, the complainant and other employees from the respondent company were on a social night out after work. Indeed the complainant would not have been present had she not been employed in the respondent body. I therefore find that the actions of Mr. C and Mr. B, the complainant’s manager and work colleague were carried out in the course of their employment and notwithstanding that the actions may have been carried out without the employer’s knowledge or approval, the respondent is vicariously liable for the actions of Mr. C and Mr. B.
Section 15(3) Defence
5.6 Sections 15(3) of the Employment Equality Acts 1998 and 2004 provides that:
‘In proceedings bought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee –
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.’
The respondent submitted at the hearing that at the time of the harassment whilst there was a reference to sexual harassment as part of employees’ contracts, the respondent did not have a policy on the prevention of sexual harassment in place. I note that there is a reference in the complainant’s contract to sexual harassment and racial discrimination in the context of constituting acts of gross misconduct warranting summary dismissal. In the instant case, no evidence has been presented to indicate that the employer had taken any steps that were reasonably practicable to prevent sexual harassment occurring in the workplace and it cannot therefore avail of the section 15(3) defence.
Actions taken by the respondent
5.7 The complainant through her legal representatives by letter dated 16 September 2005 wrote to the respondent stating “We are informed by our client that she has been subjected to harassment of a sexual nature by you in the form of e-mails to her mobile telephone.” That letter goes on to refer to the complainant’s entitlement to initiate a claim before the Equality Tribunal in respect of the sexual harassment perpetrated on her. In its response dated 21 September 2005, the respondent did not refer the complainant to any policy detailing how her complaint might be progressed and it stated “Firstly, we must point out that no formal complaint has been made to our clients. We would submit that it is not appropriate for you to refer this matter to the equality tribunal until the full internal complaints procedures and investigations have been exhausted.” It appeared that the respondent was not treating the letter of 16 September 2005 as a letter of formal complaint, however, it did not advise the complainant of the manner in which a formal complaint could be made from its perspective. The letter proceeded to call upon the complainant to return to work on 26 September stating that would enable the respondent to make the appropriate investigations.
5.8 It appears to me that the respondent was unclear on how to handle the complaint of sexual harassment. This was exacerbated by the respondent’s failure to have policies and procedures in place to deal with complaints made either formally or informally. The failure to have such policies in place may also have had implications for the complainant in the situation that she found herself in that she could have been unsure where to direct her complaint, what she could expect to happen arising from a verbal complaint, what would happen on foot of a written complaint, whether the matter would remain confidential, what the procedure was for carrying out an investigation and what she could expect when the investigation was completed in circumstances where her complaint was upheld/not upheld. Indeed, the complainant stated that whilst her contract referred to a grievance procedure, it provided that employees shall have the right to a hearing by their immediate superiors which in the complainant’s case was Mr. C and she was therefore at a loss as to what to do.
5.9 As referred to at paragraph 5.7 above, in the letter of 21 September 2005, the respondent called upon the complainant to return to work on the following week to enable the respondent to make the appropriate investigations. Again, there is no clarification of how any investigation would proceed and it appears that any investigation was contingent on the complainant returning to work. The complainant responded through her advisors by letter dated 23 September 2005 stating that it took issue with the seriousness with which the respondent was dealing with the matter, in particular, in the light of the respondent’s statement that no formal complaint had been made. The complainant proceeded to refer to the letter of 16 September 2005 as a formal complaint. Her letter then proceeded to refer to the respondent’s allegations in relation to the complainant having a sexual relationship with other employees and stated that in that context, it was unrealistic that the complainant should be expected to return to work. The complainant’s representative again wrote to the respondent by letter dated 6 October 2005 stating that it was their opinion that any fair and proper investigation of the complainant’s grievance and complaints against Mr. C and the company was unlikely if the investigation was to be conducted by the company itself. She further stated that she believed that a proper investigation if one were conducted might make it possible for her to resume her job. She requested that her allegations of sexual harassment “now be fully and properly investigated.” and she proceeded to request that the investigation be conducted by an independent third party. The respondent responded by letter dated 12 October 2005 stating that it did not consent to the proposals set out in the complainant’s earlier letter. The letter states that it is noted that the complainant has not returned to work to enable the internal complaints procedure to be carried out and accordingly, the complainant’s employment is terminated. It appears that any investigation of the complainant’s complaint, although the precise nature of such an investigation was not specified, was entirely contingent on the complainant’s return to work. In its first written submission, the respondent states that the complainant’s employment was terminated as a consequence of her failure to indicate that she would return to work on the “agreed date”. The correspondence submitted does not indicate that any date of return to work was agreed.
Victimisation
5.10 Section 74(2) of the Employment Equality Acts 1998 and 2004 provides, inter alia, that victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer.
(b) any proceedings by a complainant;
(f) an employee having opposed by lawful means an act which is unlawful under this Act ……… or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
Sexual harassment is expressly prohibited by section 14A of the Employment Equality Acts 1998 and 2004. The complainant made a complaint of sexual harassment to the respondent by letter dated 16 September 2005. That letter also referred to the complainant’s entitlement to initiate a claim before the Equality Tribunal.
5.11 It is clear that at that stage, the respondent did not treat the complainant as having made a complaint as it submitted in its letter dated 21 September 2005 that “no formal complaint has been made to our clients.” and it proceeded to make an investigation conditional on the complainant’s return to work. The complainant by letter dated 23 September 2005 disputed that no formal complaint had been made by her and stated that as it appeared “that the company never had any intention of investigating the matter and as such the Equality Agency [sic] is the appropriate forum to ensure our client gets a fair hearing in respect of the complaints set out in our letter.” It appears that the complainant did not receive a response and it subsequently wrote to the respondent again on 6 October 2005 requesting that the complainant’s complaint of sexual harassment be fully and properly investigated. The respondent’s response on 12 October 2005 indicated that the complainant had in fact been dismissed on 27 September 2005.
5.12 As stated at paragraph 5.7 above, in its first written submission, the respondent states that the complainant’s employment was terminated as a consequence of her failure to indicate that she would return to work on the agreed date. However, it is the case that on the date of her dismissal, the complainant had at that stage been absent for two weeks (since 13 September 2005) and indeed in the e-mail from Mr. C on that date, she was invited back to work that following Friday or Monday. The complainant also had a call from Ms. B on 15 September enquiring whether she would be returning to work on the Friday. It is the case therefore that there were calls for her to return to work from very early in the absence. However, it was only after the complainant’s correspondence of 23 September 2005 wherein she insisted that she had made a formal complaint on 16 September and also indicated that the Tribunal appeared to be the appropriate forum to ensure that she got a fair hearing in respect of the complaints set out in her letter that she was dismissed. Whilst the respondent in its submission received on 14 February 2008 submits that the date of the complainant’s dismissal is entirely coincidental to the letter dated 23 September 2005, on the balance of probability, I find that the complainant has established a prima facie case of victimisatory dismissal which the respondent has failed to rebut.
5.13 In considering redress for victimisation, I have considered that victimisatory dismissal is totally unacceptable as it has the potential to undermine the effectiveness of the equality legislation. In relation to the issue of compensation, I have had regard to the Judgment of the European Court of Justice in Von Colson & anor v. Land Nordrhein-Westfalen[3] wherein it was stated that for the purpose of imposing a sanction for a breach of the prohibition of discrimination:
…….. in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation……..
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant in terms of section 14A of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts in relation to her conditions of employment. I also find that the complainant was victimised within the meaning of section 74(2) of the Acts when she was dismissed.
6.2 In accordance with section 82(1) and (5) of the Employment Equality Acts 1998 – 2007, I hereby order that:
1. the respondent pay the complainant the sum of €10,000.00 compensation for the effects of the discrimination;
2. the respondent pay the complainant the sum of €15,000.00 compensation for the effects of the victimisation;
3. the respondent pay the complainant interest at the Courts Act rate on the amount awarded for compensation in relation to discrimination on the gender ground in respect of the period beginning on 10 November 2005 (being the date of the reference of the claim) and ending on the date of payment;
4. the respondent draft a policy on the prevention of harassment and sexual harassment in the workplace in accordance with the Equality Authority Code of Practice on Sexual Harassment and Harassment at Work (The Code was given legal effect by Statutory Instrument entitled ‘Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2002’ (S.I. No. 78 of 2002)), take appropriate measures to communicate the policy to all its employees and display it permanently in a prominent position in the respondent’s premises.
_______________________
Mary Rogerson
Equality Officer
11 April 2008
[1]AEE/00/1 Determination No: 018 13 November 2001
[2]Maguire v. North Eastern health Board DEC-E2002-039
[3]Case 14/83 ECR 1984 page 01891
DEC-E2009-013 – Full Case Report
Boyle v Ely Property Group Ltd
File No: EE/2006/115
Date of issue 11 March, 2009
Headnotes
Employment Equality Acts, 1998- 2007 sections 6, 8, 14A and 77 – discriminatory treatment – harassment – discriminatory dismissal – gender – burden of proof .
1. DISPUTE
This dispute involves a claim by Ms Zena Boyle that that she was (i) discriminated against by Ely Property Group (the respondent) in respect of her conditions of employment contrary to section 8 of the Employment Equality Acts, 1998 – 2007, (ii) harassed by the respondent contrary to section 14A of the Acts and (iii) dismissed in circumstances amounting to discrimination in terms of section 77 of the Acts. The complaint was referred on grounds of gender in terms of section 6(2) of the Acts. The complainant also referred a complaint of sexual harassment but this was withdrawn at the Hearing.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Housing Manager in August, 2005. She contends that soon after she commenced employment she was harassed by the respondent when she did not follow instructions to act in what she considered to be a reckless, aggressive and in some situations unlawful manner in discharging her duties. She contends that in early November, 2005 she was dismissed in a manner that constitutes discrimination of her contrary to the Acts. The respondent rejects the complainant’s allegations and states that there were issues around her performance and conduct which resulted in the termination of her employment.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 13 April, 2006. In accordance with her powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 15 September, 2008, the date the complaint was delegated to me. The complainant filed a submission but despite a number of requests the respondent failed to file a detailed response. Nonetheless a Hearing of the complaint took place on 16 December, 2008.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as a Housing Manager on 20 August, 2005. She states that she was never given a written contract of employment or a letter of appointment but it was her clear understanding that the position was a permanent full-time post with a three month probationary period. Her job was to manage newly built student accommodation in Donegal on behalf of the respondent. The complainant states that she had been informed by Mr. Reid (the person who interviewed her and her immediate Line Manager) that she would have an apartment and office on site but when she reported for duty she found that the office was not ready and she had no telephone. In addition, her accommodation was not ready either and the complainant states that she spent the first six weeks of her employment at her home and travelled to work each day. She adds that she only took up residence in the on-site apartment about four weeks before her employment was terminated. The complainant states that on her appointment she immediately raised the issue of the phone and office with Mr. Reid and he informed her to buy desk furniture locally and bill the company direct – which she did – and she worked from the show apartment in the complex for a while. She adds that she used her own mobile for a number of weeks and recouped the cost from the respondent. However, this became problematic for her and she raised the matter with another Director (Mr. Marley). She states that he instructed her to purchase a mobile phone locally and recoup the cost in the usual fashion – which she did and that the cost of the phone (€70) was refunded to her within a few days. The complainant accepts that she signed an Agreement and Direct Debit Mandate with the relevant phone network service provider to cover the cost of the calls and rental. She states that this was done with the full knowledge of the respondent as she was given the appropriate account details by Ms. A – an employee in the Dublin Office – since she did not know those details herself.
3.2 The complainant contends that the harassment of her commenced from the first week of her employment. The complainant states that the student accommodation was brand new and there were a significant numbers of snags with them, which were brought to her attention by the students. In addition, the area was effectively a building site which presented significant hazards to residents and visitors – she adds that one of the tenant’s parents fell into a hole on the site early in her employment. The complainant states that the students took up residence in the apartments from the beginning of September, 2005 and that these issues presented themselves from that time. She adds that she informed Mr. Reid of these problems from the outset but he was not interested in them and his initial reaction of annoyance with the complainant increased into the use of foul and abusive language to her and screaming down the phone at her. The complainant alleges that she spoke with him on average about 3-4 times per week and his attitude was the same. She states that on one occasion he instructed her to put the students’ belongings into plastic bags, throw them outside the apartment and change the locks. She adds that he also instructed her to get the students “by the scruff of the neck” and throw them out on the road and on another occasion he told her “she was f****** useless, she couldn’t control that students, what they needed was a man to sort them out and he would come down from Dublin and punch them in the face”. The complainant adds that she was continuously subjected to this type of comment from Mr. Reid and she found it offensive and upsetting and it created an environment where she felt humiliated and intimidated. She further states that in her opinion what Mr. Reid was looking for was a tough male who was prepared to use some sort of physical behaviour to deal with the students.
3.3 The complainant states that despite Mr. Reid’s treatment of her she attempted to deal with the students’ concerns and liaise with the builder to rectify the problems raised. In addition, she took steps to deal with those tenants who were engaging in anti-social behaviour. The complainant states that she was never told of the existence of any grievance procedure – despite asking Mr. Reid – and she did not take her concerns to someone else in the respondent organisation because she did not have any faith in a positive outcome. The complainant states that 4-5 weeks before her employment ceased with the respondent graffiti appeared on a wall within the student complex which was focussed on her and which contained foul language. She further states that she reported this to Mr. Reid and he subsequently attended a meeting with some of the students and their parents. The complainant states that the meeting was of little value as Mr. Reid did not indicate to those in attendance that this type of behaviour was unacceptable and he merely told the complainant that if she could identify the culprits she should evict them.
3.4 The complainant states that in late September, 2005 she was instructed by Mr. Reid to organise the recruitment of a live-in caretaker for the complex and in accordance with this instruction she contacted a local employment agency and interviews were arranged for 19 October. The complainant states that she collected Mr. Reid from Derry Airport on that day and brought him to the location of the interviews. She states that she had expected to participate in the interviews as Housing Manager but she was not asked to do so. She alleges that contrary to what the respondent had indicated the interviews were in fact for candidates as her replacement. The complainant states that on the morning of 4 November, 2005 Mr. X arrived at her office and informed her he was the new caretaker. She adds that a few moments after his arrival she received a phone call from Mr. Reid informing her that she was dismissed and to be off the premises by noon that day. The complainant adds Mr. X subsequently informed her that he had been recruited to replace her, that Mr. Reid had instructed him to fire her on his arrival and that he was to ensure she was off the premises immediately. The complainant also states Mr. X told her that Mr. Reid has used foul and derogatory language to describe her to him. The complainant states Mr. X told her that during the course of his interview he informed Mr. Reid he had been in trouble with the police and when he indicated that he had a previous conviction from grievous bodily harm, Mr. Reid advised him that was not a problem as the respondent was looking for someone who could handle himself. The complainant rejects the respondent’s assertion that there were issues with her performance which might warrant her dismissal. She submits therefore that the respondent dismissed her because it wanted a male to perform the role of Housing Manager and contends that her dismissal constitutes discrimination of her on grounds of gender contrary to the Acts. No grievance or disciplinary procedure existed and she was never formally informed that there was any issue with her performance during her employment with the respondent.
3.5 In summary, the complainant submits that the alleged behaviour of Mr. Reid created an offensive, intimidating and hostile working environment for her. His alleged use of foul and abusive language, both to and about the complaint, some of which could only be described as derogatory to women, clearly demonstrates a predisposition which is discriminatory to females. She further submits that his comments about the need for physical aggression in discharging the duties of Housing Manager and his alleged comments to Mr. X about requiring someone who can handle himself further supports her assertion on this point. She contends that the alleged verbal abuse of her by Mr. Reid constitutes harassment of her contrary to the Acts and she relies on the Equality Officer Decisions in A Complainant v a Company[1], A Complainant v a Financial Institute[2] and 2 Customers v A Retail Outlet[3] in support of this assertion. The complainant further submits that the graffiti incident constitutes another incident of harassment which, on the face of it, appears to have been perpetrated by the students but that section 14A(1) of the Acts make the respondent vicariously liable for their actions. She further submits that the absence of any policy on harassment and the total abdication of responsibility for pursuing her complaint when she made it to Mr. Reid, do not enable the respondent avail of the defence at section 14A(2) of the Acts. Finally, the complainant contends that the respondent’s letter of 27 July, 2005 (to the Equality Authority) contains blatant untruths, as was demonstrated by Mr. X in the course of his evidence at the Hearing and submits that this, plus the respondents’ failure to respond her EE2 Right to Information Form must call the credibility of the respondent into question.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertion that it discriminated against her in any way whatsoever. It states that the main actor in these proceedings, Mr. Reid, no longer works for the respondent and it has therefore been unable to obtain material from him to address many of the issues raised by the complainant. It accepts that Mr. Reid interviewed the complainant for the post but cannot comment on the nature of any agreement which he may have entered into with her. The respondent cannot dispute the complainant’s assertion that she did not receive a written contract of employment or letter of appointment. It did however, accept that it was common practice for an offer of employment to be made to the suitable candidate and for salary details to be finalised later.
4.2 The respondent (through Ms. Ind, Director) states that she worked along side Mr. Reid in an open plan office and she never heard him use the type of language attributed to him by the complainant. The respondent therefore rejects the complainant’s assertions on this issue. It states that it was policy for staff to use their own mobile phones for official use and to recoup the costs in arrears. The respondent (Ms. Ind) states that the complainant purchased a mobile phone locally and entered into a Direct Debit Mandate with the phone network service provider without authorisation. This arrangement came to light when the bank statements were checked by the Financial Director (Mr. Lyons) who raised the matter with the complainant. The respondent is unable to confirm when this occurred because Mr. Lyon’s has also left the company. The respondent accepts however, that the complainant was refunded the €70 which she originally paid for the mobile phone. Ms. Ind states that there was no written policy governing the use of one’s personal phone for official purposes. She also states that, to her knowledge, there was no formal grievance, disciplinary or harassment policies in operation at the relevant time.
4.3 The respondent states that Mr. Reid had problems with the complainant’s performance and conduct which resulted in the decision to terminate her employment with it. Ms. Ind is unable to furnish any documentary evidence to demonstrate that Mr. Reid has these issues with the complainant or that he ever raised them with her. The respondent states that Mr. Reid attended a meeting with students and parents in Donegal following the spraying of graffiti on a wall in the complex. However, Ms. Ind is unable to confirm what action Mr. Reid took on the matter and confirmed that to the best of her knowledge, neither he nor Mr. Marley or Mr. Lyons ever completed any training on grievance procedures or harassment, particularly those covered by any of the nine discriminatory grounds. She states that the decision to dismiss the complainant was, as far as she knew, taken by Mr. Reid and Mr. Marley following the performance problems and her misconduct and was not related to her gender.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant in respect of her conditions of employment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, (ii) harassed the complainant on grounds of gender, in terms of section 6(2) and contrary to section 14A of the Acts and (iii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender in terms of section 6(2) and contrary to section 77 of the Acts.
5.2 Section 85A of the Employment Equality Acts 1998 and 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.
5.3 I shall look at the discriminatory treatment element of the complainant’s allegations first. She asserts that she was treated less favourably because she was female and that a man would not have been treated the same in similar circumstances. Section 6(1) of the Employment Equality Acts, 1998-2007 defines discrimination as circumstances where “a person is treated less favourably than another person is, has or would be treated in a comparable situation on any of the grounds… (the discriminatory grounds) …”. The complainant asserts that from early in her employment Mr. Reid held the view that what was required to discharge the duties attached to the post was a man who could deal with the troublesome students and could in short, handle himself if necessary. She adds that he encouraged her to use threatening behaviour towards the students and when she failed to do so he began to use foul and abusive language toward her and told her he would come up himself and punch them in the face. The person who was recruited to replace the complainant (Mr. X) attended the Hearing and gave evidence as regards his interaction with Mr. Reid. He stated that in the course of his interview for the position, which was conducted by Mr. Reid, he was asked if he was ever involved with the police and when he replied he had previous convictions for assault and had been a boxer, that Mr. Reid displayed a keen interest in the issue and the witness felt that what Mr. Reid was looking for was an individual who was not afraid to get physical if necessary. The witness added that Mr. Reid described the complainant using foul and abusive language and such was the effect of this that the witness was of the view that the complainant was “useless at her job”. The witness also stated that Mr. Reid told him his first task was to sack the complainant and see her off the premises. The witness stated that when he arrived on the day he was due to commence work he found the complainant to be an organised and competent person and he did not do as instructed. He added that he felt he had been used by the respondent and decided not to take the position. When he communicated this to Mr. Reid by telephone he (Reid) used foul language at the witness and continued to phone him for a couple of days pestering him. I found Mr. x to be a very credible and forthright witness and having examined all of the evidence on this point, I am satisfied Mr. Reid held the view that the complainant, as a woman, was not capable of using physical force to deal with troublesome students at the complex – an approach I am satisfied he advocated – and that what he felt was required was a man who possessed the necessary physical attributes and was willing to use them for that purpose. It follows that the respondent treated the complainant in a manner which it would not have treated a man in the same circumstances, that she has therefore established a prima facie case of discrimination on grounds of gender contrary to the Acts and that the burden of proof shifts to the respondent to rebut that inference. I find that the respondent has failed to discharge this burden and indeed it is noteworthy that in the course of the Hearing a Director of the respondent made the comment that it required a “strong person to manage students” which in my view clearly supports the disposition held and expressed by Mr. Reid about the complainant.
5.4 I shall now turn to the second element of Ms. Boyle’s complaint – that she was harassed on grounds of gender. Section 14A(7) of the Acts defines harassment as follows:
“(a) In this section
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds….
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 complainant’s claim of harassment focuses on two separate elements – the continuous alleged treatment of her by Mr. Reid and an incident where graffiti was sprayed on a wall at the student accommodation which referred to her in derogatory terms. On the basis of the evidence presented to me I am satisfied that Mr. Reid used foul and abusive language both directly to the complainant and about her to Mr. X. The nature and content of this foul language was related to me at the Hearing (by both the complainant and Mr. X independently of each other) and I am satisfied that it is offensive, humiliating, intimidating and degrading to the complainant on the basis of her gender. It is common case as to the nature and content of the graffiti which was sprayed on the wall of the student accommodation. I am satisfied, on balance, that this graffiti was carried out by some of the resident students. Details of this graffiti was furnished to me in the course of my investigation and I am satisfied that it was offensive, humiliating and degrading to the complainant on the basis of her gender. Section 14(1) of the Acts makes the respondent vicariously liable for the actions of a client, customer or other business contact of the respondent. The students clearly fall into this category. I therefore find that the complainant has established a prima facie case of harassment on grounds of gender contrary to the Acts.
5.5 Section 14A(2) of the Employment Equality Acts, 1998-2007 provides the respondent with a defence as regards gender harassment as follows:
“If harassment … of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) in a case where subsection (1)(a) applies ….to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim,
It is well established caselaw of this Tribunal and the Labour Court that in order to avail of this defence the respondent must have a policy on harassment which, in particular, gives a clear message that such behaviour will not be permitted and provides an accessible process for an employee to submit a complaint to an employer where s/he considers they have suffered harassment. The respondent stated at the Hearing that it had no such policy in operation at the relevant time. Consequently, there was no mechanism for the complainant to register her complaint against Mr. Reid, who was her Line Manager and who held a senior position in the respondent company. It was he who travelled to Donegal to deal with the graffiti incident. The respondent was unable to demonstrate with any real clarity what action he took on this matter and I therefore prefer the complainant’s evidence that he was by and large, dismissive of her situation. In light of the foregoing I find that the respondent cannot avail of the defence available at section 14A(2) of the Acts.
5.6 I shallnow examine the final element of the complaint – Ms. Boyle’s assertion that she was dismissed in circumstances amounting to discrimination contrary to the Acts. The respondent asserts that it dismissed the complainant as a result of a number of issues relating to performance and misconduct, the latter primarily connected with the purchase and billing arrangements for a mobile phone which the complainant organised. In the course of the Hearing Ms. Ind (Director) was unable to shed any light on the performance related issues surrounding the dismissal other than to say that the decision was taken by Mr. Marley and Mr. Reid, although she did recall them mentioning to her that the complainant had been dismissed. No documentary evidence was submitted by the respondent to indicate that the complainant had been warned as to her performance and indeed I note Ms. Ind confirmed that there was no formal disciplinary process in operation at the time. The respondent submits that complainant was involved in a serious incident of misconduct when she entered into a contract with a mobile phone service provider for a bill pay mobile phone. I do not accept this explanation as credible. Firstly, the complainant obtained prior approval (from Mr. Marley) to purchase the phone – this is evidenced by the fact that she was reimbursed the cost of the phone within days of purchasing it – a fact accepted by the respondent at the Hearing. Secondly, the respondent’s bank account details were required to activate the direct debit mandate. The complainant states that she obtained these details from Ms. A, an employee in the Head Office in Dublin and I accept her evidence on this matter, particularly as Ms. Ind was unable to indicate how and why the complainant would have had prior knowledge of these details in her capacity as Housing Manager. In those circumstances, I am of the view that the complainant was entitled to assume she was acting with the approval of the respondent. Thirdly, there are inconsistencies in the respondent’s version of events. In a letter on its behalf from a firm of solicitors to the Equality Authority dated 27 July, 2006 it states “shortly after commencing employment” the complainant entered into a formal contract on its behalf with a mobile phone service provider. In the same letter it states that this “transpired around early October” and in a letter to this Tribunal dated 13 March, 2008 it stated “that it was in November, 2006 we discovered her mobile phone payment on our bank statements”. This latter date was confirmed by Ms. Ind at the Hearing. These inconsistencies seriously undermine the respondent’s ability to satisfy me that the complainant’s dismissal was for the reasons stated by it.
5.7 I am further influenced in this regard by the comment in the respondent’s letter of 27 July, 2006 (mentioned above) as follows – “Having appointed Mr. X … to take over from the complainant … he disappeared and is believed to have returned to England. Mr. X indicated in a brief telephone conversation with our client that he had been approached by a number of workmen … and told he should leave the area immediately if he wanted to remain healthy and Mr. X believed these threats were made at the behest of Ms. Boyle.”. Mr. X stated quite emphatically at the Hearing that this version of events is an absolute fabrication on the respondent’s part. No such approach was made to him – indeed he still resided in Donegal at the time of the Hearing and he had no contact with the respondent after he declined the position, other that what he described as nuisance phone calls from Mr. Reid for a number of days afterwards. Finally, it is clear that Mr. Reid had decided to terminate the complainant’s contract in late September, 2004 when he asked her to organise interviews for her replacement, although this was unknown to her at the time. I am satisfied that this decision was premised on his belief that as a female the complainant was unable to deal with troublesome students in the same manner a man could. In addition, such a decision predates any alleged performance related issues advanced by the respondent but coincided with Mr. Reid’s discriminatory harassment of the complainant. I find therefore that the termination of the complainant’s employment was connected with her gender and this constitutes unlawful discrimination of her in terms of the Employment Equality Acts, 1998-2007.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008.
I find that the respondent –
(i) discriminated against the complainant in respect of her conditions of employment on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts,
(ii) harassed the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 14A of the Acts and
(iii) dismissed the complainant in circumstances amounting to discrimination on grounds of gender in terms of section 6(2) and contrary to section 77 of the Acts.
6.2 In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I hereby order the following:
(i) that the respondent pay the complainant the sum of €30,000 by way of compensation for the distress suffered by her as a consequence of the discrimination. This amount includes an element of €10,000 in respect of loss of earnings and this amount is therefore subject to the revenue code;
(ii) that the respondent introduce, within three months of the date of this Decision, a Code of Practice on Harassment covering all nine grounds provided in the Acts along the lines set out in SI 78 of 2002 – Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2002 and to bring the Code to the attention of all staff immediately;
(iii) that the respondent arrange training on the operation of the Code of Practice for all employees with staff management functions in the organisation as soon as possible and ensure that this training is updated as necessary.
(iv) that the respondent issue the complainant with her P45 in respect of her period of employment with it without further delay.
_______________________________
Vivian Jackson
Equality Officer
11 March, 2009
[1] DEC-E2002/014
[2] DEC-E2003/053
[3] DEC-S2002/008
NO: DEC-S2009-062
Dalton v Aspire
File No. ES/2007/0106
Date of Issue: 9 September 2009
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1) – Disability ground, section 3(2)(g) – Victimisation ground, section 3(2)(j) – Disposal of goods and provision of services, section 5(1) – Reasonable accommodation, section 4(1) -Harassment, section 11(1)
1. Delegation under the Equal Status Acts
Ms. Gaye Dalton referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 20 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 2 July 2009.
2. Dispute
The dispute concerns a complaint by Ms. Dalton (“the complainant”) that she was treated less favourably contrary to section 3(1) and 4(1) and harassed within the meaning of section 11(1) in relation to the provision of goods and services on the ground of her disability on and around 20 June 2007 by Aspire (“the respondent”). She claims that this less favourable treatment is on-going. She further submitted that she has been victimised within the meaning of section 3(2)(j) by the respondent. The complainant submitted that the respondent organisation did not and still fails to treat and recognise the complainant as an autonomous, independent and equal person. The complainant’s complaint refers mainly to her interaction with the respondent’s website. The respondent was notified on 16 July 2007.
3. Case for the complainant
3.1. The complainant is a person diagnosed with Asperger syndrome. The complainant submitted that she logged on to the respondent’s website on 20 July 2007 and on a number of dates after that (around a week or so) and discovered the following:
1. That the respondent declared itself to be a support organisation for people with Asperger syndrome and their carers and states that it encourages research into Asperger syndrome. Yet, in the complainant’s view, the entire website consistently fails to recognise, acknowledge, allow or provide for autonomous and independent persons living with Asperger syndrome. This, in the complainant’s view, constitutes discrimination and failure to provide reasonable accommodation for people living with Asperger syndrome.
2. That the website contains un-sourced statements that, in her view, present Asperger syndrome in an inaccurate, unbalanced and unduly negative way. For example, the complainant submitted that the website contains direct quotes taken from case histories written by the partners of people with Asperger syndrome. The complainant submitted that in her reading of some of these opinions displayed on the website, they suggest to her that a person with Asperger syndrome would be better off dead and that a person living with Asperger syndrome is not entitled or capable of forming a relationship. These opinions, in the complainant’s view, constitute less favourable treatment and harassment of the complainant and other persons living with Asperger syndrome.
3. That pages on the respondent’s website providing support for parent’s with children with Asperger syndrome state that a person with Asperger syndrome is likely to be sufficiently disabled to require full time parental care for life. This, the complainant submitted, is an incorrect, derogatory and unbalanced view and constitutes discrimination and harassment of her as a person with Asperger syndrome.
4. That one of the website’s pages presented an event organised by a named third party. The complainant submitted that the Admissions page omitted to specifically mention adult people with Asperger syndrome in its admission categories. The only categories of people mentioned, according to the complainant, were ‘parent/carer’ and ‘professional’. She submitted that the fact that persons with Asperger’s syndrome were not specifically included in the admission categories constitutes less favourable treatment of her. She further maintained that by specifically failing to do so, the respondent failed to provide her with reasonable accommodation as due to her condition she finds it difficult to interpret indirect communication.
5. That she came across another event being advertised on the website on 27 June 2007 with a similar problem in the admissions categories as above. This, she submitted, is a further incident of discrimination and failure to provide reasonable accommodation.
6. That the respondent was involved in a joint research project involving named organisations concerning the accommodation needs of people with disabilities. The complainant submitted that she was not consulted for the respondent’s submission for the above research project. She also submitted that she had not been able to identify any person with Asperger syndrome who had been consulted for said survey. This, the complainant submitted, is less favourable treatment of her as she alleges that the respondent speaks and continues to do on behalf of people with Asperger syndrome without consulting any person with Asperger syndrome. She also maintains that this is another example of the respondent’s failure to provide her with reasonable accommodation as she submitted that the respondent effectively denied her a voice when it came to presenting her views on housing needs to this research project.
7. That views expressed on a discussion forum provided for by the respondent failed to provide the complainant with reasonable accommodation. The complainant also submitted that the “report abuse” facility appeared to be broken.
8. That the respondent treated her less favourably on the ground of her disability after a web forum dialogue that the complainant was a participant in resulted in the respondent’s named employee emailing the complainant on 21 July 2007 with the following message:
“Hello all!
It has come to my attention that some posts to this forum are becoming rude and in some cases, nasty (I am not going to mention any names!)
If this persists, I can and will delete those people from this forum without prior warning. This forum has been designed so that you all could help each other. Please don’t destroy this haven for others.
All the best”
The complainant submitted that as the above email’s headers suggested that the mail had been sent exclusively to her, she submitted that she responded to the mail administrator (this email was submitted in evidence). The
complainant submitted that as the named staff member never made any attempt to reply to her concerns – even if to clarify that the email was not just sent exclusively to her – constitutes less favourable treatment contrary to section 4(1). This is because the complainant believes that by failing to communicate with her clearly and directly she could only interpret this and the subsequent closure of the forum as less favourable treatment, including victimisation and as compliance in harassment of the complainant on the disability ground. The complainant submitted that the removal of a post from a thread, without the removal of her reply to it, distorted her meaning and cast the complainant in a negative light. This, the complainant submitted, is harassment as it diminished her right to post on the board in the manner, and with the expectations, of an equal.
3.2. The complainant submitted that further concerns have arisen since she lodged her complaint. She submitted that the respondent has started refusing membership to adults with Asperger syndrome.
3.3. She further submitted that the respondent’s website contains links to other organisation’s websites. Some of these links, the complainant submitted, portray extremely negative images of adults with Asperger syndrome and the condition itself. The complainant submitted that these named links lead to sites that are aggressively marketed by subjectively biased and unqualified persons. It was further submitted that these named organisations have, inter alia, “urged social workers and family court judges to discriminate against parents with autism in child custody hearings” and “widely believed to support research into pre-natal testing with a view to elective abortion on autistic babies”. The complainant submitted that in contrast to the above, the respondent’s website omitted to include links to named websites that are hosted by persons with autism and/or representative of what the complainant construes as positive images about autism itself. These websites, she submitted, promote a better recognition of the rights of persons with Asperger syndrome or other condition on the autism spectrum. While the complainant stated that she had come across a “token” link on the respondent’s website to a personal blog that is run by a person with autism, she firmly believes that this is “hardly representative of quality and breath of autistic culture overall”.
3.4. The complainant submitted that subsequent to her making the complaint under these acts, the respondent organisation has added a section concerning human rights to their site. The complainant submitted, however, that this whole section remains meaningless as long as the respondent organisation is incapable of regarding persons with autism as their intellectual, emotional and moral equals. This failure, the complainant submitted, personally threatens and intimidates her. She submitted that it is hard enough to learn how to cope, let alone lead a full and fulfilling life, with her condition without these prejudices being promulgated by the very people who affect to support and speak on behalf of the complainant and other persons living with her condition.
4. Case for the respondent
4.1. The respondent is a voluntary organisation established by a group of parents to provide support for people with Asperger Syndrome and their carers. The respondent submitted that its purpose is to provide education and support and denies that it promotes negative images about Asperger syndrome.
4.2. The respondent denies any allegation of less favourable treatment of the complainant on the disability ground.
4.3. The respondent denies that it has harassed the complainant on the disability ground. It also denies that it failed to take steps to prevent harassment from taking place.
4.4. The respondent denies that it has victimised the complainant contrary to the acts subsequent to her making her complaint under the acts.
4.5. The respondent vehemently denies that it excludes persons with Asperger syndrome from its management. The respondent denies that it has excluded the complainant from any aspect of its service.
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. The parties accepted that the complainant’s condition is a disability within the meaning of section 2(1) of the Acts.
5.3. The issue of whether the complainant was in receipt of a service within the meaning of the acts needs to be addressed. I note that a majority of the complainant’s interaction with the respondent took place via the respondent’s website. “Service” is clearly defined in section 2(1) of the acts. By applying clear, everyday language to this definition it is clear that a website is a service within the meaning set out by the legislature. However, it is equally clear that the complainant was not refused access to this website. It is clear from her own evidence that she was free to use and access various aspects of the site. The complainant’s complaint is not about being refused access to the website but with the tone and content of the said site. She maintains that she does not agree with the way in which people living with her condition are described in some aspects of it and takes objection to a number of quotes and opinions stated on the respondent’s website. I accept that the complainant is entitled to disagree with the opinions expressed on this or any website for that matter. This entitlement cannot, however, be construed as less favourable treatment within the meaning of the Equal Status Acts. In order to clarify what I mean I will use a comparator situation concerning less favourable treatment in service provision. For example, if the complainant had been unable to access a shop because of her disability then she may have had a case for less favourable treatment. However, if a person with a disability is able to accesses a shop and browse the goods on offer and, because he or she disagrees with the goods on offer and chooses not to avail of the goods, then an argument for less favourable treatment in within the meaning of the acts cannot be made. There is no evidence to support an argument that the complainant was treated less favourably in this context than a person who does not have her disability would have been treated in similar circumstances. While a person who does not have the experience of living with Asperger syndrome may have interpreted these comments differently from the complainant I am satisfied that the complainant was able to avail of the service, that is, access and navigate the website. Therefore, I have not been presented with any evidence to support an argument of less favourable treatment contrary to section 3(1) and 5(1).
5.4. I note that refusal is defined as a deliberate omission in section 2(1) of the acts. I have not been presented with enough evidence to support a claim that the respondent deliberately omitted to include links to its website that are more agreeable to the complainant in order to provide less favourable treatment.
5.5. The complainant further submitted that the respondent failed to provide her with reasonable accommodation when it advertised events hosted by other bodies on its website. The complainant submitted that the respondent failed to take care to use very specific language that would have enabled her to better understand whether she would be welcome at events targeted at persons working and living with persons with Asperger syndrome. She submitted that by failing to explicitly state that adult persons with Asperger syndrome were welcome to the event the respondent failed to do all that is reasonable to accommodate her needs. I do not accept that such an omission can be construed as a failure to provide reasonable accommodation. While I accept the complainant’s submission that person’s living with Asperger syndrome may have greater difficulties that persons who do not have the condition in interpreting indirect communication I was not presented with any evidence to support an argument that the complainant was unable or it was unduly difficult within the meaning of the acts for her to avail of a service because of this omission. It is clear from her own direct evidence that she contacted the respondent and the named event organisers over the phone and received clarification on the issue. I am satisfied that for a person such as the complainant, a very capable person, the fact that she needed to make such a clarifying phone call does not constitute discrimination within the meaning of section 4(1).
5.6. The complainant submitted that she was harassed on the disability ground. I note that the complainant disagrees with the content of some of the opinions expressed on the website. She views some of the views as “inaccurate, unbalanced and unduly negative” and considers that, within the meaning of the acts, this constitutes discrimination and harassment. Using everyday language to interpret the supplied quotes from the website I am satisfied that they clearly express individual points of view – described as case notes – that I construe as such. Any opinion of a person – when expressed as such – is simply an opinion. These quotes do not say to me “all persons with Asperger need full time care” or that “no person with Asperger can have a successful relationship”. These comments simply suggest that, in individual circumstances, these events may occur to a person with Asperger syndrome or indeed, to any person. I do not find that limited quotes taken out of the context of a whole site cannot be viewed as evidence of the creation of an intimidating, hostile, degrading, humiliating or offensive environment. I note that extensive debate took place at the hearing about whether these views were on the website on the given dates, etc. I accept on the balance of probabilities that the complainant did find these statements on the website. I also accept, on the balance of probabilities, that this website contained a large volume of pages with a view to provide information about Asperger syndrome. While the complainant may not agree with all or indeed any of the issues presented on the website, the respondent organisation has a fundamental right to express its opinions and those of its members provided that these comments do not constitute harassment in the provision of goods and services within the meaning of the section 11 of the acts.
5.7. The complainant further submitted that she believes that she was harassed by other members on a discussion forum hosted by the respondent. I note that I have been presented with only a few ‘threads’ of the alleged incident and am therefore mindful of the fact that what has been presented to this Tribunal can be at best be viewed as very partial evidence. That being said I am satisfied that the following paragraph can be construed as harassment on the ground of disability in accordance with section 11(5):
“I apologise to anyone else who may think this is harsh, but really, you do not come across very well in your writings. If this is the way you deal with the professionals and agencies then I am not surprised that you are making no headway with them. Perhaps it is a lack of understanding or skill in communicating with others – I don’t know. All I can say, though, that I would be horrified if my DS becomes this way. I hope I will have thought him better.”
I accept the above paragraph as harassment despite the fact that I have not seen the post that this person was responding to. It does appear from reading the entire post that the person responding to the complainant was very offended by comments posted by the complainant. Even if the complainant was “rude” in her communication with the other poster – I do not know whether or not she was – it does not justify the use of unlawful conduct with the purpose or effect of violating a person’s dignity on the disability ground. Section 11(3) of the acts provides a defence for responsible person to prove that he or she took reasonable steps to prevent harassment. I am satisfied that the respondent, as soon as it became aware of the issue, contacted the persons involved in these posts and requested a respectful tone be maintained and warned that failure to do so would result in the post being removed. I have been presented with no evidence to support the allegation that the respondent only contacted the complainant. It is clear that a message that begins with the greeting “hello all” is not addressed at a singular person. While I note that the complainant submitted that the header of the email did not show the email addresses of the other recipients, I accept that this may have been a privacy issue with the intention of protecting the identity of persons using the forum. Further, I was also presented with a letter dated 5 July 2007. In this letter, addressed to the complainant, the respondent is seeking for clarification concerning the alleged abuse and reiterates that such behaviour will not be tolerated. From this, I accept on the balance of probabilities, that the respondent’s named employee reported the emails to the organisation’s responsible person who took appropriate steps in accordance with section 11(3). I note that the offending post was removed and this was confirmed in direct evidence by the complainant. I am also satisfied that the complainant did not – on her own submission – respond to the respondent’s request for further information about the alleged harassment. Therefore, I am satisfied that the respondent did all that it could concerning the messages in the discussion forum.
5.8. In relation to the third party research. The complainant submitted that she was not consulted for the respondent organisation’s submission. She says that she knows of no person with Asperger syndrome who was consulted for it. It is important to point out that the complainant has no right to seek redress for persons with Asperger syndrome generally as this Tribunal only has jurisdiction to investigate the treatment that the complainant specifically received in the circumstances of this case. However, I am satisfied that the complainant has no evidence to support any argument that the respondent refused or did not seek submissions from persons with Asperger syndrome. I note that the complainant submitted that she contacted the named third party directly and arranged for a private submission to be made. And this is her right. However, the complainant cannot argue that she was excluded from the respondent’s submission when it is clear from her own evidence that she is not even a member of the respondent organisation.
5.9. During cross-examination it became apparent that the complainant is not a member of the respondent organisation and while she had attended an AGM in 2004 she has not since sought to be involved in the management of the organisation. Therefore, I have not been presented with any evidence to suggest that the respondent has in any way sought to exclude the complainant from the organisation. While I note that the complainant submitted that the organisation has excluded all persons with Asperger syndrome from its management – an allegation vehemently denied by the respondent – it is important to note that there is no legal obligation from an equal status point of view for a voluntary organisations to take on specific categories of people. An organisation may not broadly discriminate against protected categories of people (there are exemptions) but the management of such an organisation and its policies are matters for the organisation itself. A complainant cannot legally argue that she has been excluded from a service if she has not sought to avail of it. It is clear that the complainant has no locus standi in relation to this aspect of her complaint.
5.10. In relation to the allegations that the complainant made about named organisations in paragraph 3.3. I note that the complainant has provided no evidence that these named organisations have treated her less favourably on her disability ground. It is clear that the complainant was able to access these websites. While I note that the complainant submitted that these organisations promote what she construes as negative images about people with Asperger syndrome, she has not provided any evidence that she was so treated in the context of availing a service from this organisations. Therefore, I find no reason to consider whether the issue of vicarious liability is relevant in the circumstances of this case.
5.11. Further, I was presented with no evidence to support the complainant’s claim of victimisation within the meaning of section 3(2)(j).
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has failed to establish a prima facie case of discrimination This complaint therefore fails.
6.3. The complainant has established a prima facie case of harassment contrary to section 11. The respondent has successfully rebutted this. This complaint therefore fails.
6.4. The complainant has failed to establish a prima facie case of victimisation. This complaint therefore fails.
_______________
Tara Coogan
Equality Officer
9 September 2009
DEC-S2003-040-041- Full Case Report
Cassidy & Wesemann v Doherty
Mr Cassidy and Ms Wesemann referred claims to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Dispute
2.1. Introduction
This dispute concerns a claim by Mr Cassidy and Ms Wesemann that they were discriminated against by the respondents, contrary to the Equal Status Act 2000, on the grounds of gender and family status in that they were asked to leave their accommodation in the respondent’s premises shortly after Ms Wesemann moved in. The respondent does not deny that they were asked to leave, but that it was on grounds other than the complainants’ gender and family status.
2.2. Summary of the Complainant’s case
The complainants claimed that by being asked to leave, issued with a notice to quit they were discriminated against on the grounds of their gender and family status. They also Cassidy & Wesemann v Eamonn & Paul Doherty claimed that the respondents harassed and victimized them in terms of the Equal Status Act, 2000.
2.3. Summary of the Respondent’s Case
The respondents explained that the premises was suitable only for three people and had shared facilities, notably the bathroom. Ms Wesemann had moved in without any reference to the respondents. However, the complainants were still allowed a period to find other accommodation and move out. Despite having made agreements with his landlords, Mr Cassidy failed to honour them.
3. Evidence of the Parties
3.1. Complainants Evidence
Mr Gordon Cassidy, Complainant
Mr Cassidy took up residence as a tenant at the premises on 3/7/99. His landlord, Mr Doherty, is his brother-in-law, married to Mr Cassidy’s sister.
Mr Cassidy had a verbal contract and took up residence in a room at the rear of the premises. He was provided with a rent book. The other tenants were friends of Mr Dohertys.
At the end of February 2001 rent was paid to Mr Doherty and recorded in the rent book. The following evening Mr Doherty’s brother and co-owner of the premises delivered a letter (a notice to quit) which mentioned that Mr Cassidy had declined to pay rent.
This was a misunderstanding, since while Mr Cassidy had said he would not pay rent, he had meant that he would not pay rent for the new room until it was refurbished. (Mr Cassidy had requested the front bedroom which had been vacated and refurbished.)
Mr Cassidy never moved into the front room. This was all because of his partner and child.
Mr Cassidy was granted a deferral of the notice to quit, because, he maintains, the notice given was insufficient.
Mr Cassidy felt that he was discriminated against on the gender ground because he was residing in the property with a family and was unmarried.
He felt he has been victimized because he was constantly getting letters, because work was being done late at night in the premises and because the landlord was constantly entering the premises. This was during a period June to August 2001.
Mr. Cassidy had had to call the Gardaí in relation to the behaviour of one of the other tenants (name provided).
Tenants are entitled to peaceful occupation of their accommodation.
Ms Nadine Wesemann, Complainant
Ms Wesemann took up permanent residence with Mr Cassidy in November 2000. She was pregnant at that time. Her baby was born in January 2001.
On 25/3/01 both landlords were on the premises and said that they did not want a woman on the premises.
When she moved into the house she paid part of the bills. The individual units do not have separate supply lines. The bills were left in by the landlord and the tenants divided the amounts between them. They paid the required amounts directly to the service providers while the rent went to Mr Doherty.
In relation to gender discrimination Ms Wesemann stated that the landlords said that they did not want a woman in the house, and did not want her baby. They wanted a house with ‘lads’.
While she was on maternity leave Mr Doherty came into the house and said things like ‘why don’t you take her out’ referring to the baby. Ms Wesemann considered this inappropriate since it was raining at the time.
He suggested that they would have to pay more of the heating bill since she was there all day while the other tenants were not. Ms Wesemann stated that the other tenants had the heat on when they (Cassidy and Wesemann) were already asleep in the evenings.
Ms Wesemann felt that Mr Doherty’s question asking who would pay for the child guard for the stairs amounted to victimization as did his having repair work done in the house between 3pm and 8pm.
Ms Wesemann pointed out that while she was on maternity leave she was not working and could not therefore afford to move out. This would have involved finding a crèche and a new home. She estimated that this would have cost around €3000.
3.2. Respondent’s evidence
Mr Eamonn Doherty, Respondent
The premises in question has two bedrooms upstairs, and the old sitting room downstairs at the front is also a bedroom. The bathroom, kitchen and living room were shared by all tenants. There is one person per room.
Mr Doherty owned the premises since 1991, but he sold half to his brother in 1995.
They have always had three tenants.
The rooms had occasionally been rented to couples and there had been no problem once the bills were shared appropriately.
Mr. Cassidy moved into the back bedroom at £55 per week payable in advance. He was only asked to respect the other tenants and to share the bills equally.
The initial agreement with Mr Cassidy was that he should pay his rent in advance. However, when he expressed difficulties with this in summer 2000 he was allowed to pay in arrears. This was a facility only given to Mr. Cassidy and only because he had requested it. Mr Doherty expected that Mr. Cassidy would return to work, that he would inform him that he was working and could pay normally i.e. in advance.
Another tenant told Mr Doherty in September 2000 that Ms Wesemann was there, but he was never approached formally about MS Wesemann moving in. When he asked why she had moved in Mr. Cassidy told him they had nowhere to go. Mr Doherty gave them until the end of the year to leave
He was aware of her pregnancy. He did not seek any additional rent.
The baby was born in 2001 and another tenant (name provided) moved out. Mr. Cassidy asked if he could move into that tenant’s room as it was larger. Mr Doherty agreed to do up the front room, move Mr. Cassidy in at a rent of €100 per week and then work on the room downstairs.
He redecorated the room, including insulation, lights, carpet, and sockets. When it was nearly completed Mr. Cassidy asked for wardrobe space. Mr Doherty replied that he had to see how the money goes and asked if Mr. Cassidy could use the old wardrobes in the meantime. Mr. Cassidy lost his temper and said that he would not pay rent until new wardrobes were provided. This was the last Monday in February 2001.
Mr Doherty stated that he felt at this point that he had been doing his best only to be threatened with rent not being paid.
There had been no previous difficulties with rent, apart from the payment provisions made.
Mr. Cassidy was not getting on with the other tenants, he was a gardener and frequently entered the premises in very mucky boots, and he washed his dog in the communal shower.
There were constant rows between Mr. Cassidy and the other tenants, and constant difficulties and rows between Mr Cassidy and himself.
Rent was normally paid every Saturday. When asked for the rent Mr. Cassidy would reply “I’m thinking of paying it”.
When asked why he attempted to terminate Mr. Cassidy’s tenancy, Mr Doherty said he had just had enough of him. He was sick of him and had tried to do his best.
Mr. Cassidy had been served a notice to quit dated 1/3/01 with 31/3/01 as the final date to quit. Mr Doherty was expecting him to go and that Ms Wesemann and the baby would leave also. On 25/3/01 Mr. Cassidy asked why he and Ms Wesemann could not stay in the back room. Mr Doherty explained that it was unsuitable and too small. At end of March 01 Mr. Cassidy asked for more time. During this period there was contact between the parties as work was going on in the room downstairs.
The landlords agreed to extra time. One condition attached to this was that Mr. Cassidy should pay his rent in advance.
Mr. Cassidy did not pay the rent in advance and he did not move out at the end of July.
A civil summons (ejectment proceedings) was issued on 25 July 01 for a hearing date of 20/9/01. The landlords had previously booked holidays for this date and could not attend. Mr Cassidy’s father, (Mr Doherty’s father-in-law), asked Mr Doherty for a special arrangement for Mr Cassidy.
In response Mr Doherty agreed to meet Mr. Cassidy in a pub. They discussed what time Mr. Cassidy needed and offered to allow him to stay until the end of January 2002.
The complainant’s representative produced a Reference from Mr. Doherty attesting to the fact that Mr. Cassidy was an acceptable tenant. He asked Mr Doherty to reconcile this with his evidence as to the difficulties that Mr. Cassidy caused. Mr Doherty responded that he did not want to get in the way of Mr. Cassidy finding alternative accommodation.
It was suggested that the old wardrobe was mouldy, that the complainants offered to buy their own wardrobe after the event, that the cost of a wardrobe was minimal in comparison with the cost of the work being undertaken, and that the wardrobe issue was only a pretext for not having the complainants there. Mr Doherty replied that it may seem unreasonable to say he could not afford it but he did not want to run out of money until the major work was complete. Mr Doherty asked why they could not continue to use the old one for a month.
Mr Doherty was aware that Mr. Cassidy had had to call the Gardaí in relation to the other tenant. Mr. Cassidy, however, occasionally refused to allow people into the house, and caused difficulties also in relation to the phone and threatening behaviour.
Mr Doherty had lent Mr. Cassidy a car and had given him money for a car. He had generally tried to help him out.
Other tenants were permitted to move partners into the premises sharing their room. These arrangements were relatively short term and temporary before the couples moved to suitable accommodation.
Mr Doherty denies that he said that he did not want women in the premises. He denies also that he made any such references to babies.
Mr. Paul Doherty, respondent
Other tenants were being driven out by Mr. Cassidy’s behaviour.
He was concerned on hearing his brother’s report that Mr. Cassidy had threatened not to pay his rent.
When he went to speak to Mr. Cassidy he was very aggressive, so he gave Mr. Cassidy the letter (notice to quit) even though it was slightly incorrect in relation to the payment of rent.
However, rent was not the issue at the end of the day. There had been too many difficulties arising with the tenancy.
Mr Barrett, witness for the respondents
Mr Barrett was a tenant at the premises from April 1995 until May 2000.
the first week when Mr. Cassidy moved in went well, but from then on things deteriorated until he, Mr Barrett had to leave.
Mr. Cassidy’s general behaviour was unacceptable, he was unco-operative and inconsiderate.
Mr. Cassidy was allowed to have a dog on the understanding that it would not affect the other tenants. It did however and also affected the neighbours.
Mr Barrett felt that the dog led to confrontational situations over things which should not be an issue.
The dog was initially kept in the garden but neighbours complained. The dog was then moved to the sittingroom, but this led to situations among the tenants. The dog ultimately was kept in Mr. Cassidy’s bedroom. These moves show that at least Mr. Cassidy was attempting to address the complaints made.
When Mr Barrett found the dog shampoo in the shower that they all had to share he was upset.
After the third month of Mr. Cassidy’s tenancy money became a big issue with him in relation to the bills and this led to confrontations.
At one point Mr. Cassidy was working as a gardener and he would enter the house with his work boots still on leaving muck throughout the house and on the stairs. This caused problems in relation to the shared facilities including the bathroom.
The tenants raised the concerns with the landlord as they arose although Mr Barrett pointed out that all along he felt that as Mr. Cassidy was related to the landlord he would always be given preference.
Mr Barrett is a friend of Mr Dohertys.
In response to a question about the condition of the house and his room, Mr Barrett stated that the house was clean though the windows were draughty. These were to be fixed as part of the changes to be made.
The money for the bills was left on the mantelpiece and whoever was going to the post-office would pay them.
Mr Barrett purchased a house on leaving the tenancy. His partner did not stay there with him full time before he left.
4. Matters for consideration
The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) 3 (1)(b), 3 (2)(a), 3 (2)(c) and 3(2)(j)of the Equal Status Act 2000 in terms of Section 6 (1) and 11(5) of that Act.
3. — (1) For the purposes of this Act, discrimination shall be taken to occur where —
(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,
(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,
.
Section 3 (2) provides that: “As between any two persons, the discriminatory grounds …
are …
(a) that one is male and the other is not (the “gender ground”),… …
(c) that one has family status and the other one does not or that one
has a different family status from the other (the “family status ground”),
…
Victimisation , in terms of the Equal Status Act, 2000, is included as a ground and is defined in section 3(2)(j), as follows:
“… …(j) that one —
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”)”.
Section 6(1) of the Equal Status Act, 2000 is as follows:
“6. — (1) A person shall not discriminate in —
(a) disposing of any estate or interest in premises,
(b) terminating any tenancy or other interest in premises, or
(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”
Section 11(5) is as follows:
“(5) Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the gender and the family status grounds).
(b) Evidence of specific treatment of the complainants by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone of a different gender, or who has no family status, or who has a different family status received, or would have received, in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5. Conclusions of the Equality Officer
5.1. Prima Facie Case
Admissability
According to Mr Doherty the request to leave was first mentioned to Mr. Cassidy around September 2000. Discrimination on the grounds of gender or family status by a service provider was not made illegal until October 2000 with the implementation of the Equal Status Act, 2000. While Mr. Cassidy did not contest this mention of September 2000 Ms Wesemann stated that she moved into the premises in November 2000 and around that time she discussed the payment of a contribution to the shared bills. Apparently, any sightings of Ms Wesemann in the house before November relate to short stay-overs. On the grounds of her gender Ms Wesemann differed from all of the other tenants in the house at the time. She was also pregnant and therefore had family status while none of the other tenants had family status in their own right. Since it was unlikely that Mr. Cassidy would have accepted without comment a request for the couple to leave if Ms Wesemann was not already living there, I find on the balance of probabilities that the first request to leave the house was made after Ms Wesemann moved in, that is after November 2000 and is therefore within the scope of the Equal Status Act, 2000.
Applicability of the grounds
Ms Wesemann differed from all of the other residents by her gender and, since she was also pregnant when she moved in, she also had family status. Mr Cassidy claims that he was treated less favourably by the respondent because of his gender. Since Mr. Cassidyadduced no evidence to show, nor did he suggest, that Mr Doherty treats women more favourably, Mr Cassidy’s claim on the gender ground appears to be on the basis of his association with Ms Wesemann. Mr. Cassidy attained family status on the birth of his baby. Prior to that date he had family status by association with his partner Ms Wesemann while she was pregnant. On that basis both the gender and family status grounds apply to Mr Cassidy Instances of specific treatment of the complainants by the respondent The incidents that the complainants allege were discriminatory occurred on 25/3/01 and previously on 28/2/01-1/3/01.
On 25/3/01 it is alleged that during a conversation the respondents said something to the effect that they did not want a woman or a baby on the premises, that it was a ‘lads’ house. The respondents deny this. Therefore the situation is that two people maintain that it was said while two maintain that it was not.
On 28/2/01 the complainants paid their rent and this was noted in the rent book. On 1/3/01 a notice to quit was issued to Mr. Cassidy. The covering letter stated that the Mr. Cassidy had “declined to discharge the rent due in respect of [his] occupation of part of the premises at….”. The Notice to Quit itself was addressed to:
‘Gordon Cassidy, Tenant
And all other persons in occupation’
in that part which he held as a monthly tenant. The Notice specifically mentions Mr. Cassidy and the reference to all other persons, in occupation of the same part of the house as Mr. Cassidy, appears to be a reference to Ms Wesemann and the couple’s baby. This is evidence of specific treatment of both complainants. Less favourable treatment In relation to 6(c) above it is now necessary to assess whether the treatment received by the complainants was discriminatory on the grounds cited. The respondent admits that after Ms Wesemann’s arrival he told the complainants that they should be out of the house by the end of the year (2000). Therefore the apparent trigger for asking them to leave was her arrival. It is clear from the evidence presented that the landlords felt that the ongoing difficulties experienced with Mr. Cassidy as a tenant were considerable. However, he was not issued with a notice to quit while he lived alone. The complainants’ baby was born in January 2001. At the end of February the couple were issued with a Notice to Quit the premises Since the request to leave was issued after Ms Wesemann moved in and the notice to Quit was issued the month after the birth of her baby, I am satisfied that an overall inference of discrimination on the gender and family status grounds arises, based on these actions taken by the respondents.
I find that the complainants have established a prima-facie case of discrimination on the gender and family status grounds.
5.2. Respondent’s Rebuttal
Request to leave & Notice to Quit
In their evidence, the respondents pointed out that the house normally accommodates three people, and so far these have been male. A number of facilities in the house are shared, including particularly the bathroom. On a number of occasions the respondents have allowed tenants to move their partners in for a period. One example given was where the couple was awaiting the readiness of new accommodation. This appears to have been by arrangement. Mr Cassidy did not approach the respondents to make any such arrangements. However when they approached him, Mr Cassidy said that they had nowhere else to go. They were asked to leave by the end of the year. This appears to be in keeping with the landlord’s normal practice, and not less favourable treatment. This request to leave was ignored as the complainants were still in situ after the New Year. Their baby was born in January and negotiations were entered into about the possibility of moving from the back room to the larger front room which was redecorated by that time. A discussion of wardrobes and the continued use of those already available appears to have become heated and confused. Mr Cassidy made a comment about not paying rent in the future. During the hearing Mr Cassidy maintained that this was a reference to the renting of the new room and not his accommodation at that time. Mr Eamonn Doherty perceived this as a threat not to pay in future at all. When Mr Paul Doherty heard of this discussion he suggested that it was time to take action. He contacted his solicitor and called to the complainants to discuss the matter. Again the discussion was not congenial. Mr Doherty stated that Mr Cassidy’s manner was very aggressive and so he gave him the Notice to Quit even though it was slightly incorrect. It was incorrect since it referred to the future non-payment of rent although the rent for that month had just been paid.
The respondents had informed the complainants that they were required to move since the accommodation was unsuitable. It appears to have been entirely out of the ordinary, and in the complainants’ favour, that the respondent entered into negotiations at all in respect of the larger front room for them as a family. Mr Cassidy failed to avail of this opportunity because of a dispute over wardrobes. In the light of all of the previous difficulties caused by Mr Cassidy, exacerbated by the difficulties encountered while trying to discuss the issues with him, I am satisfied that the respondent’s reason for the eviction was as stated. That is, they had tried unsuccessfully to come to an arrangement with him and had simply had enough.
I am satisfied that on the balance of probabilities the request to leave and the Notice to Quit were issued in accordance with the normal practice of allowing couples to stay short term by arrangement, even though no arrangements had been attempted on behalf of Ms Wesemann. This normal practice of allowing couples to stay short term is a facilitation which has been granted in spite of the size of the premises. I find therefore that the requests were not based on either of the discriminatory grounds alleged but that it was because it was normal practice and because of Mr Cassidy’s conduct and manner.
Harassment
On 23/3/01, during the period of notice relating to the eviction notice, another discussion took place and as mentioned above it is alleged that some discriminatory remarks were made. Unwelcome remarks which are based on a discriminatory ground constitute harassment in accordance with section 11 (5), quoted above.
It seems to me entirely possible that references to the presence of Ms Wesemann and her baby were made during the various discussions throughout the period as well as that on 23/3/01. However, it is not clear if these would have been simply because of her gender and family status, i.e. based on discriminatory grounds, or whether they would have been because she had moved in without arrangement and because her presence in addition to the arrival of her baby had increased the population of a house suitable for three people by 66%. Since there is a clear dispute as to what was said, it is not possible for me to arrive at a conclusion as to whether such comments were in fact made, and if so, whether or not they “could reasonably be regarded as offensive, humiliating or intimidating” to the complainants. Since I have not been satisfied on the balance of probabilities that such comments, if made, were so perceived, I find that the respondents did not harass the complainants in terms of section 11(5).
Subsequently agreement was reached that Mr Cassidy and his family could remain on the basis of rent being paid in advance1, provided he moved out by July. Mr Cassidy did not honour his agreement as he did not pay his rent in advance and did not move out as agreed. Mr Cassidy’s father, Mr Eamonn Doherty’s father-in-law, asked Mr Eamonn Doherty later in the year to make further provision for Mr Cassidy, which he did.
1 The facility to pay after the relevant period rather than in advance had been agreed to by the respondents who had expected it to last for a short period only.
Victimisation
At the hearing, Ms Wesemann stated that Mr Eamonn Doherty’s question about who would pay for the required child guard for the stairs that would be needed amounted to victimisation. She also suggested that the fact that repair work would be done between 3pm and 8pm in the house was victimisation. Mr Cassidy mentioned that they were constantly getting letters and that the respondents were entering the premises. When asked to clarify this Mr Cassidy confirmed that they only entered the shared areas.
The letters sent were as follows:
Notice to Quit, and covering letter, 1/3/01
Response to phone call from Mr. Cassidy 12/3/01
Granting of extension of time 19/4/01
Civil Summons, eviction notice, and covering letter 30/7/01
Notice of work to be carried out on Mr Cassidy’s room 3/8/01
Notice of timing of work 8/8/01
Victimisation is defined in Section 3(2)(j) of the Equal Status Act, 2000, and quoted above. None of the instances of alleged victimization appear to be direct reprisals on the complainants for any actions taken by the complainants in terms of sub-section 3 (2)(j).
I am satisfied that
The question about the cost of the child guard is a reasonable one.
It is not extraordinary that repair work should be carried out during the hours specified.
The number and content of letters produced to me are reasonable given the level of communication with the complainants.
The respondents were entitled to enter the premises in the manner described.
I find therefore that these actions of the respondent do not constitute discrimination on the victimization ground in terms of section 3(2)(j). Cassidy & Wesemann v Eamonn & Paul Doherty
6. Decision DEC-S2003-40
I find that the complainant, Mr Cassidy, was not discriminated against, victimized or harassed on either the gender ground or the family status ground in accordance with section 3 of the Equal Status Act, 2000, in terms of Sections 6 or 11
7. Decision DEC-S2003-41
I find that the complainant, MsWesemann, was not discriminated against, victimized or harassed on either the gender ground or the family status ground in accordance with section 3 of the Equal Status Act, 2000, in terms of Sections 6 or 11
Bernadette Treanor
Equality Officer
21 May 2003
DEC-E2007-066 – Full Case Report
M v R an Organisation
. DISPUTE
1.1 The dispute concerns a claim by Ms. M that she has been subjected to sexual harassment by R – A Named Organisation on the grounds of gender and sexual orientation within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts.
1.2 The complainant referred her complaint of sexual harassment to the Director of Equality Tribunal on 27th October, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 20th June, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of these Acts. Following receipt of submissions a joint hearing took place on 7th November, 2007.
2. SUMMARY OF THE COMPLAINANT’S SUBMISSION
2.1 The complainant states that she attended a work-related Conference in Sligo on 28th September, 2005. She alleges that Ms. B (the Education Co-ordinator for the respondent organisation) said to her at the end of the conference dinner that she (Ms. B) hated her (the complainant). The complainant says that when she asked Ms. B why she had said this Ms. B replied that it was because she (the complainant) was a lesbian. According to the complainant Ms. B stated that she had lost all respect for her (the complainant) the day that she found this out and that she thought this was unnatural. The complainant says that she issued a grievance to the respondent through the Head of Operations/Human Resources for the respondent organisation. In her grievance the complainant stated that found she this intimidating, hostile, degrading, humiliating and offensive. She also noted that Ms. B was intoxicated at the time. It is the complainant’s submission that the fact that Ms. B was intoxicated at the time does not excuse the conduct and she believes that it was inappropriate behaviour, it created an offensive and intimidating environment to work in and was contrary to the Dignity in the Workplace Charter.
2.2 The complainant notes that she received no response from the respondent to her request for information using the Equality Tribunal forms with regard to same. She further notes that her legal representatives were not allowed to be in attendance at internal grievance proceedings or to represent her at such proceedings. The complainant says that on 2nd December, 2005 she was furnished with the outcome of the investigation in relation to the formal grievance. It was held that if there was any impoliteness interpreted as harassment then it had taken place unintentionally. No account was taken of the fact that Ms. B was tipsy or that Ms. B had stated that she could not recall anything. The complainant disagrees that there was insufficient evidence to support her claim. In this regard she says:
– there was an acknowledgement by Ms. B that she had consumed a number of drinks before and during the meal;
– Mr. A (a person who was at the same table during dinner) in his evidence stated that Ms. B appeared to be quite tipsy and that the complainant appeared to be sober;
– the evidence of a Mr. B (who was also at the same table during dinner) is that at approximately 12.30a.m. to 1.30a.m. there appeared to be a personal conversation between the complainant and Ms. B;
– Ms. B had no recollection of saying anything to the complainant. However she did say that if there were a misunderstanding between them she would apologise for this.
2.3 The complainant says that if Ms. B is saying that she did use these words and should not have then this would be the end of the matter. Rather she is saying that she has no recollection of them. It is the complainant’s contention that the use of the words ‘gay’ or ‘lesbian’ or ‘hating’ someone are relatively specific words and she should be able to recall having used them but she concedes that if she was drunk she may not be able to recall the use of these words. The complainant notes that the Head of Operations/Human Resources concluded that if there was any impoliteness interpreted as harassment then it had taken place unintentionally. It is her contention, however, that whether it was intentional or not, harassment is harassment. The complainant says that by letter dated 19th December she sought an apology from Ms. B, she asked that the Dignity in the Workplace Policy be published and the Ms. B receive training. She notes that none of these things have occurred.
2.4 The complainant states that the Head of Operations/Human Resources wanted to undertake internal mediation to be carried out in accordance with company policy. It is the complainant’s submission that she has not been provided with a copy of the company’s policy on internal mediation and it is her belief that no such policy exists. The complainant states that the Head of Operations/ Human Resources carried out an investigation of the alleged incident and in her view it was inappropriate that he would carry out the internal mediation. According to the complainant she requested that an independent person carry out the internal mediation and that she be allowed to bring representation. The complainant says that on 6th March, 2006 she agreed to internal mediation but subject to it being an independent mediation. In a responding letter the Head of Operations/Human Resources again reiterated that he felt that he was the most appropriate person to undertake the internal mediation. The complainant says that a proposal was put to her, which she believes was intended to remove the matter from the Equality Tribunal and to compromise her position. Further correspondence ensued between the parties about an external mediation with an independent mediator.
2.5 In conclusion the complainant says that the respondent has taken no action to deal with the issue even by way of publishing its Dignity of the Workplace Charter. Rather the respondent endeavoured to put the complainant though internal mediation dealt with by the Head of Operations/Human Resources rather than by an independent mediator. The complainant notes that the respondent has no policy on internal mediation. She further notes that the respondent never furnished a response to her request for information and that she asks that the Equality Officer draw an inference from same. It is the complainant’s contention that the respondent has sought to push matters under the carpet and not deal with a serious allegation of harassment based on her sexuality. The complainant contends that the respondent has sought to frustrate her being represented and refused any meaningful investigation. It is the complainant’s submission that the respondent attempted at one stage to try and get her to withdraw her claim by stating that if she went ahead with the claim she would be going up against the company. The complainant says that words were used which amounted to harassment and that the respondent acting through the Head of Operations/Human Resources could not have come to the conclusion it did in relation to the grievance raised. Even if it could be argued that the respondent could have come to that conclusion the complainant says that the respondent did nothing to protect her from the harassment going forward. It is the complainant’s submission that the finding that matters were unintentional does not mean that harassment did not take place and that the Head of Operations/Human Resources failed to comprehend what harassment involves.
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
3.1 The respondent notes that the complainant has alleged sexual harassment on the grounds of gender and sexual orientation based on an alleged incident that is claimed to have occurred at a post-Conference dinner on 28th September, 2005. The complainant specifically accuses Ms. B of stating that ‘she hated’ her (the complainant) because she (the complainant) was lesbian and she (Ms. B) had lost all respect for her (the complainant) the day she found out and she (Ms. B) thought it was unnatural.
3.2 According to the respondent the first time it was made aware of the alleged incident was when it was received notice of it from the complainant’s legal representative on 1st November, 2005. The respondent says that it immediately initiated an investigation to deal with the content of the complaint under the Bullying and Harassment Procedure. It is the respondent’s submission that it carried out a full and thorough investigation and communicated the outcome of that investigation to the complainant on 2nd December, 2005. The complaint by the complainant was not upheld as there was a clear conflict of evidence and there was no independent evidence to support the allegations. The respondent notes that the complainant never appealed the outcome of the investigation even though she was afforded the opportunity to do so. According to the respondent in its letter dated 2nd December, 2005 it offered internal mediation to improve the relationship between the complainant and Ms. B. After much correspondence between the complainant and the respondent, an agreed form of mediation between the complainant and Ms. B was successfully conducted by an external mediator on 24th October, 2006.
3.3 The respondent submits that the alleged comments complained of do not amount to ‘sexual harassment’ as defined under Section 14A of the 1998-2004 Acts as ‘any form of unwanted verbal, non-verbal or physical conduct of a sexual nature’. It is the respondent’s submission that the alleged comments would amount to ‘any form of unwanted conduct related to any of the discriminatory grounds’ with the discriminatory ground being ‘sexual orientation’. The respondent says that the claim should have been brought for ‘harassment’ as opposed to ‘sexual harassment’. It is the respondent’s submission that the alleged comments, which are the subject of this complaint, do not come within the definition of ‘sexual harassment’. The respondent says that the complainant has made no claim of harassment and is now out of time in which to do so.
3.4 Section 85A of the Acts provides that a complainant must first establish the facts from which a prima facie case of discrimination can be made out. The respondent submits that the complainant has failed to prove a prima facie case that sexual harassment occurred as alleged. It is also noted that the complainant’s submission deals with events that occurred after the lodging of this claim and, therefore, cannot of itself form the basis for her claim. In deciding whether the complainant has established a prima facie case the respondent would ask the Equality Officer to consider that Ms. B stated, during the course of the internal investigation, that she is of the same sexual orientation as the complainant and that the complainant was aware of this fact. The respondent notes that Ms. B also stated that the alleged comments attributed to her were particularly upsetting and incomprehensible given her own sexual orientation. It is the respondent’s contention that this fact has an evidential value relevant to Ms. B’s denial of the complainant’s allegations to which the Equality Officer should have regard in deciding whether a prima facie case has been established. The respondent notes that the complainant, in her submission, has alleged that derogatory comments have been made against her. However, no details have been provided and the respondent denies any victimisation.
3.5 Without prejudice to the above the respondent relies on the defence provided in Section 15(3) of the Acts in that it took such steps as were reasonably practicable to prevent an employee from doing the alleged act, or from doing such alleged act during the course of their employment. According to the respondent its Harassment and Bullying Policy states ‘It is the policy of R [A Named Organisation] to maintain an atmosphere of mutual respect. R does not condone and does not tolerate any form of bullying or harassment towards any of the employees by any of our fellow employees, by managers or by third parties in our workplace such as vendor, clients or visitors …R does not tolerate harassment on the basis of gender, marital status, race, religious beliefs, sexual orientation, age or membership of the travelling community. All R employees are responsible for helping to ensure that our work environment, either at work or at work-related events, is free from prohibited harassment. All employees are expected to avoid any behaviour or conduct that could reasonably be interpreted as a violation of this policy’. The respondent says that this policy forms part of the Employee Handbook and is given to all its employees when they start employment and when updated and it is accessible at all times on the respondent’s intranet.
3.6 The respondent strenuously denies that it has ‘sought to push matters under the carpet’ as alleged. Rather it has at all times treated the complainant’s allegations as serious and it did everything it could to address her concerns. The respondent denies that it asked the complainant to withdraw her letter rather it endeavoured to ensure that the complainant understood that its offer of internal mediation was separate to her claim under the Employment Equality Acts, 1998-2007. According to the respondent it is its policy in factual investigations that a complainant should be accompanied by a colleague or staff representative rather than a legal representative and it was for this reason that the complainant was requested not to bring her legal representative to meetings as part of the internal investigation of her complaint. In relation to the request for further information (Form EE2) the respondent says that it was not in a position to respond to this until the internal investigation had been completed. On completion of the investigation the respondent believed that it had answered the questions in correspondence and that it was not, therefore, necessary to complete Form EE2.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision in this claim is whether or not the complainant was subjected to sexual harassment by the respondent within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 on the grounds of her gender and sexual orientation and in contravention of Section 8 of those Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
4.2 The complainant has referred a claim of sexual harassment on the grounds of gender and sexual orientation to the Equality Tribunal for investigation and decision. At the hearing of this claim she withdrew her claim of sexual harassment on the grounds of gender. In relation to her claim of sexual harassment on the grounds of sexual orientation she stated that the words spoken to her by Ms. B related to her sexuality and were such as to create intimidation and affect her dignity. I find that this is properly a claim of harassment on the sexual orientation ground. I note that the respondent has argued that if I deem this to be a claim of harassment on the sexual orientation ground then it is out of time having regard to the time limits set out in the Acts and I have no jurisdiction to investigate it. I do not accept this argument having regard to the High Court Ruling in the case of Long v The Labour Court .
4.3 Both the complainant and Ms. B attended a post-conference dinner in Sligo in September, 2005. They sat opposite each other at a long table with work colleagues sitting on both sides of them. The complainant and Ms. B both agree that they engaged in conversation for a considerable period of time throughout the course of the dinner and the conversation continued after they had moved away from the dinner table into a corridor. While both the complainant and Ms. B agree that the issue of sexuality was discussed there is a conflict between them as to comments Ms. B is alleged to have made. It was alleged by the complainant at the hearing of this claim that Ms. B made the remark “you know I hate you” during the meal on a number of occasions. It was then after the meal that Ms. B is alleged to have said that she (Ms. B) hated the complainant because she was lesbian and then she said that she hated her because she was gay. According to the complainant Ms. B used the word ‘lesbian’ only on one occasion and afterwards at all times used the word ‘gay’. The complainant alleged that Ms. B stated that she hated the complainant because she lost all respect for her the day she found out she was gay. She (Ms. B) is also alleged to have said ‘the idea of two women together was unnatural’. According to the complainant there followed a discussion about it thereafter where she (the complainant) pointed out to Ms. B that her sexuality was none of Ms. B’s business in the same way as Ms. B’s sexuality was none of her business. The complainant stated, at the hearing of this claim, that the remainder of the conversation related to the issue of sexuality including telling Ms. B about coming out, informing her parents and personal things about herself (i.e. the complainant).
4.4 On the other hand Ms. B stated that the word ‘hate’ is very strong and not one to be used lightly. She denied using this word to the complainant. She further denied saying that she hated the complainant and had no respect for her. It is the Ms. B’s evidence that the complainant and herself had a detailed conversation about the issue of sexuality and much of it related to the impact of coming out in the context of promotion within the respondent organisation. According to Ms. B the complainant did not seem in any way upset by the conversation.
4.5 I note that there are no witnesses who can corroborate the complainant’s allegations. If, as is alleged, Ms. B made the comment “You know I hate you” on several occasions during the dinner in a situation where they were sitting opposite each other, I find it difficult to understand that not one of the persons sitting on either side of the complainant or Ms. B heard this comment being made. I further find it difficult to understand that a person allegedly being harassed on account of her sexuality would proceed to engage in a detailed conversation with the alleged harasser about issues, which are of a very personal nature especially in circumstances where she deemed this person to be drunk. Furthermore it is the case that the complainant and Ms. B have the same sexual orientation and this fact was known to both in advance of their discussions during and after the post-conference dinner. The complainant placed great emphasis on the fact that Ms. B had been drinking alcohol both before and during the dinner. She argued that even if she was drunk there was no excuse for these comments. I understand that both the complainant and Ms. B had consumed alcohol on this occasion and I find that the consumption of alcohol is not an issue in terms of the allegations made in this complaint. In the circumstances I find that the complainant has failed to establish a prima facie claim of harassment on the grounds of sexual orientation.
4.6 The respondent has stated that it relies on the defence provided by Section 15(3) of the Acts on the basis that it took such steps as were practicable to prevent an employee from doing the alleged act, or from doing such act during the course of his/her employment. I note that the respondent did conduct an investigation into the complaint. Interviews with all relevant persons were documented and signed both by the interviewer and the interviewee. There was no undue delay in conducting the investigation and the respondent made a finding on the basis of the evidence. On notifying the complainant on the findings of the investigation the respondent did offer the complainant mediation between herself and Ms. B in order to facilitate an improvement in their relationship. I note that it took time to arrange this mediation due to the complainant’s insistence that the mediation be conducted by an independent facilitator rather than by the person who had conducted the investigation as was being suggested by the respondent organisation. Both the complainant and Ms. B agreed that they were happy with the outcome of the mediation process. In the circumstances of this case I find that it was appropriate that the mediation was conducted by an external facilitator. It is not appropriate that a person who carries out an investigation into a claim would then proceed to mediate on the issues of that claim simply because that person has made a finding which invariably finds in favour of one person and against the other. In these circumstances the investigator is compromised especially in the eyes of the person against whom the finding is made. It should be noted that, in the Equality Tribunal, an Equality Mediation Officer who mediates on a case that does not resolve at mediation, will not act as the investigating Equality Officer on that same case.
4.7 In conclusion I find that the complainant has failed to establish a prima facie case of harassment on the grounds of sexual orientation. The respondent, in line with its policy on Bullying and Harassment, which is set out in its Employee Handbook (which the respondent says was issued to all staff and information sessions were held on the provisions of same), undertook a thorough investigation of the claim and issued its findings. At the hearing of this claim the complainant indicated that she was happy with the manner in which the investigation was conducted and the investigator was, at all times, very respectful. However, she was unhappy about the findings of the investigation stating that she felt that she was not believed. What the complainant was seeking from the investigation was:
– an apology from Ms. B;
– the drawing up of a Charter on Dignity in the Workplace so that her rights to dignity in the workplace would be upheld;
– training for staff on Equality Policies and Procedures;
– financial contribution towards her legal fees.
I note that when the complainant was notified of the findings of the investigation she was advised that she could appeal against these and was given a period of some three months in which to do so. In a letter to the respondent, dated the day before the expiration of that appeal period, the complainant stated that she would, very reluctantly be appealing the outcome of the investigation if mediation with an external facilitator did not proceed. As the mediation did proceed and was successful, the outcome of the investigation was not appealed. I am satisfied that the respondent acted appropriately in relation to its handling of this claim.
5. DECISION
5.1 In view of the foregoing I find that Ms. M has failed to establish a prima facie case of harassment on the grounds of sexual orientation in terms of Sections 6 and 14A of the Employment Equality Acts, 1998-2007. I further find that the respondent acted in accordance with its policies, on receipt of the complaint.
______________________
Gerardine Coyle
Equality Officer
14th November, 2007
English v Thomas Sanderson Ltd
[2008] EWCA Civ 1421 [2009] 2 CMLR 18, [2008] EWCA Civ 1421, [2009] 2 All ER 468, [2009] IRLR 206, [2009] ICR 543
Laws LJ
THE FIRST QUESTION
In this court it is convenient to take the first question as being whether the assumed facts of the case can be said to fall within the scope of Regulation 5 applying the ordinary meaning of the language used. The critical words are “on grounds of sexual orientation”.
The appellant’s submission, as formulated in his written argument (paragraph 14), is that if the banter is engaged in “because the target is perceived to have stereotypical characteristics associated with homosexuals”, that is enough to show that the banter was “on grounds of sexual orientation”. Mr Reynold QC for the appellant elaborated this argument before us. The “stereotypical characteristics” referred to were the facts that the appellant had been to a boarding school and lived in Brighton. This was obviously a fanciful basis on which to form any remotely objective opinion of a person’s sexual orientation; and as I have indicated it is accepted on all hands that the perpetrators in this case did not actually believe the appellant was gay at all.
It is a necessary premise of Mr Reynold’s case that harassment “on grounds of sexual orientation” may occur even though no person’s actual, perceived, or assumed sexual orientation has anything whatever to do with the case. That seems, to say the least, to be a counterintuitive and unpromising start. However it is clear (as I have indicated) that discrimination may occur where the perpetrators of the conduct complained of believe that the victim is gay, even if he is not; and also where a victim is treated detrimentally because he has disobeyed an instruction to discriminate against somebody else (the Showboat case). May this line of reasoning be extended so as to support Mr Reynold’s case?
In addressing that question I should give some account of the decision of this court in Redfearn, to which I have referred in passing. The claimant was a member of the British National Party. He was employed as a driver by a transport service most of whose passengers were of Asian origin as was a substantial minority of its workforce. The claimant was regarded as a satisfactory employee. He had been recommended for an award of first class employee status by his Asian supervisor. He was summarily dismissed for his politics. He could not bring proceedings for unfair dismissal, because he did not meet the statutory requirement relating to length of service. His claim was for race discrimination. He failed before the ET, but the EAT allowed his appeal. However the employers’ appeal to this court was successful. I should cite these passages from the leading judgment delivered by Mummery LJ:
“42. Mr Bowers submitted that Serco’s decision to dismiss Mr Redfearn was based on considerations relating to the race of third parties, their perceived hostility to his views and his perceived attitude to the race of third parties. That was direct discrimination ‘on racial grounds’. The employment tribunal had misapplied the law. Race considerations had significantly influenced the decision to dismiss on ‘health and safety grounds’ which could not be relied on as a justification for direct race discrimination. Mr Bowers argued that any concern on the part of a tribunal or court about the consequences of appearing to permit racist conduct, as might occur in allowing a claim like the present case, could be dealt with at the stage of remedy.
…
45. Mr Bowers’ proposition turns the ratio of Showboat and the policy of the race relations legislation upside down. It would mean that any less favourable treatment brought about because of concern about the racist views or conduct of a person in a multi-ethnic workplace would constitute race discrimination. The ratio of Showboat is that the racially discriminatory employer is liable ‘on racial grounds’ for the less favourable treatment of those who refuse to implement his policy or are affected by his policy. It does not apply so as to make the employer, who is not pursuing a policy of race discrimination or who is pursuing a policy of anti-race discrimination, liable for race discrimination.
46. In this case it is true that the circumstances in which the decision to dismiss Mr Redfearn was taken included racial considerations, namely the fact that Serco’s customers were mainly Asian and that a significant percentage of the workforce was Asian. Racial considerations were relevant to Serco’s decision to dismiss Mr Redfearn, but that does not mean that it is right to characterise Serco’s dismissal of Mr Redfearn as being ‘on racial grounds’. It is a non-sequitur to argue that he was dismissed ‘on racial grounds’ because the circumstances leading up to his dismissal included a relevant racial consideration, such as the race of fellow employees and customers and the policies of the BNP on racial matters. Mr Redfearn was no more dismissed ‘on racial grounds’ than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer. Any other result would be incompatible with the purpose of the 1976 Act to promote equal treatment of persons irrespective of race by making it unlawful to discriminate against a person on the grounds of race.”
With great respect, I think that in some ways this is a difficult decision. Given that “the circumstances in which the decision to dismiss” the claimant included the race of most of Serco’s customers and that of many of their employees, it is difficult to see that the answer to Lord Nicholls’ question in Najarajan – why did the perpetrators of the conduct complained of behave as they did – consisted in anything other than those very facts. It is plain, however, that Mummery LJ’s reasoning, leading to the conclusion that Mr Redfearn’s case was not covered by the legislation, was strongly influenced by “the purpose of the 1976 Act [sc.] to promote equal treatment of persons irrespective of race by making it unlawful to discriminate against a person on the grounds of race”.
In this appeal, although the appellant’s case on its particular facts is not at odds with that legislative policy, Mr Reynold is not I think assisted by Redfearn. If anything it assists the respondent. It shows the kind of difficulty that can arise if one seeks to extend the Showboat line of reasoning further than the statutory policy strictly requires. I do not think it should be extended so far as to carry the day for Mr Reynold’s argument, which proceeds, as I have said, on the basis that harassment on grounds of sexual orientation may occur even though no person’s actual, perceived, or assumed sexual orientation has anything whatever to do with the case. In my judgment harassment is perpetrated on grounds of sexual orientation only where some person or persons’ actual, perceived, or assumed sexual orientation gives rise to it, that is, is a substantial cause of it. Mr Reynold’s case confuses the reason for the conduct complained of with the nature of that conduct. On the facts the reason for the harassment was nothing to do with anyone’s actual, perceived, or assumed sexual orientation. It happened to take the form of “homophobic banter” so called, which was thus the vehicle for teasing or tormenting the appellant. In those circumstances sexual orientation was not the grounds of the conduct complained of.
Moreover it seems to me that for the purposes of Mr Reynold’s submission the appellant’s supposed “stereotypical characteristics associated with homosexuals” are at best the fifth wheel of the coach. On the assumed facts it is nothing to the point what prompted the nature of the perpetrators’ thoroughly nasty conduct. They did not actually think he was gay, and the appellant knew as much.
I apprehend this conclusion does justice to the language of Regulation 5, and is consistent with Mummery LJ’s observations on the statutory policy in Redfearn. Accordingly, if Regulation 5 stood alone I would dismiss the appeal.
THE SECOND QUESTION
The second question in the case, as I see it, is whether the Framework Directive can make all the difference. As I have said, the EAT considered that there was a parallel between the relation between s.4A(1)(a) of the 1975 Act and Article 2(2) of the amended 1976 Directive (which was of course addressed in the EOC case) and that between paragraph 5 of the Regulations and Article 2(3) of the Framework Directive. It will be recalled that in EOC Burton J accepted that the use in s.4A(1)(a) of the expression “on ground of her sex” introduced a requirement of cause and effect between the woman’s sex and the objectionable conduct, whereas no such element was present in the 1976 Directive’s definition of harassment which uses the expression “unwanted conduct related to the sex of a person”. Mr Reynold submitted that there is a like contrast in the present case, and that the Regulation can and should be read down so as to give effect to the broader scope which is thus inherent in the Framework Directive.
I certainly accept that the phrase “on grounds of sexual orientation” in Regulation 5(1) imports a relation of cause and effect between a person’s sexual orientation and the conduct complained of: that proposition is central to what I have said on Question (1). But I have difficulty with the proposition that the Framework Directive possesses the broader scope contended for by Mr Reynold. Articles 1 and 2(1) critically refer to “discrimination on the grounds of religion [etc]…” (my emphasis). Mr Reynold relies on Article 2(3) which I repeat for convenience:
“Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member State.”
Mr Reynold would have us align the expression “unwanted conduct related to any of the grounds” with “unwanted conduct related to the sex of a person” in the definition of harassment appearing in Article 2(2) of the amended 1976 Directive, with which of course Burton J was concerned in EOC. In both cases, submits Mr Reynold, the phrase “related to” describes a connection or relationship which is not limited to cause and effect. And Article 2(1) of the 1976 Directive defines the principle of equal treatment as meaning “that there shall be no discrimination whatsoever on grounds of sex” – so that “on grounds of” plays its part in this Directive no less than in the Framework Directive; yet Burton J construed the 1976 Directive’s prohibition as covering matters not limited to conduct caused by the victim’s sex.
I have two difficulties with Mr Reynold’s submission. First, it is by no means clear that the phrase “unwanted conduct related to any of the grounds”, retaining as it does the term “grounds”, excludes the notion of cause and effect, even though on Burton J’s reasoning in EOC the phrase “unwanted conduct related to the sex of a person” does so. We have been supplied with the French, German and Greek language versions of the Framework Directive, but I do not think they throw any further distinct light on the matter.
Secondly however, and perhaps more substantially, it is important to see where Mr Reynold’s invitation to apply Burton J’s reasoning in EOC to the Framework Directive leads us. Here we should recall the premise of his argument to which I drew attention in addressing Question (1): that harassment on grounds of sexual orientation may occur even though no person’s actual, perceived, or assumed sexual orientation has anything whatever to do with the case. In relation to the Framework Directive, his case must be that the same applies to each of the other forms of discrimination mentioned in Article 1: religion, belief, disability or age. Unwanted conduct relating to any of those matters may amount to harassment even if it does not touch or engage the possession of any of those characteristics by any person.
This would amount not to a Pandora’s box, but a Pandora’s attic of unpredictable prohibitions. I do not believe that the European legislature intended such a state of affairs. And it is to be noted that no such consequence can be said to arise in the case of the amended 1976 Directive: there, the words in the definition of harassment are “unwanted conduct related to the sex of a person”, which must refer only to the sex of a specific person, and manifestly cannot refer to anyone’s religion, belief, disability or age. All of the unruly generalities implied by Mr Reynold’s argument are excluded.
Mr Reynold drew our attention to the decision of the European Court of Justice in Coleman v Attridge Law [2008] IRLR 722. In that case the claimant, after accepting voluntary redundancy, brought proceedings against her former employers alleging disability discrimination and constructive dismissal. She claimed to have been subjected to unfair treatment because she had a disabled son, whose primary carer she was. She relied on the protection afforded by the Framework Directive against discrimination “on grounds of disability” as informing the construction of the material provisions contained in the Disability Discrimination Act 1995. Upholding this approach on a reference by the ET for a preliminary ruling, the Court of Justice stated:
“38. … [I]t does not follow from those provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the Directive. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability. The principle of equal treatment enshrined in the Directive in that area applies not to a particular category of person but by reference to the grounds mentioned in Article 1. That interpretation is supported by the wording of Article 13 EC, which constitutes the legal basis of Directive 2000/78, and which confers on the Community the competence to take appropriate action to combat discrimination based, inter alia, on disability.
…
50. Although, in a situation such as that in the present case, the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered. As is apparent from paragraph 38 of this judgment, Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in Article 1.”
Clearly, then, domestic and European law alike vouchsafe that harassment or discrimination “on grounds of” sexual orientation or race or disability is not limited to situations where the victim is mistreated because of his or her own condition (whether sexual orientation, race, or disability): though no doubt that is the paradigm case. But the extended instances – Showboat here, Coleman in Luxembourg – are all connected with someone’s actual, perceived or assumed condition. They are all examples of harassment or discrimination “on grounds of” (someone’s) sexual orientation, race, or disability: that condition was, in each case, an operative cause of the mistreatment in question. To this extent I apprehend that Coleman tends to support the view I have put forward of the scope of the Framework Directive.
THE THIRD QUESTION
The last question is whether, if I am wrong on Question (2) and the Framework Directive enacts a rule prohibiting unwanted conduct merely related to sexual orientation and not caused by it as a characteristic of a particular person or persons, Regulation 5(1) can be read down so as to produce that effect.
In EOC Burton J considered there was too great a distance between the 1976 Directive’s meaning and the terms of the relevant domestic legislation to allow for any proper “reading down” of the municipal statute. In my judgment a like conclusion applies to Regulation 5. HMRC v IDT Card Services Ireland Ltd [2006] EWCA Civ 29 shows (paragraphs 81 – 82, 84 – 89) that the courts’ duty to interpret domestic legislation so as to achieve the purpose of a European Directive which the legislation purports to implement is limited (just as is the interpretative duty owed by the courts under s.3 of the Human Rights Act 1998): it runs “so far as is possible”; any reading down must “go with the grain of the legislation” as drafted. That position is not, I think, displaced by any of the European cases to which Mr Reynold referred, such as Pfeiffer [2005] IRLR 137 and Adeneler [2006] IRLR 716, and which with respect I need not cite. They are essentially applications of the well known principle set out in Marleasing [1990] ECR 1-4135, that the national court is bound to interpret implementing national law, “so far as possible”, in order to achieve the result sought by the relevant Directive: the thrust of HMRC v IDT is just the same, and in truth all this learning points in the same direction.
The gap between Regulation 5 on its ordinary construction and as Mr Reynold would have us read it down is surely no smaller than in the EOC case. There, Burton J said at paragraph 61:
“It is obviously not just open to a national court, but its obligation, to set out to construe statutes and regulations passed by the Member State so as to render them compliant with a relevant Directive. But, by reference to the aspects which have been in issue at this hearing (save for [sc. certain particular points]) both individually, and in any event collectively, I do not consider that to do so is appropriate – by virtue of the extent of reading down/transposition which would be required to be considered in order to render them compliant: or possible – because I am not persuaded that even such extreme application of the Marleasing principle would in any event be effective: or sensible – because of the need for clarity and certainty, and comprehensibility, by employees and employers alike.”
Mr Reynold does not suggest that these conclusions were in any way incorrect in their context. Just like EOC, this present case involves the difference between X being caused by Y and X being related to Y. That is a difference of kind, not merely of degree. To read the first as meaning the second is not an act of interpretation, going “with the grain of the legislation”. It is itself, in effect, an act of legislation, and therefore travels beyond what is permissible.
Accordingly if I am wrong on Question (2) I would for these reasons answer Question (3) by holding that Regulation 5(1) cannot be read down as Mr Reynold suggests.
CONCLUSION AND POSTSCRIPT
I would dismiss the appeal for all the reasons I have given. But I should record an unease I have felt about the case. The factual scenario on which the ET determined the preliminary issue formulated by them is, to say the least, surprising: as I have shown, the premise was that the appellant was not perceived or assumed to be gay by his tormentors who – as he was aware – did not themselves believe him to be gay. That was, I acknowledge, the appellant’s own evidence and I do not of course suggest that his evidence was false. But I have wondered whether it tells the whole story. The application of a test of causation expressed by a phrase such as “on grounds of” is apt to be nuanced by the particular facts. I do not mean to imply that with further evidence this particular case might have turned out differently; and I certainly do not mean to qualify any of the legal conclusions I have reached. I add this postscript only to indicate that the ET should, with respect, approach the use of a preliminary issue procedure with circumspection in any case where the result may be influenced by the details of the facts as well as what may be called the main story.
LORD JUSTICE SEDLEY:
As Lord Justice Laws points out in his postscript, the simplistic facts distilled by the employment tribunal and made the basis of their preliminary determination will have eliminated all the potentially important nuance and detail upon which a case such as this, properly heard out, ought ordinarily to turn.
This said, however, the single critical assumed fact was that the appellant was repeatedly taunted as gay. In my judgment it did not matter whether he was gay or not. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within Regulation 5 and within the 1976 Directive. The incessant mockery (“banter” trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation. That is the way I would prefer to put it. Alternatively, however, it can be properly said that the fact that the appellant is not gay, and that his tormentors know it, has just as much to do with sexual orientation – his own, as it happens – as if he were gay.
If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible. In both cases the man’s sexual orientation, in both cases imaginary, is the basis – that is to say, the ground – of the harassment. There is no Pandora’s box here: simply a consistent application of the principle that, while you cannot legislate against prejudice, you can set out in specified circumstances to stop people’s lives being made a misery by it.
There are also policy reasons why the distinction should be regarded as one without a difference. Sexual orientation is not an either-or affair. Some people are bisexual; some are asexual; some, including heterosexuals, have unusual interests or proclivities. All of these may desire to keep their orientation to themselves but still be vulnerable to harassment by people who know or sense what their orientation is. It cannot possibly have been the intention, when legislation was introduced to stop sexual harassment in the workplace, that such a claimant must declare his or her true sexual orientation in order to establish that the abuse was “on grounds of sexual orientation”. What is required that the claimant’s (or someone else’s) sexual orientation, whether real or supposed, should have been the basis of harassment directed at him or her. That is what was going on here, even on the limited facts which were assumed to be the only relevant ones. The case would have been exactly the same if Mr English had elected, for whatever reason, to remain silent about his actual sexual orientation – for example because he took the principled position that it was nothing to the point. And the same would be the case if he were actually gay or bisexual but preferred not to disclose it.
I particularly question the view that the word “grounds” imports more than is postulated by Lord Nicholls’ question in Nagarajan: why did the other employees harass the claimant? It is not necessary to demand a logician’s or a lawyer’s answer by looking for motive or purpose or cause and effect. If the harassment has was based on his sexual orientation, whether real or imagined, the question “Why?” is answered. If one uses the “but for” test adopted by the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751, then but for the sexual orientation they chose to attribute to him the appellant’s fellow employees would not have harassed him. Even if the entirety of the assumed facts is taken to be material and a cause-and-effect test is applied, the claimant was harassed because his fellow employees thought it was funny to taunt a man they knew to be heterosexual with being homosexual. Whichever approach is taken, the case in my judgment comes within the legislative intent, both domestically and under the Directive: the claimant was being harassed on grounds of sexual orientation.
I share Lord Justice Laws’ unease at the decision of this court in Redfearn. We are, of course, bound by it; but I do not think it either explicitly or implicitly sets any boundary or guideline material to the present case. Nor do I consider that Regulation 5 needs to be read down in order to conform to the Directive. What the employment tribunal took to have happened to Mr English in my judgment offended against both provisions. I would allow this appeal accordingly.
LORD JUSTICE LAWRENCE COLLINS:
Laws LJ has set out the background, the legislation, and the relevant case-law with his usual lucidity, and I will therefore adopt much of what he has said in my reasons for having come to a different conclusion in this difficult and unusual case.
The question is one of very considerable difficulty because of what seems to me to have been a very questionable decision to order a preliminary issue, which avoided what should have been a properly nuanced decision on the facts.
In my judgment, however, even on the assumed facts, the proper construction of Regulation 5(1) leads to a conclusion that there was ” harassment … on grounds of sexual orientation” because the conditions of Regulation 5(1) were satisfied, namely that (a) on grounds of sexual orientation (b) the tormentors engaged in unwanted conduct (c) which had the purpose or effect of violating the claimant’s dignity or creating a degrading, humiliating or offensive environment for the claimant, and (d) which should reasonably be considered as having that effect.
It seems to me that, without the benefit of accumulated case-law, that conclusion follows from an objective approach to the characterisation of the conduct. If one were to ask the question whether the repeated and offensive use of the word “faggot” in the circumstances of this case was conduct “on grounds of sexual orientation” the answer should be in the affirmative irrespective of the actual sexual orientation of the claimant or the perception of his sexual orientation by his tormentors.
If the conduct is “on grounds of sexual orientation” it is plainly irrelevant whether the claimant is actually of a particular sexual orientation. In a case of this kind, even if the claimant is homosexual, it is obviously not for the claimant to show that he is homosexual, any more than a claimant in a racial discrimination case must prove that he is Asian or a Jew.
It would follow from the decision of the EAT that if the claimant is actually homosexual, but those who victimise him do not in fact believe him to be so, then Regulation 5(1) would not be engaged. I do not consider that this could have been the intended result of the legislation, and I do not consider that it is its result.
By virtue of section 3A(1) of the Race Relations Act 1976 there will be harassment where a person “on grounds of race or ethnic or national origins” engages in unwanted conduct which has essentially the same purpose or effect as in Regulation 5 of the Employment Equality (Sexual Orientation) Regulations 2003. In my judgment, where an employee is repeatedly and offensively called a Paki or a Jew-boy even when he is not of Asian or Jewish origin, and even when his tormentors do not believe that he is, that conduct can amount to harassment for the purposes of the Race Relations Act 1976.
This is not the same as the example of an able-bodied but clumsy person being called “a spastic” which was mentioned in argument. The Disability Discrimination Act 1995, section 3B, provides that a disabled person is subject to harassment where the offensive conduct is engaged in “for a reason which relates to the disabled person’s disability.” See also sections 28SA, 31AC. Not only does that wording require an actual disability, but also, however unacceptable the word may have become, it does not normally denote actual disability when being used offensively.
Does the case-law require the conclusion to which the EAT came? In my judgment it does not.
Showboat Entertainment Centre Ltd v Owens [1984] ICR 65
The EAT, presided over by Browne-Wilkinson J as he then was, upheld a complaint of unlawful racial discrimination by a white man who was dismissed by his employers for refusing to obey an instruction to exclude all black customers from the entertainment centre where he worked.
Section 1(1)(a) of the Race Relations Act 1976 provides that a person discriminates against another if “on racial grounds he treats that other less favourably than he treats or would treat other persons”. It was held that section 1(1)(a) covers all cases of discrimination on racial grounds whether the racial characteristics in question are those of the person treated less favourably or of some other person: “The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations” (at 71).
Redfearn v Serco Ltd [2006] EWCA Civ 659, [2006] ICR 1367.
The claimant was a member of the British National Party. He was employed by a company which ran buses to transport adults and children with physical or mental disabilities in the Bradford area. The majority of the passengers were Asian in origin, as were a significant minority of its employees.
He was summarily dismissed. The employment tribunal found that he had been dismissed following (among other matters) representations from the unions and the employer’s employees expressing concerns about Mr Redfearn’s membership of the BNP; considerable anxiety amongst Serco’s passengers and those relatives/carers entrusting vulnerable passengers to Serco’s care.
It was the attempt to treat Browne-Wilkinson J’s statement in Showboat Entertainment Centre Ltd v Owens as if it were a statute which led to the argument in Redfearn v Serco Ltd that the employer’s decision to dismiss Mr Redfearn was based on considerations relating to the race of third parties, their perceived hostility to his views and his perceived attitude to the race of third parties, and consequently that the dismissal was direct discrimination “on racial grounds”.
I am satisfied that Mummery LJ was right to say (at [45]) that the argument turned the ratio of Showboat and the policy of the race relations legislation upside down. I agree with him that the ratio of Showboat was that the racially discriminatory employer was liable “on racial grounds” for the less favourable treatment of those who refused to implement his policy or are affected by his policy. As Mummery LJ said (at [46]), Mr Redfearn was no more dismissed “on racial grounds” than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer.
Nagarajan v London Regional Transport [2000] 1 AC 501
This decision was concerned with the construction of section 2(1) of the Race Relations Act 1976 which provides that there will be discrimination if the discriminator treats the person victimised”less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised” has done certain things, including having brought proceedings against the discriminator or any other person under the Act.
Mr Nagarajan had made a number of complaints to industrial tribunals alleging racial discrimination against a subsidiary of LRT. He applied for a position as a travel information assistant for the company, but after interview he was not appointed. He commenced proceedings in the industrial tribunal claiming victimisation under section 2(1) on the ground that the company had treated him less favourably than others “by reason that” he had previously brought proceedings against it under the Act.
The company gave evidence that it had rejected his application solely on the basis of its assessment of him at a scored interview, where one of the interviewers had given him a score of one out of 10 for articulacy. It had also been noted that the applicant seemed to be “very anti-management.” The tribunal, having found that the interviewer’s assessment of the applicant’s articulacy was unrealistically low and that the assessment of his attitude to management was derived solely from the knowledge of his previous complaints, made the inference that the interview panel had been “consciously or subconsciously” influenced by those previous complaints.
The EAT and the Court of Appeal held that the tribunal was wrong. They applied a dictum in a previous case (Aziz v Trinity Street Taxis Ltd [1989] QB 463, 485) that section 2(1) of the Race Relations Act 1976 “contemplates a motive which is consciously connected with the race relations legislation.” Accordingly the employment tribunal erred in basing its decision on a finding that the interviewers were “consciously or subconsciously influenced” by the applicant’s previous complaints.
The essential question was whether there had been discrimination “by reason that” Mr Nagarajan had previously brought proceedings against the subsidiary. The argument for LRT, which was rejected by the House, accepted that the expression “on grounds of race” in section 1(1)(a) of the 1976 Act was sufficiently wide to allow a finding based on an inherently discriminatory rule, and in such a case motive was irrelevant; but that the words “by reason that” in section 2(1) connoted the motive for, or purpose of, the adoption or rejection of some course of action and thus implied a conscious or reasoned connection between the protected act and the less favourable treatment: [2000] 1 AC at 505. The argument for Mr Nagarajan was that both section 2(1) and section 1(1)(a) required the person victimised to do no more than establish that the cause or a principal cause of his treatment was related to his race: [2000] 1 AC at 503.
The House of Lords (Lord Browne-Wilkinson dissenting) reversed the decision of the Court of Appeal. The leading speech was given by Lord Steyn, with whom Lords Nicholls, Hutton and Hobhouse agreed.
The principal point addressed by Lord Steyn on this part of the appeal was whether there was any distinction between the expressions “on racial grounds” and “by reason that” for the purpose of determining whether conscious motivation was required. He accepted that “depending on the context the two expressions are capable of yielding different shades of meaning”, but that they appeared in parallel provisions and were readily capable of parallel meanings: at 521. It was accepted that conscious motivation was not required in section 1(1)(a): R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155; James v Eastleigh Borough Council [1990] 2 AC 751. There was no reason to adopt a different meaning in section 2(1).
Lord Steyn said (at 521-522): “Quite sensibly in section 1(1)(a) cases the tribunal simply has to pose the question: Why did the defendant treat the employee less favourably? It does not have to consider whether a defendant was consciously motivated in his unequal treatment of an employee.”
Lord Nicholls of Birkenhead (with whom Lords Steyn, Hutton and Hobhouse agreed) said (at 510-512):
“Section 2 should be read in the context of section 1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within section 1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
…
… For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. …
…
I turn to the question of subconscious motivation. 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. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant’s race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. … Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination. …
Thus far I have been considering the position under section 1(1)(a). I can see no reason to apply a different approach to section 2. ‘On racial grounds’ in section 1(1)(a) and ‘by reason that’ in section 2(1) are interchangeable expressions in this context. The key question under section 2 is the same as under section 1(1)(a): why did the complainant receive less favourable treatment? …”
It would be a sterile exercise to consider whether some of the remarks in Nagarajan about the meaning of section 1(1)(a) were strictly obiter, since the considered views of Lord Nicholls and Lord Steyn are entitled to the greatest weight. But it does not follow that what was said in the context of the Race Relations Act 1976 will necessarily apply without reservation in all cases under parallel legislation such as Regulation 5. I accept that similar wording should if possible bear the same meaning. But although very similar wording is used in the legislation designed to combat discrimination based on race, disability and sexual orientation, the context may be subtly different.
But for Mr English’s concession it would have been open to a tribunal to find that, whatever the tormentors may have said about their motives, they were motivated by unconscious prejudices. But I do not consider that it follows from Nagarajan that in the present case Mr English’s acceptance that the tormentors did not believe he was gay leads to the inevitable conclusion that in the context of Regulation 5 the offensive remarks were not made on grounds of sexual orientation.
Showboat Entertainment Centre Ltd v Owens and Nagarajan v London Regional Transport adopted a purposive construction in order to achieve a result consistent with the objectives of the legislation. The effect of Showboat Entertainment Centre Ltd v Owens was to extend the application of section 1(1)(a). The use by Browne-Wilkinson J of the expression “caused by racial considerations” is not to be treated as a gloss on the statute. All he was doing was rationalising the extension of the section to cases where the race of a person other than the victim of the discrimination was in issue. I do not share the difficulties which Laws and Sedley LJJ seem to have with Redfearn v Serco Ltd. If one goes back to the statute and asks (without reference to the case-law) whether Mr Redfearn was dismissed on racial grounds the answer would be obviously in the negative.
In my judgment there is nothing in those decisions to require the court in this type of case to enquire whether the maker of offensive homophobic statements actually thought that the victim was homosexual. The natural meaning of Regulation 5 in my judgment is sufficient to make such an enquiry irrelevant.
I would therefore allow the appeal.
DEC-S2008-026 – Full Case Report
Equal Status Act 2000-2004
Equality Officer Decision DEC-S2008-026
Kane and 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
A v A Primary Scool
Key words
Equal Status Act, 2000 – direct discrimination, section 3(1)(a) – Disability, Section 3(2)(g), -scope of definition of disability, Section 2(1) – Traveller community, Section 3(2)(i) – special treatment or facilities, Section 4(1) – nominal cost, Section 4(2) – discrimination by an educational establishment, Section 7 (2) – harassment, Section 11, invitation to Garda to attend parent/teacher meeting – victimisation, Section 3(2)(j)
Dispute
The complainants, a mother Mrs. A and her son M alleged that they were discriminated against by the respondent, a Primary School on the disability and Traveller community ground in terms of Section 3(1)(a) and Section 3(2)(g)and (i) of the Equal Status Act, 2000 and contrary to Section 7(2) of that Act. They also maintain that they were harassed contrary to Section 11 of the Act. They said that they are members of the Traveller community and that they both have a disability.
The complainant, Mrs. A submitted that her son M was bullied and was called names at school, and that management failed to deal with the problems he encountered there. He was constantly blamed for anything that happened and suspended from school. She was regularly called to meetings with the school to discuss Ms behavioural problems. She requested that he be taught by the Resource Teacher for Travellers but he was transferred back to his mainstream class where he was unhappy. Mrs A stated that during one parent/teacher meeting a Garda entered the meeting room with the intention of attending the meeting without her prior knowledge or consent and she left the meeting. It was also submitted that M was refused Confirmation because he had lodged a complaint of discrimination under the Equal Status Act.
The respondent denied that the complainants were discriminated against or harassed on either the Traveller community or disability ground. They submitted that while they knew that the complainants were Travellers they were not aware of their disability. The school welcomed Travellers and had appointed a Resource Teacher for Travellers. They stated that M misbehaved in school and was subject to the normal disciplinary procedures of the school and his parents were consulted about his behaviour. A Garda did attend a meeting scheduled with Mrs A but only to offer friendly advice in relation to Ms behaviour. The respondent stated that M was not confirmed because he was not attending school nor all the preparation classes for the Confirmation.
Conclusions of the Equality Officer
The Equality Officer concluded that Mrs. A’s literacy difficulties were not a disability which comes within the definition of disability in Section 2(1)(d) of the Act. She found that Mrs. A was treated less favourably on the Traveller community ground than a non-Traveller would have been treated in similar circumstances, in that it was not the practice of the school to invite a Garda to a parent/teacher meeting. She also concluded that Mrs. A was harassed on the Traveller community ground in relation to this incident in that she was subjected to an unwelcome act which was reasonable for her to have found the situation intimidating and for her to feel humiliated.
In M case the Equality Officer concluded that he failed to establish a prima facie case on the Traveller community ground. She was satisfied that M has a disability in accordance with Section 2(1) of the Act. She concluded that the respondent failed to provide reasonable accommodation for him in that he was not prioritised to see the educational psychologist so that educational supports could be put in place to meet his needs, and without special educational facilities it was unduly difficult for him to avail of education in the school. The Equality Officer also concluded that the complainant was victimised in that he was refused Confirmation because he was pursuing a complaint against the school under the Equal Status Act.
Decision
The Equality Officer found that the respondent unlawfully discriminated against and harassed Mrs. A on the Traveller community ground contrary to Section 7(2) and Section 11 of the Equal Status Act, 2000 and awarded her €850 compensation as redress for the effects of the discrimination. In the case of M, the Equality Officer found that the respondent failed to provide him with reasonable accommodation in accordance with Section 4 of the Act and awarded him €3,000 compensation and that he was victimised in terms of in terms of 3(2)(j) of the Act and awarded him €2,000 compensation as redress for the effects of the discriminatory treatment.
The Equality Officer also ordered the respondent to put in place a system facilitating early identification of students who have disabilities or learning difficulties with the aim of directing these students to the appropriate educational services quickly in order to ensure that they maximise the benefit of their participation in formal education.
Equal Status Acts, 2000 – 2004
Decision DEC-S2006-028
Two Complainants (a mother and her son) v Primary School
Delegation under Equal Status Act, 2000
The complainants referred a claim to the Director of Equality Investigations on 18th April, 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 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 complainants, a mother Mrs. A and her son M alleged that they were discriminated against by the respondent, a Primary School on the disability and Traveller community grounds in terms of Section 3(1)(a) and Section 3(2)(g)(i) and (j) of the Equal Status Act, 2000 and contrary to Section 7(2) of that Act. They also maintain that they were harassed contrary to Section 11 of the Act. They said that they are members of the Traveller community and that they both have a disability.
2. Summary of the complainants’ cases
2.1 M started in 5th class in the respondent’s school in March, 2000 having been at school in England up to then. During the new academic school year commencing in September 2000, Mrs. A said that she was called to the school on several occasions concerning her son’s behaviour. He was sent home on several occasions as it was alleged that he could not remain still and was disrupting classes. The complainant, Mrs. A submitted that her son was bullied and was called names at school, and that management failed to deal with the problems he encountered there. He was constantly blamed for anything that happened. She said that her son had been suspended from school on two occasions for the alleged bullying, fighting and going walkabout during class and for not returning to class after breaks. She submitted that her son was standing up for himself in the face of being called offensive names such as “knacker” and was taunted by other children because he is a member of the Traveller community. Mrs. A said that no action was taken against the other pupils, who called her son names.
2.2 The parents requested that M be transferred from his Class Teacher and he was transferred to the Resource Teacher for Travellers (RTT) where he was very happy as he got on much better with that teacher. Mrs. A said that she would prefer M to stay in the resource class as he appeared to be getting on better with a male teacher. On 26th October, 2001 Mrs. A. was called to the school to attend a meeting about M being returned to his class teacher. The meeting was attended by the Principal, the Class Teacher, the RTT, and the home school liaison teacher.
2.3 During the course of the meeting a Garda entered and Mrs. A then left as she objected to his presence deeming it a private parent teacher meeting called to discuss M’s return to his original class teacher. Mrs. A said that there was no discussion about M’s alleged behaviour nor did the Garda mention anything to her about alleged bullying by M. She was shocked to see the Garda enter the meeting and left in a very distressed state. The Garda told her that he was invited to the meeting by the Principal. Following this meeting Mrs. A took M and her other children out of the school for three weeks. She also complained to the Department of Education about a Garda being present at a parent teacher meeting. Subsequently the Principal arrived at her house to apologise. She submitted that this was at the direction of the Department of Education. The apology was subsequently accepted and M and the other children returned to school. Mrs. A consulted her solicitor who took the case up with the school and warned the school they were considering lodging a complaint under the Equal Status Act. She also had a number of meetings with the school authorities and during some of these meetings she submitted that there was a request to withdraw the complaint lodged under the Equal Status Act.
2.4 In November 2001 an incident occurred during P.E class when a stool was knocked over and a child’s leg was injured. It was submitted by Mrs. A that M was wrongly blamed about the incident, and that the investigation was not fair in that the other children were asked in a questionnaire whether M was to blame or not. M was not asked to fill in the questionnaire. Mrs. A and her husband submitted that they subsequently learned from the mother of the injured party that their son was not to blame.
2.5 Mrs. A said that at one parent teacher meeting, the Principal told her that M suffered from ADD (Attention Deficit Disorder) and she asked that M be assessed. The Principal told her that would take two years and M would have long since departed the school.
Evidence of Mr. A
2.6 After the Garda had been brought into the meeting Mrs. A no longer dealt with the school and Mr. A had made arrangements with the Principal that he would be contacted in the event of a serious problem arising in connection with his son. Mr. A said that the school telephoned him constantly complaining about M. He said he worked in Malahide and had to leave work on many occasions after being called to the school over trivial breaches of the school rules, i.e., being back late from lunch, moving about in class, talking in class, cycling in the yard and not standing still in queues. He also said that M still complained about being called names, so he raised this with the Principal. On one particular day the school telephoned Mr. A on three occasions. In January 2001 Mr. A said that he was called to the school because M had not returned from lunch and he found him in a distressed state sitting in a park near the school threatening to kill himself. Mr. A complained to the Principal about the pressure that M was being subjected to by the school situation, in particular by one pupil who constantly called him names. Mr. A asked that M and this pupil be separated in class and this did indeed happen briefly but after a while they were put together again. Mr. A said that he attended a meeting with the Principal, the class teacher, and the RTT at which he emphasised he was trying to co-operate with the school in order to get the problem resolved. He believed that the school was working against him in that they had failed to resolve the issue about name calling. Mr. A stated that at the meeting he asked at the meeting what he could do to assist M. He said that it would soon come to a point where he would have to take M out of the school. The Principal replied that might be the best thing to do. The class teacher said that M was driving her crazy as he would not sit down in class. The RTT said that he felt that the school could still deal with the situation. Mr. A said that the school did not offer to get any assistance to deal with M, nor did the school staff suggest to him that he should get M assessed. In February 2001 Mr. A decided after another complaint and in the light of the continuous calls to the school during his work that he would take M out of the school.
2.7 M was due to make his Confirmation in May 2001. He had attended the rehearsals, but one week prior to the Confirmation his mother was informed by the Liaison Teacher for Travellers that M was not on the list for Confirmation. Mrs. A telephoned the local priest Fr. D, who was also a member of the Board of Management of the school. He confirmed that M would not be making his Confirmation. Mr. A then went to see Fr. D who said that M would not be confirmed. Mr. A said that the priest’s tone was provocative and when he referred to his wife Fr. D asked “Is that the one with the English accent”. Mr. A said that when he asked why M was not on the list for Confirmation, Fr. D said that the family was suing the school, alleging that they were doing this for money. When Mr. A said that he was going to see the bishop about the Confirmation, Fr. D suggested that he should join the Jehovah’s Witnesses. Mr. A said that he believes that M was not confirmed simply because the family was taking a case under the Equal Status Act against the school.
Evidence of M
2.8 M said in evidence that the other pupils constantly called him “knacker” or “dirty knacker” particularly in the playground. He said that he had gone to school in England and got on well there, and the school knew he was a Traveller. He didn’t like the present school because of the name calling. He had no friends and he did not play sports. He did not like PE as the other children used these occasions to call him names in the school hall. He said that he had fought with children who had called him names because he was upset. He had been suspended for fighting. There was supposed to be an agreement that he would tell the teacher about name calling as it happened. However, when he told the teacher she ignored him. He said that he liked the RTT teacher and he got on well with the four other children in that class.
M went to secondary school in September 2001. The school arranged to have him assessed by a Psychologist who confirmed that he was suffering from ADD.
3. Summary of the Respondent’s Case
3.1 The respondent submitted that M was not discriminated against on the Traveller community ground. The Principal stated in evidence that the school enrols a great number of Travellers and the family had a number of children in the school including two children younger than M who got on very well in the school. Because of the number of Travellers enrolled, the school applied to the Department for a Resource Teacher for Travellers. A teacher who was on the staff of the school was appointed as the RTT. The school was also visited by the Department of Education’s Home School Liaison Teacher for Travellers, Ms. Anne Byrne who would take classes with Traveller children in order to assess their progress.
Evidence of the Principal
3.2 The respondent stated that M was enrolled in the school at the beginning of the 1999/2000 school year. While he did not present major disciplinary problems, his class teacher noted that he had short attention spans, resulting in disruptive behaviour. Some of the children in his class were afraid of him and this was brought to the attention of his parents. When M transferred into 6th class there was a marked deterioration in his behaviour. Complaints were received about M bullying other pupils in his class, misbehaving in the school yard and slamming a door in a child’s face. Parents also complained to the Class Teacher about M’s behaviour towards their children. The Principal said that he could not imagine that M was called names as the other children in the class were afraid of him. The Principal said that he constantly asked M to behave and he had put a system in place to reward good behaviour with a chip voucher. The Principal had a meeting with the parents and brought these incidents to their attention. The parents complained about M being called names. The Principal received a complaint about one particular pupil and he investigated the incident and the pupil concerned was sanctioned. He also told M that he should report any name calling to the teacher. He got a report that M kicked over a bench during PE resulting in a child’s leg being injured. He investigated the incident by a questionnaire excluding M as it is the policy to exclude the pupil who is accused. This investigation exonerated M. The Principal allowed M home for lunch in order to avoid problems in the school yard. However, the problems continued and M was suspended following a further alleged bullying incident in the school yard.
3.3 The Principal met both parents together with his Class Teacher and the Resource Teacher for Travellers. At the meeting both parents were made aware of the M’s behaviour. It was agreed with the parents that one of them would come to the school on a regular basis to see if M was behaving but the parents did not follow through with this agreement. Complaints continued to be brought to the attention of the Principal. He excluded M from PE classes as he considered him a danger to himself and the other pupils.
3.4 M was then transferred to the RTT class for a number of weeks as his Class Teacher could not cope with him. It was not usual for children to be taught full-time in the RTT class, the Traveller children who require assistance with school work are withdrawn from their regular class for one or two classes during the school day. As it was not envisaged that M would be staying full-time in this class, it was decided it was time to transfer him back to his regular class after a few weeks. A meeting was called with Mrs. A to discuss this and also a number of incidents concerning M, which had occurred in the previous days. A meeting took place on 26th October 2000 with Mrs. A, the Principal, the Class Teacher, the RTT, and the home school liaison teacher. While the meeting was in progress a member of the Garda Siochana (Community Garda) arrived at the school to talk to the children about the dangers of Halloween. As one of purposes of meeting Mrs. A included a discussion on M disruptive bullying behaviour, the Principal invited the Garda into the meeting to offer friendly advice as the Garda is regarded as an expert in the area of bullying. The Principal said that he did not warn Mrs. A that he was inviting the Garda to attend. As soon as the Garda entered the meeting Mrs. A objected, leaving the meeting and taking M and her daughter out of school. The Principal said that he subsequently received a telephone call from a Department of Education Inspector seeking to have M returned to school. The Principal went to the family home and apologised for bringing the Garda into the meeting and the children returned to school.
The Principal stated that on one other occasion some years ago he invited a Community Garda to a meeting with a parent. On that occasion a bathroom was flooded in the school and he was having a meeting with the parent and child responsible for the damage. A Community Garda was visiting the school and he invited him to the meeting. The parent and child in question were not members of the Traveller community.
Evidence of the Class Teacher
3.5 The Class Teacher stated that M was in her 6th class. She said that she had an interest in special education, including education for Travellers. She said that she worked to integrate special education classes into mainstream education. She said that the school always welcomed Travellers and pushed hard to have a resource teacher for Travellers appointed by the Department of Education. She said that she also worked closely with the Traveller Liaison Teacher. She said that right from the start she got complaints about M. She had to rearrange the seating arrangements because one parent did not want their child to sit beside M. The complaints mostly related to bullying by M. She attended a number of meetings with the parents of M who suggested that M was called names and bullied. The parents also suggested that they would bring in the Department of Education as they felt that the school had a bullying problem. At one particular meeting it was decided that M would be transferred to the RTT full-time for a period of time.
3.6 The Class Teacher kept a detailed note on M after his father informed her that he was contacting a solicitor about the school. After a number of meetings with the parents an arrangement was put in place for the Class Teacher to telephone his father every Friday afternoon. During one of these conversations with Mr. A the Class Teacher pointed out that M was not bold, but it was her opinion that M was hyperactive. She said that she recognised the symptoms from another child who had ADD and was on medication. She also suggested that it might be caused by an allergic reaction to certain foods and that tests could be carried out by someone qualified in the ADD area. She said that the father said that he did not want M placed on medication and that he would talk to M about his behaviour that evening. She felt the school did its best for M and put all the resources available to it at the disposal of M. However the school had lost teaching posts. A FÁS class room assistant worked with M but had no qualifications in special needs. She said that M liked doing written work and only showed inattentiveness when the class was doing oral work and he had difficulty in communicating orally. She said that the school tended to have children with specific learning needs as other schools in the area tended to refuse admission to these children. She would recognise the symptoms presenting as hyperactive rather than boldness or naughtiness. She said that the school wanted to get to the bottom of M’s problem, but had to depend on the psychological services provided by the Department of Education.
3.7 M was assessed by the school’s the Learning Support Teacher using a standardised test for M’s age group to test his academic level. He scored 10% and the average score is 50%. Subsequently to this he was put on the list to be given to the Department of Education (NEPS) educational psychologist Ms. Mairead Clifford when she visited the school. A list of about 10 pupils was prepared and given to Ms. Clifford. Two pupils were selected for assessment but M was not considered a priority case. If a pupil is assessed the school may be given extra resources to provide extra help to that pupil.
Evidence of the Educational Psychologist (NEPS)
3.8 Ms Clifford said in evidence that she was given a list of 77 pupils including M. Two were selected as a priority by the school to be tested by her for educational support. While she could not recollect a discussion about M with the Learning Support Teacher she was made aware of behavioural problems among the list of 77. She would have advised the school that these pupils needed to see a clinical psychologist and any children exhibiting such behaviour should be referred to a specialised psychological service known as the Lucena Clinic, as they have the psychological services needed. While the parents have ultimate responsibility to have their children assessed Ms. Clifford’s practice was to refer the school to this clinic. Some parents have their children assessed privately. At the time she reviewed the list of 77 Ms educational needs were being met by the Resource Teacher for Travellers, other children on the list of 77 did not have this support. The school also had the visiting teacher for Travellers who also provided extra support.
Evidence of the School Liaison Teacher for Travellers
3.9 Ms. Anne Byrne stated that she is the Department of Education School Liaison Teacher for Travellers. Her job is to liaise between the school and the home and would deal with the enrolment of Travellers in schools. If parents require assistance in dealing with the school she would assist. She would also be asked by the school to obtain parents’ signatures for forms such as admission forms or health forms. She stated that the school was aware that Mrs. A had literacy problems and she was requested by the school to assist in having forms signed. She said that she was shocked when she heard about a Garda being brought into a parent teacher meeting. She knew from the school that M had behavioural and learning difficulties. She was also aware that M complained about being called names in school.
Evidence of Fr. D
3.10 Fr. D a member of the Board of Management of the school and knew the complainants. He said that the reason M was not confirmed was that he had left the school in February, and was not prepared for Confirmation and this was the rule. The rules and regulations about the Confirmation were put in place by the class teachers. Attendance at the school preparation classes were critical to the decision on whether or not M would be confirmed. He had a telephone call from Mrs. A and he told her that M could not be confirmed. He had a visit from M’s father later that day. Mr. A became angry when he was told that M would not be confirmed. Fr. D said that the refusal of the Confirmation had nothing to do with the case lodged against the school. Fr. D accepts that he did mention the case to Mr. A and said that he thought it was strange for him to be suing the school and still want his child confirmed. He also said that the case was discussed by the Board of Management.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Sections 3(1)(a), 3(2)(g) 3(2)(i) and 3(2)(j) of the Equal Status Act and in terms of Section 7 of that Act. In reaching my decision I have taken into account all the submissions, 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 deemed to occur where:
“On any of the grounds specified… (in this case the disability and Traveller community and disability grounds )…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds … are …
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).”
Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds … are …
that one is a member of the Traveller community and the other is not.”
Section 7(2) provides:
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, or facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student
A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.2 I have identified the key issues to establish a prima facie case as follows:
(i) Are the complainants covered by the discriminatory grounds? (in this case are the complainants members of the Traveller community and have the complainants a disability in accordance with the Act?)
(ii) Is there evidence that they were 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 grounds (Traveller community and disability) 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 a persons with disabilities, which made it impossible or unduly difficult for them to avail of the service?
(v) would providing for those needs have given rise to greater than nominal cost to the respondent?
While the complainants do not have to satisfy all the tests above they need to satisfy test (i) (that they is covered by the disability and Traveller community ground) plus tests (ii) and (iii), or test (iv).
Conclusions in Respect of Complainant Mrs. A
4.3 I will deal in the first instance with the case of Mrs. A. I am satisfied that she is a Traveller within the meaning of the Act. The next question for consideration is whether Mrs. A has a disability.
Disability is defined in Section 2(1) of the Act as:
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”.
The complainant submitted that she had literacy difficulties and dyslexia and she submitted a psychological report in support of her case. The report concluded that the complainant was a person of low average intellectual ability who had severe literacy difficulties. It went on to say that she did not have an illness or impairment or specific learning difficult e.g. dyslexia, but that her literacy difficulties arise from personal and family circumstances rather than a cerebral condition. I am satisfied that the complainant’s literacy difficulties are not attributable to “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction” and her deficient literacy skills is not a disability within the definitions of disability in the Act, therefore she is not covered by the ground.
Traveller Community
4.4 As the complainant is covered by the Traveller community ground I have examined test (ii) above and I am satisfied that the complainant was subject to specific treatment in that a member of An Garda Siochana was invited into a parent teacher meeting. I will now examine whether the complainant was subjected to less favourable treatment in the circumstances. The complainant understood that the meeting was called to discuss her son’s return to his mainstream class from the RTT, and she was shocked when a Garda joined this meeting. The Principal said there was no ulterior motive for having the Garda present other than to give the complainant some friendly advice about her son. The Principal stated that the Garda offered to attend the meeting when he informed him that there was a meeting in progress with the complainant to discuss her son’s bullying.
4.5 I am satisfied that the meeting was a private parent/teacher meeting to discuss the return of M to his mainstream class and that the complainant did not give her permission to invite a Garda to attend this meeting. In my view it would be highly unusual for a Garda to attend a parent/teacher meeting, thus I am satisfied that the complainant has established grounds that she was treated less favourably than a non-Traveller would be treated in similar circumstances. I find therefore that she has established a prima facie case of discriminatory treatment.
4.6 The respondent in rebutting the prima facie case referred to another occasion when he asked a Garda to attend a meeting. He said that a number of years ago, a community Garda who happened to be in the school, was called to a meeting with a parent and child (not Travellers) in relation to an incident about a flooded bathroom. I am satisfied from the nature of the evidence that the context of this meeting was not similar to a parent teacher meeting in relation to class matters. The Garda in that case could have been called to investigate damage to school property. I am therefore satisfied that the respondent has failed to rebut the prima facie case and I find that the complainant was discriminated against on the Traveller community ground in relation to this meeting.
5.0 Harassment
5.1 The complainant submitted that she was harassed contrary to Section 11of the Equal Status Act 2000 which provides inter alia that:
11(2) “A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment ……shall not permit another person who has a right to be present in … , to suffer …harassment at that place”.
11(5) “Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
In support of her complaint the complainant submitted a number of instances which she considered harassment under the Act, namely (i) inviting a Garda into the parent teacher meeting, (ii) the refusal of the respondent principal to make a timely apology to her in relation the Garda presence and only did so after a telephone call from the Department of Education, (iii) constantly being called to meetings in the school, (iv) successive allegations of bullying by M and complaints about minor infringements.
5.2 Mr. & Mrs A submitted that they believed that the reason the Garda was invited to the meeting was M was wrongly associated with troublemakers in the area in which they live. Mrs. A said in evidence that she was aware that M was mentioned at a public meeting in connection with alleged bullying. She said that neither her family nor M was involved but that there are a number of Travellers living in the area with the same surname. They have no connection with these people as she and her family live a settled lifestyle in a private house. She believes that simply because they have the same surname they have been associated with any acts bad behaviour by other Travellers.
5.3 The question which I have now to consider is whether the Principal by allowing the Garda to enter the meeting room permitted harassment of the complainant. The Principal said that when he invited the Garda to the meeting he agreed to come because he recognised the name M and had complaints about him. The Garda in a written statement said that he had received unsubstantiated claims of bullying about M and his name had been mentioned at some public meeting. I am satisfied that this was the reason the Garda was invited by the Principal to the meeting i.e. to discuss issues which were clearly not on the agenda. The evidence supports the contention that the complainant was subjected to the unwelcome act of bringing a Garda into a private meeting, which the complainant clearly understood concerned returning her son to his mainstream class. She did not know in advance that a Garda would be present, nor had her permission been sought. The Principal conceded during the course of the hearing that the situation could have been intimidating for the complainant. It is clear from the evidence presented that the complainant felt intimidated and humiliated by the actions of the Principal and it was agreed that she had left the meeting in a distressed state. If a Garda intended to give friendly advice it should have taken place in a venue other than the school.
5.4 I am satisfied that from the complainant’s perspective, as a member of the Traveller community that it was reasonable for her to find the presence of a Garda at the parent/teacher meeting to be intimidating and for her to feel humiliated by the experience.
The evidence has been that Mrs. A attended the parent/teacher meeting shortly after the occurrence of a public meeting in the school where comments were made about her son. In these circumstances to have a member of the Garda Siochana join the parent /teacher meeting would, in my view, on balance have been intimidating for her. I am satisfied that this would not have happened if the complainant had not been a Traveller. I am therefore satisfied that the complainant has established that she was treated less favourably than a non-Traveller would have been treated in similar circumstances. For the above reasons, I find that that the complainant was harassed in relation to this parent/teacher meeting within the meaning Section 11 of the Act.
5.5 I find that there was no harassment within the meaning of the Act in relation to the other matters raised by the complainant’s representative such as the parents being constantly called over M’s behaviour. It is incumbent upon the Principal to bring his concerns to the attention of parents in order to put strategies in place to deal with unacceptable behaviour or disciplinary issues. This is in line with the Department of Education Circular 20/90 “Guidelines Towards a Positive Policy for School Behaviour and Discipline and The Guidelines on Countering Bullying behaviour in Schools” dated September 1993. Also the school’s Code of Behaviour provides for sanctions for misbehaviour including contacting the parents. There is an obligation on the school to investigate complaints received and to deal with class disciplinary issues and to put appropriate sanctions in place.
5.6 The next question for consideration is whether the complainant was victimised. While the complainant was asked to withdraw the complaint of discrimination, I am satisfied that the Principal did not pursue the issue any further. In the circumstances, I find no evidence of victimisation in relation to Mrs. A contrary to the Act.
Conclusions of Equality Officer in Respect of Complainant M
6.0 Traveller Community Ground
6.1 I am now going to consider whether the complainant M meets the tests outlined above in order to establish a prima facie case. I am satisfied that he is a Traveller. I am also satisfied that he was subject to specific treatment in that he was called names. He was disciplined for various behaviours including suspended from school and he did not get confirmed that year. I am now going to examine the evidence to see if he meets the third test, and establish that he was treated less favourably than non-Travellers would have been treated in similar circumstances. It is complainant’s case that he was constantly accused of bullying and misbehaviour, but that he was being bullied and called names by other children, and his behaviour was a reaction to this treatment. The parents submitted that they investigated the complaints received about M with other parents and found that not all of the incidents complained occurred. The complainant stated that when he complained to the teacher he was ignored. It was also submitted that he was excluded from a questionnaire investigation into an incident in the Gym, from which he was later exonerated and this supports the contention that he was been unfairly picked on because he is a Traveller.
6.2 The respondent denied that the complainant was treated any differently than other children who misbehaved. It was submitted that the school had a policy of admitting Travellers to the school including other members of this family who had got on very well at the school. It also succeeded in getting a RTT (Resource Teacher for Travellers) who provided extra tuition to meet their specific needs (including those of the complainant) in a number of subjects. The school also interacted with the Home School Liaison Teacher for Travellers.
6.3 I am satisfied that the complainant has not established a prima facie case of discriminatory treatment on the Traveller community ground. The complainant was subject to the normal disciplinary procedures of the school when he misbehaved, and his parents were frequently called to the school to be informed of these problems. I note that the school has a code of behaviour policy. I have examined this and also the Department of Education’s Primary Branch Circular 20/90 entitled “Guidelines Towards a Positive Policy for School Behaviour and Discipline and a suggested Code of Behaviour and Discipline for National Schools”. I am satisfied that the Department’s suggested Code was followed by the school in its dealings with the parents and M concerning any misbehaviour. I am also satisfied that any disciplinary measures that the school deemed necessary to apply to a particular situation were applied equally to all children. I am satisfied that the school welcomes Travellers and has supports in place, such as the RTT teacher to help Traveller children integrate into mainstream classes. Consequently I find therefore that the complainant has not established that he was treated less favourably than a non-Traveller who was engaged in similar misbehaviour would have been treated.
6.4 Harassment
The complainant stated that he was harassed in that he was called offensive names and the teacher failed to deal with his complaints. There was one specific complaint of name calling outlined by the complainant at the hearing, and the principal accepted that he had received a complaint from the complainant and this was dealt with by him and the pupil responsible was disciplined. Section 11(2) provides:
“A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment …….shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place”.
Section 11 (3) provides “It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practical to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member”.
6.5 While I accept that the complainant may have experienced a level of name calling, the evidence presented in the case does not support the contention that his complaints were ignored. I am satisfied that the respondent dealt with complaints received and sanctioned one pupil. The complainant was also separated from a pupil in class, and he was asked to report further incidents of name calling to the teacher. He was also given permission to go home for lunch so that he was “out of harms way” in the school yard. I am satisfied that the respondent took steps to prevent harassment of the complainant and the defence in accordance with Section 11(3) applies.
6.6 Disability Ground
I will now consider whether the complainant had a disability in accordance with the Section 2(1) of the Equal Status Act 2000. (Paragraph 4.3 above refers) The complainant was assessed in secondary school by an Educational Psychologist of NEPS (National Educational Psychological Service) in November 2002 and it was concluded in the report produced in evidence that he had a “Borderline General Learning Disability”. A report was also provided from a clinical psychologist who stated that the complainant met the criteria for Attention Deficit Hyperactivity Disorder / Oppositional Defiant Disorder. Accordingly I am satisfied that the complainant has a disability within the definition of the Act.
6.7 I will now examine test (iv) at paragraph 4.2 above that is the treatment of the complainant in the context of Section 4 of the Act which deals with the provision of special facilities for a person with a disability. Section 4 of the Act states, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.
The question raised is whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”. This means that the Act requires the complainant to show that the school did not do everything it could reasonably do to accommodate the needs of a pupil with a disability and that they did not provide him with special facilities to meet those needs. The Act in my view places a demanding standard on the respondent. I will now examine the evidence in the context of the above.
6.8 The complainant’s case is that the respondent failed to provide him with a teaching environment suitable to his needs knowing that he had a disability. He was briefly transferred full-time to the RTT class were it was submitted he was happy. It was submitted that the parents said that they requested that he be transferred out of his main class to either the RTT or to another teacher. Instead he was transferred back to the class teacher where he was unhappy. It was also submitted that he should have been referred to the educational psychologist assigned to deal with the school, and that the school failed to treat M in a way which would have made allowances for his disability, or which would have taken his disability into account. Consequently by treating M in such an oppressive manner, by the constant disciplinary measures imposed on him he was put in danger of harming himself. It was also submitted that because of the failure of the respondent to accommodate his needs as a person with a disability and by constantly calling the parents about minor misdemeanours the parents had no choice but to take him out of the school. The parents submitted that they were anxious that their children would be educated as they had missed out on education because they are Travellers.
6.9 The respondent’s position is that the school was not aware that the complainant had a disability. His behavioural difficulties were dealt with appropriately at all times and that he was referred to the RTT for extra tuition a facility that was not available to non-Traveller children. He was also put on the list of pupils referred to the educational psychologist, but he was not selected for assessment as he was not a prioritised on the list and in any event he was already in receipt of the extra resources of RTT.
I note that both the Principal and the class teacher recognised the symptoms of ADD and that there was a pupil in the school with it who was provided with special assistance. Both described in their evidence that they discussed ADD with the complainant’s parents. I also note that his class teacher said that M was not bold or naughty, but that he had a concentration problem, which meant he could not sit still in class for long periods and this got him into trouble. The complainant’s levels of academic progress were also assessed by the Learning Support Teacher and the result of this assessment was considered sufficient to place him on the list for the NEPS educational psychologist, who visited the school. However he was not prioritised and it would appear that neither the class teacher, or the Principal placed sufficient emphasise on his case so that the psychologist would assess him as a priority and measures could be put in place to assist with the problems identified. I find it surprising, given the level of complaints about M, that he was not prioritised. Ms. Clifford in a letter to the complainants stated that she had no record of a request for assessment of M by the school authorities. I note that when he was subsequently assessed by a NEPS educational psychologist in secondary school and was diagnosed with a borderline learning disability and extra supports were put in place for him in that school. It is also relevant that M was subsequently diagnosed by a clinical psychologist with ADHD. I also note from the evidence of Ms Clifford, NEPS Educational Psychologist that she stated that if pupils’ behaviour or emotional problems are brought to her attention she will advise the school to have the pupil assessed by a clinical psychologist. She would have told them that such services are available in the Lucena Clinic. I am satisfied that the respondent recognised that M had a disability and his behaviour was connected to this disability. It was therefore incumbent upon them to seek out facilities for him. It is my view that without special educational facilities it was unduly difficult for the complainant to avail of an education in the school.
6.11 Special facilities, in my view, would have included the school prioritising M for assessment with the educational psychologist and requesting educational supports from the Department of Education to meet his needs. A part of this process would be to seek out information on the procedures for sending M forward for an assessment by a clinical psychologist from the Clinic suggested by Ms. Clifford and to provide the parents with the information/particulars as M’s mother had literacy problems. It would also be fundamental in such situations to consult with the Home School Liaison Teacher for Travellers whose job is to liaise between the school and the parents to obtain through this channel the necessary consents for the actions proposed to be taken by the school.
6.10 The respondent submitted that it was not the schools responsibility to have the complainant referred to a clinical psychologist. I note that the school had numerous complaints about the complainant’s misbehaviour including bullying behaviour and also the complainant’s father had informed the Principal that the complainant was talking about self harm. The father submitted that he took the complainant out of the school because he could no longer cope with all the telephone calls he was receiving from the school about M. I note at paragraph 11 of the Circular 20/90 addressed to the Management Authorities and Principals of National Schools which includes a suggested “Code of Behaviour and Discipline for National Schools” states:
“Every effort will be made to have an emotionally disturbed child referred for psychological assessment without delay. Help will be sought, also, from support services within the wider community, eg Community Care services provided by Health Boards”.
In a further document from the Department of Education entitled “Guidelines on Countering Bullying Behaviour in Primary and Post-Primary Schools” dated September 1993 the document states at page 15 under Programme for work with victims, bullies and their peers that pupils involved in bullying behaviour need assistance on an ongoing basis and amongst other things states that they may need counselling This would, in my view, indicate that the school was in possession of the appropriate guidance on procedures for dealing with the issues raised by the complainants behaviour and it placed a degree of responsibility on the school Principal to seek out appropriate facilities for M as outlined above.
For the above reasons I find that the respondent failed to do “all that is reasonable to accommodate the needs of a person with a disability” in accordance with Section 4(1) of the Equal Status Act, 2000.
6.11 Nominal Cost
Section 4(2) of the Equal Status Act provides:
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.
I am satisfied that the cost of seeking out the services required by the complainant to meet his needs as a person with a disability would be no more than a nominal cost for the school.
6.12 Victimisation
I am now going to consider if the complainant were victimised contrary to Section
3(1)(a) and 3(2)(j) of the Equal Status Act, 2000. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified… (in this case victimisation ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(j) provides that: that one
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,” ……
(iv) has opposed by lawful means an act which is unlawful under this Act, …
(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)”
As the complainants have not specifically stated in their complaint form that they were claiming victimisation under the Act, I indicated to both parties that I would consider victimisation in my investigation of the case, in that the complainants complained that the respondent asked them to withdraw their complaints, and they further stated that M was subsequently refused Confirmation which they believed was for discriminatory reasons.. The complainant’s solicitor notified the respondent under Section 21(2) of the Equal Status Act, 2000 of their complaints of alleged discriminatory treatment. The solicitor then wrote to the school Principal on 13th December 2000 stating that the Principal had contacted the complainants regarding the complaints and had requested the Principal to deal through their solicitor in future. The parents submitted that they were asked by the Principal not to sue the school. The Principal confirmed that he asked the parents to withdraw the complaint.
6.13 The parents have also complained that M was refused Confirmation. They submitted that he was preparing for Confirmation in the school and that they had attended all meetings and preparation classes in connection with it. When they removed him from class they were notified about the preparations for Confirmation and M attended all of them. Shortly before the date of the Confirmation they learned that M’s name was not on the school list. When the complainant’s mother contacted the priest, Fr. D, who was also member of the School Board of Management, he informed her that M would not be confirmed. Mr. A then called on Fr. D and he stated that he was informed that M would not be confirmed because the parents were suing the school. Fr. D stated in evidence that the complainant was not confirmed because he had not been to school. The class teacher stated that the teachers responsible for preparing the children for Confirmation made a decision at the beginning of the year, and unlike previous years that children who were not attending school would not be confirmed.
6.14 From the evidence presented, I note that there was a certain level of concern at management level in the school that a notice of intention to lodge a complaint had been given to the school under the Equal Status Act by the complainants. Likewise I note from the evidence of Fr. D that he was not pleased that complaints had been lodged under the Equal Status Act. This conclusion was affirmed by the confrontational manner in which Fr. D presented his evidence. I also note that Fr. D failed to inform the complainant’s father that M could be confirmed in October (1), with the effect that M was denied any opportunity of Confirmation. I have found above that the school failed to provide reasonable accommodation for M. I am also satisfied that the reason he was not at school during the relevant time of the Confirmation was not because he had left the school but because it was unduly difficult for him to attend school without the provision of such special treatment or facilities as discussed above. M therefore was not in the category of children who could be refused Confirmation for non-attendance at school. M then sought to process his case under the Equal Status Act 2000 by lodging a complaint.
6.15 I believe that the decision to refuse Confirmation was made by Fr. D alone and I am reinforced in this view by the evidence of Fr. J another local priest who is currently on the Board of Management who stated that the decision to refuse Confirmation is not a decision within the remit of individual teachers. Fr. D in his capacity as a member of the Board of Management knew about the case and was clearly unhappy about it. For the above reasons, I have come to the conclusion, on the balance of probabilities that the reason for refusing Confirmation was made by Fr. D in his role as a member of management because M had given notice of his intention to take a complaint under the Equal Status Act 2000. I find therefore that the complainant M was victimised contrary to section 3(2)(j)(v) of the Act.
7. Decision
7.1 I find that Mrs. A has been discriminated against on the Traveller community ground in terms of Section 3(1)(a) and Section 3(2)(i) and contrary to Section 7(2) of the Equal Status Act 2000 and harassed contrary to Section 11 of that Act. Under section 27(1) of the Act, redress may be ordered where a finding of discrimination 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.”
7.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation which I should award to Mrs A in relation to my finding of discriminatory treatment and harassment, I have taken into account the effect of the discrimination. Mrs. A no longer attended meetings in the school as she felt intimidated. The delay in offering the apology resulted in Mrs. A having her children out of school which added to her distress. I note however that Mrs. A ultimately receive a verbal apology from the Principal and I have taken this into consideration in mitigation of the effects of the discrimination. In the circumstances I order the respondent to pay the complainant €850 as redress for the effects of the discriminatory treatment and harassment.
7.3 In the case of M I find that the respondent discriminated against him in terms of Section 3(1)(a), Section 3(2)(g) and Section 3(2)(j) of the Equal Status Act 2000 and contrary to Section 7(2). In considering an appropriate amount of redress I have taken into account the fact that the complainant was unable to complete his primary education and the effect this had on his academic achievements. I order the respondent to pay him €3,000 as redress for the effects of the discrimination. In relation to the victimisation I have taken into account the effect of missing out on Confirmation had on the complainant and I order the respondent to pay him the sum of €2,000 as redress. Further I order the respondent to pay the above amount of €5,000 to the complainant’s mother on behalf of her son M to be used for M’s benefit.
7.4 Finally in accordance with Section 27(1)(b) of the Act, I order the respondent school to put in place a system facilitating early identification of students who have disabilities or learning difficulties with the aim of directing these students to the appropriate educational services quickly in order to ensure that they maximise the benefit of their participation in formal education.
______________
Marian Duffy
Equality Officer
6th April, 2006
notes
(1) A second date for those who missed Confirmation is arranged by the Archbishop and is normally scheduled for October. The school Confirmation was held in May.
DEC-S2009-084 – Full Case Report
A Student v An Educational Establishment
Keywords:
Equal Status Acts 2000-2008 – Direct discrimination, section 3(1)(a) – Sexual orientation ground, section 3(2)(d) – Victimisation ground, section 3(2)(j) – Harassment, section 11(2) – Educational establishment, section 7(2).
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 11th April 2006. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts on the 21st July 2008. The hearing of the case took place on 3rd September 2009 and the final correspondence relating to the case was received on the 1st October 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. R, a student, that he was discriminated against by the respondent, An Educational Establishment, on the sexual orientation and victimisation grounds in terms of sections 3(1)(a), 3(2)(d) and 3(2)(j) and contrary to section 7(2) of the Equal Status Acts. He also alleges that he was harassed contrary to section 11 of the Equal Status Acts.
3. Summary of the Complainant’s Case
3.1 The complainant, Mr. R, is homosexual and he claims that because of his sexual orientation he was treated less favourably by the tutors and staff of the respondent. Mr. R claims that he joined the respondent on the 13th October 2005 in a Computer Applications course, to help him build up his computer skills as he looked for a job. There were approximately 12 students in his class and he knew that one of his fellow students was also gay. He claims that he did not openly discuss his sexuality with other members at the college but he did befriend one other fellow student who he told that he was gay. He claims that the students and staff at the respondent may have guessed that he was gay because of his “flamboyant” nature and behaviour.
3.2 The complainant referred to a number of incidents where he claims he was targeted and harassed because of his sexual orientation. He also maintains that he was victimised by the respondent because he chose to lodge a complaint in relation to the treatment he was receiving. The incidents he referred to can be broadly summarised as follows:
– The complainant claims that when visiting the administration office on the 13th February 2006 where he was looking for a particular magazine from the respondent’s manager, Mr. B, one of the teaching staff, Ms. A, made a comment that he could use one of the girls magazines because he was only “a little woman”. Mr. R claims that there were a number of people in the vicinity who heard her comments, including Mr. B, and they all laughed. He claims that he later reported the incident to Mr. B and nothing was done about it.
– The complainant referred to an incident in the class room the following day where his tutor Ms. A questioned him about a test that she had asked all the students to take. He claims that there was a heated argument between the two of them and that she physically stopped him from leaving the room, leaving him with a bruise on his arm. He claims that he reported this incident to the management and after an internal investigation the respondent admitted that he was “assaulted” and apologised to him for the incident. He claims that he also reported this incident to the Gardaí, however it was not investigated because a prominent member of the respondent was related to a certain of the local Gardaí.
– The complainant referred to an incident in the classroom one lunchtime where a row escalated with a fellow student who called Mr. R “a f***** queer” and that “he would break [his] face”. He claims he reported the incident to the manager, Mr. B, who brought both students into his office in an effort to sort out the problem. Mr. R claims that he apologised for his part in the trouble, whereas his adversary refused to apologise and no action or sanction was taken against him.
– The complainant referred to a college trip to Woodstown, Co. Wexford with his classmates, where he claims that one of the students wet Mr. R’s bed. He claims that he did not see anyone actually wetting his bed however, he was convinced it was one of his fellow students, whom he named. He claims that when he reported this to the manager, who was also on the trip, they agreed not to raise the issue until the trip was over and they returned to college. However, nothing was ever done to investigate the matter further.
– The complainant claims that he was aware that one other of his classmates was also gay. He claims that this other student was treated much better by the management and staff. He claims that this classmate was allowed additional privileges in the college such as permission to access certain websites that Mr. R was prevented from accessing. He claims that he brought this to the attention of the manager, however nothing was done about it. The complainant stated that all of these incidents deeply effected his confidence and that he just stopped attending as it was too difficult to motivate himself to go to college each day.
3.3 Mr. R claims that once he had taken the internal complaint against Ms. A, the college management and staff did not engage with him any longer. He also claims that he felt that his fellow students isolated him, leaving him out of activities and he felt that there was no one available to help him. He claims that every time he reported an incident to the management, instead of action taken to investigate his concerns, he would, in some way, be subsequently punished for reporting the incident.
3.4 Mr. R vehemently denied that he ever used abusive language or threatening behaviour while he was a student with the respondent. He claims that he was the one being harassed and victimised by the tutors, staff and students at the college and because of that, he was unable to fully participate in the course and missed so many days, which eventually led him to drop out.
4. Summary of the Respondent’s Case
4.1 The respondent is a small community based educational establishment which runs programmes accredited by the Further Education and Training Awards Council for a limited number of students each year. Its students had predominantly dropped out of the school system for one reason or another and accordingly have low educational levels and in many cases were finding it difficult to hold down employment. The college claims that it focuses on its students’ individual needs to try to give them the necessary attention and tools to build their confidence and skills to allow them access higher education programmers and/or employment.
4.2 The respondent refutes the claim made by the complainant that it discriminated against him because of his sexual orientation. It also refutes the complainant’s claim that it victimised or harassed him during his time in the college. The respondent presented Ms. A as a witness, who claims that it was obvious that Mr. R was gay. She claims that he openly made reference to that fact on a number of occasions and she claimed Mr. R would get involved with and, in ways, invite friendly banter on that topic. In particular she referred to an occasion on a college trip, when she claims Mr. R said, in front of all the other students, “that he is half woman”. Ms. A was aware of other students on her programme that were homosexual and this was never an issue. She claimed that the college prided itself on its diverse environment. Mr. B, the manager, also offered similar evidence in relation to the environment and culture in the college and also of the fact that he knew that Mr. R was gay and that was not an issue for the college staff or students. The respondent also presented Mr. C, a fellow student of the complainant, who also gave evidence to suggest that Mr. R had often referred to the fact that he was gay. He also stated that he was aware of other gay students in the college and there were no problems in that, he claims everyone was treated equally irrespective of their sexual orientation.
4.3 Mr. B claims that there were a number of incidents involving Mr. R who was in trouble on a regular basis and these incidents seemed to escalate as the year went on. Mr. B claimed that he investigated the incidents that were brought to his attention and dealt with them on an ongoing basis. He claims that Mr. R had certain communication difficulties, he also claims Mr. R had behavioural issues and was very demanding and accordingly, he could be very difficult to reason with. Ms. A claims that Mr. R was very demanding in her classroom and required constant correction and attention. She claims that he was very disruptive and would often demand immediate attention if he had a problem or a difficulty even if she was dealing with another student. Mr. C claims from his perception all the students in the college were treated fairly by the management and tutors. Mr. C felt that the problems that Mr. R had were brought on by himself because of his personality and his disruptive behaviour.
4.4 Mr. B said that he investigated the incidents that Mr. R brought to his attention, and he said that he did this in line with college policy, as set out in a document entitled Safety Statement. He claims that he held a class meeting with Mr. R’s classmates in an attempt to reinforce the college’s polices of respect and tolerance in an effort to promote a safe environment for all students. He claims that following an investigation of any complaint sanctions were taken when management deemed them appropriate. Evidence was presented of a sanction taken against a named student for such an incident. The respondent claims it tried to accommodate the complainant in every way possible; it met with Mr. R’s probation officer and discussed options to allow him access other programmes outside of the college which would better compliment, facilitate and support him. However, at the same time, it was becoming increasingly more difficult to manage the complainant and his demands.
4.5 The respondent presented its Safety Statement which included information on its disciplinary procedures, code of practice for all stakeholders involved with the college and the policy/procedures on the prevention of, and dealing with Bullying/Harassment. The respondent’s evidence states that Mr. R attended a presentation on the Safety Statement and that he signed an undertaking that he had read, understood and would abide by its rules and regulations.
4.6 Mr. B presented documentary evidence of its interaction with the complainant including references to the verbal warnings and a copy of the written warning that the college served on Mr. R for his behaviour. The documents presented included contemporaneous notes recording the events that lead to the serving of these warnings on Mr. R. The evidence refers to numerous verbal insults aimed at the management, staff and student population. It also documents a series of incidents where abusive language was used by the complainant when speaking to and about persons connected to the college in a demeaning way. The documentary evidence also show that Mr. R received a written warning because of threatening and intimidating behaviour towards the staff of the organisation.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 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, 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.
Discriminatory Treatment- Sexual Orientation Ground
5.2 The complainant claims that he is homosexual and he claims that he was treated less favourably by the respondent because of his sexual orientation. I am satisfied that he was in attendance in the respondent’s college between October 2005 and September 2006. Therefore, the first question that I must address in the present case is whether or not the treatment that Mr. R received constitutes discrimination on the sexual orientation ground within the meaning of the Equal Status Acts. In order for the complainant to establish a prima facie case of discrimination he must show that the treatment he received was less favourable than that which would have been given to another person, of a different sexual orientation. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.
5.3 I am satisfied from the evidence adduced at the hearing that the staff and students of the respondent were generally aware that Mr. R is homosexual. I have noted the evidence presented by Ms. A and Mr. C, where they state that Mr. R openly discussed his sexual orientation particularly at the beginning of his time at the respondent college and that there were other students in the college at the time that were homosexual. I also note they claim that there were others in the college who were known to be gay and there never was a problem with that, as it was not an issue that caused anyone any difficulty. I note the incident where Mr. R claims he was treated less favourably in relation to the access to certain websites that a fellow student, who was also homosexual, had access to. Accordingly, I note that Mr. R claims that this student was treated differently, more favourably, however as both students were of the same sexual orientation, I am satisfied the reason claimed by Mr. R as to why he was treated less favourably, namely because of his sexual orientation, does not apply.
5.4 Having considered the evidence submitted in support of the complaint in relation to the sexual orientation ground, I am satisfied that there is a scarcity of evidence to show that the complainant was treated less favourably by the respondent, not to mind that he was treated less favourably because of his sexual orientation. In fact, the evidence would suggest that the respondent provided a constant support to the complainant while he attended the course and even after he had finished in the college vis-à-vis, the various contact he had with the college seeking information and assistance in non related college projects. I note a decision of the Labour Court in Determination EDA038, Anthony v Margetts?, which I feel is very pertinent in the case before me, albeit in relation to a different piece of legislation, where the courts stated: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the [Employment Equality]Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” I am satisfied that the complainant has failed to adduce facts in this case that infer on the balance of probabilities that an act of discrimination has occurred on the sexual orientation ground.
Victimisation Ground
5.5 The complainant has claimed that he was subjected to discrimination under the victimisation ground. The specific terms of that ground are set out in Section 3(2)(j) subsections (i) to (v), namely,
“(j) that one –
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,”
(ii) has attended as a witness before the Authority, the Director or a court in connection with any enquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the “victimisation ground”).”
5.6 Mr. R alleges that he was victimised by the respondent as a result of the case that he referred to the Tribunal, accordingly I am therefore satisfied that he is covered by the victimisation ground. Mr. R claims that he was subjected to a series of incidents of discrimination and when he reported these incidents to the management nothing was done to investigate them. He claims he received a series of warnings which were unfair and unwarranted and that these were clearly because he had taken a case against the respondent. I note Mr. B denied these allegations and claims that he treated the complainant in the same manner as any other student in the college, and that the college still provided Mr. R with assistance even after he had left the college. At the hearing, Mr. B addressed the specific incidents that Mr. R referred to, one after another. Mr. B also provided me with notes which he claims he made at the time of the complaints when the college served warnings to the complainant in relation to his behaviour. I also note that the complainant did not deny that the incidents leading to the warnings did not occur.
5.7 Having considered the evidence of both parties on this issue, I conclude that the account provided by the respondent is more compelling than that of the complainant and that on the balance of probabilities the respondent’s evidence is a more accurate account of what occurred. In coming to this conclusion, I am satisfied that the respondent recorded contemporaneous notes at the time, I am satisfied that the respondent’s witnesses gave a very credible account of the complainant’s attitude and behaviour while in the college. I am satisfied that the respondent’s account of the exchanges between the complainant and the respondent are very consistent and credible. Accordingly, I find that the complainant, has failed to establish a prima facie case of discrimination on the victimisation ground.
Harassment
5.8 This complaint is also relevant to the provisions of section 11(1)(c) of the Equal Status Acts where an educational establishment could be found to be in breach of the provisions of the Acts for not taking reasonable steps to prevent the harassment of a student by another. Section 11(2) of the Act states that “A person who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public, shall not permit another person who has a right to be present … to suffer sexual harassment or harassment at that place”.
5.9 In this particular case, the respondent’s manager has admitted that he was present when the complainant was subjected to a verbal attack by another student which included remarks in relation to his sexual orientation, (see paragraph 3.2 above bullet point No.3). Therefore, I am satisfied that this is sufficient to raise an inference under section 11 of the Acts. In such instances the burden of proof shifts to the respondents for rebuttal of the case of harassment.
5.10 I note Mr. B’s evidence in relation to this incident, where he states that he encountered three students who were engaged in a verbal attack, insulting one another in one of the class rooms. In his opinion all three were equally involved and were therefore all equally to blame for the fight. I am satisfied that Mr. B took a reasonable approach in dealing with the situation there and then. I also note Mr. B’s evidence that all students were trained up on the Safety Statement and were also invited into a group discussion to reinforce a positive message in the college following Mr. R lodging a series of complaints against students and teachers with management. I am satisfied that it undertook internal investigation, which on one occasion resulted in a student being sanctioned.
5.11 Section 11(3) states that “It shall be a defence for the responsible person to prove that he or she took steps as are reasonable practicable to prevent … harassment … of the other person…” On the balance of probabilities, I am satisfied that the respondent has done all within its powers and has taken such steps as were reasonably practicable to deal with the complaints lodged by Mr. R and to prevent harassment in the college. Accordingly, I find in favour of the respondent in the matter.
6. Decision
6.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the sexual orientation ground or the victimisation ground in terms of sections 3(1), 3(2)(d) and 3(2)(j) of the Equal Status Acts.
6.2 I find that the complainant has established an inference in relation to harassment in terms of section 11 of the Acts, resulting in the burden of proof shifting to the respondents. However having considered all the evidence before me, I find that the respondent has successfully discharged the burden of proof in this case. Accordingly, I find in favour of the respondent in the matter.
______________________
James Kelly
Equality Officer
The Equality Tribunal
8th December, 2009
DEC-S2009-010 – Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2009-010
A Male Student v A Secondary School
Key words
Equal Status Acts 2000 – 2008 – Direct discrimination, section 3(1)(a) – Gender ground, section 3(2)(a) – Supply of goods and services, section 5(1) – Length of a male student’s hair
1 Delegation under the Equal Status Acts 2000 – 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 – 2004 on 10 May 2005. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, 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 Acts 2000 – 2008. My investigation commenced on 27 May 2008 and the Hearing of the complaint was held on 10 October 2008.
2 Summary of Claim
This dispute concerns a complaint by a male secondary school student that he was discriminated against by a Secondary School in being asked to cut his hair to collar length. The complainant maintained that discrimination occurred on the gender ground as female students in the school were not bound by this rule. The student also claims that on one occasion he was personally harassed by a specific teacher over not getting his hair cut, contrary to section 11 of the Equal Status Acts. The claim was notified to the respondents on 12 January 2005.
3 Evidence of Parties at Hearing
3.1 At the outset of the Hearing, the complainant’s representative requested that the case be afforded anonymity because of the student’s age at the time (15) and this was agreed by all parties
The student gave evidence that during his Junior Certificate year he decided to let his hair grow as, like most teenagers, he wanted to establish his own identity among his peers and in society generally. However, when he began to grow his hair he was quickly reminded by the Third Year Head and other teachers that the school’s Code of Conduct required that boys not have unusually long hair and he was advised to get his hair cut. . When he declined to get his hair cut after a number of requests he was suspended for a few days until he eventually complied.
During this period, he claimed that he was verbally attacked by another teacher while talking to school friends outside the school. He maintained that the teacher ”screamed at him” asking why he was still refusing to get his hair cut. He said that the teacher’s outburst was so unsettling that his friends backed away. He claims that the teacher’s actions on that day constituted harassment.
The student described how the situation affected his studies and resulted in him withdrawing into himself. He said that he eventually left the school before sitting the Leaving Certificate to take up a PLC course.
At the Hearing, the student’s father described how his son completely withdrew from the family and even ate separately at home. He said that he became very concerned about his son’s well-being and worried about the development of suicidal tendencies. The father said that he actively engaged with the school in an effort to resolve the matter but the school was not prepared to deal with the issue in a reasonable manner.
At the Hearing, the complainant’s representative made the point that long hair for men has been fashionable for centuries and that, over the years, both male and females have always endeavoured to follow conventional trends in hair styles. In this regard, the representative drew attention at the Hearing to a photograph from the 1870s of the original male founder of the school in question showing him with shoulder length hair.
The complainant’s representative also drew attention to the Students Handbook at the Hearing which specifically states that “hairstyles should not be extreme or such as to attract undue attention” and that it is not permitted to have “unusually long or short hair or pony tails (boys)”. In evidence, photographs were shown at the Hearing of the student from the period in question with well-groomed collar length hair which the representative argued did not fall into the categories of “extreme”, “unusually long” or likely to “attract undue attention”.
At the Hearing, the respondents accepted that the student’s account of what had occurred in the school was reasonably factual but denied the allegation that a teacher had engaged in harassment. The respondents stated that the various teachers involved were simply applying the rules of the school which had been presented to all parents on enrolment.
4 Respondents’ Arguments
4.1 In defending their decision to ask the complainant to have his hair cut, the respondents maintain that the school was adhering to its rules and regulations relating to grooming and hair length and that these rules had been accepted by the student’s parents on his enrolment.
The respondents also refer to a number of UK precedent cases which they maintain support their position that discrimination was not a factor. These include a number of EAT cases from the UK where it was accepted that different rules with regard to uniform (Schmidt v Austick’ Bookshop [1977] IRLR 360 and Burrett [1994] IRLR 7) and hair length (Smith v Safeway PLC [1996] IRLR456) can apply to men and women in workplace situations.
4.2 With regard to school dress codes, the respondents rely specifically on the ruling of the Northern Ireland High Court in the case of a Judicial Review Application from theBoard of Governors of Ballyclare High School (REF WEAL4827T Delivered 18/1/2008) where the school sought a declaration that the adoption and application of the school’s uniform policy and its disciplinary policy were lawful and in particular that the policies were not discriminatory under the Sex Discrimination (Northern Ireland) Order.
In his judgement, Judge Weatherupe found that, overall, the requirements of the code taken as a package were not more onerous on males than females and that the code was not unlawful under the Sex Discrimination (NI) Order 1976. However, he did not deliver the formal declaration sought – that the adoption and application of the school’s uniform policy and the disciplinary policy was lawful and not discriminatory under the Sex Discrimination (Northern Ireland) Order 1976.
5 Complainant’s Arguments
5.1 For their part, the complainants have identified a number of Irish employment equality cases where discrimination was found to have occurred and on which they wish to rely as precedents. These include Pantry Franchise Ireland Ltd v A Worker (Labour Court EED 9310) where hair length was the issue, Keane v CERT (Equality Tribunal Dec-E-2000/08) regarding work uniform and O’Byrne v Dunnes Stores (Labour Court EED 0314) where an employee’s goatee beard was the issue.
6 Conclusions of the Equality Officer
6.1 Section 38A (1) of the Equal Status Acts 2000 to 2008 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/she can rely in asserting that he/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.
In this particular case, the male student claims that he was discriminated against on the Gender ground in that he was asked to get his hair cut while female students were not.
6.2 In considering the Ballyclare and other precedent cases in UK law relied upon by the respondents, I note that all delivered different opposing outcomes to similar cases heard under Irish law (apart from the issue in the Ballyclare case which, to my knowledge, has not as yet come before the courts in Ireland)
In the Ballyclare case, the Judge drew a specific comparison between boys not being allowed to wear long hair and girls not being allowed to wear school trousers. This would not, however, appear to be an appropriate comparison as girls are free to wear trousers as soon as they leave the confines of the school each day while boys cannot change the length of their hair at the end of the school day.
This view echoes the ruling inPantry Franchise Ireland Ltd v A Worker which found that a male employee had been discriminated against by being asked to get his hair cut. In that case, the Labour Court recognised the right of the individual to determine their own appearance and highlighted the impact that such a rule had on the employee outside of work
5.4 O’Byrne v Dunnes Stores also involved this same principle (the right of the individual to determine their own appearance) where an employee’s goatee beard was the issue. In that case, the Labour Court stated that
“In considering whether a dress code operates unfavourably with regard to one or other of the sexes, the conventional standard of appearance is the appropriate criterion to be applied. Other factors to be considered are the relative degree of comfort or discomfort which one or other of the sexes may experience in complying with the code and the relative degree to which it impinges on the right of men and women to determine their own appearance, particularly where it extends outside the workplace (where it relates to such matters as hair length or in this case a beard). A clear distinction must also be drawn between rules which relate to appearance and those imposed by the requirements of hygiene and safety.
Taking the dress code as a whole, the Court is satisfied that it operated in the case of the complainant in a way which restricted his freedom to determine his own appearance to a significantly greater degree than it does in the case of women. This constituted unfavourable treatment on grounds of gender.”
5.5 The following is a further extract from the Labour Court ruling in O’Byrne v Dunnes Stores :
“Dress codes by their nature apply different rules to men and women and it would be absurd to suggest that they should do otherwise. Anti-discrimination law does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally.”
In considering this statement and its relevance to the case before me, I consider that there is clear evidence to demonstrate that the school in questiondoes not treat boys and girls equally. In the case of a female student, as soon as she leaves the school grounds, she is free to transform her appearance and wear her hair in whichever modern conventional style she chooses. This is not the case for a male student whose freedom to determine his own appearance has been seriously restricted by the requirements imposed on him by the school regarding the length of his hair. Consequently, the hair-length requirement imposed on a male student has a much greater impact on him after school than the requirements placed on female students.
5.6 Having considered the arguments of both sides at length, on balance I find the Labour Court rulings more persuasive as I consider that the school’s code of behaviour unfairly impinges on the right of males to determine their own appearance by placing a disproportionate burden on male students with regard to hair length. As long as male students agree to be bound by the same rules and conditions that apply to female students with regard to hair appearance, grooming and cleanliness, they should not be treated any differently, in my opinion.
Accordingly, I find that the male student in this case did suffer less favourable treatment compared to female students in the school and that the school’s actions constituted discrimination on the gender ground contrary to the provisions of the Equal Status Acts 2000 – 2008.
7 Decision
I find that a prima facie case of discrimination has been established by the complainant on the Gender ground in terms of sections 3(1) and 3(2)(a) of the Equal Status Acts 2000 – 2008 and that the respondents have failed to rebut the allegation. I order that the complainant be paid the sum of €1000 for the upset and distress caused.
With regard to the allegation of harassment, I find that insufficient evidence was put before me to support the claim.
Brian O’Byrne
Equality Officer
DEC-S2010-042-Full Case Report
Equal Status Acts 2000 to 2008
Decision Number
DEC-S2010-042
Brooks v BRC Shooting Club
Case ref: ES/2008/0221
Issued 24 August 2010
Keywords:
Equal Status Acts 2000 to 2008 – Discrimination – Harassment – Gender – Provision of goods and services
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Brenda Brooks referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 5 December 2008. 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 13 April 2010. An oral hearing, as part of the investigation was held in Dublin on 29 June 2010.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the gender ground. Ms. Brenda Brooks (“the complainant”) maintains that she was treated less favourably and harassed by BRC Shooting Club (“the respondent”) contrary to the Acts. It was submitted that the unlawful treatment has been on-going since the complainant joined the club in 1999. The respondent was notified on 14 October 2008.
3. Case for the complainant
3.1. The complainant, an accomplished silhouette shooter, became a partner member with the club in 1999. She became a full member in April 2001 and a lifetime member in the summer of 2001. She was one of the first females to become involved in the respondent activities.
3.2. It was submitted that in October 2008 the complainant had volunteered to write an article for a local newspaper. The article was to be accompanied by a photograph that had been taken of the respondent members. Subsequently, the complainant received an email from a named member who complimented her on the article and merely hinted that it may be necessary to ask the members’ permission to use the photos in the media. However, it was submitted that this email was in stark contrast with the email he then sent to the respondent’s trustees. It was submitted that set against the backdrop of sustained gender discrimination and harassment by individual club members against her, the complainant was particularly shocked and upset by the tone of the email and felt she had no option but to seek redress under the Equal Status Acts and to inform the respondent accordingly.
3.3. It was submitted that earlier that year, in January 2008, the complainant had been harassed by a named member at the Club’s AGM. It was submitted that the member sat directly opposite the complainant staring at her in an intimidating fashion. Each time the complainant tried to speak the member spoke over her and he ignored all her requests to bring the meeting back to order. The member also encouraged other members to join in the heckling. When the complainant finished delivering the Chairperson’s report, the named member told her: “You have had plenty of airtime, now it is my turn”. The conduct of some of the members, including the named member, was such that the complainant felt that she had to resign from her post despite the fact that she had another two years before her tenure expired.
3.4. The complainant made a written complainant about the above incident by letter dated 29 January 2008. The letter makes it clear that the complainant felt that a named member engaged in time wasting and intimidation of the Club Executive, badgered and harassed the complainant, and prevented her from effectively carrying out the business of the meeting. She referred to the Club’s Constitution which provides that a member who engages in unbecoming behaviour may be sanctioned. The complainant requested that she receive a response in 14 days.
3.5. The complainant stated that the respondent submitted a response stating that it was looking into the matter and that it would revert in due course. By the end of February 2008 the complainant received a letter informing her that a thorough investigation had been carried out and that the committee did not believe that the named member had behaved in an unbecoming manner. The complainant was never asked to participate in the investigation and therefore was surprised with the outcome. She wrote to the respondent requesting information about the details of said investigation. It was submitted that she received an invitation to meet with the Committee on 10 April. She received the invitation on 7 April and, due to a longstanding commitment, was unable to attend. Similarly, she was unable to attend on an alternative date of 12 June. She requested minutes of the meeting concerning her complainant and never received them. It was submitted that by failing to supply the complainant with the requested documents the respondent was in breach of the respondent’s rules which state that all books and papers of the club must be granted to all members, provided that a reasonable request has been made. Furthermore, the failure to provide the papers has frustrated the complainant’s efforts to present her case as comprehensively as she would have liked.
3.6. It was submitted that in March 2007 two incidents of note occurred. The complainant stated that the named member said about her: “she thinks she is a schoolmistress” at the first meeting the complainant held as the Chairperson of the respondent. It was submitted that he later apologised to the complainant and the apology was accepted. Also, a sign with the wording ‘Lepers only’ was displayed outside the smoking shelter immediately after it had been built and the respondent rules regarding smoking were altered. The change had been brought about by the complainant who had acted on foot of complaints about smoking in the respondent premises from other members. The complainant submitted that she believed that the sign was an attack on her simply because she was ensuring the respondent adhered to the legislation concerning smoking.
3.7. The complainant also submitted that in 2001 a number of incidents occurred. In February, a notice with the statement “Who the fuck is Brenda” was displayed. The notice was removed and the matter was brought to the Committee’s attention. It was submitted that the then Chairperson suggested that as the notice had been placed anonymously, the author should also post an anonymous apology. Around the same time, at an EGM meeting to discuss whether spouse/partners ought to pay insurance premiums, the complainant was reduced to tears by the named member who, inter alia, suggested to a member that he could always shag his partner for the €30 that the premium would cost.
3.8. Later that year, in May, the complainant submitted that the named member behaved in disrespectful manner towards her at the shooting range and used foul language. Later, the complainant and her then partner (another member who gave evidence) spoke with the named member in a local public house where the member commented to the complainant – who had become a full member and was thus paying fees – “at last you were embarrassed into paying up, one down two to go (in reference to other female, non-fee paying spouse/partner members). It was submitted that when the complainant asked him whom he was referring to, he replied: “one is a fat cow”. The complainant raised these matters at a Committee meeting but no action was taken. The complainant, who had sought the special meeting as a result of the incidents, was told by the then Secretary that they would not take action and that he, the Secretary, would rather resign than write to the named member. The complainant’s request that the member be informed of her complaint in writing was declined. It was submitted that the member finally apologised to the complainant two months later. The apology was accepted by the complainant.
3.9. The complainant was abroad for most of 2003 and 2004. No significant incidents occurred in 2005 or 2006.
3.10. It was submitted that if the club had addressed the complainant’s concerns in a timely manner, and taken decisive action in relation to same, the complainant would not have had to seek redress under the Acts.
3.11. The complainant submitted that the conduct outlined at the hearing has effected her dignity and has created an intimidating, hostile, degrading, humiliating and offensive environment for her within the respondent premises. She stated that she no longer feels welcome and, if not for her passion for her sport, she would have left the respondent a long time ago. The complainant also believes that some of the other members now believe her to be a nuisance and that this is having a divisive effect on the club.
4. Case for the respondent
4.1. I was submitted that the respondent is in dismay that any allegation of discrimination, on gender or any other grounds, be levelled at the club. It was submitted that the club is open to all persons. It was submitted that the complainant was elected ‘Member of the Year 2007’ on the basis of the contribution she had made to the Club. The same year, the complainant was elected the Chairperson. The respondent submitted that every member of the Club agrees that the complainant has made an exceptional contribution to the development and administration of the Club. The respondent submitted that in such circumstances where the complainant has given such commitment and dedication to the Club, her allegation against the Club is unbelievable.
4.2. It was submitted that the complainant had misunderstood the email sent out about the photos and had been oversensitive to any tone and/or implied meaning. In relation to the incident of January 2008. It was submitted that the named member had made a written submission to the Committee, prior to the AGM, raising questions about the proposed changes to the respondent’s Constitution. It was submitted that the member was simply seeking a response to his queries. The member found that answers were not forthcoming and he was vociferously debating his argument. It was submitted that such behaviour was relatively normal and that members have a right to debate matters. It was submitted that if the complainant, as Chairperson, believed such behaviour had become disruptive then it was a matter for her to control the proceedings and call an adjournment. This she did not do.
4.3. It was submitted that as the complainant and other Committee members resigned their posts threatening to close the entire club, an emergency Committee was formed by three named members.
4.4. It was submitted that it is not unusual for the named member to argue his opinions vehemently. It was submitted that this had been recognised previously when the member had admitted that he: “went hot and heavy with the (then) Treasurer at the meeting”. The member had apologised and the apology accepted. It was queried whether one could conclude from such facts that the member had also harassed a male member? The respondent stated that it is obvious from the above matters that the member means no harm to anyone but that his nature will be argumentative regarding his views and strongly held opinions. It was submitted that all members are entitled to hold views and that the member merely does not hold back when expressing his. The member submitted that he viewed the complainant as a bit autocratic and overbearing.
4.5. The respondent submitted that it may be just be possible that the complainant did not accept the members’ verdict and was thus complaining. The respondent also submitted that the complainant frustrated the respondent’s efforts to solve this matter amicably by not turning up when requested to do so, even when given two months notice. The club believes the complainant wishes to make an example of the respondent.
4.6. The respondent submitted that it declined the complainant’s request for copies of the Committee meeting on the basis that they were privileged. The respondent did agree at the same meeting to provide copies of the same meeting to the Tribunal, if requested.
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 issue of time in relation to a claim of on-going discrimination needs to be addressed. The complainant submitted in her evidence that certain comments had been made to her in 1999 concerning partner members who, at the time, where all females. S. 21(11) of the 2004 Act 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.”
Statutes cannot generally be said to have retrospective application. This means that, unless it can be shown that a precise condition, requirement or a rule – depending on the circumstances of the case – has continued to operate past the commencement of the Act I have no jurisdiction to investigate it. The Equal Status Act came into operation in October 2000. The Act was amended in July 2004 to include the above provision that clarifies the position set out in section 21(2)(a) of the 2000 Act which requires that notification must be made within two months in circumstances where more than one incident of prohibited conduct is alleged to have occurred. Therefore, I am satisfied that I have jurisdiction to hear the claim from February 2001. However, in accordance with the notification limits set out in the Acts I have examined the complainant backwards from 2008 to investigate if indeed a chain of discrimination and/or harassment has taken place.
5.3. I am satisfied that the respondent is a provider of services in accordance with section 5 of the Acts. There is no question that the club is a discriminating club within the meaning of section 8 or a non-discriminating club within the meaning of section 9.
5.4. The prohibition on harassment in the provision of goods and services is clearly set out in section 11 of the Acts:
“A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (”the victim”) where the victim —
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person.”
Section 11(2) sets out the responsibility on a ‘responsible person’:
“A person (”the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.”
Using normal everyday language, it is clear that the above section imposes a legal onus on a service provider to prevent harassment occurring where a service is being provided. Section 11(3) provides the service provider with a defence:
“It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.”
The onus to establish a defence rests with the respondent on the balance of probabilities. That is, there is a legal requirement on providers of goods and services to show that they took reasonably practicable steps to prevent harassment from occurring.
5.5. For the purposed of the Acts, harassment if defined as:
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(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.
5.6. It is clear from the facts of this case that the complainant had raised the issue of less favourable treatment contrary to section 3 and harassment contrary to section 11 with the respondent. It is also clear that in the past the respondent had taken certain informal action and the matters had been dealt with to parties satisfaction. This occurred despite the fact that the respondent had no policy in relation to these matters. It is clear that the solution had been reached because an individual member was willing to put himself forward to facilitate the matter.
5.7. It is also clear that subsequent to the incident in January 2008 the complainant clearly raised new issues concerning the manner in which she viewed that she was being treated by some of the respondent male members. Its is clear that the then Board were uncomfortable with these allegations, and as personal friends with the alleged harasser, admitted that they did not want to become involved. It was submitted that they felt that the best way to deal with this issue was to ask ten members, who attended the meeting but were not directly involved, what they thought of the alleged incident. It was submitted that these anonymous people were asked, inter alia, whether they thought the named person’s behaviour was unbecoming to a member. On foot of this ‘straw poll’ the Board then decided that the named member had no case to answer and communicated the decision to the complainant. In such circumstances, I find the respondent’s claim that the investigation was thorough and that the complainant simply did not like its outcome to be very disingenuous
5.8. Furthermore, I find that it is rather flippant to suggest that one person has a right to express their views in whatever manner they find fit and that another person, offended and intimidated by such manner, ought to grin and bear it. There is no balance in such an approach. While people are entitled to their personal views, they also bear a responsibility to be respectful towards others in circumstances where they are availing of goods and services. The onus to ensure that a culture of respect exists is with the provider of goods and services. Such a culture does not gag persons from expressing their views but ensures that views are expressed in an appropriate and measured manner, that is, in a manner that is not hostile and does not include personal attacks on a person’s innate traits, such as their gender. It is not appropriate to presume that a woman is ‘oversensitive’ and ask male members to confirm what she ought to be feeling. While I do not find that much of the alleged conduct was at all times overtly gender specific it is clear that the named member is known for his uncompromising manner and that others, including himself, view his manner as such. I note that the member has had to apologise to other members because he had unintentionally offended them or behaved in a manner that objectively warranted an apology. It is also clear that this behaviour has been tolerated because it has been ‘unintentional’. The relevant fact in law is that the complainant had made the respondent well aware of how the named member’s behaviour made her feel and was requesting that the respondent take action to curtail his behaviour. It is not relevant whether the offending person intended or did not intend to cause such offence. What is relevant is what followed subsequent to a complaint.
5.9. It is clear that an allegation of harassment and discrimination was made. It is equally clear that the respondent carried out no investigation, within the proper meaning of the word, into the matter. It is equally clear that as a result of this failure, both parties became even more distrustful of one another. In such circumstances, even emails that may have appeared to be inoffensive to one person will have a very different meaning to the other.
5.10. The case law concerning the duties of employers in relation to allegations of harassment in the workplace has been well developed. It imposes clear obligations on employers in relation to how deal with such matters. I note that the respondent is a voluntary Club and that its management depends on such volunteering. While I appreciate and acknowledge that it would be unfeasible and unfair to impose the same degree of obligations to such voluntary bodies, the legal obligation to protect service users from harassment and discrimination is unconditional. This means that a service provider must take complaints of harassment and discrimination seriously and investigate them in a manner that is consistent with the principles of natural justice. The person making the complainant must be given an opportunity to state his/her case and it must be appreciated that harassment, by its vary nature, is a subjective experience. What is intimidating and hostile to one person may not be so to another. Therefore, it is crucial that the complainant be given an opportunity to explain the facts from her perspective. It is not acceptable to treat the person making the complainant as ‘the problem’ and presume that she is making a complainant for some petulant reason. It is equally clear that the responsibility of having to investigate such a complainant is a challenging one especially in circumstances where people are also friends. Therefore, such an investigative role should not simply be imposed on anyone.
5.11. The above facts have raised an inference of gender discrimination that has not been rebutted. While it may be argued that the complainant was treated exactly like any man in her shoes would have been treated in similar circumstances, it should be clear that she is not a man. Some of the slurs that have been made about her have been gender specific and I am not satisfied, on the balance of probabilities, that similar tactics would have been levelled against another man. The complainant, who undoubtedly has been a proactive member and a ‘doer’, has influenced change and obviously annoyed some members in the process. I find that such is often the burden of a person who actually gets things done. I accept that a person in such a position will have to deal with some comments and difficult questions. And I find that the complainant has. However, she has very clearly stated that she felt harassed and discriminated against on the ground of her gender, and has asked that such allegations be examined impartially. In response, the respondent accused the complainant of being disloyal to it and finds her actions unbelievable. I do not find that it is unbelievable that she referred a complainant. It is clear that the complainant, who truly cares about the respondent Club, did so as a last resort. The complainant had no choice in the matter in circumstances where the respondent saw her, the woman, as the problem because she objected to treatment that made her feel uncomfortable, disrespected and intimidated. Much of the evidence that I heard implied that the named member’s behaviour was acceptable because that is the way he is. It is a shame that the respondent did not afford the complainant the same level of appreciation and accept her feelings as hers. Such an attitude betrays a serious failure to appreciate the responsibilities that the Acts require.
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), 5(1) and 11(1) on the ground of her gender.
6.3. In accordance with section 27(A) I order the respondent to pay the complainant €2500 in compensation for the effects of the discrimination and harassment.
6.4. In accordance with section 27(B) I order the club to immediately implement an equal status/harassment policy that will be binding on all of the clubs users, regardless of the nature of their membership. Such a policy must – at minimum – afford all parties involved in disputes the right to be heard and the right to have the matter decided by an impartial person.
_______________
Tara Coogan
Equality Officer
24 August 2010
DEC-E2007-032 – Full Case Report
EMPLOYMENT EQUALITY ACTS, 1998-2004
EQUALITY OFFICER’S DECISION NO: DEC-E2007-032
O’Donnell & Madden v Premium Distribution Limited
SUMMARY(1)
Ms. O’Donnell & Ms. Madden (complainants) Represented by Doyles Solicitors vs Premium Distribution Limited (respondent) Represented by Messrs. McErlean Weir Solicitors:
Equality Officer Decision DEC-E2007-032 (Coyle G.) 12th June, 2007
Employment Equality Acts, 1998-2004 Sections 6, 8 and 14 – Employment – Discriminatory Treatment – Harassment – Discriminatory Dismissal – Gender – Age
Background:
The complainants commenced employment with the respondent as make-up artists based in Dublin Airport in the Summer of 2004. Difficulties arose in relation to the payment to them of their commission and the respondent had issues with the complainants regarding their attendance. As a result a number of meetings took place between the complainants and the respondent. It is alleged that the person acting for the respondent touched the complainants inappropriately amounting to harassment under the Act and made a derogatory comment to them on the basis of their gender and their age. The complainants further allege that another female employee in the respondent organisation poked one of the complainants in her arm and on another occasion was aggressive to her. It is the complainants’ contention that their dismissal was on discriminatory grounds. The respondent denies the allegations.
Conclusions and Decision:
The Equality Officer held that the complainants have failed to establish a ‘prima facie’ case of discrimination in terms of discriminatory treatment, harassment and discriminatory dismissal on the grounds of gender and age.
1. DISPUTE
1.1 The dispute concerns claims by Ms. O’Donnell and Ms. Madden against Premier Distribution Limited that they have been subjected to discriminatory treatment, harassment and discriminatory dismissal on the grounds of gender and age within the meaning of Sections 6(1), 6(2)(a), 6(2)(f) and 14 of the Employment Equality Acts, 1998-2004 and in contravention of Section 8 of the Acts.
2. BACKGROUND
2.1 The complainants commenced employment with the respondent as make-up artists based in Dublin Airport in the Summer of 2004. Difficulties arose in relation to the payment to them of their commission and the respondent had issues with the complainants regarding their attendance. As a result a number of meetings took place between the complainants and the respondent. It is alleged that the person acting for the respondent touched the complainants inappropriately amounting to harassment under the Act and made a derogatory comment to them on the basis of their gender and their age. The complainants further allege that another female employee in the respondent organisation poked one of the complainants in her arm and on another occasion was aggressive to her. It is the complainants’ contention that their dismissal was on discriminatory grounds. The respondent denies the allegations.
2.2 Consequently the complainants referred their complaints of discriminatory treatment, harassment and discriminatory dismissal to the Director of Equality Investigations on 22nd March, 2005 (in relation to Ms. O’Donnell) and 23rd March, 2005 (in relation to Ms. Madden) under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claims to Gerardine Coyle, Equality Officer on 23rd January, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Following receipt of submissions a joint hearing took place on 30th April, 2007. A further short hearing took place on 29th May, 2007 to hear evidence from a witness, who was unable to attend the hearing scheduled for 30th April, 2007.
3. SUMMARY OF THE COMPLAINANTS’ SUBMISSION
3.1 The complainants are make-up artists and were employed as such by the respondent organisation at Dublin Airport over the period between August and December, 2004 (in respect of Ms. O’Donnell) and July and December, 2004 (in relation to Ms. Madden). They allege that they were ultimately dismissed in discriminatory circumstances having already been discriminated against and harassed on the basis of their gender and their ages. The respondent, on its own website, describes itself as a supplier and distributor of cosmetic, beauty and healthcare products, including “Fruit of the Earth”, “St. Tropez”, tanning products and others. During the period of time when the complainants were in its employment, the respondent also supplied, distributed and sold Smashbox Cosmetics on behalf of the American producers of those products.
3.2 On 24th June, 2004 the complainant Ms. Madden says that she was interviewed by a Ms. Orla Cullen of the respondent organisation for a position as a make-up artist at Dublin Airport. The position involved giving make-overs to members of the public in order to promote the Smashbox range of make-up and thereby generate sales. As a result of her interview the complainant Ms. Madden was offered employment by the respondent and she attended at a Smashbox make-up training day at the Face Culture make-up studio in Beacon Court from 2 – 7 p.m. on 6th July. 2004. Ms. Madden says that the day in question was some sort of a training day for Aer Rianta staff at which Ms. Cullen gave a Smashbox make-up demonstration and did a make-over on one of the staff members. The complainant Ms. Madden simply sat in on the session. She says that she was given no training whatsoever and no sales training. Then on 20th July, 2004 Ms. Madden commenced employment at the Smashbox stand in Dublin Airport. In August, 2004 the complainant Ms. O’Donnell also commenced employment with the respondent located at Dublin Airport and doing the same work as Ms. Madden. It is the complainants’ understanding that no male candidates were interviewed and the respondent does not employ any males, unlike other distributors/vendors in the make-up industry.
3.3 The complainants say that one day Ms. Cullen arrived at the Airport and told them that they were to do as many make-overs as they could in order to help sales. On that same day she told them that the respondent might eventually expect them to generate sales of up to €1,000 per day between them. This was not, however, specified as being an immediate target and it was never mentioned again. Over the following months the complainants say that they were very busy. Their work gave rise to excellent sales and they were regularly told by others at the Airport that their sales were remarkable. According to the complainant a Dior consultant told them that Smashbox was outselling Dior and expressed surprise at this as Smashbox was an unknown brand in Ireland with no real media campaign or profile. The complainants say that Ms. Cullen came to the Airport to see them at the start of October, 2004 and she told them that their sales figures were ‘fantastic’ with stocks running out as sales had not been expected to be so high. It is the complainants’ submission that any other comments on their performance thereafter continued to be positive until their dismissal. The complainants say that later in the month of October, 2004 Ms. Cullen had a conversation with the complainants regarding ‘Christmas Sets’ and explained that if they reached particular Christmas sales targets they would get a Christmas bonus of €300 worth of Smashbox stock and a €100 voucher. The complainant Ms. Madden’s daily sales target for the purposes of the Christmas bonus was €2,300 while Ms. O’Donnell’s equivalent target was €1,750.
3.4 The complainants say that by early November, 2004 they were becoming concerned because they had not yet received any commission payments. On 5th November, 2004 the complainant Ms. Madden called Ingrid Jordan of the respondent organisation to enquire about the matter. She was told that the delay had been caused by Aer Rianta failing to get paperwork back to the respondent on time. Then on 8th November, 2004 the complainant Ms. Madden e-mailed the respondent with work related issues and again enquired about the commission payments that were due and this time she offered to contact Aer Rianta in order to speed up the process. That same day Ms. O’Donnell rang Ms. Madden upset because she had taken the previous Sunday off to attend her niece’s funeral and she had now been told by an Aer Rianta Manager to attend a meeting with Mr. Mark Cullen of the respondent organisation the following day. The complainants say that Mr. Cullen was at the Airport the following day (9th November, 2004). He told Ms. O’Donnell that she was great at her job and during the course of this meeting Ms. O’Donnell alleges that he put his hand on her leg. Ms. O’Donnell says that she mentioned this incident to Ms. Madden at the time. The complainants say that on 12th November, 2004 they contacted Mr. Cullen seeking their commission payments. He agreed to sort out the issue and indicated that the money would be in their bank accounts by the following Thursday. The complainants say that on 15th November, 2004 Ms. Cullen came to the Airport to see Ms. O’Donnell. Ms. O’Donnell alleges that Ms. Cullen poked her in the arm telling her that sales must go up. According to the complainants that same week the respondent unilaterally altered the hours being worked by them.
3.5 The complainant Ms. Madden says that on 18th November, 2004 Ms. Jordan of the respondent organisation told her that she would be processing the commission payouts based on target sales of €2,000 per day. According to Ms. Madden she was told that she would be getting €64.59 in total sales commission for her work since she had started. The complainant Ms. Madden says that Ms. Jordan asked her to inform Ms. O’Donnell that she would not be receiving any commission. Ms. Madden pointed out to Ms. Jordan that there had been no mention of a €2,000 target in her contract and the complainant says that Ms. Jordan acknowledged this fact. According to Ms. Madden she told the other complainant Ms. O’Donnell about the details of the conversation with Ms. Jordan. Then Ms. O’Donnell rang Mr. Cullen and asked if they could have a meeting to discuss the matter. He indicated that he was in the area and said he would be with them in 20 minutes. Mr. Cullen subsequently met with the complainants at a table in Butlers coffee shop in the Airport. According to the complainants he said that he knew nothing about their contracts or commission as he did not get involved in ‘office business’ but that he was sure that there had been a mistake and he would sort it out for them. The complainants say that he added that their sales were excellent saying that they had been responsible for €17,000 in sales the previous week. It is alleged that during the meeting Mr. Cullen put his hand on Ms. Madden’s arm when he was talking to her and at the end of the meeting he said ‘bye now girlies … you don’t mind me calling you girlies?’. The complainants say that the following day they received an e-mail from Ms. Jordan stating that the correct level of commission had been paid. Then on 24th November, 2004 Ms. Cullen of the respondent organisation called to see Ms. O’Donnell at the Airport. The complainant Ms. O’Donnell alleges that Ms. Cullen stepped up very close to her and, in a very aggressive manner, told her that the complainants were not ‘entitled’ to commission.
3.6 The complainants say that on 2nd December, 2004 Mr. Cullen visited the Airport. He instructed them to accompany him to Butler’s Café for a meeting where he stated that the purpose of his visit was to sort out the commission issue. He stated that the contracts ‘had been a typing error’ by his staff and that he wanted the complainants to suggest daily targets to which they would have to adhere in future. According to Ms. Madden she told him that she had signed a contract in good faith and that she wanted it honoured. The complainants say that Mr. Cullen flew into a rage and his tone became very aggressive. He said that he had come to the Airport to handle the issue reasonably, but that if the complainants were going to force him to honour their contracts he would be ‘playing it differently from then on’. The complainants say that Mr. Cullen then produced a list of days on which he claimed that the complainants had forgotten to clock out. He announced that he would be deducting pay from them for those days whether they could prove they had been in work or not. According to the complainants they were both frightened and intimidated by his conduct. It is the complainants’ submission that he then rounded on Ms. Madden who had been in touch with Smashbox Cosmetics in Los Angeles (as she had been asked to by their representative). Jabbing his finger towards her face Mr. Cullen shouted at her that she was never to ‘contact L.A. again’. He then roared ‘I’m your employer … I’m your employer … don’t you ever contact L.A. again’. It is alleged that he continued to shout at Ms. Madden in this manner for some time. The complainant Ms. O’Donnell recalls being afraid of his manner which was so aggressive and she thought that he was going to punch Ms. Madden and Ms. Madden also had the same fears. Eventually Mr. Cullen told the complainants that they should attend at his office and have a meeting with Attracta Burke about the matter. Ms. Madden indicated that she would do so and asked if she could bring a third party. According to the complainants Mr. Cullen exploded asking ‘What third party?’ He then shouted ‘I’m a great employer. My employees love me’. The complainants say that Mr. Cullen said that he wanted an answer as to whether or not they wanted their contracts honoured by the end of the following day. Ms. Madden stated that she would like until the following week to think about it and it is her contention that Mr. Cullen shouted ‘its not rocket science: tell me by tomorrow’ and then he left. The complainants say that Ms. O’Donnell was shaking after the meeting and she went home. Some time later Ms. Madden noticed Mr. Cullen standing in the perfumery with a very tall man in a suit talking and looking over at her. Ms. Madden says that the two men were staring at her and talking and she found this very intimidating.
3.7 Ms. Madden says that on 3rd December, 2004 she telephoned Mr. Cullen and left a message on behalf of both Ms. O’Donnell and herself to the effect that they still wanted their contracts honoured and shortly afterwards Ms. Cullen told Ms. Madden that Mr. Cullen had received her message. The complainant Ms. Madden says that later that morning she received a call from a make-up artist who told her that Mr. Cullen had offered her a full-time job at the Airport that morning. According to the complainants they were in work on 9th December, 2004 when they noticed that Mr. Cullen was standing opposite the perfumeries staring over at them. This, they say, continued on and off for about an hour. When Ms. O’Donnell left at 4.00p.m. she was stopped by Mr. Cullen who called her into an office and dismissed her. Ms. O’Donnell was in tears when she left that meeting. The complainants say that Mr. Cullen then approached Ms. Madden at the Smashbox desk telling her that she had finished her shift for the day and that he wanted her to come to a meeting. She says that she asked him if she was being dismissed and he said that she was and he gave her an envelope after which she left. The complainants say that the dismissal letters that were issued to them were entirely inaccurate in terms of the supposed ‘facts’ to which they referred.
3.8 The complainants instituted claims against the respondent under the Employment Equality Acts, 1998-2004; the Minimum Notice and Terms of Employment Acts and the Payment of Wages Act. The claims under the Minimum Notice and Terms of Employment Acts were withdrawn when it emerged that the respondent had paid a sum equivalent to a weeks notice to the complainants. The claims under the Payment of Wages Act were settled for the full amount of the commission due to the complainants. It is the complainants’ contention that they have been the victims of an appalling campaign of harassment and discrimination which would not have occurred but for their gender and their ages. The complainants’ submit that the respondent has no appropriate policies or procedures in place for dealing with these matters and the complainants would not have had anyone to bring their complaints to in light of the consistently appalling attitude and conduct of the most senior level of management in the respondent organisation. The complainants’ say that Mr. Cullen in particular was guilty of outrageous bullying, intimidation, harassment, inappropriate behaviour and having a lack of respect in the workplace as well as being the perpetrator of two discriminatory dismissals.
3.9 The complainants ask that the Tribunal issue a determination requiring that the respondent undertakes the following:
– Apologises to the complainants;
– Appoints an agreed independent expert to conduct a comprehensive review of its handling of this case and to make recommendations as to how the respondent should amend its policies and procedures in order to ensure that there are no further incidents;
– Amend its policies and procedures (or introduce policies or procedures) in line with the recommendations flowing from the review above;
– Ensure that appropriate training in relation to dignity at work is provided to all of its managers including and in particular Mr. and Mrs. Cullen; and
– Compensate the complainants for the trauma and anxiety that has been caused to them by the harassment itself, the respondent’s failure to intervene and the respondent’s entirely inadequate response to the matter. In the circumstances it is submitted that an exemplary award of compensation should be made in order to make an example of the respondent.
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
4.1 The respondent is a limited liability company with a registered office in Ashbourne, Co. Meath. The respondent was incorporated on 7th May, 1999 and engaged in the distribution of branded cosmetic products. It employs 11 staff, 4 of whom are male. The age profile of the employees varies from the early twenties to mid sixties. In or about 2004 the respondent (on behalf of an American corporation) distributed and sold a branded cosmetic product known as “Smashbox” at Aer Rianta shops at Dublin Airport. Due to poor retail sales this product is no longer distributed or sold by the respondent organisation.
4.2 The respondent states that the complainants (Ms. Madden and Ms. O’Donnell) commenced employment as make-up artists on 15th July and 5th August, 2004 respectively having previously attend for formal interviews for the said positions. The respondent notes that it had received over twenty applications (including one from a male applicant) and of the twenty applicants nine were interviewed. According to the respondent the male applicant was called for interview but failed to attend. The respondent says that during the course of the interviews the complainants held themselves out to be seasoned, experienced make-up artists who could operate on their own initiative without direct supervision. The latter quality was essential in a prospective employee as the successful candidates would be operating from Dublin Airport without direct supervision. It is the respondent’s submission that during the course of the interview a number of issues were brought to the attention of the complainants namely:
– They would be expected to work at Dublin Airport;
– They would be expected to adhere not only to the terms and conditions of the employment to be provided by the respondent but also to adhere to staffing policies at Aer Rianta/Dublin Airport;
– They were notified that the staff roster/hours of work would be compiled by Aer Rianta and that all instructions provided by Aer Rianta in this regard must be adhered to;
– They were informed that they were to achieve certain sales targets upon which commissions would be based.
The respondent says that Contracts of Employment were issued and executed by the complainants on 20th September, 2004 (for Ms. O’Donnell) and 22nd September, 2004 (for Ms. Madden). These contracts specifically provided for a probationary period of 6 months commencing from the complainants start dates. Each contract also made specific reference to the company policy regarding working hours and points of contact in the event of grievances/work related issues. The respondent notes that while the Contracts of Employment did not include reference to targets and commissions these were clearly set out during the interview process. A dispute arose about the payment of commission and the respondent notes that this dispute has been disposed of in another forum and is of no relevance to these claims.
4.3 The respondent says that during the course of their interviews and upon their acceptance of offers of employment the complainants were advised that – as their place of employment was Dublin Airport – they were expected to adhere to the staffing policies and staffing rotas compiled by Aer Rianta management. As the respondent was not based in Dublin Airport it says that a high degree of trust and confidence was required as between it and the complainants in terms of the hours worked by them and the performance of their duties. The respondent says that this was especially so in the case of Ms. Madden who was remunerated on an hourly basis. The respondent says that in or around the beginning of October, 2004 Mr. Cullen received a complaint from the management of Aer Rianta concerning the failure of the complainants to clock in and out of work in accordance with Aer Rianta staffing policy. According to the respondent it was advised by Aer Rianta management that, in some instances, the complainants were not turning up for work at all and were swapping shifts without prior notice to Aer Rianta staff. Such were the serious concerns of Aer Rianta management that it appointed its own designated sales manager to supervise the complainants on a daily basis.
4.4 The respondent says that on 9th November, 2004 management at Aer Rianta requested that Mr. Cullen attend a meeting at Dublin Airport with the complainants. The management of Aer Rianta were concerned as to the continued breaches by the complainants of its staffing policy. During the course of this meeting the respondent says that both Mr. Cullen and Ms. O’Hagan of Aer Rianta informed the complainants of the policy at Dublin Airport of clocking in and out and advised the complainants that their continued failure to adhere to this policy could not be tolerated. The respondent says that the complainants were questioned regarding continued sick leave, unauthorised absences from work and the swapping of shifts without notification to Aer Rianta management. It is denied by the respondent that Mr. Cullen placed his hand on Ms. O’Donnell’s leg as is alleged and it is noted that no complaint was received of this alleged incident prior to receipt of the complainants’ submission. According to the respondent the complainants’ behaviour improved after the warnings at the meeting on 9th November but eventually they reverted back to their old ways.
4.5 Again on 2nd December, 2004 Ms. O’Hagan of Aer Rianta requested a meeting with the complainants and Mr. Cullen to discuss the complainants’ continued failure to adhere to staff policies at the Airport. The issues to be discussed concerned the complainants’ unauthorised leave, the continued failure to clock in and out of Dublin Airport and the continued unauthorised swapping of shifts which was specifically prohibited by Aer Rianta – Dublin Airport being a high security location. The respondent says that the complainants refused to attend the meeting in the offices of Ms. O’Hagan and as a result Mr. Cullen met them in the more informal setting of Butlers Café at which he again addressed the concerns of both the respondent and Aer Rianta concerning their behaviour. The respondent says that the complainants did not respond to the criticisms levied at them but focussed on their commission payments. The complainants’ version of events surrounding the meeting on 2nd December, 2004 is denied by Mr. Cullen who denies behaving in an aggressive or intimidating manner during the course of the meeting. The respondent notes that Ms. O’Donnell did not attend for work on 5th, 6th or 7th December, 2004 and did not produce a certified sick certificate in accordance with the respondent and Aer Rianta policy. Due to the complete breakdown in the relationship of trust and confidence between the complainants and the respondent a decision was taken by the respondent to terminate the complainants’ Contracts of Employment on 9th December, 2004 and each were provided with written confirmation of the decision taken by the respondent organisation together with the reasons attributed to same. The complainants were also provided with payment in lieu of notice.
4.6 In response to the complainants’ submission the respondent denies that the complainants were dismissed in discriminatory circumstances or were discriminated against or harassed on the basis of their gender or age. Rather the respondent says they were dismissed within their probationary period by reason of their continued failures to adhere to the clear terms and conditions of their employment with the respondent organisation and the staffing policies at Dublin Airport and consequently the breakdown in the relationship of trust and confidence between the parties. The respondent says that it does employ males. According to the respondent it does not understand the complainant Ms. Madden’s complaint that she did not receive training in circumstances where she did attend a ‘Smashbox’ make-up training day at Beacon Court Hotel and where she held herself out to experienced and confident in terms of make-up artistry and sales. The respondent points out that it did not generate profitable sales at Dublin Airport in respect of the ‘Smashbox’ product and as a result this service was discontinued in March, 2006. The respondent denies that Mr. Cullen placed his hand on Ms. O’Donnell’s leg during the course of a meeting with her on 9th November, 2004. It is further denied that Ms. Cullen poked Ms. O’Donnell in the arm and that she informed her that her ‘sales’ need to ‘go up’. The respondent notes that it did not have any influence over the rostering/work hours which were at the discretion of Aer Rianta. According to the respondent the Contracts of Employment executed by the complainants specifically addressed the issue of working hours and state that the complainants were to be flexible with regard to same.
4.7 The respondent states that Mr. Cullen denies that he put his hand on Ms. Madden’s arm during the course of the meeting on 18th November, 2004. It is also denied by Mr. Cullen that he used the phrase ‘by now girlies … you don’t mind me calling you girlies?’. It is further denied by Ms. Cullen that she behaved in an aggressive manner towards Ms. O’Donnell on 22nd November, 2004. The respondent denies that Mr. Cullen became enraged or aggressive with the complainants at their meeting on 2nd December, 2004. It is specifically denied by Mr. Cullen that he advised the complainants that he would be ‘playing it differently from (then) on’ should the complainants force him to honour their contracts. The respondent says that Mr. Cullen produced a list to the complainants detailing the days on which they had failed to adhere to the policy of clocking in and out of Dublin Airport. Mr. Cullen denies that he behaved in an aggressive or intimidating manner. The respondent says that Mr. Cullen denies that he shouted at Ms. Madden as alleged or that he used the words attributed to him. It is further denied that Mr. Cullen offered a full time job to any individual on 2nd December, 2004. The respondent says that the dismissal letters to the complainants reflected the true positions as between the parties on 9th December, 2004.
4.8 In conclusion the respondent says that it utterly refutes the allegations made by the complainants that they were the victims of a campaign of harassment and discrimination. According to the respondent it acted in a legal and just manner when they dismissed the complainant due to their continued breach of Aer Rianta Staff Policy and poor sales figures despite a number of meetings called by the respondent to try to resolve the matters. It is the respondent’s submission that they gave the complainants every opportunity to improve their attitudes but were inevitably left in a position where all trust and confidence in the complainants had dissipated. As the complainants were in their probationary period the respondent says that it was entitled to terminate their contracts of employment and did so in a legal and just manner. It is absolutely denied by the respondent that the complainants were the victims of an ‘appalling campaign of harassment and discrimination which would not have occurred but for their ages and gender’. The respondent submits that the complainants’ submission provides no support whatsoever for their allegations of discrimination on grounds of gender and age. It is submitted that the complainants’ submission in its substance amounts to a claim for unfair dismissal. The respondent says that it is utterly inappropriate to attempt to formulate and characterise what is essentially a claim of unfair dismissal as discrimination on grounds of gender and age in an attempt to avail of remedies under the Equality legislation. It is the respondent’s submission that the complainants’ claim has been instituted in an inappropriate forum for the determination of the matters put in dispute in their submission. Insofar as the claims constitute claims of discrimination (which is denied) the respondent submits, without prejudice to the denials above, that it had policies and procedures in place to provide for allegations of harassment and sexual harassment and discrimination and the respondent organisation had taken all steps that were reasonable practicable to prevent any act of harassment and/or discrimination on the part of an employee.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainants were subjected to discriminatory treatment, harassment and discriminatory dismissal by the respondent on the grounds of gender and age within the meaning of Sections 6(1), 6(2) and 14 of the Employment Equality Acts, 1998-2004 and in contravention of Section 8 of those Acts. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 In this case both complainants were employed as make-up artists with the respondent organisation. They were based in Dublin Airport. While the complainants were employed by the respondent, 50% of their gross salary was contributed by Aer Rianta. Their hours of work were based on a rota, which was managed by Aer Rianta. The complainants’ hours of work could be altered due to the nature of the business and the complainants were required to be flexible in that regard.
5.3 The complainants commenced employment in the Summer of 2004. Over the first couple of months in the employment the complainants’ experienced no difficulties with the respondent. In early November, 2004 the complainants became concerned because they had not received their commission and they raised the matter with the respondent. It was also in early November, 2004 that the issue of attendance arose and a meeting took place between the respondent, Aer Rianta and one of the complainants (Ms. O’Donnell). Some days prior to this meeting Ms. O’Donnell had taken a day off to attend her niece’s funeral. There was a conflict between the parties as to the purpose of this meeting. According to the complainant (Ms. O’Donnell) she was praised by the respondent for the great job she was doing. It is the respondent’s contention that the meeting concerned Aer Rianta’s policy regarding clocking in and clocking out. The respondent says that the complainant (Ms. O’Donnell) was questioned about sick leave, continued absences from work and the swapping of shifts without notification to Aer Rianta. According to the complainant (Ms. O’Donnell) a Ms. Brennan attended the meeting on behalf of Aer Rianta whereas the respondent submits that both Ms. Brennan and Ms. O’Hagan attended the meeting on behalf of Aer Rianta. I note that the complainant (Ms. O’Donnell) alleges that, during the course of this meeting, the representative from the respondent organisation who is a Director in that organisation (Mr. Cullen) placed his hand on her leg. For the first time at the hearing of this claim the complainant stated that Mr. Cullen apologised for his action. This was denied by the respondent. The second incident is alleged to have occurred on 15th November, 2004 when Ms. Cullen (an employee in the respondent organisation) is alleged to have poked the complainant (Ms. O’Donnell) in the arm while telling her that her sales must increase. I note that there were no witnesses to this incident.
5.4 A meeting took place between the complainants and Mr. Cullen of the respondent organisation on 18th November, 2004. I note that one of the complainants (Ms. O’Donnell) contacted Mr. Cullen and asked him if he could meet them about their commission. The complainants allege that during the course of this meeting Mr. Cullen put his hand on the complainant’s (Ms. Madden) arm and when he was leaving he said “bye now girlies …you don’t mind me calling you girlies”. The respondent denies these allegations. At a further meeting about commission with the complainants on 2nd December, 2004 it is alleged that Mr. Cullen shouted at them and stated that if the complainants were going to force him to honour their contracts he would be “playing if differently from [then] on”. It is alleged that he also shouted at Ms. Madden because she had contacted a representative of Smashbox Cosmetics in Los Angeles whom she had met when she (the representative) visited Dublin Airport. I note that Ms. Madden had copied an email, she sent to the respondent about the payment of the commission, to this representative.
5.5 A Ms. O’Hagan who was employed as a Floor Sales Manager by Aer Rianta was one of four managers charged with looking after the floor. The Smashbox stand was within her area of work and she was charged with monitoring the complainant’s attendance on the stand. Ms. O’Hagan attended the hearing of this claim as a witness. At the outset she stated that she could not recollect dates but she confirmed that on one occasion she did meet with the two complainants and Mr. Cullen about the complainants’ attendance and maintenance (i.e. performance on the counter and the day-to-day running of the counter). According to Ms. O’Hagan this meeting took place in the Training Room. Ms. O’Hagan stated that she could not recollect any inappropriate actions or comments by Mr. Cullen to the complainants at that meeting. I note that the complainants do not accept that they attended any meeting with Ms. O’Hagan and Mr. Cullen while the respondent stated that Ms. O’Hagan attended the meeting on 9th November, 2004 along with Ms. Brennan where Mr. Cullen and the complainant (Ms. O’Donnell) were also in attendance. The complainant (Ms. O’Donnell) stated that the meeting on 9th November, 2004 took place in Butlers Café. There is clearly much confusion between the parties on who attended the various meetings and where the meetings took place and there is no evidence to support one version of events over another.
5.6 It is noteworthy that neither of the complainants made any complaint about Mr. Cullen’s alleged behaviour, which they both deemed to be inappropriate and unacceptable. Ms. O’Hagan confirmed that no complaints were made to her. In their contracts of employment it is clearly stated that the complainants could direct any grievance to the Aer Rianta Manager or to the Office Manager of the respondent organisation. I note that Mr. Cullen is a Director in the respondent organisation but the complainants could have raised these issues (which would be of a sensitive nature) with the other female Director (Ms. Burke) in the respondent organisation but did not do so. I am, further, satisfied that the complainants did raise complaints about their commission when it was not paid and contacted the person in the respondent organisation who is alleged to have perpetrated these discriminatory acts and even after one of these acts was alleged to have taken place. In the circumstances I find that the complainants have failed to establish a ‘prima facie’ case of harassment on the grounds of gender and age under the Acts.
5.7 It is alleged that the complainants have been subjected to discriminatory treatment on the grounds of gender and age. I am not satisfied that there is any evidence to support this contention. The complainants also allege that they were the subject of discriminatory dismissal when they were both dismissed on 9th December, 2004. The respondent has denied that they were dismissed on discriminatory grounds. I note that, at the hearing of this claim, one of the complainants (Ms. Madden) stated that she was convinced that the only reason they were dismissed was because they sought their commission. The commission due to the complainants on the basis of their sales is not a discriminatory issue under the Acts and, in these circumstances, I am satisfied that the complainants have failed to show that their dismissals were discriminatory.
5.8 I note that the complainants were not provided with any induction training when they commenced employment with the respondent organisation and they were not provided with copies of Company Policy documents and Codes of Conduct. There is an onus on the respondent to have in place policies on harassment and sexual harassment and to provide its employees with copies of its policies while at the same time ensuring that its employees understand the provisions set out therein. However its failure to do so, in itself, is not sufficient to ground a ‘prima facie’ claim of discrimination.
5.9 In conclusion I find that the complainants have failed to establish a ‘prima facie’ claim of discriminatory treatment, harassment and discriminatory dismissal under the provisions of the Employment Equality Acts, 1998-2004.
6. DECISION
6.1 In view of the foregoing I find that Premium Distribution Limited did not subject Ms. Madden and Ms. O’Donnell to discriminatory treatment, harassment and discriminatory dismissal on the grounds of gender and age in terms of Sections 6 and 14 of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts.
______________________
Gerardine Coyle
Equality Officer
DEC-S2002-008/009
Two Customers v A Retail Outlet, Dublin
(Represented by Paul A. Ferris & Co., Solicitors)
1 Dispute
1.1 This dispute concerns complaints by Ms. M. and Ms. C. that they were discriminated
against, contrary to the Equal Status Act 2000, by the manager of a retail outlet in Co. Dublin. The first complainant, Ms. M., maintains that she was discriminated against (section 3 (1) (a)) on the gender and race grounds in terms of sections 3 (2) (a) and 3 (2) (h) of the Equal Status Act 2000 in that the manner in which she was treated in the course of a transaction following the purchase of goods was less favourable than it would have been had she been male and/or Irish. The second complainant, Ms. C., maintains that she was discriminated against on the gender ground in terms of section 3 (1) (a) of the Equal Status Act 2000, the gender and race grounds by association with Ms. M. in terms of sections 3(1) (b) (i) (ii), 3 (2) (a) and 3(2)(h) of the Equal Status Act 2000, and thatshe was sexually harassed in terms of section 11 (1) to (4) of the Equal Status Act 2000.
2 Background
2.1 On 22 January 2001 the first complainant, a U.S. National living in Ireland, returned adefective child’s scooter to the retail outlet which she had purchased there prior to Christmas, 2000.
The scooter had become dangerous for use within a short period of usage. She was informed by a shop assistant that the manager would have to approve a refund and that he was unavailable at that time. She left the scooter with the shop assistant who requested Ms. M’s phone number, and stated that she would get the manager to ring Ms. M. on his return. The following morning, 23 January, Ms. M. again went to the retail outlet as the manager had not called. In the course of speaking withthe manager on the morning of 23 January, 2001 Ms. M. states that he treated her in a less favourable manner than he would treat a male customer or an Irish customer. On the afternoon of 23 January, 2001 the second complainant, Ms. C. accompanied Ms. M. to the retail outlet, ( Ms.M’s third visit in total) to try to obtain a refund for the defective scooter. In the course of speaking with the manager Ms. C. states that she was discriminated against by him because of his treatment of her while she was in Ms. M’s company, that Ms. M. is female and a non-Irish national, and because she, Ms. C. was female. Ms. C. also states that she was sexually harassed by the respondent. The complainants referred a claim to the Director of Equality Investigations on 10 July,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 delegatedthe case to me for investigation, hearing and decision and for the exercise of other relevant functionsof the Director under Part III of the Equal Status Act.
3 Summary of the Complainant’s Case
3.1 On 22 and 23 January 2001 the first complainant, a U.S. National living in Ireland, went to
the retail outlet to return an item which she had purchased there prior to Christmas, 2000. She was seeking a refund for same. In the course of speaking with the manager of the retail outlet on 23
January, 2001 Ms. M. states that he treated her in a less favourable manner than he would treat a male customer or an Irish customer, in that when she insisted that she needed a refund he- stated “that’s not the way we do it here”
– was “dismissive”, “uncooperative and unyielding”.
– argued with her
– used his size to bully and intimidate her by “ invading her physical space”.
– gave the impression that her rights as a consumer did not apply because she was foreign
– made her feel inferior and intimidated.
3. 2 The second complainant, Ms. C., accompanied Ms. M. to the retail outlet on 23 January
and maintains that she was discriminated against on the gender and race grounds because she was associated with Ms. M. and that she was discriminated against on the gender ground and was
sexually harassed by the respondent.
4 Summary of Respondent’s Case
4.1 The respondents totally reject that they discriminated against the complainants. They state
that it was necessary for them to contact the supplier of the scooter to get permission to
refund Ms. M. for the scooter, that this was standard practice, and that Ms. M. had been
informed of this.
5 Evidence of Parties
An Oral Hearing of this case was held on 15 January, 2002. The evidence provided
by the parties was as follows –
5.1 Complainants’ Evidence
Ms. M.
-On some date before Christmas 2000 Ms. M. had purchased a child’s scooter in the retail
outlet. Shortly after Christmas, within two weeks of initial usage, she noticed that the scooter
was defective in such a way as to be dangerous for use by a child.
7
-She returned to the shop on 22 January 2001 to seek a refund for the defective scooter. She
was told on that occasion, by a female shop assistant that the manager would have to approve a
refund and that he was not available at that time. Ms. M. left the scooter and the receipt for
same with the shop assistant who also took Ms. M’s phone number and said that she would
have the manager contact Ms. M. on his return.
-The following morning, 23 January, Ms. M. returned to the shop as she had not received a call
from the manager. She spoke with a man behind the counter, who Ms. M. now identified as
Mr. G, who looked around behind the counter and stated that he could not locate the scooter
but that he would check with the shop assistant who had taken it in when she arrived for work,
but that he would also have to check with the supplier of the scooters before he could issue a
refund. The man only checked behind the counter for the scooter and ignored Ms. M’s request
to check in the back of the shop.
-When Ms. M. insisted that she needed a refund the man stated “that’s not how we do it here”.
There were no witnesses to this statement.
-After leaving the shop Ms. M. met with a friend, Ms. C. as previously arranged. She was upset
and when her friend inquired as to why she told Ms. C. what had happened.
-Ms. C. brought Ms. M. for coffee and they discussed what had happened. They then contacted
the Citizens Information Centre and Consumer Protection by phone who informed them that
Ms. M. should not have relinquished both the scooter and the receipt to the shop, and that she
would be entitled to a refund or replacement for, or repair to, the defective scooter.
-Ms. M. returned to the shop at around noon on 23 January accompanied by Ms. C. When they
entered the shop a boy who was standing behind the counter informed them that the manager
was not there.
-The manager, Mr. G, then approached them from the back of the shop. He approached Ms.
M. who was standing at the front of the counter. He was loud, aggressive and refused to listen
to Ms. M. He stood so close to her that she was forced back against the counter and it was
necessary for her to lean back over the counter and strain her neck to look up at him. He, Mr.
G, then stated that he had spoken to his supplier on her behalf, that he would give her a refund
and that she should be grateful. She had found his behaviour distressing and humiliating and
feels that a man in the same situation would not be dealt with in the same manner.
-Ms. M. Who is of small, slight build felt that Mr. G, who is of large build, had deliberately used
his size to bully and intimidate her
-Ms. M. had often shopped in the retail outlet prior to this incident as had certain relatives of
hers. She was not aware of any similar incidents or problems having arisen previously.
-Ms. M. asked Mr. G if the shop policy on return items was posted in the shop. He replied that
it was not. Ms. M. then asked if the shop’s return policy varied from customer to customer. He
replied that it did not.
8
-Ms. M. stated that in 3 years in which she had a wide range of contacts with service suppliers of
all kinds, she had never had such an experience, and was so distressed by it that she had
considered leaving (Ireland).
Ms. C.
-Ms. C. had noticed that Ms. M. was upset when she met with her on the morning of 23 January.
She asked Ms. M. what was wrong. She had been aware that the scooter was defective and
when she heard what had happened in the retail outlet she felt that Ms. M. had been wrongly
treated.
-She took Ms. M. for coffee and they discussed what had happened. She then “verified the
facts” with the Citizens Information Centre and Consumer Protection. Ms. M., on foot of the
advice received, decided to return to the shop and asked Ms. C. to accompany her. Ms. C.
agreed to do so.
-When they entered the shop a boy was standing behind the counter. He told them that the
manager was not there. Mr. G then approached Ms. M., who was standing at the front of the
counter, from the back of the shop. He spoke in a loud and aggressive manner to Ms. M. and
stood so close to Ms. M. that she was backed up against the counter. On seeing this Ms. C.
spoke to Mr. G in support of Ms. M. and stated that Ms. M’s contract in relation to the
purchase of the scooter was with the retail outlet and not with the supplier, that they had
checked with Consumer Protection and that they, (the complainants), had their facts right.
-Mr. G then walked towards Ms. C. and stood so close to her that it was necessary for her to
step back away from him in order to look straight at him, and in doing so she bumped into
another female customer who had been standing behind her, waiting for counter service.Mr. G
asked “and who are you” in a loud, rude voice. When Ms. C. tried to speak to him he refused
to listen. Mr. G had also spoken to the lady standing behind Ms. C., who was not associated
with either complainant and asked her in a loud and aggressive manner “and what do you
want?”
-Ms. C. Explained that while Ms. M. is petite and would have to crane back to speak with Mr.
G, who is of large build, if he stood close to her but that she (Ms. C.) is tall and would normally
have no difficulty speaking directly to Mr.G, without having to strain away from him, but
because he had stood so uncomfortably close to her she had to strain back away from him in
order to see him clearly and speak with him face to face.
– Ms. C. had told Mr. G that she did not like the way that she and Ms. M. were being treated
and that he was not willing to listen to them at all.
-Ms. C. stated that Mr. G had not stated the shop’s policy with regard to returned goods at any
point, but was rude and argumentative throughout.
5.2 Respondent’s Evidence
9
Mr. G
-Mr. G, manager, stated that he has worked in the retail outlet for almost three years and that he
had worked in retailing for twenty years.
-When Ms. M. had come into the shop on 23 January, 2001 he was behind the counter and,
while there were several scooters behind the shop counter, he couldn’t find hers. He explained
that returned items are normally kept out at the back of the shop. He told Ms. M. that he would
speak to the shop assistant, who had taken the scooter from her and that he would contact her.
-He stated that Ms. M. had become insistent and that he had explained the shop policy to her,
which was that he would have to deem the refund item faulty before a refund could be issued.
As he could not locate the scooter he could not verify that it was faulty. He would then have to
contact his supplier to determine whether the supplier would reimburse the shop for the scooter.
-When asked whether this was normal practice with regard to all goods returned Mr. G said that
it was only in relation to goods supplied by the particular supplier who had supplied the scooters
to the retail outlet. He explained that while most of the shops suppliers would act on foot of his (
Mr. G’s ) word, this was a new supplier and the trust relationship needed to be built up before
the supplier would refund the shop for goods returned as faulty, based on Mr. G’s opinion. Mr.
G was anxious to ensure that the shop was not left “out of pocket” for goods that were not
genuinely faulty. Mr. G referred to the Sale of Goods Acts which require that the manufacturer
must verify the nature of the damage to goods before reimbursing retailers or buyers for the
goods.
-Shortly after Ms. M. left the shop Mr. G spoke to the shop assistant who had taken in the
scooter, who came on duty at 10.30 a.m., and he then located the scooter out at the back of the
shop. He did not try to contact Ms. M. as he had not yet spoken with his supplier and he had
no information for her with regard to a refund. He tried unsuccessfully to contact the supplier
several times that morning. At around noon he contacted the supplier and was speaking with
him, on the telephone in his office, in relation to all scooters returned, including Ms. M’s, when
a shop assistant, Mr. P, informed him that there was someone in the shop to see him. When he
went down to the shop he saw Ms. M. and approached her, saying “I have good news for you,
I have spoken with the supplier and he says I can give you a refund”. Ms. M. refused to accept
the refund.
-When asked whether he was satisfied on inspecting the scooter that it was faulty Mr. G stated
that he was and that he had no difficulty recommending a refund.
-Mr. G stated that he had not stood in very close proximity to either complainant as they had
stated, but that there was very little room at the counter area and that this might have given them
the impression of being crowded. He stated that he is not in the habit of standing very close to
people.
-Mr. G stated that he did not recall any conversation with Ms. C. nor did he recall saying at any
time to Ms. M. “that’s not how we do it here”. When asked whether he had, at any time,
noticed that Ms. M. had a non-typical Irish accent Mr. G replied that he had not, as there were
10
lots of non-nationals living in the Lucan and Leixlip areas so he had not thought that she was not
Irish.
-Mr. G stated that he would estimate that 70% of the clientele of the retail outlet are women and
that there are approximately 3, 500 transactions per week in the shop.
Mr. L.
-Mr. L., owner of the retail outlet, stated that in the time he had known Mr. G, in his current and
previous employments, that he was very well liked and was very friendly with customers. He
had never received a complaint about Mr. G from customers.
-He also stated that he felt that women represented 80% or more of the client base for the shop.
When asked what he based this on Mr. L. replied that the type of stock sold in the shop was
mainly for decorating, that there were very few hammers and DIY items for sale in the shop. He
stated further that the shop was located in a complex owned by a large, well known retailer and
that in excess of 90% of the large retailer’s shoppers were women. When asked whether he
had a statistical basis for determining his own customer base Mr. L. explained that he spent an
average of 6 hours per week in the shop, on a random and non-continual basis, and that he was
therefore well placed to see first hand what kind of customers the shop had.
-He further stated that the shop did not keep a record of complaints either in relation to staff or
goods returned as they hardly ever arose. He stated that approximately 400 scooters were sold
as part of a Christmas promotion in 2000 and that only 28 of them had been returned, most
because they had been incorrectly assembled by the buyers.
Mr. P.
-Mr. P., shop assistant, stated that on the morning of 23 January he was working out on the shop
floor. He recalled being asked by Mr G whether he knew where the scooter had been put. He
had not known its whereabouts. He had heard Mr. G ask Ms. M. for her telephone number.
On the same afternoon he was behind the counter when the complainants came into the shop.
He told them that Mr. G was not there at the moment. He left to get Mr. G, who was in his
office, and returned to tell them that Mr. McG would be with them in a minute.
-Mr. P. offered no further evidence to refute the complainant’s claims or to support Mr. G’s
evidence
Mr. Paul Ferris, Solicitor for the respondents
-Mr. Ferris asked whether the complainants were aware of the consumer legislation on defective
goods. They replied that they were not, but Ms. M. explained that she had taken “contract law
in the States, which is probably different to contract law here”. When asked to specify the
legislation referred to Mr. Ferris stated that it was the Sale of Goods Acts that he was referring
to.
11
-Mr. Ferris questioned the validity of Ms. C’s complaint on the basis that she had not received
service directly in the retail outlet. Ms. C. replied that she was taking the complaint on a “by
association basis”.
-Mr. Ferris stated that any “aggression” on the part of Mr. G was merely a perception of such by
the complainants and that it could simply be a mannerism of Mr. G’s. of which he was genuinely
unaware. At this point Ms. C. requested that it be put on record that Mr. Ferris was
questioning the integrity of both complainants.
-Mr. Ferris stated that nothing had arisen in the course of the hearing in relation to nationality.
6 Matters for consideration
6.1 Section 3 (1)(a) 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) states that
As between any two persons , the discriminatory grounds (and the description of those
grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the “gender ground”) …………..
(h) that they are of different race, colour, nationality, or ethnic or national origins (the
“ground of race”) ……………
In this particular instance Ms. M., a U.S. national, claims that she was discriminated against
contrary to sections 3 (1)(a) and 3(2)(a) and (h) of the Equal Status Act 2000 in being treated in a
manner which was less favourable than that in which a male or an Irish person would be treated.
Ms. C., an Irish national, claims that she was discriminated against contrary to section 3 (1)(a) of
the Equal Status Act 2000 in being treated in a manner which was less favourable than that in which
a male would be treated.
6.2 Section 3(1)(b) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where a person who is associated with another person is treated, by virtue of that
association, less favourably than a person who is not so associated is, has been or would be
treated, and similar treatment of that other person on any of the discriminatory grounds would, by
virtue of paragraph 3 (1)(a), constitute discrimination.
Ms. C. claims that she was discriminated against, contrary to section 3 (1)(b) of the Equal Status
Act because she was associated with Ms. M. who was discriminated against on the grounds of race
and gender as at 6.1. above.
12
6.3 Section 5 (1) of the Equal Status Act 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”.
6.4 Section 11 (1) of the Equal Status Act states that “a person shall not sexually harass or
harass …. another person (“the victim”) where the victim-
(a) avails or seeks to avail himself or herself of any service provided by the person or
purchases or seeks to purchase any goods being disposed of by the person, …..”
Section 11 (2) states that “a person who is responsible for the operation of any place …….. at
which goods, services or accommodation facilities are offered to the public shall not permit
another person who has a right to be present in or to avail himself or herself of any facilities,
goods or services provided at that place, to suffer sexual harassment or harassment at that
place”.
Ms. C. claims that she was sexually harassed by the respondent.
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.
7 Conclusions of the Equality Officer
7.1 At the outset, I must first consider whether the existence of a prima facie case has been
established by the complainants.
There are three key elements which need to be established to show that a prima facie case exists.
These are:
(a) Membership of a discriminatory ground (e.g. the gender ground)
(b) Evidence of specific treatment of the complainant 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. If they succeed in establishing prima facie
evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
13
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 that this was a consistent practice across a
spectrum of cases1
.
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 2
and by the High Court in Conlon v
University of Limerick 3
. While these were both indirect discrimination cases, it seem that the
principle should by logical extension apply to direct discrimination cases if it applies to indirect
discrimination cases.
7.2 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. “
7.3 Section 3(1)(a) 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 first complainant, Ms. M., a female, non-national claims that she was
discriminated against on the basis of her gender and race. Ms. M. had bought goods from the
respondent and was seeking to return same. The first aspect of the complaint I must consider is the
method in which the refund transaction was handled by the respondent. It is clear from the
respondent’s evidence that all customers, regardless of gender or nationality, who sought a refund
for this particular item were treated differently to purchasers of other goods. Given that a total of 28
items identical to that returned by the claimant were returned to the respondents, and that no person
was issued a refund for the items until such time as the respondent spoke with his supplier, I find that
all of the shop’s customers who bought the item in question were treated equally in this respect,
although that is not to say that they were treated favourably.
8 Decision
Gender, Ms. M.
8.1 I am satisfied that if a male had returned a scooter to the shop and sought a refund he would
have had his refund request processed in the same manner as Ms. M’s and would also have had to
wait for a refund until such time as the supplier had been contacted. I am satisfied that the
processing of the transaction and the treatment of the complainant in that regard in the course of the
disposal of goods by, and the return of goods to, the respondent resulted from her returning the
particular item and not as a result of her gender.
Race, Ms. M.
8.2 In relation to Ms. M’s claim that she was treated less favourably on the race ground an
examination of the evidence shows that this is based on a statement which she claims was made by
the respondent on the morning of January 23rd, i.e. “that’s not the way we do it here”. The
complainant asserts that this was a reference to her being a non-national and was discriminatory in
nature.
I am satisfied that the respondent recognised Ms. M’s accent as being non-typical Irish, and that the
remark attributed to him by Ms. M. may well have been based on an assumption by him that Ms.
M. was non-resident here and/or non-national. His statement that he did not associate Ms. M’s
accent with a non-typical Irish accent because “lots of non-nationals live in the Lucan and Leixlip
areas” demonstrates clearly that he did associate her accent with non-nationals.
However, I find that there is insufficient evidence to show that the remark of itself was discriminatory
in nature. Ms. M. herself at one point stated that she had “taken contract law in the States but that it
was probably different over here”. Difference per se is not discriminatory nor is the recognition of it.
It is only where people are treated less favourably because of that difference that discrimination
arises. To support this finding, the second complainant, Ms. C., in the course of giving evidence
stated that the respondent had spoken in a rude and hostile manner to a lady who was standing
behind her in the shop and who had not yet spoken with the respondent. This demonstrates that the
treatment afforded customers by the respondent was non-discriminatory in nature, on the race
ground, as he had no way of knowing the nationality of the lady in question and yet, according to
Ms. C., he was rude and hostile towards her.
15
8.3 In this particular case, with regard to (a) at 7.1 above, the complainants are both female and
the first complainant, Ms. M. is a non-national. With regard to (b) at 7.1 above, the complainants
have given written and oral evidence of rude and aggressive behaviour towards them by the
respondent. With regard to the key element (c) at 7.1. above, I am satisfied that the evidence
provided does not support the complainant’s assertion that she was treated less favourably than
male customers or Irish customers would be treated in the same circumstances i.e. the processing of
the refund transaction.
Having considered the above points, I am satisfied that a prima facie case of discrimination has not
been established.
Gender and Race by association, Ms. C.
8.4 In finding that Ms. M. has not established a prima facie case of discrimination on the race or
gender grounds, it follows that Ms. C. cannot have been discriminated against, by association with
Ms. M., on either of those grounds.
Gender, Ms. C.
8.5 As Ms. C. was not directly in receipt of goods or a service from the respondent in
accordance with the current provisions of the Equal Status Act 2000 I find that she could not be
directly discriminated against on the gender ground.
Sexual Harassment, Ms. C.
8.6 Section 11 (4) of the Equal Status Act states that sexual harassment takes place where a
person –
(a) subjects another person (“the victim”) to an act of physical intimacy
(b) requests sexual favours from the victim, or
(c) subjects the victim to any act or conduct with sexual connotations, including spoken
words, gestures or the production, display or circulation of written words, pictures or other
material,
where –
(i) the act, request or conduct is unwelcome to the victim and could reasonably be regarded
as offensive, humiliating or intimidating to him or her, or
(ii) the victim is treated differently by his or her rejection of or submission to, as the case may
be, the act, request or conduct or it could reasonably be anticipated that the victim would be
so treated
I find that Ms. C. presented no evidence to substantiate a claim of sexual harassment as defined in
section 11 (4) of the Act.
16
Harassment, both Complainants
8.7 Section 11 (5) of the Equal Status Act states that “harassment takes place where a
person subjects another person (“the victim”) to any unwelcome act , request or conduct,
including spoken words, gestures or the production, display or circulation of written words,
pictures or other material, which in respect of the victim is based on any discriminatory
ground 4
and which could reasonably be regarded as offensive, humiliating or intimidating”.
In relation to the establishment of a prima facie case of harassment (see 7.1. above) the
complainants (a) are both female and (b) gave very credible evidence that the manager of the
respondent premises stood in such close proximity to them that they had to strain back away from
him which was physically and psychologically uncomfortable for, and intimidating to, them. They
gave equally credible evidence that the words and tone used by the said manager to them was rude
and hostile and caused offense and loss of dignity to both of them. I am satisfied in relation to the
key element (c) at 7.1. above that a male customer would not be treated in such a manner, because
there exists a perception that a female is more likely to be intimidated and cowed by the type of
behaviour experienced and less likely than a male to physically retaliate.
I am satisfied that both complainants established a prima facie case of harassment on the gender
ground, and that the manner in which the respondent behaved toward them was such that a male
customer would be treated more favourably. The respondents failed to rebut the evidence of the
complainants in this regard. Both complainants gave convincing evidence that the respondent’s
attitude and behaviour was not what would be regarded by a reasonable person as professional or
courteous customer service. Given that the customer base of the respondent’s premises, by their
own admission, comprises mainly women, I find that the attitude adopted towards the complainants
in the course of the return transaction was at best poor business practice and at worst inexcusable.
8.8 I find that both complainants were harassed in terms of section 11 (5) of the Equal Status
Act 2000 on the gender ground in that the behaviour, gestures and conduct of the respondent were
unwelcome, and can reasonably be regarded as offensive, humiliating or intimidating to them. While
Ms. C. was not in direct receipt of goods or service from the respondent, I find that, in accordance
with the terms of section 11 (2) she had a right to be present in, or to avail herself of any facilities,
goods or services provided at the retail outlet and that the owner and/or the manager, as the
responsible person, failed to prevent her suffering harassment on that premises, contrary to section
11 (2) of the Act.
8.9 Vicarious Liability
While the conduct which constituted harassment is directly attributable to the manager of the retail
outlet section 42(1) of the Equal Status Act, 2000 provides that:
“Anything done by a person in the course of his or her employment shall, in any proceedings
brought under this Act, be treated for the purposes of this Act as done also by that person’s
employer, whether or not it was done with the employer’s knowledge or approval”
17
4
Including the “gender ground”
As the manager, Mr. G was clearly acting within the scope of his employment in the course of the
refund transaction I find that the retail outlet is vicariously liable for his actions in accordance with
section 42(1) of the Equal Status Act.
9 Redress
9.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a
finding is in favour of the complainant in accordance with section 27. Section 27(1)
provides that:
“the types of redress for which a decision of the Director under section 25 may
provide are either or both of the following as may be appropriate in the
circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of
action which is so specified.”
9.2 Section 27 (1)(a) of the Act permits the award of compensation for the effects of unlawful
discrimination. While harassment is not specifically mentioned, I am satisfied that harassment
constitutes less favourable treatment in accordance with Section 3.1(a) of the Act and I award €400
to Ms. M. and €200 to Ms. C. by way of compensation for the effects of the harassment suffered.
9.3 Under section 27 (1)(b) of the Equal Status Act 2000 I order that the respondent
(a) immediately review all customer service practices and ensure, in consultation with the Equality
Authority or other appropriately qualified experts in Equal Status legislation, that they are fully
compliant with the Equal Status Act 2000
(b) draw up a clear and transparent customer service charter in consulation with, for example, the
Small Firms Association, which is fully compliant with both the letter and spirit of the Equal Status
Act 2000
(c) draw up a clear policy on dealing with applications for refunds, which is to be prominently
displayed in the retail premises
In making these awards and this order I have taken into consideration the fact that Mr. G, manager
of the retail outlet, wrote to each of the complainants following receipt of formal notification from
each of them of their complaints and, while not accepting that he had behaved in the way the
18
complainants claimed, offered his sincere apologies and regret for any mannerism or behaviour on
his part that made them feel aggrieved.
____________________
Dolores Kavanagh
Equality Officer
DEC-S2004-092 Full Case Report
O’Shea V Hennessy Salon Supplies Ltd.,
Equal Status Act, 2000 – Direct discrimination, Section 3(1)(a) – Age ground, Section 3(2 (f) – Victimisation ground, Section 3(2)(j) (iv) – Harassment, Section 11(5) – Disposal of goods and supply of services, Section 5(1) – Refusal of service – Prima facie case.
1. Dispute
1.1 This dispute concerns a claim by Maria O’Shea that she was refused service, on the grounds of her age, on a number of occasions by the respondent, the last such incident having occurred on 27 June 2002. The complainant states that she was harassed, victimised and treated in a discriminatory manner by the respondent in the course of these refusals. 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. Complainants’ Case
2.1 The complainant, who is over sixty years, stated in written submissions that she sought and was refused service in the respondent’s premises on a number of occasions, the last such incident having occurred on 27 June 2002. In the course of these incidents the complainant states that the respondent had followed her around in the premises and made disparaging remarks to the effect that the items she wished to purchase were for young people and not for her. The complainant returned to the premises seeking service on 27 June, 2002. She chose an item and went to the cash desk pay for it. The respondent refused to serve her and instructed his staff not to serve her. The respondent snatched the item from the complainant and threw it back on the shelf. The complainant picked the item up again and sought to purchase it and was again refused service by the respondent and was told to leave the premises. The complainant refused to leave and when she remained on the premises on 27 June 2002 and again requested service, the respondent called the Gardaí and had the complainant removed from the premises on the basis that she was being disruptive and causing upset, all of which is denied by the complainant. The complainant states that, in the course of his telephone call to the Gardaí, the respondent described the complainant as “an auld one” who was causing a disturbance in the premises.
3. Respondent’s Case
3.1 The respondent did not reply to the statutory notification in this matter and the only written material submitted by him stated that the respondent premises consist of a trade section and a section for the public and that the reason respondent would not serve the complainant on 27 June 2002 was because he was aware that the complainant is not a hairdresser. On the date in question the complainant refused to leave the premises and the respondent then called the Gardaí. The latter asked on the phone whether the person in question was young or old and the respondent replied that she was old.
4 Outcome of Hearing
4.1 At the scheduled Hearing of this complaint the complainant was asked to outline her complaint. The complainant stated that, for the purpose of the Hearing, she would be referring back to, and relying on her written submissions in the matter. She began to read from her written submissions, outlining events in the course of visits to the respondent premises prior to the final date of alleged discrimination, i.e. 27 June, 2002.
4.2 The representative for the respondent interrupted proceedings and requested that all information supplied by the complainant which did not refer directly to the specific incident of discrimination alleged to have occurred on 27 June 2002 be ruled inadmissible. In the event that this information was not ruled inadmissible the representative stated that he would withdraw from the Hearing.
4.3 In Kiely v The Minister for Social Welfare (No. 2) [1977] I.R. 276 at 281 Henchy J.stated that “Tribunals exercising quasi judicial functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or a fair result” In Goodman v Hamilton [1992] 2 IR 542: Costello J. stated at page 565: “There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable to a court of law. The acceptance of evidence and the weight to be given to it is a matter for the Tribunal. But it is subject to the requirements of fair procedures …………”
4.4 It was clarified to the respondent’s representative that the information provided by the complainant was being allowed as it might assist in clarifying the nature of the ongoing relationship between the parties leading up to the final incident complained of. This is particularly relevant in relation to a complaint of victimisation. The relevance and the weight which would be afforded this information was something that required further consideration by the Equality Officer in the course of arriving at a final Decision in this case and that it was of course open to the respondent to respond to the information provided by thecomplainant, in accordance with fair procedures and natural justice.
4.5 The representative for the respondent stated that he did not accept this position and withdrew himself and the respondent from the Hearing. The Equality Officer informed him that if he wished to do so she would be obliged to issue a Decision based on the evidence available.
5 Prima Facie Case
5.1. At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. In other words, has the complainant established the primary facts from which it can be inferred that discrimination, harassment or victimisation has occurred?
5.2 In considering what constitutes a prima facie case, I have examined definitions from various 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.”1
5.3 If and when a prima facie case is 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.
6 Prima Facie Case – Complainant
6.1 On 27 June 2002 the complainant entered the respondent premises, a hairdressing salon supply shop, and sought to make a purchase. It is common case that she was refused service on this occasion. The complainant states that she was refused on the basis of her age. 1 See Southern Health Board v Mitchell, Labour Court, AEE/99/8, Dooley & Ors v The Cutting Crew, DECS2002- 023-025, Ross v Royal and Sun Alliance – DEC-S2003-116 The respondent states that the refusal of service was because he recognised that thecomplainant is not a hairdresser. The respondent also states in written evidence that a section of his premises is for sale of items to the general public.
6.2 The respondent does not indicate that the complainant was seeking to purchase items other than those that were for sale to the public. He simply states that he refused service because he recognised that she was not a hairdresser. The respondent gives no indication as to how he was aware that the complainant was not a hairdresser, or why this is relevant in the matter at hand.
6.3 In the course of speaking to the Gardaí on the phone the respondent states that he was asked whether the complainant was young or old and he replied that she was old. The complainant states that the respondent stated that “an auld wan” was causing a disturbance in the premises when he was speaking with the Gardaí.
6.4 The complainant has indicated in her complaint and written submission that the respondent had previously refused her service and had made a number of references to items being unsuitable for her because of her age. The complainant further states that he had followed her around in his premises making derogatory remarks about her age. On 27 June 2002 the complainant was refused service in circumstances which I am satisfied, having regard to the complainant’s submissions about earlier references to her age by the respondent and the absence of any evidence from the respondent for the refusal of service, related to the respondent’s earlier treatment and refusals of service to the complainant on the ground of age.
6.5 Prima Facie case – Discrimination
Having considered all of the evidence provided in this matter I am satisfied, on the balance of probabilities, and in the absence of any credible, contradictory evidence from the respondent, that an inference of discrimination on the age ground arises in relation to the refusal of service to the on 27 June 2002.
6.6 Prima Facie Case – Harassment
Having considered all of the evidence provided in this matter I am satisfied, on the balance of probabilities, and in the absence of any credible, contradictory evidence from the respondent, that an inference of harassment of the complainant by the respondent arises in relation to the refusal of service on 27 June 2002 in that the respondent is stated to have followed the complainant in the premises and made disparaging remarks about the suitability of items for her because of her age, specifically referring to her as “an aul wan”. The respondent is also stated to have prevented his staff from serving the complainant. All of the foregoing, I am satisfied, constitute harassment of the complainant by the respondent in terms of Section 11 (5) of the Equal Status Act 2000.
6.7 Prima Facie Case – Victimisation
See Para. 9 below.
7 Respondent’s Rebuttal
As the respondent withdrew from the Hearing in this matter he elected not to provide any evidence which might rebut the inference of discrimination and harassment.
8 Decision – Discrimination & Harassment
8.1 Discrimination
I find that the complainant was discriminated against on 27 June 2002 on the Age ground contrary to Section 3(1)(a), and 3(2)(f) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
8.2 Harassment
I find that the complainant was harassed on 27 June 2002 on the Age ground contrary to Section 11(5) of the Equal Status Act 2000.
9 Victimisation
9.1 Prima Facie Case – Victimisation
In light of the complainant’s stated references by the respondent to the complainant’s age in the course of previous refusals in the respondent premises I am satisfied that her attendance at the respondent premises to purchase goods on 27 June 2002, constitutes, in its own right, her opposing by lawful means an act which is unlawful under the Equal Status Act 2000 in terms of Section 3 (2) (j)(iv) of the Equal Status Act 2000, i.e. based on the only evidence available to me I am satisfied that the manner in which the complainant was treated on previous visits to the respondent premises constitutes prohibited conduct under the Equal Status Act 2000 The complainant’s return to the premises to seek service on 27 June, 2002 is, I am satisfied, a lawful act on her part designed to oppose the earlier unfavourable treatment by the respondent.
9.2 Notwithstanding my conclusions at 9.1 above, I have been satisfied that the refusal of service was discriminatory and that the respondent harassed the complainant in the course of her visit to his premises on 27 June, 2002, (see para. 8 above) both of which are unlawful under the Equal Status Act 2000. I am satisfied that an inference of victimisation (in accordance with Section 3(2) (j)(iv) of the Equal Status Act 2000) arises therefore in relation to the manner in which the complainant was treated when she stood her ground following the refusal of service and harassment i.e. the respondent had her forcibly removed from his premises.
10 Respondent’s Rebuttal – Victimisation
As the respondent withdrew from the Hearing in this matter he elected not to provide any
evidence which might rebut the inference of victimisation.
11 Decision – Victimisation
I find that the complainant was victimised by the respondent on 27 June 2002, contrary to
Sections 5(1) and 3(2) (j) (iv) of the Equal Status Act 2000.
12 Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where afinding 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.” I hereby order that the respondent pay compensation to the complainant in the amount of €1000 for the effects of the discrimination, harassment and victimisation on his part.
____________________________
Dolores Kavanagh
Equality Officer
6 August, 2004
DEC-S2007-010 – Full Case Report
Complaint under the Equal Status Act 2000
DEC – S2007 – 010
Cantwell v Giles & Co., Tralee
Mr. Cantwell referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. The claim was of discriminatory treatment and harassment on the disability ground and victimisation. 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
By the time of the alleged incident on 6th September 2002 the complainant, who is disabled, had rented accommodation through the respondent’s agency for some time. He had been entirely happy with arrangements until a new contact person, Ms. Bayfield, took over in March 2001. He was generally unhappy with his interactions with her relating to repairs to the washing machine, requests to be moved to another apartment, and requests for some painting, carpets and blinds. The washing machine repairs were unduly delayed in his opinion. Apparently there was a substantial delay waiting for parts. He was asked to get quotes for the other work and was under the impression he had been given the go-ahead for the work as he was told that the rent would go up to take account of these improvements. He was never paid for the pots he bought himself and the blinds were never paid for at all. The company who supplied them removed them from the apartment when he left. The Agency requested a visit to the apartment to view the work done. This was arranged for 9am. Ms. Bayfield failed to appear. Mr. Cantwell explained how it was difficult for him to get up that early but that he had been ready and waiting for her. He complained to a Mr. Carmody in the respondent company. He subsequently met Ms. Bayfield on the street outside her office on Friday 6th September 2002. He felt that she was very angry. He thought it was because he had reported his dissatisfaction with her. She told him that she had sent someone else for the inspection. Mr. Cantwell disputed this and felt that the staff were covering for each other. He did not go into the office which has a number of steps at the entrance. Mr. Cantwell alleges that Ms. Bayfield called him a stupid useless cripple and told him to grow up. He put this in a letter to Mr. Trevor Giles over the weekend and hand delivered it. He received no response. On 10th September 2002 Mr. Cantwell notified the respondent of his intention to complain to the Tribunal failing an acceptable response. The company responded with a letter from their representative dated 12th September 2002 informing the complainant “…that should you continue to make these allegations that our client will be left with no alternative whatsoever but to consider Defamation proceedings…” On 10th March 2003 Mr. Cantwell went to the offices of the respondent’s representative, Gerald Baily and Co., Solicitors. He went there to withdraw his complaint against the respondent and signed a document to that effect. He wrote to the Tribunal on 8th October 2003 stating that he was now in a position to pursue the complaint and asked the Tribunal to continue with the investigation.
Summary of the Respondent’s Case
Ms. Bayfield for Giles & Company stated that she was not aware that there was any difficulty with the working relationship she had with the complainant. She stated that both Mr. Cantwell’s complaints about the washing machine were dealt with within 4 days. She alleges that Mr. Cantwell only got one quote for the carpet which was too expensive and he should not have ordered it. There was some discussion about a rent increase. In respect of the incident on 6th September 2002, she agrees that she met the complainant on the street. She stated that the conversation was quite civil but that he did not believe her that someone else had been sent. The complainant would not go into the office to talk so she brought her colleague out to speak to the complainant who was not satisfied. She stated that she would never use those words as alleged. She does not think he is any of those things, and they are not words she would ordinarily use. In addition she would not tell someone her senior to grow up. She gave him preferential treatment when his signature was required on the renewal of his lease by taking the documents to his apartment as she did for another disabled client. Mr. Giles stated that the company does not look at disability as an issue when looking for a tenant, the issue is an ability to pay the rent. They try to facilitate everyone. When a disabled tenant informs them that something is not in working order, they are treated like everyone else. The respondent argued that since the complainant signed a document withdrawing his complaint in their representative’s office, which they subsequently sent to the Tribunal, the matter was at an end.
When asked at the hearing about the response made to the complainant’s notification, with particular regard to Section 26 of the Equal Status Act, 2000, the respondent stated that they believe that their response was entirely appropriate.
The respondent’s representative confirmed in correspondence after the hearing that the respondent could not locate the receipt relating to the reimbursement of the complainant for the purchase of the pots and pans.
Conclusions of the Equality Officer
Preliminary Matter – Jurisdiction
The Equal Status Act, 2000 states that the Director “shall investigate” every complaint referred to her and at the conclusion of an investigation “the Director shall make a decision”. Section 25 creates a statutory duty to do so.
The complainant stated in evidence that on 10th March 2003 he wanted to remove the potential for eviction created by his complaint to the Tribunal. He signed the agreement without receiving any promise of improved treatment or payment. Therefore there was no consideration included in the withdrawal process or document. Even if there was a consideration this would not be a matter for the Tribunal. It would be a contractual matter between the parties.
The complainant has claimed duress and this appears to stem from his fear that his lease would be terminated and he would be evicted because he had complained about Ms. Bayfield. He stated this fear in evidence at the hearing. While there is no evidence that this would in fact have been considered by the respondent it seems to have been a real fear on the part of the complainant. In addition on 21st October 2002 the complainant, having been informed of the backlog of investigations in the Tribunal, wrote to the Tribunal requesting priority for his case. In support of this he stated “….My landlords Giles Auctioneers are the people I am complaining about, namely Fiona Bayfield. As a disabled person I feel very vulnerable and I feel I could be subjected to “dirty tricks”. When they realise this is not progressing I could feel their wrath. Please consider my views and please prioritise my complaint.”
It was clear from his evidence in respect of the substantive claim that the complainant considered that he could no longer interact with Ms. Bayfield and felt he was being stone-walled by the individual he was dealing with in the respondent company. Clearly he felt that his relationship with the company was at a very low ebb. It is not unreasonable to accept that he felt exposed with respect to a possible retaliation from the company even though such a step may never in fact have been considered by the company. That being said, his concern must be seen in light of the company’s immediate and emphatic response to his notification. In issuing the notification Mr. Cantwell was exercising a statutory right. Their response was to ask him to withdraw the allegations or face defamation proceedings. Therefore the complainant knew that the respondent would take stern action if they considered it appropriate. It is clear that Mr. Cantwell was afraid of losing his home.
The respondent’s representative, who prepared the withdrawal document for the complainant to sign, stated that it was suggested to the complainant that he should get independent legal advice on the matter. The complainant denies this. However, during his evidence the complainant made it clear that he went to that office with the intention of withdrawing the complaint in the hope that the respondent would treat him better and to remove any possibility of unfavourable treatment based on his complaint. While the complainant denies the mention of independent legal advice there is no allegation of duress or persuasion on the day. The duress described relates to his perception of the possibility of retaliation on the part of the company. The respondent’s representative wrote to the complainant on 11th March 2003 enclosing a certified copy of the agreement he had signed the previous day. The letter mentions that he had been offered the opportunity to take independent legal advice on the matter and declined. For obvious reasons it would have been inappropriate for the respondent’s representative to provide advice. It is clear that Mr. Cantwell signed the agreement without legal advice regarding the implications and regardless of the protection afforded to him by the Equal Status Act, 2000. It is understandable that he may not have had a high regard for this protection given the respondent’s response to his notification. I am satisfied that Mr. Cantwell was not in receipt of clear legal advice in respect of his situation. I am satisfied, on the basis of the evidence presented to me, that Mr. Cantwell was under duress when he signed the agreement in so far as he wanted to secure his accommodation. I am also satisfied that when that duress was removed, i.e. when he secured alternative accommodation, he indicated his intention to continue with the claim.
This Office did not respond to the respondent’s correspondence which included the withdrawal and did not in fact close the file. Thus the matter of unfairness to the respondent does not arise since they were never told by the Tribunal that the agreement submitted meant that the case was closed.
I am further satisfied that the Tribunal did not receive a withdrawal of the complaint from Mr. Cantwell. While he signed the document, it was the respondent’s representative who wrote to the Tribunal requesting a withdrawal of the complaint and appended the agreement. The next time the Tribunal heard from the complainant was a request for the matter to go ahead.
The Tribunal must be satisfied that a complaint is validly withdrawn by the complainant. Since a withdrawal was never received from the complainant and since the Tribunal did not verify the status of the agreement submitted by the respondent, and taking account the duress described by the complainant, I find that the Tribunal still has jurisdiction to investigate the case.
Substantive Matter
The complainant has alleged discriminatory treatment and harassment on the disability ground. He has also alleged victimisation which is a ground in its own right in Section 3 of the Equal Status Act, 2000. These grounds were notified to the respondent in the notification issued by the complainant on 10th September 2002 in accordance with Section 21 of the Equal Status Act, 2000 and in the complaint form copied to the respondent’s representative on 19th September 2002 by the Tribunal.
There is a history of interaction between the complainant and Giles and Company. In addition, the respondent accepts that the complainant is disabled. What is therefore to be decided is
– Whether or not the complainant was less favourably treated,
– Whether or not such less favourable treatment was because of his disability,
– Whether or not he was provided with assistance necessary to allow him to use the company’s services without undue difficulty, and
– Whether he was victimised in terms of the Act.
The respondent’s response to the complainant’s notification was to threaten defamation proceedings. I find that such a response is not a reply to the complainants as detailed in Section 26(a) and that it would not assist the complainant in deciding whether to refer a complaint as detailed in Section 26(c). Therefore in accordance with Section 26 I am empowered to draw such inferences, if any, as seem appropriate.
Discriminatory Treatment and Harassment
Based on the information given to me their interactions in general were not entirely happy. Certainly there was a lack of clarity in their communications given the difficulties surrounding the purchase of items for the apartment and its redecoration. I find it difficult to accept Ms. Bayfield’s contention that she was unaware of any difficulties in her working relationship with the complainant. However, no evidence was presented to indicate how Ms. Bayfield interacted with her other clients. In addition, it is clear from the evidence presented to me that Mr. Cantwell had a very good working relationship with Ms. Bayfield’s predecessor. The fact that this relationship changed when she took over may have been problematic.
The complainant stated that he only became aware of his disability as an issue when Ms. Bayfield allegedly called him a stupid useless cripple. He stated that the reason for the earlier unsatisfactory behavior became clear only in terms of that comment. Ms. Bayfield denies that any such comment was made. As I have said I do not accept that Ms. Bayfield was unaware of difficulties with relationship. Whether or not the comment was actually made appears to be one person’s word against another’s. What is noteworthy is that the complainant wrote to the respondent company the following day detailing the comment and asking that any of his future dealings with the company be with a different individual. The respondent did not respond. I find the complainant’s version of events more compelling and I am satisfied on the balance of probabilities that the comment was made. In my view it is also be appropriate to draw an inference on this matter on the basis of the letter issued by the complainant on the day after the incident, and which was undisputed by the respondent, that the comment was made. I find that the complainant has established a prima facie case of discrimination which, based on the evidence presented, the respondent has failed to rebut.
Section 4 – special treatment or facilities
Section 4 of the Equal Status Act 2000 deals with the provision of special treatment or facilities while providing a service for those suffering from disabilities. The respondent was clear that in all respects the complainant was treated in the same way as other clients. The one exception was in relation to the renewal of the complainant’s lease. When the complainant called to indicate some problem with the apartment, and/or its fixtures and fittings, those calls were logged and handled in exactly the same manner as the calls from all other clients. No consideration was given as to whether or not the issue arising would cause particular difficulties for the complainant given his disability. Neither are there any arrangements in place where any priority is given to calls from clients who indicate they have a disability and for whom the problem reported may cause particular difficulties. I am satisfied that part of the service being offered by the respondent was the maintenance of the apartment and its contents. I am also satisfied that a broken washing machine would create more difficulties for a disabled person than for a person without disabilities. I accept that both of the complainant’s calls about the washing machine were addressed within four days. However, since some parts were required, addressing the complaint within four days did not fix the problem. I find that the respondent did not do all that is reasonable to accommodate the complainant’s needs and that without that treatment undue difficulties arose for him.
The respondent’s representative’s letter of 11th March 2003 also states “We are now treating the matter at an end, but we have written to Ger Carmody of Giles & Company to make contact with you in the hope that you might be in a position to find alternative accommodation to your liking, although this is not a precondition of the withdrawal of the Complaint, as you are aware.” No action was taken by the respondent company on foot of this suggestion from their legal representative relating to alternative accommodation.
Victimisation
Victimisation has a very specific definition in relation to the Equal Status Act 2000 and this is included in Section 3(2)(j) and is listed below for ease of reference.
(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”).
I am satisfied that in sending the notification to the respondent as required under Section 21 of the Equal Status Act 2000 in advance of any complaint being made to the Tribunal, the complainant was giving notice of his intention to apply for a determination should they not provide the requested information in accordance with subsections (v) and (i) of Section 3(2)(j) above. The respondent’s response was to threaten legal proceedings. This is without doubt less favourable treatment and it was a direct response to his notification. I am satisfied that the respondent victimised the complainant in terms of Section 3(2)(j) of the Equal Status Act 2000. I find that the complainant has established a prima facie case of discrimination on the victimisation ground. The respondent stated that their response to the complainant was considered appropriate. No evidence was presented to rebut the prima facie case of discrimination on the victimisation ground.
Decision DEC-S2007-010
I find that the respondent discriminated against the complainant in terms of Sections 3(1)(a), 3(2)(g) and 5(1) and in terms of Section 4, all of which relate to his disability. I also find that the complainant was discriminated against in terms of Section 3(1)(a), 3(2)(j) when he was victimised. Equality Officers have normally taken a very serious approach to victimisation in terms of the Equality Acts since such victimisation is a direct attempt to interfere with a person’s pursuance of their statutory rights.
I hereby order the respondent
– To pay the complainant €2000 for the effects of the discrimination related to his disability.
– To pay the complainant €4000 for the effects of the discrimination related to the victimisation.
– To implement a system which can afford reasonable accommodation to disabled clients in terms of Section 4 of the Equal Status Act 2000.
Bernadette Treanor
Equality Officer
7th February 2007
DEC-S2008-064 – Full Case Report
Equal Status Act 2000
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-064
Woodhead and Sparkes v Swinford Garda Station
File Nos. ES/2003/0298 and 0299
Date of Issue October 2008
Keywords
Equal Status Act 2000 – Discrimination, section 3(1)(a) – Harassment (other than sexual), section 11(1) (a) – Sexual orientation ground, section 3(2)(d), Ground of race, section 3(2)(h) – Provision of goods and services, section 5(1) – Interpretation “service”, section2(1) – Jurisdiction of the Tribunal
1. Delegation
1.1. Mr. Wayne Woodhead and Mr. Andrew Sparkes (“complainants”) referred claims to the then Director of Equality Investigations under the Equal Status Act on 13 March 2003 . In accordance with her powers under section 75 of the Employment Equality Act, 1998 and 2004, 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. The investigation in accordance with section 25 commenced on 11 April 2008. An oral hearing, as part of the investigation, was held in Sligo on 28 July 2008.
2. Dispute
2.1. The dispute concerns two complaints of discrimination and harassment contrary to the provisions of the Equal Status Act on the grounds of sexual orientation and race. The complainants, Mr. Woodhead and Mr. Sparkes, claim that they were treated less favourably contrary to section 5(1) and section 11(1) (a)between 29 August 2002 and 10 March 2003 by the Garda Siochana (“respondent”) when a named member of the Garda Siochana, responding to a complaint made by the complainants’ named neighbour, refused to view the complainant’s CCTV footage. This treatment, the complainants claim, is on-going. The respondent was notified on 28 April 2003.
3. Case for the complainants
3.1. The complainants maintain that they were treated less favourably by a named member of the Garda Siochana when they asked him to view CCTV footage of an incident involving the complainant’s neighbour. They further maintain that the Garda have continued to treat them less favourably and to harass them on the grounds of their sexual orientation and race on a number of subsequent incidents.
4. Case for the Respondents
4.1. The respondent denies any claims of discrimination and/or harassment. It submits that a detailed internal investigation was carried out by a senior member of the organisation and that it had revealed no less favourable treatment. The respondent submits that it does not condone harassment and/or intimidation by any of its members. Any such allegation will be taken seriously and investigated.
4.2. The respondent submits that the Tribunal has no jurisdiction to investigate the above complaints as the cases refer to the Garda investigating crime or alleged crime, and that under the delegated authority of the Director of the Public Prosecutors (DPP), a District Officer is precluded by statute from giving reasons for his or her decisions.
5. Conclusion of the Equality Officer
5.1. The first issue that I must determine is whether the investigation and prosecution of crime by the Garda Siochana are services within the meaning of “service” defined in section 2(1) of the Act:
“Service means 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 the use of any place,
(b) facilities for –
i. banking, insurance, grants, loans, credit and 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,
but does not include pensions rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies”.
5.2. Having heard the direct evidence presented at the hearing, I am satisfied that the all of the incidents complained of refer to incidents involving the Gardai carrying out their policing duties and/or making decisions under the delegated authority of the DPP. I am therefore satisfied that the Equality Tribunal has no jurisdiction to investigate the above complaints. I concur with decision DEC-2001-011 that states:
“I am satisfied that the intention of the Oireachtas was not to include the investigation and prosecution of crime as services within the scope if the Act when it enacted the legislation…It is my view that the drafting of the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Siochana, including those of the investigation and prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope”.
6. Decision
6.1. In accordance with section 25(4) I conclude this investigation into the above complainants and issue the following decision:
I decide that the complaint is outside the scope of the Act because the investigation and prosecution of crime are not services within the meaning of section 2(1) of the Act.
_____________
Tara Coogan
Equality Officer
October 2008
DEC-S2008-033 – Full Case Report
Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC- S2008 – 033
Stevens v The Helix Theatre
(represented by Arthur Cox, solicitors and Ms Rosemary Mallon, Barrister at law)
Key words
Equal Status Acts 2000 to 2004 – Discrimination, Section 3(1), 3(2) – Gender ground – Family Status Ground – Section 11(1)(a) Harassment – breastfeeding – mother and breastfeeding child as unit – positive discrimination – attendance at theatre – purchase of tickets – threatening statement
1. Delegation under the relevant legislation
1.1. Ms Sarah Stevens 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 to 2004 and the Equal Status Acts 2000 to 2004, the Director then 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 Act.
2. Dispute
2.1. The dispute concerns a complaint by Ms Stevens on the gender and family status grounds contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(a) and 3(2)(c) of the Acts, and contrary to Section 5(1) of the Acts, in that she was told by the respondent that she would have to pay for a ticket for her child who was breastfeeding in order to attend a performance put on at the respondents premises, and in terms of Section 11(1)(a) of the Acts, in that she was harassed in so being told.
2.2. The hearing of the complaint was held at 3 Clonmel Street, Dublin 2 on 5th March, 2008.
3. Case for the Complainant
Claim relating to act of discrimination
3.1. The complainant, Ms. Sarah Stevens, is the mother of three children, the youngest of whom was breastfeeding at the time of the incident in question. Ms Steven’s complaint refers to an incident of October 2005 whereby she asked if she could bring the youngest child to a performance put on by the respondent the following month without having to pay for a ticket. She made this request on the basis that her child was breastfeeding and would sit on her knee throughout the performance. In a telephone conversation of 28th October, Ms Stevens was informed by Ms. Q, an Assistant Manager, that she would have to pay for a seat for her breastfeeding child. Ms Q said that everyone must have a ticket before entering because of fire and safety regulations and that there were no concessions in relation to that particular performance.
3.2. Ms Stevens confirmed that she was not told at any stage that she could not bring her breastfeeding child to the performance. She was told she could bring her if she paid for a seat for her. She submitted that this was inconsistent with the fact that she had attended two other performances at the Helix Theatre and brought her without having to pay for her. However, Ms Stevens said that she was first made aware of the policy of the respondent relating to infants over the age of one in the course of her conversation with Ms Q. She said that she never saw this policy in writing until it appeared on the website sometime later. Ms Stevens stated that other theatres operate a policy of allowing children under three enter for free.
3.3. Ms Stevens considers that a breastfeeding mother and child must be treated as a unit whereas bottle-fed mothers and children have a choice over whether to attend or not. She believed this to be an important issue that needs to be clarified.
3.4. She believes that it is a matter for the theatre whether a parent who wishes to bring a non-breastfeeding two-year old child to the theatre but wishes to put that child on their knee and not purchase a ticket should be allowed to do so. She did not, however, accept the respondent’s submission that the reason she had to pay for the ticket had nothing to do with breastfeeding. She felt that she had to bring an infant because that infant was breastfeeding, and therefore shouldn’t have to pay for an extra ticket. She therefore believes that she was treated less favourably on the family status ground because she was breastfeeding a child. Ms Stevens argues that, as only a woman can breastfeed, she was also treated less favourably because of her gender.
Claim of Harassment
3.5. Ms Stevens stated that she asked of Ms Q what she should do. She said that she meant this in relation to her situation vis-à-vis the box office and paying for a ticket, and that the question was almost rhetorical. Ms Q replied that Ms Stevens should consider expressing her milk and leaving her breastfeeding child at home. Ms Stevens was upset by this and considers that she was harassed by it. In the course of her phone conversation with Ms Q, Ms Stevens referred to an earlier incident when she was allowed to bring her breastfeeding child into the theatre for free by another ticket attendant, Mr F. Ms Stevens alleges that Ms Q commented that Mr F let her bring her child into the theatre without paying because he “had taken pity on her” and was “probably embarrassed”. She submits that this was harassment.
3.6. At the hearing, Ms Stevens also stated that she told Ms Q that she thought she could breastfeed anywhere under Equality legislation. She also said that in reply to her statement that she would look into this further, Ms Q said “I wouldn’t do that”.
Case for the Respondent
Facts of case
4.1. The respondent agreed with the main facts as outlined by Ms Stevens in relation to the alleged act of discrimination. In relation to the complaint of harassment, the respondent took issue with the context in which the comments of Ms Q were made. Ms Q was not available at the hearing.
Complaint of discrimination
4.2. The respondent stated that it has no issues with breastfeeding and that women are free to breastfeed in their premises whenever and wherever they like. It states the complainant has incorrectly interpreted its policy of allowing children under one in for free for certain performances. It states that the policy of requiring children over one to pay for a ticket has nothing to do with breastfeeding. It states that the policy is applied equally to all children over the age of one year, regardless of whether those children are breastfeeding during a performance or not, and regardless of the gender of the child or its accompanying parent, or of that child or parent’s family status. It therefore submits that the complainant was not treated less favourably than other patrons as the policy applies equally to all patrons over the age of one year old. The respondent also states that no additional condition was placed on the complainant because she wanted to breastfeed.
4.3. The respondent further submits that, even if Ms Stevens was allowed in on a previous occasion without having to pay for her breastfeeding child, the fact that this meant the policy was not applied on a particular occasion does not show that there was discrimination in relation to an occasion when the policy was applied.
Claim of harassment
4.4. The respondent states that in relation to the comment about the complainant expressing her milk, Ms Q did not state either explicity or implicitly that the complainant could not or should not be breastfeeding her child. The respondent submits that there was a misunderstanding in that Ms Q understood Ms Stevens to be asking what she should do so that she could attend the performance and that Ms Q was merely providing another option to Ms Stevens other than having to buy a ticket for her breastfeeding child.
4.5. In relation to Ms Q’s comment regarding Mr F, the respondent denies that Ms Q said that Mr F took pity on her but admits that she did say that Mr F may have been embarrassed at the mention of breastfeeding. The respondent submits, however, that this comment was made entirely innocently and in the context of Ms Q expressing her view that most men of Mr F’s age would be embarrassed at the mention of breastfeeding. It submits that the intention behind the remark was not to offend, humiliate or intimidate the complainant nor to embarrass her. It therefore denies that the complainant was harassed.
4.6. The respondent absolutely refuted Ms Stevens allegation regarding Ms Q’s response to her reference to the Equality legislation.
5. Conclusions of the Equality Officer
Prima Facie Case
5.1. Section 38A 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 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.
5.2. Prohibited conduct, in so far as it is relevant to this complaint, is defined in the Acts as being “discrimination against, or…harassment of…a person in contravention of the Act.” In considering whether there was discrimination, the prohibited conduct in question that the complainant must show took place is
i) that the respondent was, as described by Section 5(1) of the Acts, disposing of goods or providing a service to the public and
ii) it treated her, as defined in Section 3(1) of the Acts, “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified”, in this case the gender and family status grounds.
5.3. In considering whether the complainant was harassed, the prohibited conduct in question that she must show took place is that, contrary to Section 11(5), the respondent engaged in conduct which had the purpose or effect of violating the complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
It should be noted that whether discrimination or harassment took place are two separate questions and proving a prima facie case in one is independent of proving a prima facie case in the other. I will therefore consider the two issues separately.
Complaint of Discrimination
5.4. It is clear that the respondent sought to avail of the respondent’s services as defined by Section 5(1).
5.5. In relation to the performance in question, it is clear that the respondent had a policy of allowing children under one to attend for free and charging for any patrons over that age. That policy was applied to everyone equally, including the complainant, and I am satisfied that the complainant was made aware of this policy at the time. The complainant provided no evidence that she was treated less favourably than any man, or any person of a different family status to her, in relation to the performance in question.
5.6. The Equal Status Acts, 2000 to 2004 do not require a service provider to consider that a breastfeeding mother be treated as one unit with the relevant child. Accordingly, the complainant’s submission in this regard must be discounted.
5.7. The complainant also argued that she was allowed attend two performances at the respondent’s premises without having to pay for her breastfeeding child and that, in not applying the same rule to her in relation to the performance that is the subject of this complaint, the respondent was not being consistent and therefore discriminated against her. The respondent submitted that, even if the complainant had been allowed into the Theatre without paying for the child, this was done in error. I consider that, irrespective of whether these incidents occurred or not, the respondent would, in relation to those two performances, have treated the Complainant more favourably than someone of a different family status and/or gender to her. Accordingly, this does not provide any evidence of less favourable treatment on the part of the respondent and does not advance the complainant’s argument.
5.8. The complainant also submits that the respondent should allow a mother who is breastfeeding a two-year old child to bring that child into the theatre without having to pay for him or her, but that everyone else should have to pay to bring a two-year old child. On this basis, she submits that the respondent should be required to positively discriminate in favour of breastfeeding mothers of children up to the age of three, after which, she argued, it would be reasonable for the respondent to charge as a child of that age might be able to enjoy the performance.
5.9. The complainant is correct in thinking that the Equal Status Acts, 2000 to 2004 provides protection for her as a breastfeeding mother in purchasing goods and availing of services in that, under the Gender and Family Status grounds, the Acts provide protection where she is treated less favourably than someone else because she is a breastfeeding mother. However, the Equal Status Acts do not require the respondent to carry out any act of positive discrimination towards the complainant.
5.10. In the context of this complaint, I am satisfied that the respondent does not discriminate against breastfeeding mothers within the meaning of the Equal Status Acts, 2000 to 2004. Furthermore, I am satisfied that the respondent has not treated the complainant less favourably than someone of a different gender or family status to her. The complainant has therefore failed to establish a prima facie case of discrimination on both the family status and gender grounds.
Complaint of harassment
5.11. Ms Stevens argued that Ms Q’s statements constituted harassment within the meaning of the Acts. However, I am not satisfied, on balance, that the complainant has discharged the required burden of proof in respect of these comments. I agree with the respondent’s submission that Ms. Q made these comments with the intention of being helpful. I consider that there was a series of misunderstandings in the conversations between Ms Stevens and Ms Q of 27th and 28th October, 2005 and I believe that the comments of Ms Q in question were based on such a misunderstanding. While Ms Stevens was upset by these comments, and while they may be viewed as inconsiderate, I do not consider it reasonable that the comments could be regarded as creating a hostile, degrading, humiliating or offensive environment for the complainant. Nor do I believe that these comments had the effect of violating the complainant’s dignity.
5.12. I turn finally to Ms Stevens allegation that in reply to her suggestion that she may take action under the Acts, Ms Q said “I wouldn’t do that”. The respondent noted the seriousness of the allegation, but rejected the complainant’s version of this event submitting that it never took place. It further submitted that the omission of this allegation at an earlier stage of the proceedings to the hearing itself undermined the veracity of it. On balance, I find the respondent’s submission more compelling in relation to this allegation. I therefore do not need to consider the matter any further.
6. Decision
6.1. The complainant has failed to establish a prima facie case of discrimination by the respondent.
6.2. The complainant has also failed to establish a prima facie case of harassment by the respondent.
6.3. The complainant’s case fails.
_____________
Gary O’Doherty
Equality Officer
DEC-S2010-021-Full Case Report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010- 021
Olajide v Buck Properties Ltd
Keywords: Equal Status Acts 2000-2008 – Section 3(2)(h), race ground – Section 3(2)(a), gender ground – prima facie case – discrimination -harassment – victimisation
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 7th October 2009, my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 17th February 2010.
1. Dispute
This dispute concerns a claim by the complainant, Ms Olajide that she was discriminated against, harassed and victimised by the respondent on the grounds of race and gender in terms of Sections 3(1)(a), 3(2)(a), 3(2)(h) 3(2)(j) and Section 11 of the Equal Status Acts, 2000-2008 in her dealings with her landlord, Buck Properties Ltd.
2. Summary of the Complainant’s Case
2.1 In early 2006, the complainant took a 25- year lease of the respondent’s property in Westcity centre in Galway. This lease was witnessed by a solicitor; however the complainant says that she was not advised by them. The property at that time had no electricity or water, the walls were not plastered, there was no suspended ceiling or floor and there was no toilet. The complainant took out a loan of 80,000 Euros to fit out the shop and to equip it. After it was fully equipped, Ms Olajide began trading in the shop. According to her evidence she was trading reasonably well; however it became apparent to her in early 2007 that the premises was too big. Therefore in order to continue her business, she decided to try to divide the unit in two and sublet the other half. She anticipated that this would reduce her rent sufficiently for her to continue trading.
2.2 Ms Olajide set about finding a prospective tenant and around July 2007 she was successful in finding an interested party. She made a verbal agreement with the interested party, which included an upfront payment. By this point she was in arrears with her rent, and it was intended that this upfront payment would cover the arrears. The weekly rent which the prospective tenant would pay, would offset her own rent and she would be able to continue trading. Ms Olajide introduced the tenant to the respondent and sought his permission to divide the premises. This was granted.
2.3 Shortly afterwards, Ms Olajide discovered that the respondent had made his own arrangement with her prospective tenant and that he was going to lease him a different unit in the centre. After losing her prospective tenant, Ms Olajide tried to sell her own lease, but she says that the landlord used his influence against her and blocked the sale through the auctioneers.
2.4 Ms Olajide was extremely upset by the action taken behind her back by the respondent and says that the loss of her prospective tenant and her lack of ability to sell the lease meant that she went a further three months into arrears with her rent. In October 2007 she was forced to surrender the lease and return the keys. Ms Olajide says that taking her prospective tenant and forcing her to surrender her lease amounts to discrimination under the Acts. She is seeking to recover her investment in the unit.
2.5 Ms Olajide claims she was victimised by the respondent because she is a black woman.
2.6 Ms Olajide claims that she was harassed throughout her time as a tenant:
– Firstly she claims that she was not given a copy of her contract until about a year after she signed it. This was in direct contrast to the other tenants, who received theirs within a normal timeframe.
– Secondly she says that the Mr Tuohy, Director of the respondent company, accused her of taking building materials when she first moved in. She believed that he said this because he did not trust black people. She clarified to him that she had not taken anything and she requested an apology in writing which she did not receive.
– Finally she claims that Mr Tuohy was verbally abusive towards her during the tenancy. He would come into her shop and hassle her about the rent in front of her customers. When she moved out he told her in a disparaging way to get rid of her stuff or else he would dump it. She understood this to mean that he was mocking her African stock. When he wanted the keys back, he hassled her continuously, including going to her husband’s shop to put pressure on him.
In summary, Ms Olajide said that she had operated in the premises under fear of physical, mental and verbal attack from the respondent and as a result, her business, her health and her marriage had suffered. She submitted documents to the Tribunal to show proof of her financial situation and of her attendance at the hospital.
3. Summary of the Respondent’s Case
Preliminary submissions:
3.1 The respondent claimed that Ms Olajide had not established a prima facie case and it was therefore not obliged to provide any evidence in order to rebut her case. The respondent therefore provided the minimum information during the oral hearing.
3.2 The respondent claimed that the only events which could be considered were those which occurred in the six months prior to the referral of the case to the Tribunal.
Substantive complaint:
3.3 On 20 January 2006, the complainant entered into a 25 year lease of a shell unit from Buck Properties Limited (hereafter BPL). This was a commercial lease and the complainant had the benefit of independent legal advice from a named firm of solicitors. The terms of the lease obliged the complainant to pay rent, services charges and insurance premia. However the complainant did not discharge her obligations and significant arrears of rent accumulated. Under the terms of the lease, the respondent landlord was entitled to deem the lease forfeit if the rent remained unpaid for 21 days or more. BPL did not do this, nor did they pursue the complainant for the arrears of rent and service charges which totalled approximately €30,000. They say that the complainant’s business failed and she herself sought to surrender her interest in the property. Accordingly she returned the keys to them.
3.4 On the issue of the sublet, the complainant could not assign her interest without the prior consent of BPL. This consent was sought around April 2007; however as the complainant was in arrears, the consent was not granted. Additionally the proposed assignee preferred to negotiate directly with BPL regarding a different unit.
3.5 On the issue of victimisation, the respondent maintains that the complainant had surrendered her lease and ended her commercial relationship with BPL before making her complaint. Therefore her claim of victimisation is unstateable.
3.6 The respondent points out that the complainant’s unit remained vacant until May 2008 and as a result of this and the unpaid rent, they have incurred substantial losses, which they have not sought to recover from the complainant.
3.7 The respondent denies all claims of harassment by Mr Tuohy. Mr Tuohy said that the complainant was always in arrears with her rent and he had to constantly follow up to get paid.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.1 The respondent claimed that as the complainant had not established a prima facie case, they were not required to respond to the complaint during the oral hearing. However in the case Dyflen Publications Limited and Ivana Spasic (ADE/08/7), the Labour Court in adopting the approach of Mummery LJ in Madreassy v Numura International plc [2007] IRLR 246 stated that “…. the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts, the court should consider any evidence adduced by the respondent…” This is well-settled law and I have therefore considered all the available evidence.
4.2 The respondent further contended that any events which happened prior to six months before the complaint was lodged, could not be introduced into evidence and therefore they would not respond to them. The Equal Status Acts however clearly allow for a chain of related events provided that notification and referral of the most recent occurrence are within the time limits.
4.3 Turning to the substantive issues, the complainant has said that she was discriminated against on the grounds of race and gender by the respondent’s behaviour in relation to the proposed assignment and by the respondent’s behaviour in forcing her to surrender her lease. I have considered the following points in deciding this issue:
– The complainant said that she had received consent for the sublet; however according to the documentation provided, the respondent had only agreed to consider her request. There was no evidence that they actually did consent. Furthermore according to the respondent’s letter and the lease agreement itself, the complainant was only entitled to assign her interest in the event of all outstanding rent being paid (which it was not).
– The complainant was very upset about the respondent making a deal directly with her potential tenant. In oral evidence, the respondent Director claimed that the potential tenant had contacted him directly and independently of her. I do not find this credible; however I do accept that the respondent and the potential tenant were entitled to make their own deal. Although this was genuinely distressing for the complainant, I do not find evidence of racial or gender-based discrimination.
– The complainant has said that she had a viable business and that she wished to continue trading at her shop, but that she was forced by the respondent to surrender the keys. As late as October 2007, she says she had a plan to keep the business afloat, but the respondent would not co-operate. However the respondent pointed out in oral evidence that she had closed her shop and stopped trading in July 2007, without notice to the landlord and contrary to the conditions of her lease. Given that the complainant had invested a large sum of her own money in her shop, I do not doubt that the complainant genuinely wished to continue trading. However there was no evidence that she had any sort of realistic survival plan and therefore I find that the respondent was acting prudently to protect their interests, by seeking the surrender of the lease before further arrears accumulated. Therefore I do not find that they discriminated against her in relation to the lease surrender.
4.4 Regarding the claim of victimisation, I find that the complainant did not establish any facts to support this claim. She used the term “victimisation” in the colloquial sense rather than within the meaning of the Acts and there was no evidence adduced to show that she was less favourably treated after she raised the issue of discrimination or made the complaint to the Equality Tribunal.
4.5 On the claim of harassment, it is clear that the relationship between the parties deteriorated sharply during the last few months of the lease. The complainant says that the respondent was abusive towards her on the basis of her gender and race. The respondent denies this and claims that any issues between them were related to the unpaid rent and the proposed sublet.
4.5.1 Regarding the delay in issuing the contract the respondent did not remember this issue specifically, but did not accept that it was evidence of harassment. As the matter was handled by a firm of solicitors who did not know the complainant at all, I accept that this was not an attempt to harass her on the grounds of race or gender.
4.5.2 The complainant has also claimed that the respondent accused her in a letter of taking their building materials. She says that he later retracted the accusation, but refused to put it in writing. Although I accept that this did happen, I do not find that there was a link between the event and the complainant’s race or gender.
4.5.3 The complainant says that the landlord told her to get rid of her stock or he would dump it, when he was getting her out of the building. The respondent denied this, but I found the complainant’s version more credible. However I was not provided with enough specific details of this incident to accept that it was linked to her race.
4.5.4 On the issue of the verbal harassment about the rent, I do not accept the complainant’s contention that this was on the grounds of race or gender. The complainant was in arrears with her rent at the time of the alleged harassment, so I find that the behaviour of the respondent was prompted by a desire to recover the monies owed.
5. Decision
5.1 On the basis of the foregoing, I find that the complainant has failed to establish a link between her treatment by the respondent and her grounds of race and gender. She has not established a prima facie case of discrimination, harassment or victimisation. On this basis I find in favour of the respondent.
Elaine Cassidy,
Equality Officer
13 April 2010
DEC-S2011-023- Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-023
Duyn v Aer Arann Group
File Reference: ES/2011/0010
Date of Issue: 27th June 2011
Key words
Equal Status Acts – Section 3(2)(g) Disability – Persons with restricted mobility (PRM), Reasonable accommodation, victimisation, harassment.
1. Delegation under the relevant legislation
1.1 This case concerns a complaint by Ms Corina Duyn that she was discriminated against by Aer Arann on the grounds of disability and that she was not provided with reasonable accommodation. She also claims harassment and victimisation within the meaning of the Acts. On 20th January 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 -2008 [hereinafter referred to as ‘the Acts’]. On 28th October 2010, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2008 and under the 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 Acts. My investigation commenced on this date.
1.2 As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 20th January. The last piece of correspondence relevant to the investigation was received on 24th February.
2 Summary of the Complainant’s Case
2.1 The complainant submits she is a person of reduced mobility requiring the use of a mobility scooter and is therefore a person with a disability within the meaning of the Acts. On or about 28th June 2009 the complainant booked a flight with Aer Arann from Cork to Edinburgh for the 26th August 2009. Ms Duyn is an author of children’s books and she was going to Edinburgh on business – to attend the Book Festival there. She submits it is the leading festival regarding books for young people and is a valuable networking opportunity. When booking the ticket online the complainant noted that the respondent’s website indicated that passengers with reduced mobility ought to contact them one week prior to departure to discuss their requirements. She noted this in her diary and the complainant proceeded to contact the respondent by phone using the number on the website on 19th August to state that she would be travelling with her mobility scooter on 26th August. She submits that she indicated to the agent that her Rio3lite scooter was powered with a battery classified as a non-spillable battery which is compliant with the International Air Transport Association (IATA) standards.
2.2 On the day of travel (26th August 2009) she checked in at Cork Airport an hour prior to departure. Her luggage was checked in but half an hour later she was called back to the check-in desk and further questions were asked about the type of battery in her mobility scooter. She submits that she gave the agent a copy of a battery notice by the manufacturer which confirmed the battery’s compliance with IATA regulations (Packing instruction 806, Special provision A67). The Servisair employee (Servisair acts as ground agents for the respondent at Cork airport) notified Aer Arann. The battery was removed from the mobility scooter and examined. This was easily done as it was a sealed unit with no externally exposed wires. The complainant observed that the Servisair agent noted the sticker on the form of the battery which stated “Non spillable battery – complies with IATA special provision A67” The complainant proceeded to the departure lounge but as everything seemed to be in order. As people were beginning to board, she was approached by a Servisair employee who told that Aer Arann do not carry those type of batteries. She maintains that she felt embarrassed and distressed at being singled out as others were boarding the plane. Although polite, she said the agent told her ‘No you are not going on that plane, we are leaving without you, and your case has been removed from the plane’. She states that she felt like a criminal. In direct evidence she submitted that ‘it felt as if it was no longer about the battery, it was about her’.
2.3 She submits that she was forced to cancel all appointments in Edinburgh and had to ask her partner to return to airport to bring her home. She submits that her confidence in her ability to travel independently by air, as a person with a disability, has been badly damaged because of the incident. She admits that she flew with Aer Arann again (6th May 2010) but she used her manual wheelchair which made her much more dependent on other people as she required them to push her wheelchair.
2.4 She subsequently pursued the matter with Aer Arann Customer Relations and was subsequently given a refund. She submits that she was disappointed the apology was limited to ‘any inconvenience caused’.
2.5 The complainant submits that she was directly discriminated against as she was treated less favourably than able-bodied persons who had booked tickets for this flight. Ms Duyn further submits that she was not accorded reasonable accommodation within the meaning of Section 4(1) of the Acts. The complainant contends that the respondent is a provider of services both directly and through its agents Servisair within the meaning of the Acts.
2.6 Ms Duyn maintains her battery complied with international regulations as the battery terminals were protected from short circuits, being a sealed unit, and the battery was securely attached to her mobility aid.
2.7 Ms Duyn states that she fully appreciates while passenger safety concerns must be given due consideration, she submits the respondent cannot claim that its discriminatory company policy takes precedent over the regulation of an international standardisation body. She states that a sticker on the front of her battery clearly stated ‘Non-spillable battery – complies with IATA Special Provision A67’.
2.8 The complainant submits that she was harassed within the meaning of Section 11(5) of the Acts as she was distressed when she was singled out form other passengers as they were beginning to board.
2.9 She submits that the respondent discriminated against the complainant by
(i) Failing to notify her when she contacted their customer service agent one week prior to travel that thereby would be a difficulty in transporting her mobility scooter due to the type of battery upon which it operated
(ii) Failing to highlight to the complainant that there was incongruence between IATA standards and company policy
(iii) In depriving her of the opportunity to render my mobility scooter compliant with said policy in order to ensure that she could travel with the respondent and/or make alternative arrangements
(iv) In definitively indicating to her at the last minute at the boarding gate that she would be unable to travel with her mobility scooter.
2.10 The 50th edition of the IATA Dangerous Goods Regulations, which was the edition effective when she sought to travel with the respondent states in section 2.3.2.2: 9
Wheelchairs/Mobility Aids with non-spillable batteries
Wheelchairs or other battery-powered mobility aids with non-spillable batteries (see Packing Instruction 806 and Special Provision A67) provided that the battery terminals are protected from short circuits, e.g. by being enclosed within a battery container, and the battery is securely attached to the wheelchair or mobility aid.
Operators must ensure that wheelchairs or other batter-powered mobility aids are carried in such a manner so as to prevent unintentional operation and that the wheelchair/mobility aid is protected from being damaged by the movement of baggage, mail, stores or cargo.
2.11. She submits that it should have been capable of transportation by an airline in accordance with IATA regulations as it complied with Special Provision A67 and Packing Instruction 806. She submits that a copy of her battery notice stating this was shown to the respondent at the airport.
2.12 The complainant submits that her scooter is a common brand and that one of the reasons she picked it, following extensive research, is that she could bring it with her on an aeroplane. Other airlines routinely allow carriage of this type of battery. She gave examples of airlines that specifically state on their website that batteries for powering wheelchairs and mobility aids are allowed on their aircrafts e.g. British Airways, Continental Airlines, Jetairfly, Southwest and Virgin Atlantic. Ms Duyn had prior to this incident (November 2008) to this incident travelled with her mobility scooter to Amsterdam with Aer Lingus and encountered no difficulties.
2.13 She submits that the respondent victimised her by personalising her complaint and by continuing to refuse to allow her travel with her mobility scooter.
2.14 Regarding legal arguments, the complainant submits that a hypothetical comparator is allowed by the use of the phrase ‘would be treated’ in Section 3(1) of the Acts. The complainant further argues that she is not required to demonstrate that there was an intention to discriminate; it is sufficient that the actions of the respondent do, in fact, discriminate against the complainant as a person with a disability.
2.15 Furthermore, the complainant submits that she was not accorded reasonable accommodation in respect of her mobility needs within the meaning of Sections 4(1) of the Acts. She submits that a ‘provider of a service’ is defined in Section 4(6)(b) as including ‘the person responsible for providing a service in respect of which section 5(1) applies’. Section 5(1) in turn 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 b a section of the public’.
2.16 The complainant maintains that the respondent was a provider of services to the complainant within the meaning of the Acts both directly and through its employees and/or agents Servisair. The complainant maintains that the fact that an agent was involved does not affect the respondent’s liability. She refers to Ross v Ryanair Ltd & Stansted Airport Ltd. In that case the defendants were held to have discriminated against the plaintiff, a person of reduced mobility, in failing to ensure the provision of a wheelchair, without charge, thus enabling him to be transported from the check-in point to the departure desk. The plaintiff was dealing with an agent of Ryanair in this cited case Furthermore, Ryanair was found to have discriminated against the plaintiff despite the fact that it was found to be in compliance with terms and conditions of the contract which had been accepted by the plaintiff upon purchasing the ticket.
2.17 Regarding harassment, the complainant submits that she was extremely distressed and embarrassed to be singled out from the other passengers at the time of boarding the aircraft. Ms Duyn submits that she felt humiliated and as if she a criminal. She cites Kane and Kane v Eirjet (in liquidation). In that case, the complainant and her son who had Downs Syndrome were requested to vacate their allocated seats. While their complaint of discrimination on the ground of disability was not upheld, the Equality Officer found that the manner in which the request was handled by the cabin crew created an environment that was humiliating and degrading. Therefore, their complaint of harassment on the disability ground was upheld.
2.18 Regarding victimisation, the complainant pointed out her disability to the respondent a week before travel. However, it was only on the day that questions were asked about her mobility scooter battery. As in the case of Twomey v Aer Lingus the respondent strictly applied its policy by refusing the complainant permission to board the aircraft. She submits that she felt it was directed at her personally.
3 Summary of the Respondent’s Case
3.1 The respondent is governed by Irish and European legislation along with international conventions on Air Law in all its operations. This includes the regulation of the carriage of articles and substances having hazardous properties which if uncontrolled could adversely affect the safety of the passengers, crew and/or aircraft on which they are carried. The respondent submits it places a premium on customer service and strives to accommodate the needs of all its passengers. Due to safety concerns, the respondent maintains it is not authorised to carry wet cell batteries on its flights including those powering mobility devices. This is because to do so requires compliance with strict technical instructions. To facilitate passengers of reduced mobility the respondent submits that this limitation is notified to passengers during the booking process and passenger of reduced mobility are required to contact the airline in advance of the flight to discuss their needs. The respondent provides assistance to passengers of reduced mobility free of charge.
3.2 The respondent regrets that the complainant was unable to travel with her mobility device on the date in question and any upset this caused her. The respondent submits that it carried out a thorough investigation of the complainant’s complaint. The respondent’s records show that the complainant made a phone call to the respondent on 19th August 2009 at 10:17 a.m. to discuss her needs. The respondent submits that the complainant stated to the agent that her mobility scooter contained a dry cell battery. Dry cell batteries do not pose a problem and can be carried on the respondent’s flights. The respondent had no notice that the complainant’s mobility scooter contained a battery prohibited for carriage on its aeroplanes and therefore was unable to arrange alternative wheelchair assistance in advance. The respondent submits that had the complainant correctly identified her battery as a wet cell battery she would have been advised that their procedures did not allow for carriage of such batteries. Aer Arann further submits that she would have been referred to the respondent’s terms and conditions and advised that could not bring her mobility device on the flight. In such circumstances it is the practice of the respondent to make contact with the mobility device supplier at both airports to arrange supply of a mobility device.
3.3 At check-in on 26th August the respondent said it became apparent that her mobility scooter contained a wet cell battery. While the respondent acknowledged that, the complainant had some paperwork to say that her battery was approved by the International Air Transport Association as correspondent to Special Provision A67. However, the respondent submits that this does not cover the respondent’s obligations pursuant to its Operating Manual which must be approved by the Irish Aviation Authority. The ground staff contacted to Dublin office to seek clarification as to whether they could carry the battery or not. They were informed by Operations in Dublin that they could not.
3.4 Once the situation was clarified, the staff informed the complainant. They offered to bring her on the next flight free of charge and that she would be offered the Meet-and-Assist service at Edinburgh airport. The complainant sought a refund which was made to her immediately. Subsequently the respondent forwarded to her the results of its investigation.
3.5 Annex 18 to the Convention on International Civil Aviation together with Technical Instructions for the Safe Transport of Dangerous Goods by Air are made binding on Irish operators by Aeronautic Nr 0.1 Issue 17 (now superseded by Issue 18) by the Irish Aviation Authority[IAA]. Annex 18 categorises battery fluid as a hazard. The Annex and the accompanying Technical Instructions allow for the carriage of batteries but stringent instructions must be followed. The respondent’s Operating Procedures do not allow the carriage of wet cell batteries. Amendment of these operating procedures requires approval from the IAA. The respondent is also guided by the world aviation trade representative organisation, which is the International Air Transport Association [IATA] Dangerous Goods Regulations although these regulations are not binding.
3.6 S.I. 299 of 2008 European Communities (Rights of Disabled Persons and Persons with Reduced Mobility when travelling by Air Regulations) transposes EC 1107/2006. Article 4 of the Directive states that an air carrier or its agent may refused, on the grounds of disability or of reduced mobility to accept a reservation from or to embark a disabled person or a person with reduced mobility in order to meet applicable safety requirement established by international, Community or national law or in order to meet safety requirements established by the authority that issued the air operator’s certificate to the air carrier concerned.
3.7 The respondent states that it was not the complainant that was refused carriage but battery in her mobility scooter.
3.8 S.I. 61 of 2006 Irish Aviation Authority (Operations) Order requires all operators of an air operator certificate to have an Operations Manual. Paragraph 9.3 of the Aer Arran Operations Manual states that for safety reasons wet cell batteries must not be carried in the passenger carriage or hold baggage. Paragraph 6.12 of the Aer Arann Ground Operations Manual states that ‘any item containing a wet cell battery MUST NOT be loaded. (Dry cell batteries are ok for air travel).’
3.9 The respondent provides notice to passenger of reduced mobility regarding the prohibition on wet cell batteries in Article 15 of their terms and condition of carriage on their website. The complainant accepted their and conditions set out and is therefore bound by them.
3.10 Aer Arann submits that it carried of a full review of the policy of prohibiting wet cell batteries. This included a review of safety regulation in the airline industry, discussions with the Irish Aviation Authority regarding the necessary measures to be implemented if the current procedures were to be changed, consultation with Irish an other regional airlines as to their procedures and research into battery and wheelchair types. The respondents review revealed that meticulous adherence to the technical instructions is required to ensure safety. It submitted three examples of safety incidents regarding mobility devices. In 2008, the electric terminal of an electric wheelchair was not isolated before loading at Manchester airport; it burst into flames and damaged the baggage belt. In 2003, a non-spillable, sealed, lead-acid wheelchair battery leaked. In 1995, a wet cell battery, which was removed from an electric wheelchair, was removed and packaged separately but the battery cables were left attached to the battery causing a short circuit. The overheated battery boiled over releasing acid which was absorbed by the packaging material.
3.11 The respondent submits that to facilitate the carriage of wet cell batteries they will require additional technical training of all the ground staff and crew of the respondent airline and for its handling agents Servisair. To facilitate adhering to of strict procedures for checking and verifying battery type, compliance with packing instructions, It also would require the amendment of terms and conditions of carriage with the respondent as well as amendment of their Operations Manual. The respondent submits that it would have been impossible to carry out these required changes on the day the complainant wished to travel. The respondent maintains that making these changes are unduly onerous to the respondent, as it is it poses both an initial and ongoing financial burden on the respondent. To extend the reasonable accommodation to carry wet cell batteries is a disproportionate response to the needs of persons of reduced mobility to be facilitated on airlines.
3.12 The respondent denies either direct or indirect discrimination. Aer Arann submits its actions was prompted solely and exclusively by strict adhesion to safety regulation and the limitations on the respondent pursuant to its Air Operator’s Certificate. To have allowed the complainant to board the aeroplane with a wet cell battery would have been to risk the safety of all the passengers and crew onboard including the complainant.
4 Conclusions of the Equality Officer
4.1 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. There are three issues for me to decide:
was the complainant discriminated against on the grounds of disability and was she discriminated by not being offered reasonable accommodation?
was the complainant harassed on the ground of disability?
was the complainant victimised within the meaning of the Acts?
Discrimination
4.2 First of all, I accept the complainant’s contention (and this was not contested by the respondent) that Aer Arann is a provider of services within the meaning of the Acts and, therefore, the correct respondent in this case [See Paragraphs 2.6 and 2.7]. Dealing with the alleged discrimination in a chronological way, there are three relevant issues:
when the complainant rang on 19th August notifying the respondent that she was a person of reduced mobility and would require special assistance
when the complainant was refused boarding on 26th August
The respondent’s ongoing policy regarding the refusal to carry the type battery contained in the mobility scooter used by the complainant.
4.3 Regarding (i), there is a conflict of evidence between the complainant and the respondent. The respondent submits that the complainant misrepresented her battery as a dry cell battery in her mobility scooter. In response, the complainant stated that it would not be in her interest to pretend her battery was anything other than what it was, as it would inevitably be examined at check-in. In their written submission, the respondent submitted a record of the phone call with the Aer Arann representative on 19th August:
Pax called to book on a wheelchair she has her own wheelchair it is a dry cell battery she also needs MAAS [Meet and Assist Service] and lift on lift off
I found the complainant to be a cogent and precise witness. In a situation where the representative had clearly misrecorded that the complainant would be using a wheelchair rather than mobility scooter and that her first name was incorrectly spelled as ‘Cornelia’, I find it hard to believe the respondent’s version of events regarding the complainant incorrectly informing the respondent regarding the kind of battery used in the mobility device. On the balance of probabilities, I find the complainant’s version to be the more compelling. The complainant fulfilled her obligations by informing the respondent that she intended using a mobility scooter and that the battery was compliant with international requirements. It was at this point that the representative should have checked the respondent’s Ground Operations manual or consulted with a supervisor, whether the battery was compliant with their procedures. The respondent was remiss in not doing this and it had unfortunate consequences for Ms Duyn.
4.5 In relation to (ii), it is common case that the complainant was allowed check in on 26th August while Servisair staff checked with Aer Arann whether this battery in her mobility scooter was allowed on their flights. The complainant was approached at the airside boarding gate and was told her battery could not be carried. She did not travel on this flight which caused her some distress.
4.6 Aer Arann continues not to carry mobility scooters with this type of battery on their aeroplanes. Section 4(1) is the relevant provision regarding reasonable accommodation:
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.
I am satisfied that the respondent failed to provide reasonable accommodation to Ms Duyn on 26th August and continues to refuse to provide same. I accept the complainant’s contention that the respondent’s continued refusal to carry the battery in her mobility scooter makes it unduly difficult for her to avail of its flight service. Without the use of her mobility scooter the complainant is obliged to use a manual wheelchair requiring somebody else to push her wheelchair. While I appreciate that the respondent provides an assistance service for passengers with disabilities, I can also understand the complainant’s desire to be independent, where possible. Therefore the complainant has established a prima facie case of direct discrimination in that she was treated less favourably than a person without her disability would be treated and that the respondent did not and continues not to provide reasonable accommodation.
4.7 The respondent cites Section 4(4) the Acts make provision for treating people with disabilities differently where there are safety concerns:
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 this provision is normally taken into account in relation to a disability that results in disturbed behaviour, I think it may also be considered in the circumstances of this case. It is difficult for Ms Duyn to travel without her mobility device and this is powered by a battery. The respondent states that the carriage of this battery could cause harm to the complainant and others.
4.8 Like almost all air travellers, I want safety to be a central concern of airlines. The respondent points out that it is governed by the Convention of International Aviation of which every Member State on the United Nations is a signatory. This convention contains the rules of airspace and aircraft safety. Aer Arann correctly state that battery fluid is listed as a potential hazard in Annex 18 of the Convention. However, Annex 18 also says:
More than half the cargo carried by all modes of transport in the world is dangerous cargo – explosive, corrosive, flammable, toxic and even radioactive. These dangerous goods are essential for a wide variety of global industrial, commercial, medical and research requirements and processes. ..Because of the advantages of air transport a great deal of this dangerous cargo is carried by aircraft. ICAO recognises the importance of this type of cargo and has taken steps to ensure that such cargo can be carried safely. This has been done by adopting Annex 18 together with the associated document Technical Instructions for the Safety Transport of Dangerous Goods by Air…The Annex also makes binding upon Contracting States the provisions of the Technical Instructions which contain the very detailed and numerous instructions necessary for the correct handling of dangerous cargo.
4.9 Page 8-1-1 of Technical Instructions provide for the carriage of mobility aids albeit with the approval of the operator:
With the approval of the operator(s) battery-powered wheelchairs or other similar mobility aids with non-spillable batteries, which comply with Special Provision A67 or the vibration and pressure differential test of Packing Instruction 872, for use by passengers whose mobility is restricted either by a disability, their health or age, or a temporary mobility problem (e.g. broken leg) as checked baggage provided the battery terminals are protected from short circuits (e.g. by being enclosed with a battery container) and the battery is securely attached to the wheelchair or mobility aid. The operator(s) must ensure that wheelchairs or other battery-powered mobility aids are carried in such a manner so as to prevent unintentional activation and that they are protected from being damaged by the movement of baggage mail stores or other cargo. It is recommended that passengers make advance arrangements with each operator.
4.10 To reiterate, the complainant did make advance arrangements with the operator and the battery was clearly labelled compliant with Special Provision A67 and Packing Instruction 872 and it could not be activated unintentionally as it was operated by a key. However, I note that according to the Technical Instructions carriage of a battery-powered mobility device is with the approval of the operator. However, the respondent could not give me any examples of any other airlines that do not carry mobility scooters. I accept the respondent’s contention that their fleet cannot be compared to bigger carriers like Aer Lingus or British Airways. At the Hearing I asked the respondent’s Ground Operations Manager to give examples of airlines that use the same aircrafts as Aer Arann. She cited regional airlines like Binter Canarias, Finncomm and Goldenair. Like Aer Arann Binter Canarias use ATR 72-201 and ATR 72-500 models. In Binter Canarias’s policy for people with reduced mobility they state ‘If you need to travel in your own wheelchair, please state this when you make your booking. If your wheelchair is battery powered, you must make sure that the battery is disconnected, and that its terminals are isolated, in accordance with the instructions that you will be given by staff at the airport.’ Neither Finncomm nor Goldenair exclude these kinds of batteries on their flights.
4.11 The respondent categorised the battery in the complainant’s mobility scooter as a wet cell battery. Neither the ICAO Technical Instructions, the IATA regulations or the Irish Aviation Authority in their memorandum on the transport of battery-powered wheelchairs classify batteries as ‘wet’ or ‘dry’. They describe them as ‘spillable’ and ‘non-spillable’. Therefore Aer Arann cannot escape liability especially in relation to their continuing policy of not allowing the complainant’s mobility device to be carried on their flights on the ground that amendments to their Ground Operations manual need to approved by the IAA.
4.12 Neither can I accept that the complainant intended to waive her rights under these Acts when she ticked the ‘I accept the terms and conditions’ box on the respondent’s website when booking her tickets. I find the Ross and Ryanair Ltd and Stansted Airport Ltd, cited by the complainant, persuasive in this regard.
4.13 The respondent cited three incidents with safety concerns regarding mobility devices. In the first and third incidents the electric wheelchairs were not stored correctly. In the second incident damage was very limited. Despite these incidents the International Civil Aviation Organisation, IATA and IAA continues to encourage that battery-operated wheelchairs and mobility devices are carried by air operators. That is why they give detailed guidance on how to store such devices safely. For these reasons outlined in Paragraphs 4.7 to 4.10 the respondent is not entitled to avail of the defence in Section 4 (4) of the Acts.
4.14 Section 4(2) provides an other potential defence for the respondent:
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
The respondent stated that all ground staff and aircraft crew would have to be given dangerous goods familiarisation training as well as all the staff of their agents. The respondent submits that this would cost in the region of €25,000 to €30,000. An employee of Servisair who was present on 25th August when Ms Duyn was due to fly with the respondent to Edinburgh was a witness for the respondent at the hearing. She had seven years as a ground services supervisor at Cork airport. Servisair act as an agent for a number of airlines. At the hearing she stated that other airlines did allow mobility devices on their flights and she had not received separate training for same. She pointed out that the carriage of mobility devices was a rare occurrence. She said that instructions were sent by the airline through the electronic reservations system and that this had always worked in the past. This approach seems to be in line with the IAA’s Advisory Memorandum on the Transport of Battery-powered Wheelchairs which states:
Operators should review their flight reservation process to require any passenger who intends to travel with a mobility aid to declare that fact when making the booking and provide the following information:
the type and number of batteries fitted to the mobility aid; and
what measures are required to prevent inadvertent operation
The operator shall ensure that this information is provide to all relevant staff (e.g. check-in, loading etc)
I do not accept that onerous training is required to follow these kinds of instructions especially when the ICAO, IATA and IAA provide advice on how these devices are to be stored. In a situation where other airlines, including small regional airlines, can make provision for mobility devices similar to that of the complainant, I do not accept that the cost of reasonable accommodation is other than nominal for the respondent despite the financial difficulties the airline has been undergoing recently. Therefore the respondent cannot avail of the defence in Section 4(2) of the Acts.
4.15 I find that the complainant has established a prima facie case of direct discrimination under Section 5 and that the respondent failed to provide reasonable accommodation under Section 4 of the Acts and that the respondent has failed to rebut it. Neither is the respondent entitled to avail of defences under Section 4 of the Acts.
Harassment
4.16 Section 11 defines harassment under the Acts:
In this section —
(a) (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(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.
By the complainant’s own admission the agents of the respondent both at the airport and subsequently were very polite to her. Therefore, this instant case is distinguished from Kane and Kane v Eirjet (in liquidation) in this respect. While I accept it would be frustrating to be told at the boarding gate that you cannot get on the flight you booked, insufficient evidence has been adduced for me to make a finding of harassment that is clearly linked to the ground of disability under the Acts. Therefore, the complainant has failed to establish a prima facie case of harassment within the meaning of the Acts.
Victimisation
4.17 The ground of victimisation is defined in Section 3 of the Acts:
(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 colloquial meaning of victimisation differs from the statutory definition above. No evidence was presented to me of the complainant being treated less favourably as a result of her making a complaint under the Acts. Therefore her complaint of victimisation fails.
4.18 In considering redress, I am cognisant of the fact that the cost of ticket was refunded and that the complainant was treated courteously at all times. However, this needs to be balanced with the reality that the carriage policy of the respondent continues to discriminate against the complainant. In the preamble to Regulation EC 1107/2006 concerning the rights of disabled person and persons with reduced mobility when travelling by air:
Disabled person and persons with reduced mobility have the same right as all other citizens to free movement, freedom of choice and non-discrimination. This applies to air travel as to other areas of life.
Therefore, I am awarding almost half the maximum award under the Acts – €3,000.
5 Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
that the complainant has established a prima facie case of discrimination on the grounds of disability in terms of both Section 4 and Section 5 of the Acts and this has not been rebutted by the respondent
that the complainant has not established a prima facie case of harassment on the ground of disability
that the complainant has not established a prima facie case of victimisation
5.2 Therefore I award the complainant €3,000 for the discrimination on the grounds of disability.
5.3 I further order that the respondent conduct a review of its policies and procedures (to include their terms and conditions of carriage and their Ground Operations manual) to ensure that they are in compliance with these Acts within six months of this decision.
_______________________
Orlaith Mannion
Equality Officer
DEC-S2011-040- Full Case Report
The Equality Tribunal
A hotel guest v A Dublin Hotel
File Ref: ES/2009/039
Date of Issue: 19 September 2011
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2008 on 31 March 2009. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 26th November 2010 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 1 June 2011 (following a series of adjournments at the request of the parties). Both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, A Hotel Guest (hereafter “the complainant”) that he was harassed, sexually harassed and victimised by the A Dublin Hotel (hereafter “the respondent”) on the grounds of gender and sexual orientation, in terms of Sections 3(2)(a) and 3(2)(d)of the Equal Status Acts, 2000-2008. The request of both parties for anonymity was granted in the circumstances of the case.
Summary of the Complainant’s Case
2.1 The complainant is a film-maker from the US, and he was staying at the respondent hotel for a film festival on the October Bank Holiday weekend in 2008. On Friday night/Sat morning 24th /25th October, the complainant returned, accompanied by a friend, to the hotel and asked for a key to his room. The hotel representative, Mr A, responded in a manner which the complainant found rude and hostile. Mr A told him that he could not bring a friend to his room and he made a comment about not allowing men to be with men. The complainant said that his friend needed to go to the toilet, so Mr A gave him the key to the hall toilet. While the friend was gone, the complainant asked why he was not allowed to bring a guest to his room. Mr A said that he knew what they were up to and he didn’t allow that sort of thing at the hotel. The complainant asked what he meant by this remark. Mr A said that he meant “the kind that diddles young boys” and the complainant understood this to be a reference to paedophile behaviour. Mr A said that he had the authority to refuse him and he showed him the hotel sign, which said that management have the right to refuse access to non-residents. The complainant’s friend returned and Mr A said that he should go away with his young man, and that he (Mr A) had cameras everywhere and could see all their comings and goings. The complainant submitted that he was extremely embarrassed and had only wanted to show a book to his friend.
2.2 The following morning, the complainant went to reception to complain about Mr A. The receptionist seemed embarrassed in his opinion and she told him that Mr A was just a crazy old man. She said that she would tell the manager what happened. The manager called him from her cellphone later that day and he told her what happened. She apologised, but the complainant felt that her manner was too beezy, given the seriousness of his complaint. She said that she was off for the weekend, but that she would speak to Mr A. She advised him not to take it personally and hoped that he would enjoy the rest of his stay.
2.3 That night the complainant returned to the hotel and was shocked to discover that Mr A was still working there. He had expected him to be gone, but instead he found Mr A still working and smug and unapologetic. He found Mr A’s manner to be provocative, so he asked him what was the problem. Mr A said that he (the complainant) was the problem. The complainant said that he had spoken to the manager, but Mr A said that he could have him thrown out if he wanted. He submitted that Mr A said that he had friends in the US embassy who could make his life hell. The complainant said he could not wait until there were no more of his kind left in Ireland. (The complainant submitted that he was referring to homophobic people). The complainant submits that at that point Mr A became very dramatic and started shouting for help. When Security arrived, Mr A shouted “he likes to f*** young boys”.
2.4 The complainant was then taken outside by Security. At that point a film, which was being shown in the Film Festival, ended and people came out onto the street. The complainant submits that these people were his students, his colleagues and a journalist and it was therefore extremely embarrassing for him to be outside with Security. He submits that he told the Security guards that they were being discriminatory towards him and that he would take a case against them. At that point they agreed to let him back in and asked him if he could re-enter the hotel through the nightclub. The complainant found it very offensive to be asked to use the back door as it made him feel like a second class citizen. He tried to go through the nightclub but found it too crowded, so asked if he could come back past Reception. The Security guard agreed to accompany him past Mr A.
2.5 The next morning he received a note to say that the hotel owner would contact him about the incident, but he never did. He also submits that the organiser of the Film Festival tried to contact the hotel, but they never got back to him either. The complainant submits that he had a double room and should have been allowed to bring a guest. He submitted that the sign regarding non-residents is there to stop parties from taking place and that the only reason he was stopped from bringing a guest to his room was that he is gay.
2.6 The complainant submitted that he felt humiliated victimised and embarrassed and he is still upset. He considers it to be bullying and it has become a theme of his films to deal with bullying issues.
Summary of the Respondent’s Case
3.1 The respondent submitted that the complainant was booked into a single room for the weekend, and while some of the single rooms are large enough to allow two people to use the room, a double rate is charged in those situations. In any event, they submitted that the complainant in this case was staying in a single-only room. The respondent submitted that they do not permit non-residents access to the hotel bedrooms and their sign clearly states this policy. They stated that because they are located in a busy part of the Temple Bar area of Dublin, they are particularly vigilant about this policy at night, when it is common for bar customers to try to access the rooms.
3.2 Witness for the respondent – Mr A, night porter at the hotel
Mr A said that around 2.30am on 25th October, the complainant and a young man went from the Bar towards the Reception/upstairs. He approached them and asked them where they were going. The complainant said that they were going to his room. Mr A said that non-residents were not allowed upstairs. He pointed out the sign and said that he was just an employee and he did not make the rules. He said that the complainant was very surprised but went back to the Bar. Shortly afterwards he was in the kitchen and saw the complainant and his friend back in Reception again. By the time he came out to Reception they were gone and he believed that the complainant’s friend had gone to the room.
The following night he reported for duty at 11pm as normal. A little later the complainant arrived and Mr A gave him his key immediately. He submitted that Mr A immediately launched into a verbal attack on him. He told him “I f***** the a*** off that boy last night and I’ll do the same again tonight, and there’s nothing you can do about it you old f*****”. He witness submitted that the attack also referenced his religion and his age. He submitted that the complainant said that they had got rid of (President) Bush and now they would get rid of him (Mr A). The complainant told him that he would never work in this hotel again and that he should be in a home. Mr A said that the complainant went beserk and the threats were frightening to him. He said that the complainant was frothing with anger and kept coming back leaning over to him. Mr A then tapped on the window to alert the Security Guard who was outside. Security came and they took the complainant outside. After a while the complainant came back accompanied by a Security Guard and went straight upstairs to his room.
Mr A submitted that he had worked in the hotel for just over 2 years but prior to that he was in business for 40 years and he would never use language such as that attributed to him by the complainant. He particularly noted the phrase “diddling” and said that he had never used that word. He said that he had previously suffered a physical assault at the hotel and was genuinely frightened by the complainant. He submitted that he decided to leave his employment immediately after the incident because he was not prepared to take any more abuse on the night shift.
3.3 Witness for the respondent – Hotel Manager
The hotel manager said that the Film Festival had paid in advance for the complainant to stay in a single room. She had spoken to the complainant on the day he arrived and the relationship had been very friendly. On the morning of the 25th, it was her day off, but she visited the hotel briefly to see that everything was ok. The receptionist told her that there had been a complaint about Mr A, so she called the complainant’s room. There was no answer, so she left the hotel. Later when the complainant returned, the receptionist put him through to her mobile phone. The complainant told her that Mr A had refused to allow him to bring a friend to his room to show him a book. He said that Mr A had been rude and that he was embarrassed that his friend was turned away. The manager said that the complainant offered her no more details about the incident, and she guessed immediately that Mr A had been enforcing the “no non-residents” rule, which they were very strict about. She said that she would talk to Mr A about it. (By this she said that she meant she would look into it and hear Mr A’s side of the story). She submitted that it was a brief call and she did not think it was a serious issue. She submitted that this is evidenced by the fact that she did not call Mr A immediately. Instead she left a message at reception for Mr A to say that he should be courteous, but avoid getting into any discussion with the complainant that night. The following morning, she submitted that she tried to talk to Mr A about what had happened on Friday, but he said that there had been an incident on the Saturday and he was very upset and wanted to go home immediately. The manager stated that she was unavailable for family reasons for the rest of Sunday, but on Monday morning, she tried to contact the complainant at 7.30am to discuss; however he had checked out of the hotel. She submitted that she did not know the alleged details of the row between the complainant and Mr A, until the ES1 form was submitted. She submitted that she later asked the Security guard on duty about the incident and was told that the complainant was out of control and had to be asked to go outside, to avoid making so much noise at reception.
3.4 Witness for the respondent – Hotel Owner
The hotel owner stated that he was delighted that the complainant was staying in the hotel because they wanted to encourage Film Festival business, and that he personally welcomed the complainant when he arrived. He also invited him and the rest of his group to visit the night club for free during his visit.
The hotel owner submitted that he was not aware of any incident on the Friday night /Saturday morning. He became aware of the Saturday-night incident on Sunday and he asked Mr A to go for coffee with him to tell him what happened. Mr A told him on this occasion that he had had enough abuse and could not take it anymore. The owner asked him to take a break and think about it, but Mr A did not come back to work at the hotel again.
The hotel owner stated that he had known Mr A for 40 years and considered him to be a totally honest and trustworthy person, as well as an excellent employee. He described him as a “black-and-white” person and not inclined to bend the rules in any circumstances. The owner submitted that while it might have been ok for management to show discretion in allowing guests into rooms, it was not permissible for employees to do so. Therefore he submitted that Mr A had simply been doing his job. He did not believe Mr A would use the language described by the complainant.
The owner stated that they had gay employees working at the hotel and had run a successful gay night at the nightclub for 6 years.
Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 In addition to harassment, the complainant claimed he was sexually harassed and victimized. However the oral evidence at the hearing dealt exclusively with the question of harassment. Harassment is defined under Section 11 (5) of the Equal Status Acts as:
(a) “In this section –
references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraphy (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.”
4.3 The complainant has claimed that he was harassed on two occasions by the respondent employees; both were verbal attacks and the second one also involved him being denied access to the hotel for a while. The majority of the facts concerning the incidents are entirely disputed between the parties, so consideration must be given to which version is more credible and supportable by evidence.
4.4 In the first incident, the complainant claims that his guest was denied access to his room because he was gay. Having examined the facts I note that:
– The respondents had a sign up to advise residents that guests were not allowed to rooms.
– The respondent operated an adjoining bar in a very busy area of Temple Bar and it would seem prudent to refuse access to non-residents, in order to ensure the safety of their guests.
– The hotel owner appeared to me to have chosen Mr A to work the night shift, precisely because he operated the rule so strictly.
– The booking form, the rate and the daily guest log all support the fact that it was a single room, a fact which the complainant also conceded during the hearing.
4.5 For the above reasons I do not accept that the complainant’s guest was denied access to the room because he was gay. I find on the balance of probabilities that his guest was denied access because it was a single room.
4.6 The complainant also claimed that he was subjected to verbal abuse by the respondent employee Mr A as described at para 2.1. Having considered the alleged exchange, I find on the balance of probabilities that Mr A did make some insulting remarks to the complainant and that these remarks did reference the complainant’s sexual orientation. I note that the complainant recalled the remarks in detail, whereas Mr A could not remember the exchange. Therefore, while I find it unlikely that Mr A used the specific term “diddling”, overall I find the complainant’s version to be more compelling. I find that Mr A’s remarks were directly linked to the complainant’s sexual orientation and they created a humiliating and offensive environment for the complainant. Therefore I find that the respondent did harass the complainant on this occasion contrary to the Equal Status Acts.
4.7 On the following night there was a further verbal exchange between the parties which resulted in the complainant being asked to step outside the hotel for a few minutes. In order to establish what happened, the hotel, upon request from the complainant, supplied DVD footage of the incident. As it was picture-only, I allowed it to be shown twice during the oral hearing, with each party narrating their version of what happened. It is clear from the footage and from the oral evidence given, that the complainant collected his key, and started to walk away, but then turned back to reception. The complainant claims that he was provoked by some noise made by Mr A; something like a “tsk” sound, which made him turn back. It appears to me from the footage that the complainant was very angry and shouted at Mr A. Mr A did not appear to say much but went to the window to signal for Security. Mr A described in detail some of the language used by the complainant, but the complainant was less specific about the remarks made by Mr A, other than the noise which he found provocative. At the oral hearing, the complainant submitted that when Security arrived, Mr A shouted “he likes to f*** young boys” twice. However this was the first time the complainant mentioned this, despite giving detailed statements to the Tribunal on earlier occasions. The complainant mentioned that Mr A threatened that he had friends in the US Embassy, and while I found this credible, I do not find it linked to any of the grounds under the Equal Status Acts. In general I found Mr A’s version of this incident somewhat more compelling and much of what he said can be backed up by the footage, which shows the complainant leaning towards him, pointing at him repeatedly and looking very animated. I find it likely that the complainant arrived at the hotel, already very wound up by the incidents of the previous day, and ready to snap at Mr A. Overall while his annoyance may well have been justified based on the previous night’s events, I do not find it reasonable to claim that he was harassed, when on this occasion he appeared to be play a more instigating (rather than simply defensive) role.
4.8 Directly following from this, was the incident with Security. I understand that it was both professionally and personally embarrassing to the complainant to be asked to leave the hotel; however I find that the incident was a direct result of him shouting at Mr A. The hotel is located in an area which is very busy, noisy and sometimes aggressive at night; therefore it would not be unusual for Security to ask someone to step outside in order to calm down a fraught situation. Despite what had happened on the previous day, I do not find there was any link on this occasion to a ground under the Equal Status Acts. I find that Security were acting in the normal course of their duties where they perceived a potentially difficult situation developing.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the complainant with respect to one of the two incidents complained of. I find that the respondent verbally abused the complainant in terms which amount to harassment on the grounds of his sexual orientation in the early hours of the 25th October 2008. I award the complainant €1,500 for the hurt and humiliation suffered.
Elaine Cassidy,
Equality Officer
19 September 2011
DEC-S2011-049- Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-049
Merriman v O’Flaherty’s Ltd. t/a Reads Print,
File Reference: ES/2009/043/044
Date of Issue: 8th November, 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2011-049
Brian Merriman
-v-
O’Flaherty’s Ltd. t/a Reads Print, Design & Photocopying Bureau
Key words
Equal Status Acts – Section 3(1) – Section 42, Vicarious Liability – Section 3(2)(d), sexual orientation – Section 11, harassment – texts – Section 3(2)(j), Victimisation
1. Delegation under the relevant legislation
1.1. On 9th April, 2009, the complainant referred two claims to the Director of the Equality Tribunal under the Equal Status Acts against the respondent. On 19th 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 complaints 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.
1.2. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 10th May, 2011. Further documents were sought from the parties and final correspondence in this respect was received on 28th June, 2011.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was sexually harassed and harassed and discriminated against by the respondent on the gender and sexual orientation grounds contrary to the Equal Status Acts in terms of Sections 3(2)(a) and 3(2)(d) of the Equal Status Acts and contrary to Sections 5(1) and Section 11 of the Equal Status Acts. On 12th November 2010, he also submitted that he was victimised by the respondent in terms of Sections 3(1)(a) and 3(2)(j) of the Equal Status Acts with respect to alleged incidents that had occurred on and after May, 2010.
3. Summary of the Complainant’s Case
3.1. The complainant, a gay man, gave a detailed account of communication he had with the respondent with respect to a commercial dispute. He gave evidence that this communication was carried out in person as well as through texts and e-mails and took place between February and May 2009.
3.2. In particular, the complainant stated that he received a series of sexually abusive texts that were sent to him by Mr A (an employee of the respondent) on Friday nights into Saturday mornings. In that context, he referred to texts he received in the early morning of Saturday, 28th February, 2009, including one which read, “see you soon. Goodnight. xx” and two further texts which read “xx”. He also outlined further texts he received that evening. He stated that he felt threatened by the texts that were sent to him that evening and, inter alia, he called the Gardai in that context. He agreed that a text that was forwarded to him from Mr A on the following 16th May could have been part of the text exchange on the evening of the 24th February. This text, inter alia, read “ur a sick man”.
3.3. The complainant stated that he did not believe that a straight man would have received the same kind of texts as he did and that he found it extremely distressing. He stated that many people wake up regretting what they said with a few glasses of wine but no attempt was made to assure him that the communication in question was not related to his sexual orientation. The complainant said that the following day he brought the matter to the attention of Mr B, Director of the respondent company, by e-mail but did not receive any response. He added, in light of the fact that the respondent said this was not a valid e-mail, that this e-mail did not bounce back as not having been received.
3.4. The complainant also said that while the texts from Mr A were discontinued three months later, the level of intimidation continued in a different form. He said that he received confirmation from Mr A that no-one in the gay community had anything good to say about him and stated that the respondent told third parties, including people who currently fund his voluntary work, that he had made a complaint to the Tribunal.
3.5. Inter alia, the complainant said that he got a phone call from a third party to say that if he proceeded with his complaint it would have a very adverse effect on another organisation they both were involved with and he provided the Tribunal with copies of a number of letters as proof of the communication he had with this third party in this context. The complainant stated that his name was maligned and the word put out by the respondent that the basis of his complaint to the Tribunal was to do with anti-gay sentiment and homophobia. He stated that he was victimised by the respondent in that respect.
3.6. The complainant gave a detailed account of discussions he had about these matters with Mr K, who worked for the respondent, including in relation to his claim that he had been victimised by the respondent in that respect. He stated, inter alia, that Mr K told him that they had no desire to defend the matter. He said that he met with Mr K with a view to agreeing a settlement that could benefit non-profit organisations but that a settlement agreement on the matter could not be reached. He denied that he told Mr K that he had asked him to stop supporting another organisation in that context.
3.7. In summary, the complainant said that he did not believe that Mr A would have communicated with him in the way he did if he had not been a gay man and he would not have sent kisses in texts to a straight man.
4. Summary of the Respondent’s Case
Preliminary Matters
4.1. The respondent submitted that Mr B was the Managing Director of the respondent and not an employee. It submitted the case against him should be dismissed as the notice of complaint was served on the company and the service of the second complaint was wrong in that Mr B was named rather than the company. A number of other minor preliminary matters were dealt with at the hearing.
Substantive Matters
Evidence of Mr A
4.2. Mr A, who was present at the hearing, gave an account of his communication with the complainant with respect to the commercial dispute. With respect to 28th February, 2009, Mr A said that he did not know if he said “xxx” but that he could have done so. He added that he did not know if it was that evening (i.e. it was not necessarily on 28th February) but it was some evening when he sent these texts.
4.3. Mr A stated that he did not have a problem with homosexuality and that what was in his mind when he sent the texts was that he was annoyed. He said that he did not say to himself that he was going to harass the complainant because of his sexual orientation. He said that it was possible that to say “xxx” in texts would have sexual connotations, but did not consider that it would have the effect of creating a humiliating, degrading or hostile environment. He said that he had a few glasses of wine and he was not clear-minded. He accepted that these texts were silly and unprofessional but said that it was not his intention to violate the complainant’s dignity and his intention was to resolve the commercial dispute.
4.4. With respect to the complainant’s claim of victimisation, Mr A said that he did not know why the third party concerned would have gotten the impression that he was being anti-gay. He said that it was possible that he had mentioned to the parties the complainant referred to that the complainant considered he was being discriminated against. However, he said he definitely never said that if the complainant proceeded with his case it could reflect badly on another named organisation. He added that Mr B did not respond to the complainant because he did not use a computer and the e-mail address to which the complainant sent the relevant e-mail does not exist.
Evidence of Mr K
4.5. Mr K gave a detailed account of his meetings with the complainant about the issues arising in these complaints. He stated that he had rung the complainant initially in this respect because, naturally, he wanted to meet any individual who had made a complaint. He said that he came to those meetings in good faith with a view to settling the matter but said that the complainant wished to obtain money for himself. He added that the complainant did not strike him as being someone who felt intimidated by what had taken place. He said that he decided that a resolution of the matter through discussions with the complainant was not possible after the complainant asked him to stop supporting another organisation. Mr K said that this would be detrimental to the respondent and to other organisations. He said that he spoke with Mr B about the matter and Mr B thought the respondent was being extorted by the complainant.
General Submissions
4.6. The respondent stated that it had not kept records of the matters raised in these complaints because it had no idea there would be a case before the Tribunal whereas “if you are taking a case you would take records”. It also stated that the complainant claimed that his name had been maligned yet, in one of the documents he submitted to the Tribunal, he had redacted material which included “a comprehensive setting out of the problems with the complainant”. In that context, the respondent provided an unredacted version of the same document to the Tribunal.
4.7. In summary, the respondent stated that the complainant had not made a case that there had been humiliation and degrading treatment of him by it and added that he was possibly sending texts that provoked Mr A. It said that the complainant had not made out a case of discrimination on grounds of sexual orientation. It added that the respondent had a good relationship with the gay community and that it was not in the business of discriminating against people on the sexual orientation ground. It said that it was questionable whether there was a sexual orientation issue involved and that it was a debt collection matter that went astray.
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.
Preliminary Jurisdictional Matter
5.2. The respondent raised a preliminary matter of jurisdiction with respect to the complaint before the Tribunal. Two ES1 complaint forms were issued: one against Mr A and one against Mr B, both of Reads Print and Design at the respondent’s address. The respondent argued that the second complaint form addressed Mr B rather than the company and was therefore incorrectly served. Furthermore, Mr B was not an employee but the Managing Director of the respondent company. In that context, it submitted that the second complaint should be struck out as it was not addressed to the correct person and that the only complaint that should proceed should be that against Mr A.
5.3. The ES1 is a non-statutory form whose purpose, inter alia, is to facilitate the complainant in setting out his complaint and identifying the respondent. The complainant named the respondents as being Mr A and Mr B of O’Flaherty’s Ltd. t/a Reads Print Design and Photocopying Bureau. Section 42 of the Acts is clear in making a service provider responsible for its servants and agents, whether employees or Directors. In that context, O’Flaherty’s Ltd. t/a Reads Print Design and Photocopying Bureau is the correct respondent in this case and has been correctly identified by the complainant in that context.
Substantive Matters
5.4. The vast majority of the issues arising in this case relate to a commercial dispute and are not relevant to the claim before this Tribunal. The jurisdiction of the Tribunal with respect to the matters arising in this case relate to two issues only: Firstly, whether the texts referred to at par. 3.2 above were sent to the complainant on 28th February, 2009, and, if so, whether they constituted harassment within the meaning of the Acts. I would add that this is the extent of my investigation in this respect as there was nothing in the remaining communication between the complainant and the respondent that would constitute sexual harassment and/or harassment on the gender or sexual orientation grounds. Secondly, I must consider whether the respondent’s subsequent treatment of the complainant was less favourable treatment arising from his having in good faith applied for a determination or redress under the Acts (i.e. whether it was victimisation).
Harassment/Sexual Harassment
5.5. The preponderance of evidence with respect to the harassment element of this claim, including the vast majority of the texts and other written communication between the parties, relate to the commercial dispute. In that context, the only communication between the parties that can be considered to be harassment within the meaning of the Acts are the texts allegedly sent to the complainant by Mr A which read “xxx” meaning “kiss, kiss, kiss”. I am satisfied that these texts were sent by Mr A to the complainant as alleged.
5.6. It is clear from the overall context of the complaint that a serious animosity had developed between the parties as a consequence of the commercial dispute. It is clear that this dispute progressed to an unfortunate climax where the respondent sent inappropriate texts to the complainant that clearly had the intention of intimidating and/or undermining him because he was gay. It is clear that this was done in the context of the commercial dispute and it is in this context that I consider the texts “xxx” had that effect on the complainant. It should be said that, while the literal meaning of those texts, on their face, may normally be a sexual or benign one, I am satisfied that, in all the circumstances of the present complaint, the intended meaning of these words was to undermine the complainant (and his masculinity) on the basis of his sexual orientation.
5.7. Put another way, I am satisfied that Mr A’s purpose in sending the texts in question was not to violate the complainant’s dignity with comments of a sexual nature but to make reference to his knowledge of the complainant’s sexual orientation as a source of intimidation in the context of the commercial dispute. It is clear, then, that the texts in question had both the purpose and the effect of violating his dignity and/or creating a humiliating, degrading or hostile environment for him in that regard. In that context, and in all the circumstances of the present complaint, I am satisfied that the texts in question constitute harassment on the grounds of sexual orientation (rather than sexual harassment).
5.8. In short, the complainant has established a prima facie case of harassment on the sexual orientation ground but has not done so with respect to his claim of sexual harassment and/or harassment on the gender ground.
5.9. It should be said that the serious nature of the complainant’s reaction on the night in question (e.g. in calling the Gardai) was caused much more by the other texts he received and what he considered to be the threatening nature of those texts, rather than by the texts which related to his sexual orientation. However, I would also add that the fact that Mr A “had a few glasses of wine” cannot be considered to be a defence to the matter. I also note that the complainant’s texts to Mr A were also considerably aggressive and insulting and there can be little doubt that Mr A was angered by them. However, that cannot justify harassing the complainant on the ground of his sexual orientation.
5.10. I am not satisfied that the complainant asked the respondent to stop supporting a rival organisation, and consider that there may have been a misunderstanding between the parties in that context. However, it is also clear from the robust interaction with the respondent that the complainant subsequently demonstrated that its harassment of him did not serve to put him off defending his position with respect to the commercial dispute. Nonetheless, I am satisfied from the complainant’s perspective that the series of texts in question served the purpose of harassing him on the ground of his sexual orientation and constitute harassment within the meaning of the Acts. Finally, lest there be any doubt about the matter in that respect, let me state that the harassment of the complainant by Mr A was undertaken while he was acting as the respondent’s employee.
Victimisation
5.11. The evidence upon which the complainant relies with respect to the claim of victimisation suggests that the respondent informed third parties, who knew the complainant, that he had made a claim to the Tribunal. In addition, he submits that these third parties then made derogatory comments about him. He submits, essentially, that his good name was sullied in this context.
5.12. The Acts place victimisation as a separate ground and the complainant must establish a prima facie case that he was treated less favourably than someone else because he had made a complaint to the Tribunal. It seems to me that, even if it is accepted that the respondent did speak to these third parties about the matter, it did so in the context of seeking their assistance with respect to their defence to the matter. There is evidence that at least one of these parties took the opportunity to castigate the complainant. However, it is clear from the evidence at the hearing that this was not at the respondent’s instigation.
5.13. It was certainly irresponsible for the respondent to speak to any third parties about the complainant’s claim, and it may even have been an offence under the Acts in terms of Section 36(2). In that context, and while it is clearly a matter that the Tribunal would take very seriously, it is ultimately a matter for the Minister and/or the Garda Siochana to consider. It is not, however, a matter that I have jurisdiction to make a determination upon, although I do need to consider the factual basis of that claim in so far as it is relevant to the claim of victimisation.
5.14. As instruments of social legislation, a purposive approach must be taken to the interpretation of the Equal Status Acts. However, in all the circumstances of the present case, the complainant’s submission with respect to the victimisation would require me to interpret the Acts in such a way as to make the respondent culpable for the acts of a third party which were made to the complainant unbeknownst to the respondent and certainly not at their behest. I consider that it would be a step too far, and therefore ultra vires, for me to interpret the Acts in this manner. In my view, such an interpretation can only be made in the context of Section 42, and the third party concerned was certainly not acting as an agent for the respondent in this respect.
5.15. In short, there is insufficient evidence to indicate that any comments that were made to the complainant by third parties which would appear to denigrate him can be attributed to a direct approach from the respondent to those third parties to act in such a manner. Thus, the respondent was possibly in breach of the Acts by informing these third parties of the existence of a claim, but did not treat the complainant less favourably in this respect as it did no more than seek information to make a defence to the claim. Additionally, I cannot see how it would have behaved differently if it was faced with the same or similar circumstances with respect to any other person.
5.16. Therefore, the complainant has failed to establish a prima facie case of discrimination on the victimisation ground with respect to the facts at issue in this complaint and his claim fails with respect to that ground. Finally, I note the complainant also made a claim of discrimination with respect to gender and sexual orientation in his complaint form but no evidence was presented with respect to those claims, either in his submissions or at the hearing. His claim in that respect also 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 victimisation ground, in terms of Sections 3(1)(a), 3(2)(j) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the gender and/or sexual orientation grounds, in terms of Sections 3(1)(a), 3(2)(a), 3(2)(d) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
6.4. I find that the complainant has failed to establish a prima facie case of sexual harassment, in terms of Sections 3(2)(a) and 11(5) of the Equal Status Acts and contrary to Section 11(1) of the Equal Status Acts.
6.5. I find that the complainant was harassed on the sexual orientation ground by the respondent in terms of Sections 3(2)(d) and 11(5) of the Acts and contrary to Section 11(1) of the Equal Status Acts.
6.6. In accordance with Section 27(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €500 as redress for the harassment and for the distress caused to the complainant as a result.
_____________
Gary O’Doherty
Equality Officer
8th November, 2011
DEC-S2004-092 Full Case Report
A Complainant v A County Council
The complainant referred a claim of discrimination and harassment on the Traveller ground and of victimisation 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, 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.
Background
The complainant’s daughter died in 2004 in truly tragic circumstances. He alleges that shortly after her death the Traveller Liaison Officer (TLO) for the respondent County Council called to his home and behaved in a manner that was unacceptable and amounted to discriminatory treatment and harassment. He alleges that the TLO victimised him by refusing to sign a form relating to homelessness. He also alleges that the County Council continued to insist that he deal with the TLO only when non-Travellers can deal with Housing Officers. He alleges that this continued insistence constitutes discriminatory treatment.
The County Council state that there was a long and relatively satisfactory relationship between themselves and the complainant and that the difficulties arising were just a glitch. It is clear that the complainant was devastated by the death of his daughter as was his family. They argue that the TLO has been specially designated to assist Travellers and that appointing him to deal with Traveller issues only in fact provides a better service than that received by non-Travellers as the TLO has a smaller caseload and can attend to their needs in a speedier manner. They argue that there are only two aspects to this claim, one relating to the TLO’s behaviour and the other to the requirement to deal with one designated person.
My investigation began on the assignment of the case to me on 11th January 2008. The hearing of the claim was opened on 13th February 2008. There was considerable correspondence following that and the hearing was reconvened on 11th and 12th September 2008. Evidence was presented orally at hearing and in correspondence concluding in December 2008.
Summary of the Complainant’s case
The complainant was a tenant of the County Council until 3/12/2003 when he signed a tenancy agreement with a Town Council within the county for a site in their Halting Site (HS). On 23/3/2004 he requested another transfer back to where they had moved from. In September 2004 his daughter died in tragic circumstances and her body was found in the river adjacent to the HS. Due to this proximity the complainant’s wife left HS, along with two of their children, and was unable to return. The complainant was told he had to stay to retain his tenancy. On 8/10/04 the respondent’s Traveller Liaison Officer, (TLO), came to the complainant’s home. The complainant told him that he needed a transfer to the town where he had previously lived, and that his daughter had died. He alleges that the TLO told him that that was water under the bridge and that he made a number of other disturbing and upsetting comments before being asked to leave. Another daughter of the complainant gave evidence that the TLO behaved inappropriately and without sensitivity during that visit and that he was ultimately asked to leave. She stated that she telephoned the County Council subsequently and asked that the family deal with a different housing officer and that they not deal with the TLO again. The complainant stated that his wife stayed with various friends after that time and alleges that the TLO made remarks to his wife while she was living with others that her son deserved a bullet in the head. One lady she was staying with was told by the TLO, in front of the complainant’s wife, that she would not get her new house if she allowed the complainant’s wife to continue to stay. The TLO also refused to sign a document stating that the complainant’s wife was homeless, arguing that she had a tenancy in HS that she could go back to. This was subsequently signed by an official in the Town Council. The Town Council, unlike the other councils in county, do not use the services of the TLO although he visits the HS on a regular basis. The Town Council official decided to sign the form on compassionate grounds which allowed the complainant’s wife to obtain private rented accommodation until a transfer from HS could be arranged. The Town Council ultimately rehoused the family on 14th September 2006. A number of Traveller support people presented evidence in relation to the requirement to deal only with the TLO and the effects of that requirement. The HSE Family Support Unit providing support to the family for a three month period after the death of the complainant’s daughter and made representations to the County Council about rehousing on the complainant’s behalf. The HSE Officer was not aware of any offers of alternative accommodation and the Housing SEO, the respondent official with whom he corresponded, did not indicate at that time that any had been offered. The Tribunal is requested to uphold the right of Travellers to avail of services available to non-Travellers. In conclusion, the complainant stated that the respondent treated him fairly always and let him down just that one time in his life.
Summary of the Respondent’s Case
The respondent denies that any inappropriate behavior took place during the visit to the complainant’s home in October 2004. It also denies that that there has been any less favourable treatment of the complainant based on his membership of the Traveller community. The respondent contends that the TLO’s “job is to deal with traveller families and in particular their accommodation needs. It has been government policy for many years, that each local authority would have a dedicated worker to deal with traveller issues, in order to ensure, that these issues have a dedicated spokesperspon within the local authority system”. The TLO stated in evidence on 13th February 2008 that he did not accept that he was asked by the complainant to leave and not to return. Subsequently he stated that he did not think it was a serious request. He stated that he did not call on 8th October 2004 as the complainant suggests but on 11th October 2004 and this call was a sympathy call. Another Housing Investigating Officer (a housing officer dealing with non-Travellers) attended with him. The TLO stated in evidence that he did not make the comments accredited to him. The Housing Investigating Officer stated in evidence that they drove to the HS and walked into the complainant’s home. He could not recall any inappropriate comments or other inappropriate behavior on the part of the TLO during that visit. He also could not recall the manner in which they left so was unable to verify or deny whether the TLO was asked to leave. He stated that the raw grief of the complainant was evident, that he was overcome, finding it difficult to talk and visibly distraught. (The complainant stated at the hearing that he wished to commend the Housing Investigating Officer.) The TLO returned on 14th October 2004 and offered three alternative accommodation options to the complainant which he asserts they refused. No evidence supporting these offers was presented other than the TLO’s report apparently required in response to the complainant’s notification under the Act and subsequent correspondence based on that report. In addition, the TLO’s diaries for the period are not now available. The TLO refused to sign a document stating that the complainant’s wife was homeless as she had adequate housing to return to at the HS. The respondent is of the opinion that there are only two aspects to this claim relating to the alleged remarks and the requirement to use a designated officer. It was argued that while the remarks, if found to have been made, may have been inappropriate they do not constitute discrimination. Similarly, the requirement to use a designated officer does not constitute discrimination.
Conclusions of the Equality Officer
It is common case that the complainant is a member of the Traveller community and that there is a lengthy history of interaction between himself and the respondent. What has to be decided is whether or not:
any harassment of the complainant relating to that membership took place, (Section 11),
the complainant was victimised in terms of the Act, (Sections 3(1), 3(2)(j) and 6(1)(c)), and
the complainant was treated less favourably based on that membership of the Traveller community, Sections 3(1), 3(2)(i) and 6(1)(c).
In making my decision I have taken account of all evidence presented.
Section 38A provides for the burden of proof as follows:
38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.
……
Harassment.
For the purposes of the Act harassment is defined in Section 11(5) as follows:
(5) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(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.
There is disagreement surrounding the details of the various visits undertaken by the TLO. The complainant alleges that the first visit following his daughter’s death took place on 8th October 2004 and this is recorded in his notification form sent to the respondent, signed on 18th October 2004, as follows:
On the 8th of October 2004 you sent your Traveller Liaison Officer to visit me. I told him that I needed a transfer out of the site to [Town X]. I told him that my daughter had just died and he replied “that’s water under the bridge”. I was very upset by this remark as my daughter was found in the river. He went on to say “I know you all my life you’re a rogue”. On Monday 11th he indicated to my wife that my other son needed a bullet in the head.
The notification form is a relatively contemporaneous note. The TLO stated in evidence that the first call was on 11th October 2004 and with another on 14th October 2004. The TLO has no records in support of this other than a report submitted to his superiors which appears to have been required to facilitate a response to the notification, being dated 29th October 2004. The report states, inter alia,:
“Following the unfortunate death of [the complainant’s] daughter I visited [the complainant] accompanied by Mr. [A], Investigating Officer. As [the complainant] was not in a fit state to hold a conversation on that day we left and as I was leaving I told [the complainant] I would call back again.
I called to the [complainant’s] family on a number of occasions after that day. I spoke to [the complainant] about the options that were open to him as regards a transfer from the [HS]. As the death of [the complainant’s] daughter was a very unfortunate incident and the fact that the body was found in the river adjacent to the site I was very concerned that the [the complainant’s] family would be transferred. On 14th October 2004 I visited the[ complainant’s] family offering them a site in the [another halting site] and also a bay in the [ ]Site, [in the town council area]. [The complainant] refused both of these offers. I also offered a house, which was vacant in [ ]. [The complainant’s] family again refused this offer.
I did meet with the [the complainant’s] family on Monday, 11th October and discussed with the complainant’s wife about a transfer. Regarding a meeting with the [the complainant’s] family on 8th October, I did not meet with the [the complainant’s] family on that day.”
There is agreement that the TLO spoke with the complainant’s wife on 11th October 2004. Overall, I find the complainant’s version of events more compelling and I am satisfied that there was a meeting during which the comments were made, that he was asked to leave, and that when he returned he took another officer with him. During the hearing the complainant repeated the comment in respect of water under the bridge and it was clear that this comment had greatly disturbed him. While it is, at best, an unfortunate and inappropriate choice of words in the circumstances it does not constitute harassment on the Traveller ground in my view. The ‘rogue’ comment is of course a comment that might be said to Travellers and non-Travellers alike. However, in the circumstances of this case, uttered by the TLO who is a person in a specialized role sealing with only Travellers I am satisfied that the comment affronted the complainant’s dignity and created an offensive environment for him leading to the TLO being asked to leave. I am satisfied that a high standard of conduct is required of any individual holding that position and that in this instance such a comment amounts to harassment on the Traveller ground. The alleged comment made to the complainant’s wife about her son is not relevant as she is not the complainant in this case. No defence in relation to harassment was presented by the respondent other than that the comments were never made.
One further issue to be considered relates to the number of visits in such a short time, despite being asked to leave and a call being made to the respondent requesting a different contact. Added to this, the HS is in the Town Council district. While the TLO assisted with the site when it was being set up the Town council does not use the TLO service. There is a conflict of evidence in relation to these visits. The raw grief displayed by the complainant was described above and it is unclear if this was given sufficient weight by the TLO. In addition, I have found that he was asked to leave. In contrast, the complainant stated in evidence that during one of the TLO’s visits he requested a transfer to an area outside the Town Council but within the TLO’s area. This request would necessarily require the involvement of the TLO given the manner in which this work is allocated by the respondent. All visits by the TLO are by definition related to the recipient’s membership of the Traveller community.
While I am satisfied that some of the visits may have been unnecessary and some of the behaviour inappropriate, I am not satisfied that the complainant has established, on the balance of probabilities, that the number of visits constituted harassment on the Traveller ground.
Victimisation
Victimisation in terms of the Act is defined in Section 3(2)(j). The complainant sent his notification to the respondent having signed it on 18th October 2004. In early 2005 the complainant’s wife requested that a form be signed indicating that she was homeless. This would then have allowed her to secure private rented accommodation. The TLO refused to sign the form. It is alleged that he was acting out of vengeance and once again was showing a Traveller family who was in charge. It is argued that this constitutes victimisation. In support of this the HSE Family Support Officer indicated that in their opinion she was homeless and he was aware of this refusal. In his experience this was the first time there was a refusal to sign this form for anyone when appropriately required. He indicated that normally a reasonable approach is taken but this time the respondent applied the letter of the law. While the refusal may or may not constitute victimisation it relates to the complainant’s wife and not the complainant and therefore is not relevant to this claim.
Discrimination
Section 6 of the Act provides as follows:
6.—(1) A person shall not discriminate in—
………
(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.
I am satisfied that the respondent in handling the complainant’s housing needs was providing a service related to accommodation.
The respondent position was at all times that there were two issues to be addressed in this complaint, that remarks were made and whether or not having to deal with a designated officer is discriminatory. I have dealt with the remarks above and while I have found that they were made I have not found that they constitute harassment. In order to assess whether or not the requirement to deal with only the designated officer constitutes discrimination I must look at the effects of that requirement and compare it to how non-Travellers are treated in similar circumstances.
I asked the respondent to submit a list of all clients who requested housing transfers during 2004 and 2005. I selected two cases from the non-Traveller list for the purposes of my investigation. One application was based on disability and one on overcrowding. In general the respondent appears to operate a record keeping system comprising files containing hard copy papers such as application forms and a computerised case management system. The respondent was requested to submit a copy of the files relating to the two comparator applicants chosen redacted by the removal of names and other identifying information. The respondent submitted the information in accordance with Section 34 but raised Data Protection issues in connection with it. While the information was redacted, I was aware that it had been provided to the respondent for a specific purpose and therefore account was taken of the concerns raised by the respondent. A list of the documents contained in the files was made by administrative staff in the Tribunal and this was provided to me and to the complainant’s representative.
Effects of Requirementto Use TLO
The respondent stated that the TLO’s “job is to deal with traveller families and in particular their accommodation needs. It has been government policy for many years, that each local authority would have a dedicated worker to deal with traveller issues, in order to ensure, that these issues have a dedicated spokesperspon within the local authority system”. In practice this appears to require all Travellers to work with the TLO in relation to housing matters. Although there is a unit dealing with the homeless in the Council area, homeless Travellers must also work with the TLO. A number of Traveller support workers presented evidence of cases where they had requested to deal with someone other than the TLO but were told that the TLO must be involved. One indicated that she attempted to contact the TLO and when this was finally achieved and a meeting arranged, she thought it odd that the Traveller Liaison Officer had to ask directions to the Travellers Development Project, the only Traveller representative group in the county. Allegations of having to be ‘in’ with the TLO were made and that if you did not play ball with him he would not, for example, sign a form giving proof of address, required for Social Welfare claims. In the instant case the complainant asked the TLO to leave his home and the family subsequently requested not to work with him again. The TLO’s diary is not available. The respondent has no record of the call requesting a different contact. When asked for details of all complaints received in relation to the TLO this formal complaint was not included indicating that the respondent’s record keeping relating to complaints is not entirely reliable. The respondent’s response to the complainant’s notification included the following:
[The TLO] would deal with a relatively small number of families and is, therefore, able to give a quite a large amount of attention and time to these families. This is in contrast to the position of the settled families, where [the] County Council have 3 Housing Officers to deal with over 1,200 applicants for housing. As a result, the settled applicants may not receive a visit from an Investigating Officer for period in excess of 12 months at a time.
If any particular traveller family does not wish to have dealings with [the TLO], and would prefer to be dealt with by one of the Housing Investigating Officers, then there is no difficulty with implementing this. However, the family must realise, that the time which will be available by the Housing Investigating Officer will be limited.” [1]
When asked how often this had happened in practice, where a Traveller family was allocated to one of the Housing Investigating officers the respondent stated that it had never happened. One official stated that he was not aware of any Traveller cases being dealt with by another officer as these were the TLO’s specific duties within the Council. I am satisfied that in practice the complainant was required to work with the TLO in all housing matters other than those relating to the Town Council.
The complainant’s representative presented a Tribunal Decision DEC-S2007-059 in support of his case. In that case the complainant, a Traveller, was required to collect his social welfare payments in a centralised office for Travellers. This was found to be discriminatory.
In the instant case the complainant was, and is, required to work with the TLO in all housing matters outside the Tralee Town Council area.
Comparison with Treatment of non-Travellers – Prima Facie Case
The TLO stated that he told the complainant that he would have to complete an application for a transfer before it could be considered. In a report with an 18-month reference period May 2004 to November 2005, submitted on 8th November 2005, the TLO says that shortly after the complainant moved to the HS he requested a transfer. He was told that he would need to complete an application form. The report states “[The complainant] did this and he was qualified for a transfer”. The respondent was asked to submit copies of the form completed by the complainant and any connected responses issued by the respondent. These were not presented.
On request the respondent submitted a timeline of events relating to the complainant during the relevant period. Some of the items listed relate to actions undertaken by the Town Council and many are undated. During questioning on this timeline the respondent indicated that perhaps they were made aware of the request for a transfer by phone call from the Town Council and did not consider it due to the short time since the complainant’s last transfer. This appears to indicate that the TLO did not take any action in relation to the approaches from the complainant for a transfer, either in March 2004 or after his daughter’s death in September 2004.
The lists of papers detailing the respondent’s treatment of the non-Traveller files indicate a clear path in relation to the processing of their applications for transfer, including the application form, letters from respondent, memo requesting a report from the housing administration unit, memo from the respondent’s engineer, letters from councilors and TDs, etc. The applications and their progress are traceable with dates available for each step. For example, one of the applicants was told on 5/4/05 that an extension was not financially feasible but they were still under consideration for a transfer. No such traceability exists in respect of the complainant’s application to the respondent. Indeed nothing was presented to me, other than the TLO’s report mentioned above and a memo closing the file when the family were rehoused in 2006, indicating that an application was made, approved or granted.
As a contrast, though not relevant to the claim, the Town Council records indicate that
a transfer request was received from the complainant on 23/3/2004
The complainant’s wife surrendered her tenancy on 10/1/05
The family were placed on TTC transfer list on 9/2/2005
A letter issued to the complainant indicating that they were eligible and on the list was issued on 10/2/2005
Various other letters and notices were issued
The family was rehoused on 14/9/2006.
In addition there is a dispute over whether other accommodations were offered to the complainant and his family. The complainant’s position is that these alleged offers were never made and this is supported by the evidence of the Family Support Officer. The TLO states that he made the offers and that they were refused. There is no supporting evidence for this assertion other than the TLO’s report written after the notification relating to this complaint was received by the respondent. One of the homes offered was a HS in the Town Council Area, that is in an area where the services of the TLo are not used. One wonders how he had authority to make this offer and indeed there was no clarity surrounding the demarcation lines relating to these issues. I find the complainant’s evidence more compelling overall and that these offers were not made at the relevant time.
I am satisfied that this represents a clear difference in how the complainant was treated by the respondent council in comparison to how non-Travellers were treated in similar circumstances. On the whole the records presented by the respondent and maintained by the TLO in relation to the complainant’s case compare unfavourably with those relating to the non-Traveller cases selected. Therefore the impact of the requirement on the complainant to deal with the TLO exclusively, in comparison with the treatment received by non-Travellers, is one of less favourable treatment. I find that the complainant has established a prima facie case of discrimination on the Traveller ground.
Rebuttal by Respondent
The respondent did not accept at any stage that there was any less favourable treatment and therefore did not present any evidence rebutting it. Indeed the respondent’s Director of Services (Housing) was so aggressive in his presentation relating to the professionalism of the respondent generally that I requested his in-house legal representative to speak to him. He responded “Tell him yourself”. However, I am in no doubt that there are many employees of the respondent who are professional and who also bring humanity to their work.
At the hearing, as above, there was no rebuttal of the evidence. The last correspondence received from the respondent was dated 17th September 2008, following the hearing (11th and 12th September 2008), and there was no response to any subsequent correspondence.
It could be argued that disadvantaged groups such as those who are illiterate should be provided with facilities that alleviate the pressures on them in respect of form filling etc. While this is always an admirable customer service objective, it does not remove the necessity for keeping records from the service provider altogether. The TLO was unable to produce records comprehensive or otherwise other than two unsupported reports. His supervisors were likewise unable to address the matter.
One example of this record-keeping relates to a report, written and submitted by the TLO on 8th November 2005, which states that the complainant approached him in early 2004 asking for a transfer. He told the complainant that he would need to complete an application form and states “[The complainant] did this and he was qualified for a transfer”. However, records relating to a transfer application dated 23rd March 2004 are only available from the Town Council. On 10th January 2005, following an indication of the circumstances of the complainant and his family, the relevant official in the Town Council signed the form indicating that the complainant’s wife was homeless on compassionate grounds and on 9th February 2005 the application for housing transfer was approved and the complainant was placed on the qualified transfer list. The TLO’s report does not indicate whether or not he recorded the complainant’s transfer request in any way. Nor does it indicate whether or not he is referring to the work of the Town Council when he states that the application for a transfer was approved, bearing in mind that the Town council does not use the services of the TLO. In other words the report does not indicate whether or not the TLO is referring to a transfer application submitted to the respondent, to the Town Council, or both. In addition he states that the transfer was approved in a manner that does not indicate the lapse in time between the application and its approval by the Town Council in February 2005and again there is no reference to who approved it. Given the lack of clarity above and the total lack of accuracy particularly relating to dates this report is misleading at best and as it was written in November 2005 it is not contemporaneous. The quantity and standard of records presented in this case should be a major cause for concern for the respondent.
I find that the respondent has failed to rebut the prima facie case of discrimination and that complainant was discriminated against in the manner in which his housing requirements were handled by the respondent. The defense included in Section 6(6) was not raised by the respondent and in any event cannot be availed of in this case.
Vicarious Liability
Section 42 provides:
42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
………
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
I am satisfied that any action or inaction by the TLO in his dealings with the complainant were in the course of his employment. I am also satisfied that the respondent did not present any information in relation to Section 42(3) above. I find the respondent vicariously liable in this case.
Decision DEC-S2009-009
In accordance with section 25(4) of the Acts, I conclude my investigation and issue the following decision. I find that the complainant was not victimised in terms of the Act but that he was harassed and discriminated against on the Traveller ground in terms of Sections 2 and 6 in the manner in which his housing requirements were handled by the respondent.
In accordance with Section 27 I hereby order the respondent to:
Pay the complainant €6348.69 for the effects of the discrimination; this represents the maximum that can be awarded;
Separate the liaison and decision-making roles currently undertaken by one person, the TLO; the liaison and representation role should not be undertaken by a deciding officer;
Provide access for Travellers to the same services as non-Travellers and in particular that decisions relating to the housing of Travellers are handled by Housing Investigation Officers who also deal with non-Travellers;
Provide comprehensive training in awareness of Traveller culture to all staff dealing with housing, including administrative staff and any Traveller liaison person regardless of their experience;
Record-keeping relating to Travellers is to be at least of the same standard as that relating to non-Travellers.
Within 6 months of this Decision the respondent is to have and use an agreed policy relating to visits to client’s homes following consultations with client groups including Traveller representative groups.
Bernadette Treanor
Equality Officer
30th January 2009
[1] It appears that the term ‘settled families’ refers to non-Travellers and does not include settled Travellers. Housing Officers, Investigating Officers and Housing Investigating Officers appear to be terms that are interchangeable.
DEC-S2008-019-Full Case Report
King v Dublin Bus
1. Dispute
1.1 This dispute concerns a claim by Mr. Neill King that he was treated in a discriminatory manner by the respondent, contrary to Section 5, in terms of Section 3(1) (a), 3(2) (g) and (j) 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. Summary of the Complainant’s Case
2.1 The complainant, who is blind and a wheelchair user, states that a bus driver, a member of the respondent’s staff, discriminated against him and victimised him on the grounds of disability in relation to his access to and use of a bus on 29 March and 17 May, 2003.
3. Summary of Respondent’s Case
3.1 The respondent states that what occurred between the complainant and the bus driver on 17 May 2003 was, on foot of an earlier issue arising between the driver and the complainant on 29 March 2003, a question of the driver pursuing a personal grievance with the complainant for which the respondent was not liable. The incident does not therefore constitute discrimination within the meaning of the Equal Status Acts. Notwithstanding this the respondent states that it took steps to prevent the driver from discriminating and the question of vicarious liability under Section 42 of the Equal Status Act 2000does not therefore arise.
4 Summary of Complainant’s Evidence
Mr. King stated that;-
Ÿ On 29 March 2003 both he and his wife went to their local bus stop to take a bus into the city centre. As Mr. King approached the door of the bus in his wheelchair the driver said that he already had a buggy on board and that Mr. King would have to wait for the next bus. The driver refused to lower the wheelchair ramp.
Ÿ The complainant’s wife, who had already boarded the bus, approached the people with the buggy and asked if they would fold the buggy to allow the complainant to avail of the space designated for wheelchair use. They obliged.
Ÿ The driver then lowered the wheelchair ramp for the complainant to board the bus. As the complainant was boarding the bus he realised that the ramp was not fully deployed and his wheelchair began to tip over backwards. The driver said “your wife is no use to you now is she”.
Ÿ An argument ensued and there was an exchange of words between the complainant and the driver in the course of which the complainant swore at the driver. The driver got out of his cab and followed the complainant down the bus stating “I will report you” and “people like you should have more respect for other people”. The driver subsequently radioed the controller and loudly stated that he, the driver, had been the subject of an incident on the bus. He was advised by the controller to pull into a (named) Garda station and report the matter. The complainant and his wife found the actions of the driver frightening and intimidating.
Ÿ The complainant and his wife subsequently submitted a written complaint to the respondent about the incident and were assured that appropriate action would be taken in relation to the driver’s behaviour. The complainant and his wife received a written apology from the company in relation to the driver’s behaviour.
Ÿ On 17 May 2003 the complainant and his wife approached the same bus stop to board a bus. The driver shouted at them saying ” Do you remember me, I hope you have learned your lesson after your behaviour the last time and how to say please and thank you. If I ever hear that language again I will take you to (named) Garda Station. I am not your minder”.
Ÿ As the complainant is blind and could not see the driver his wife explained that it was the same driver whom they had encountered on 29 March 2003.
Ÿ As neither the complainant nor his wife wished to travel with the driver in light of their experiences with him and they moved away from the bus. The driver then deployed the ramp and then left his seat and walked up and down the bus loudly relating the previous incident to the passengers on board. As the complainant’s neighbours were on the bus he found this extremely embarrassing.
Ÿ The complainant contacted the controller about the incident.
While the driver did not physically bar the complainant’s entry to the bus his behaviour was so aggressive, intimidating and insulting he prevented the complainant from travelling on the bus.
The complainant subsequently encountered the driver on a third occasion,
several months after the second incident, but had experienced no difficulties on that occasion.
The complainant felt that the driver’s behaviour constituted discrimination, victimisation and harassment on the grounds of disability.
5 Prima Facie Case
5.1 Section 38A(1) of the Equal Status Act 2000 (as amended by the Equality Act 2004) states that
“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”.1
Section 38A(2) states that
“This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person”.
6 Prima Facie Case – Complainant
Discrimination
The complainant was told, in contravention of the respondent’s own policy, on 29 March 2003 that he could not board a bus because the space designated for wheelchairs was occupied by a child’s buggy.
On 17 May 2003 the driver alluded to the earlier encounter and also stated to the complainant “I am not your minder”.
I am satisfied that an inference of discrimination on the disability ground arises as (i) the issue as to whether the complainant could or could not board the bus in March 2003 is directly related to the fact that he is a wheelchair user and (ii) the phrase “I am not your minder” which the driver used on 17 May 2003 appears to refer to the complainant’s disability.
Harassment
Words were exchanged between the driver and the complainant on 29 March 2003 and the complainant was followed down the bus by the driver, again in contravention of the respondent’s own policy that drivers are not to leave the cab of the bus for any reason.
On 17 May 2003 the driver again left his cab to loudly inform all of the passengers on board about the earlier incident from his perspective. As the earlier incident in March 2003 arose specifically because the complainant is a wheelchair user there is a direct link between the two incidents. I am satisfied that an inference of harassment arises in relation to the driver’s actions in (i) in March 2003 following the complainant and verbally abusing him on foot of the complainant boarding the bus and occupying the allocated space and (ii) relating the earlier incident loudly to all passengers on board the bus on 17 May 2003.
Victimisation
The complainant has provided no evidence to establish how he comes within the terms of Section 3(2)(j) , subsections (i) to (v). It appears that the driver was unaware of any complaint lodged against him by the complainant and was not therefore reacting to the complainant’s lawful opposition to his behaviour in March 2003. The complainant has not therefore established that he is covered by the victimisation ground and has not therefore established a prima facie case of victimisation.
6.2 Respondent’s Rebuttal
The legal representative for the respondent stated that
It is clear from the complainant’s own statement that he was not barred from travelling on the bus on 17 May 2003.
It is clear that the driver used his position as a driver to pursue a personal grievance with the complainant arising out of a previous incident, but that his behaviour towards the complainant was grounded in that personal grievance and was not connected with Mr. King’s disability. It is clear that the behaviour of the bus driver on the date of the alleged incident did not amount to discrimination as defined in Section 3 of the Equal Status Acts 2000-2004.
In relation to harassment the respondent would submit that the words spoken by its employee to the complainant were not based on any discriminatory grounds, i.e. were not based on the complainant’s disability, but on personal differences which existed between the complainant and the respondent’s employee.
In any event and notwithstanding the above, Section 5 subsection (3) of the Equal Status Act states that “it shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practical to prevent …harassment … of the person referred to in subsection (2)”.
Section 42 (3) of the Act states “in proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.
If the behaviour of the driver amounted to discrimination (which is denied) the company will point out that the driver, like all drivers, was trained in how to deal with people with disabilities and was so trained before he started as part of an intensive training course, and the driver would also have attended a customer care course. A major part of this course is dealing with wheelchair accessible buses.
The respondent was not notified within the statutory period allowed under the Equal Status Act of the allegation of discrimination of 29 March 2003 and that allegation does not fall for consideration by the Tribunal.
Ÿ The standard policy with regard to buggies on board a bus is that, when a wheelchair user is boarding the bus, the passengers with the buggy will be asked to fold it so that the wheelchair user has access to the designated space on the bus. If the passengers with the buggy are asked to fold it and they refuse they should be asked to leave the bus.
Following the initial complaint in March 2003 to the company from the complainant the respondent had begun an investigation into the matter but had not completed same. The reason for this was unknown to the respondent’s representative.
The driver in question had been referred for further training following the initial complaint. The precise details of the complaint were not relayed to the driver but the trainer had focussed on training relevant to access to buses for disabled drivers.
The respondent’s representative, along with the company’s Customer Service Trainer and the Training Development Officer, outlined the training procedures and the formal procedures for dealing with complaints about the respondent’s employees and indicated that the driver had received a formal warning within one week of the receipt by the respondent of the second complaint. The warning is now on the driver’s permanent record.
7 Conclusions of the Equality Officer
7.1 Time limits
I note that the respondent states that the incident of 29 March 2003 cannot be investigated by the Tribunal as the complainant did not provide statutory notification of this incident to the respondent and did not lodge a complaint with the Tribunal in relation to this first incident within the statutory timeframe for doing so. In these circumstances, if the incident arising on 29 March 2003 was an isolated incident then it could not be investigated by the Tribunal.
However, on 17 May 2003 the complainant encountered the same driver again. The latter made reference to the previous incident, and by doing so created a direct link between the two incidents. Specifically, while the driver referred to the fact that the complainant had used bad language on the first occasion, he stated “I am not your minder”. I am satisfied that the latter comment was directed at the complainant as a wheelchair user and therefore directly relates to the complainant’s disability.
I do not accept the respondent’s claim that the later incident arose solely on foot of the complainant’s bad language on the earlier date nor do I accept that this was a question of the driver pursuing a personal grievance with the complainant. The bad language in question was a direct response to the unacceptable behaviour of the bus driver in the first instance and, while it cannot be condoned, is understandable to an extent in the context of the driver’s behaviour. Furthermore the complainant had no contact or communication whatsoever with the driver save in the context of trying to access the respondent’s bus service.
Section 21(2)(a) of the Equal Status Acts provides that statutory notification be provided by the complainant to the respondent within two months after the prohibited conduct is alleged have occurred, or, “where more than one incident of prohibited conduct is alleged to have occurred within two months after the last such occurrence…” In this regard I am satisfied that, as the two incidents are directly linked, the incident arising on 17 May 2003 is “the last such occurrence” and the notification and complaint as made by the complainant are within the statutory time limits from the date of this last occurrence.
7.2 Discrimination
On 29 March 2003 the driver refused to allow the complainant to board the bus for reasons that were in contravention of the respondent’s own policy. When the complainant eventually went to board the bus the driver made inappropriate remarks about the complainant’s wife. All contact and communication with the driver stemmed from the fact that the complainant was a wheelchair user and required the driver’s assistance to board the bus. In May 2003 the actions of the driver were such that any reasonable person would elect not to travel on the bus with him. The driver’s behaviour was therefore the direct cause of the complainant not travelling on the bus on that occasion.
I am satisfied, on the balance of probabilities, that the actions of the driver on both occasions were discriminatory on the grounds of the complainant’s disability.
Harassment
I note that the original complaint from the complainant did not include harassment. However, subsequent correspondence from the complainant referred to harassment and this was specifically addressed by the respondent. I am satisfied therefore that the respondent was on notice that the complainant regarded the actions of the driver as constituting, inter alia, harassment as defined in Section 11 of the Equal Status Acts 2000-2004.
On 29 March 2003 the driver of the bus in question left his cab, again in contravention of the respondent’s own policy in this regard, and followed the complainant down the bus while verbally haranguing him. I note that the complainant swore at the driver because of the latter’s actions. However, I am satisfied that the driver would not have left his cab or followed an able bodied male passenger down the bus while verbally haranguing them in this manner. In any event, the entire dialogue between the complainant and the driver arose on foot of the complainant’s disability, specifically his use of a wheelchair.
On 17 May 2003 the same driver stated to the complainant that he was “not his minder”. The driver then left the cab of the bus and loudly related his version of the previous incident to all of the passengers on board.
I am satisfied, on the balance of probabilities that the actions of the driver on both occasions constitute harassment in terms of Section 11 of the Equal Status Acts.
8 Decision
I find that the complainant was discriminated against and harassed by the respondent on the disability ground in terms of Section 3(1) (a) and 3(2)(g), and contrary to Section 5(1) and 11 of the Equal Status Acts 2000-2004.
9 Vicarious Liability
The respondent invokes the defences under Section 11(3) and 42(3) of the Equal Status Acts on the basis that they provided comprehensive training to the driver in question before he was allowed to operate a wheelchair accessible bus, and following the first complaint to the company from the complainant.
Having fully considered all of the evidence in this matter I am satisfied (i) that the training provided to all drivers in the first instance is of a general nature and, while it is customer service oriented, does not deal in any depth with the specific requirements of equality legislation and (ii) following the formal complaint from the complainant to the respondent company about the first incident arising, no specific measures were taken to clearly indicate to the driver that his actions were regarded as unilateral and not work related. The driver was not informed of the specific complaint against him.
I note that the company gave a full apology to the complainant for the driver’s behaviour following the first incident. However, the formal investigation of the first incident by the respondent was never completed. I fail to see how the respondent can then state that the driver’s actions were not in the course of his duty, as this was never properly determined.
On foot of this complaint under the Equal Status Acts the driver was given a formal warning by the respondent about his behaviour. I note that, subsequently, when the complainant met the same driver on a third occasion, the driver did not engage in the unacceptable earlier behaviour.
I am satisfied, based on the totality of the evidence that the behaviour of the driver which constituted discrimination and harassment (i) arose in the course of his employment and (ii) that the respondent is vicariously liable for the behaviour of the driver toward the complainant as the measures taken by the respondent to train the driver were not, for the reasons set out above, reasonably practicable to prevent the driver from acting in a discriminatory manner.
10 Redress
10.1 Under section 25(4) of the Equal Status Acts, 2000-2004 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.”
10.2 In light of the specific circumstances of the instant case I hereby order that the sum of €3,000 be paid to the complainant by the respondent, for the effects of the discrimination and harassment.
This award has been mitigated somewhat by (i) the acceptance by the respondent that the driver’s behaviour (while it was not accepted by the respondent to be discriminatory) was appalling and unacceptable and (ii) the full apology which was provided to the complainant by the respondent for the driver’s appalling behaviour. In the absence of these two elements I would have had no hesitation in awarding the maximum amount under the Equal Status Acts to the complainant in light of the appalling and unacceptable prohibited conduct of the bus driver.
__________________________
Dolores Kavanagh
Equality Officer
Equal Status Acts 2000-2008
Decision No:DEC-S2009- 029
Hennessy v Network Catering / Iarnród Éireann
File Reference: ES/2001/439
Date of Issue: 7th May 2009
Decision
DEC-S2009-029
Keywords
Equal Status Act, 2000 – Direct discrimination, Section 3(1) – Disability, Section 2 (1) and 3(2)(g) – special treatment or facilities to accommodate the needs of a person with a disability – Section 4(1), Section 4(2) – nominal cost, Section 3(1)(j) – victimisation, Section 11 – harassment, Section 42(1) – vicarious liability, Section 27(1) – redress for the effect of harassment, Section 27(2) – specific course of action – respondent ordered to put up notice.
Delegation under Equal Status Acts, 2000-2004
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On the 17th July 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2004 the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 30th October 2008 and 21st January 2009. The final submissions were received on 9th February 2009.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the gender, age, disability and victimisation grounds. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(a), 3(2)(f), 3(2)(g) and 3(2)(j) of the Equal Status Acts, 2000 contrary to Section 5(1) of that Act. The complainant also alleges that he was harassed contrary to section 11 of the Acts. During the course of the investigation the complainant alleged that the respondent failed to provide him with reasonable accommodation in accordance with section 4(1) of the Acts. At the commencement of the hearing, the complainant withdrew his complaints on the gender and age grounds.
2. Summary of Complainant’s case
2.1 The complainant is a wheelchair user and is a regular user of the train services particularly the trains between Thurles and Dublin or Thurles and Cork. He said that he had no difficulty in accessing the trains up until the new rules were introduced sometime during 1999. Because the complainant cannot propel himself, he cannot use a manual wheelchair. He has a motorised wheelchair, which is much larger than a standard wheelchair. He could park it in the baggage area on some trains and in the vestibule of other trains. In 1999, the station manager in Thurles informed him of new rules in relation to travel. He told him that he would have to travel in the dining car in a designated wheelchair area. His motorised wheelchair was too large to fit in the dining car and on a number of occasions, he was refused permission to travel. The procedures, which were in operation since 1999, were communicated the station managers. The procedures were outlined to the complainant in letters from Ms. Melanie McDonagh of the Mobility Impaired Liaison Office dated 3rd, 17th and 30th June 1999.
The procedures were again notified by an internal memorandum dated 28th May 2001, issued by the manager of Intercity, Iarnród Éireann to all station managers. The notification stated that wheelchair users would no longer be carried in the guards van or the vestibule on the train. From now on wheelchair users would be accommodated in the dining carriage in a designated area.
2.2 From mid 1999 onwards, the complainant was required to travel in the dining car in a manual wheelchair. The respondent offered him the use of a manual wheelchair, but it was not suitable to his needs, as he needed to elevate his legs while travelling. In or around February 2000 the complainant purchased a manual wheelchair suitable for use in the dining car and his motorised wheelchair was stored in the guards van. The complainant had to get on the train at the guards van in the motorised wheelchair, change into the manual wheelchair. He was then assisted by staff to leave the train in the manual wheelchair, wheeled up the platform to the dining car carriage, and wheeled into the designate area for wheelchairs. The reverse procedure applied when the complainant was exiting the train. The manual wheelchair was stored in the customer service area of the train station where he exited. From the middle of 1999, until he purchased the manual wheel chair in February 2000, the complainant said that he was not allowed to travel.
2.3 The complainant submitted that he had difficulties travelling in the dining car as the space for the wheelchair was too small and his chair jutted into the aisle. He said that the staff in the dining car resented his presence there because he was taking up a dining space and he did not purchase any food. He submitted that the dining staffs got commission and his presence there affected the commission they could earn because he was taking up a space, which would be occupied by passengers purchasing food. On some occasions, the food trolley was deliberately rammed up against his wheelchair and he was thrown up against the side of the train. He said the staff would call on him to get out of the way in full knowledge that he required assistance to move the manual wheelchair. He said that the staff would gather in a group and would point over and refer to him. He said that it was very unpleasant to travel and he felt as if he was running the gauntlet every time he got on the train. He said that the procedure put in place by the respondent to allow him travel by wheelchair delayed the train and the train staff was not pleased about the delay. He also felt it was very undignified way for him to have to access the train service
2.4 On the 27th April 2000, the complainant travelled from Cork to Thurles in the dining car. He said that after leaving the train in his motorised wheelchair an egg was thrown at him from the dining car. The egg landed on the platform and did not hit him. The complainant said that he reported the matter to the station manager Mr. Moroney. He said that Mr. Moroney and other staff of the respondent saw the egg on the ground. On 4th May 2000, he received a letter from Mr. Ciaran Masterson, Manager Train Catering who said that they interviewed all the staff but they were unable to substantiate the incident or verify the perpetrator but he conveyed his apologies to the complainant for the experience. The complainant again raised this complaint with the respondent following the introduction of the Equal Status Act on 25th October 2000 and he received no response.
2.5 The complainant submitted that on 24th April 2001 he accompanied his personal assistant, Ms Marina Proseckina, to Clonard Road in Crumlin, Dublin to view a house she hoped to rent. He remained outside while Ms. Proseckina viewed the house and a man (hereinafter called Mr. A) approached him in an aggressive and threatening manner. The complainant said Mr. A identified himself as working for the respondent. He told the complainant that he had been put off the trains because of the complaint about the egg throwing incident. He was also alleged to have said that he wished that he had thrown a four-inch block at the complainant. The complainant said that initially when he was approached he did not recognise Mr. A, but then he recognised him from the train. He said that he was very frightened and alarmed by Mr. A’s behaviour. As soon as Ms. Proseckina reappeared and another man appeared on the other side of the road the abuse stopped and Mr. A went into a house on Durrow Road. The complainant noted the address and provided it in his subsequent complaint to the respondent. The complainant said that he left the area quickly and reported the incident to two Garda he met on patrol.
2.6 The complainant complained about the incident to the respondent but he received no response. He said that he was fearful about travelling on the train after that and only travelled a few occasions and only when it was absolutely necessary. He said that he subsequently saw Mr. A in the dining car but he did not approach him. He submitted that other staff in the dining car continued to verbally abuse him.
3 Respondent’s Case
3.1 Mr. Nicholas Moroney, Station Manager Thurles, said that he knew the complainant well as he was a regular user of the train service between Thurles and Dublin. He said that he is a station manager for 12 years and during this time, the company has improved its facilities for disabled customers. He said that the older trains on the route were not designed to carry wheelchair passengers. However, the respondent allowed wheelchair passengers to travel either in the guards van on the Craven trains and the guards van or in the vestibule of Mark 3 trains. The complainant has a large motorised wheelchair and if it was parked in the vestibule, it obstructed the doors for other passengers. Mr. Moroney said that he tried to accommodate the complainant as best as he could, but there were occasions on which the complainant was not permitted to travel on a particular train because the guards van was full of parcels and the complainant would have to wait for the next train. The respondent decided in or around 1997/1998 to accommodate wheelchair users in the dining car and some seats were removed to accommodate standard manual wheelchairs. The motorised wheelchair was too large for the dining car and he allowed the complainant to travel in the vestibule until late 1999 or early 2000. The rule about travelling in the dining car was then enforced.
3.2 Mr. Moroney said that he offered the complainant a manual wheelchair to use in the dining car and the motorised one would be stored in the guards van for the duration of the journey. The complainant told the company that the wheelchair was not suitable to his needs and that he would purchase a more suitable one.
3.3 Mr. Moroney said that the complainant was well known to him and on occasions, he had to refuse him permission to travel. He said that on a number of occasions he had some heated arguments with him about travel arrangements. In accordance with the respondent’s Guide for Mobility Impaired Passengers, the complainant should give notice of his intention to travel so that the respondent could ensure that the space was available. On occasions, the complainant turned up and he could not travel either because the spaces in the dining car were full or because there was a Craven train on the route. The respondent also provided a ramp and assistance for the complainant to enter and leave the train and on occasions, difficulties arose either because he had not notified them he was travelling or staff from one station forgot to communicate the complainant’s arrival at the station where he was leaving the train.
3.4 He said that he was on duty the day the egg was thrown. His staff noticed the complainant stopped on the platform after the train had exited. A broken egg was on the platform near where the complainant was parked. After investigating the matter with the complainant, he submitted a report of the incident to management.
3.5 Ms. Melanie McDonagh, Accessibility Officer with Irish Rail, said that the respondent company had been improving facilities for customers with disabilities since the mid nineties. The trains in service were Cravens and Mark 3 trains and both of these trains had no facilities for wheelchairs. As the respondent purchased new trains, they ensured they were accessible for wheelchair users, the first were the trains on the Dublin Belfast line. They followed the UK legislation standards, the Rail Vehicle Accessibility Regulations (1998). In relation to the Craven carriages, they could not provide any accessibility but they decided to make the Mark 3 wheelchair accessible. It was decided that the dining car was the most suitable place to make designated accommodation for wheelchairs as there was always a dining car on these trains and there was a danger that other carriages could have been taken out of service. The dining car was also considered suitable, because there was always staff there that would assist a person in a wheelchair if required. Seats were removed to accommodate two standard size wheelchairs.
3.6 In the middle of 1999, the manager of the respondent’s infrastructure, Mr. Gerry Dalton, met the complainant on board a train and subsequently he requested Ms. McDonagh to write to him. Ms. McDonagh wrote to the complainant on 3rd 17th and 30th June 1999. She explained that he could no longer use his motorised wheelchair in the vestibule of the train because it obstructed the area and caused safety concerns for other passengers and in particular in relation to the emergency evacuation of trains. In addition, his wheelchair could not get to the designated area because it was too wide to travel the aisle of the train. She advised him that the company would provide a conventional wheelchair for use on board in the designated area and his motorised wheelchair would be carried in the guards van. It is company policy to have wheelchairs available at train stations for customer use. The policy would be implemented from 28th June 1999. She also requested the complainant to contact her to discuss the proposals together with Mr. Moroney, but he did not do so. He continued to travel in his motorised wheelchair, on a number of occasions he was refused permission because the staff could not accommodate the complainant in his motorised wheelchair.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(g) and 3(2)(j) of the Equal Status Act and in terms of Section 5 (1) of that Act. The complainant also alleges that he was harassed contrary to Section 11 of the Act. The complainant also alleged that the respondent failed to provide reasonable accommodation for him contrary to Section 4(1) of the 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 disability ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, thediscriminatory grounds … are … that one is a person with a disability and the other either is not or is a person with a different disability,”
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discrimination treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
The complainant has a disability and is covered by the Acts. The complainant submits that he was subjected to specific discriminatory treatment in that an egg was thrown at him, that the staff in the dining car were hostile towards him, and that they subjected him to abuse and ridicule. They deliberately drove the dining trolley up against his wheelchair. He submits he was approached by Mr. A, a member of staff in the dining car, in Durrow Road, Crumlin and he was verbally abused and threatened by him.
4.3 The first matter for consideration is whether the complainant was harassed. Section 11 of the Equal Status Acts provides:
“—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation,
(5) Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
4.4 It is an undisputed fact that an egg was thrown after the complainant exited the train on 27th April 2000, that the matter was subject to an investigation following a complaint, that the respondent interviewed all the staff in the catering department, that they denied responsibility and that the complainant received a written apology. The respondent disputed that the egg came from dining car of the train but they accepted in the course of the hearing it was the most likely place the egg came from was the dining car of the train.
4.5 The complainant complained again about the egg-throwing incident in October 2000 and he got no response. He also submitted that he had no problem travelling by train up until he was obliged by the respondent to travel in a designated wheelchair area in the dining car. He submitted that the procedure for him to enter and exit the train whereby he had to change from the motorised wheelchair to the manual chair caused a delay and the staff particularly in the dining car did not like it. He submitted in evidence that they subjected him to both verbal and physical abuse and ridiculed him by asking him to get out of the way when they were well aware that because of his disability he could not operate a manual wheelchair. He submitted that his disability caused the staff inconvenience and because he was taking up a space in the dining car, it resulted in a decrease in commission from the sale of food for the staff. He submitted that the egg-throwing incident was related to the incident in Durrow Road in Crumlin, which took place on 24th May 2001. He submitted that he was victimised and harassed by Mr. A because he complained about the incident to management. He submitted that the respondent failed to take steps to prevent him being victimised and harassed.
4.6 The respondent submitted that the egg throwing incident took place on 28th April 2000 incident and before the Act came into operation on 25th of October 2000 and consequently it cannot be taken into account as an act of discrimination or harassment. They submitted that they investigated the egg-throwing incident and none of the staff admitted responsibility. The complainant failed to identify the person responsible. In relation to the incident on 24th May 2001, the respondent stated that they could not investigate this incident as it did not occur on the respondents premises, the complainant did not identify the person and that the incident with Mr. A took place outside the workplace and the respondent cannot be held to be vicariously liable. The respondent accepted that the staff in the dining car was in receipt of commission. They submitted that the accommodation for wheelchairs would have little impact on the commission.
4.7 Having considered the totality of the evidence, I am satisfied, on the balance of probabilities, that a change took place in the treatment of the complainant as a customer of the respondent once he was accommodated in the dining car. In relation to the egg-throwing incident, it is clear from the internal e-mails submitted in evidence by the respondent that they considered the matter very serious. I can only consider this incident as background to the complaint as it occurred before the Act came into operation. The complainant was a regular user of the train service and because he required assistance to board and exit the train he was well known to all the staff both on and off the train. Consequently, because of the necessity for interaction with staff a number of differences of opinion arose. Mr. Moroney stated that he had a number of heated exchanges with the complainant about his travel arrangements. He also agreed that at times the train might be delayed because the ramps may not have been in place. This happened on the day of the egg-throwing incident.
4.8 The complainant’s evidence in relation to his treatment in the dining car was not contradicted; the respondent did not call any member of the dining car staff. I have concluded from the evidence, which is supported by the egg-throwing incident, that the staff in the dining car made the complainant feel unwelcome there, because he was in a wheelchair and they considered that he was in their way. They were aware that because of his disability it was impossible for him to move out of their way without assistance. I have come to the conclusion from the complainant’s evidence that the dining trolley was banged up against his chair, that he was subject to ridicule and abuse by some members of the staff in the dining car including Mr. A. Likewise I am satisfied that the complainant was subject to abusive and threatening behaviour by Mr. A, a member of the dining car staff, on Durrow Road in Crumlin on 24th May 2001. I am supported in this conclusion by the fact that the complainant produced evidence that a member of staff who was interviewed in relation to the egg-throwing incident lived at the address on Durrow Road where the complainant saw Mr. A enter after he encountered him. The harassment in my view commenced in or around February 2000 when the complainant started travelling in the dining car. It was ongoing and continuous after 25 October 2000, when the Equal Status Act 2000 came into operation, and it continued up until mid 2001 when the complainant decided to use the train less frequently because of the harassment. I am satisfied that the complainant has established a prima facie case of discriminatory treatment on the disability ground, which the respondent has failed to rebut. I find therefore that the complainant was harassed contrary to section 11 of the Act.
4.9 It is a defence for the respondent if he can show that he took reasonable steps to prevent the harassment. Section 11(3) provides that:
“ It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.”
Both the respondent and complainant agree that the complainant complained again about the egg-throwing incident in October 2000 after the Equal Status Act 2000 came into operation. The complainant also said that he reminded the respondent about their responsibilities under the Equal Status Act. The respondent said that they did not issue any specific instructions or warning to the staff following the initial complaint or the further complaint in October 2000 following the introduction of the Equal Status Act. The respondent provided no evidence that any staff received specific training in relation to the provisions of the Equal Status Act. In relation to the complaint on 24th May 2001, the respondent said that they did not investigate the incident, speak to any staff, or issue any general warning or code of conduct to staff following this incident as it took place outside the workplace. I note that the staff have been issued with a booklet entitled “How May I Assist you” which gives staff specific guidance about assisting customers with disabilities. However, there are no specific warnings in relation to the conduct of staff towards people with disabilities.
The respondent further submitted that it was too late to investigate the complaint as the complainant had referred the case for investigation. I note that the complainant sent the statutory notification under section 21 2(a) of the Act to the respondent on 28th May 2001 and he received no response. He referred his complaint to the tribunal on 24th July 2001. It should be noted that the serving of the statutory notification on the respondent is not referring the case for investigation. It provides the respondent with an opportunity to respond to the complaint. The respondent was well aware that the complainant was a regular customer who required assistance. It is surprising that the matter was not investigated and that measures were not put in place to ensure that staff was made aware that any inappropriate behaviour or harassment of the complainant or any other customer with a disability was not acceptable. I find that the respondent has not satisfied the defence available under section 11(3).
4.10 The next matter for consideration is whether the complainant was victimised contrary to Section 3(2)(j).
Section 3(2)( j) provides “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 complainant submitted that he was victimised by Mr A because he reported the egg-throwing incident. The complainant said that Mr. A approached him on 24th May 2001 on Durrow Road in Crumlin in an abusive and threatening manner because he was disciplined following the complainants report to management about the egg-throwing incident. The respondent submitted that the encounter could not have taken place as no staff member was disciplined about the egg-throwing incident. They also submitted that the incident could not be construed as victimisation in accordance with the Act.
4.11 I note that under Section 3(2)(iv) above provides that the act, which is opposed, must be unlawful under the Equal Status Acts. The act, the egg-throwing incident, which was the basis of the complaint to the respondent, was not covered by The Equal Status Act, because the Act was not in operation at the time the incident occurred or the complaint was made. While the egg-throwing incident may have been unlawful and covered by other statutes, it was not unlawful under the Equal Status Act at the time in question. Therefore, I cannot hold that the incident of 24th May 2001 was victimisation in accordance with the Act, as the act on which it was founded was not unlawful when the complainant complained. I find therefore that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
4.12 I note that the complainant made a number of referrals to the Equality Tribunal in relation to other alleged acts of discrimination. The complainant did not pursue these complaints and the Director dismissed them for non-pursuit under section 38 of the Act. It should be noted that the specifics incidents of alleged discrimination formed no part of my investigation of the complaint herein. I considered information in relation to these complaints only in the context of the victimisation complaint herein. I am satisfied that there is no connection or evidence to support a complaint of victimisation arising from these complaints. I find therefore that the complainant has not established a prima facie complaint of discrimination on the victimisation ground.
4.13 The next matter for consideration is whether the respondent is vicariously liable for the harassment of the complainant. Section 42(1) provides:
42.—(1) Anything done by a person in the course of his or her
employment shall, in any proceedings brought under this Act, be
treated for the purposes of this Act as done also by that person’s
employer, whether or not it was done with the employer’s knowledge
or approval.
The question is whether a person in the course of his or her employment carried out the harassment, which I have found above, and if so, can the respondent be held vicariously liable for their actions. I am satisfied that all the staff in the dining car worked for the respondent and that a number of incidents of harassment took place when they were on duty there. I have found above that the harassment against the complainant was ongoing and continuous when the complainant travelled in the dining car. I am satisfied that these incidents occurred during the course of the employment of the staff and having regard to section 42 (1) I find that the respondent is vicariously liable for the incidents of harassment that took place there.
4.14 The next matter for consideration is whether the respondent is vicariously liable for the harassment that did not occur in the course of the employment of Mr. A. The incident of the 24th May 2001 which was directly related to the egg-throwing incident took place outside the employment of Mr. A. The complainant’s representative referred me to a number of English cases, (Lister v Hesley Hall Ltd [2001] UKHL 22, Mattis v. Pollock [2003] EWCA civ 887 and Majrowski v. Guy’s and Thomas’ NHS Trust [2006] UKHL 34) and he asked me to follow the principle set down in these judgments. The Courts held in these cases that if an incident is so closely connected with the employment it should be regarded as having happened in the course of the employment.
I accept that the incident of the 24th of May 2001 was closely connected with the employment of Mr. A. The complainant and Mr. A did not know each other except through the train service provided by the respondent, Mr A’s employer. However, given my finding that the respondent is already vicariously liable for acts, which occurred at the place of employment, it is not necessary for me to decide on vicariously liability in relation to the incident that occurred outside the employment.
4.15 The complainant also complained during the course of the investigation about the facilities provided by the respondent for a person in a wheelchair.
Section 4 of the Equal Status Act provides that, inter alia:
“(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
In considering reasonable accommodation, I note that the section of the Act 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”. This means that the Act requires the respondent to show that it did everything it could reasonably do to accommodate the needs of the complainant.
4.16 The complainant submitted that he had no difficulty in using his motorised wheelchair as a passenger on the train until the new rules were introduced and he was obliged to travel in the dining car in a manual wheelchair. He submitted that he was subjected to harassment in the dining car and this made it difficult to avail of the train service. His representative submitted that the respondent failed to provide reasonable accommodation for him in accordance with the Act. He said that they should have provided a wheelchair accessible space in a carriage other than the dining carriage and in a place where the wheelchair was not getting in the way of the staff. He further submitted that the respondent, who indicated that they had followed the UK Regulations ( S.I 1998 No. 2456 The Rail Vehicle Accessibility Regulations 1998), when they provided the spaces in the dining car for wheelchair use, adopted a narrower width for a wheelchair than that mentioned in the said regulations. He said that if they had provided the width provided for in the regulations it would have been possible for the complainant’s motorised wheelchair to fit in a carriage other than the dining carriage.
4.17 The respondent witnesses said that they were improving facilities for wheelchair users on an ongoing basis. The older trains had no designated wheelchair area and they decided to create two spaces in the dining car as they were of the opinion that it was the safest place to accommodate customers in wheelchairs. The dining car was always in use on trains and there was a danger that if other carriages were used they could be taken off the route at any time. Furthermore, the dining car was always staffed and they would be of assistance to a person in a wheelchair if the need arose. It was further submitted that because of limited space on the older trains, the respondent could not accommodate the motorised wheelchair in the dining car or in any other carriage because the wheelchair was too wide for the corridors of the older trains. All new trains are wheelchair accessible but they still cannot accommodate large motorised wheelchairs such as the complainant’s in the designated wheelchair area.
4.18 The respondent said that they were continually improving their facilities for people with disabilities since the mid nineties. They appointed an accessibility officer. In March 1999, Ms. Melanie McDonagh took up duty. In 1998, the respondent issued a Guide for Mobility Impaired Passengers and it has been regularly updated. It gives useful information for passengers about facilities available at train stations for people with disabilities. It also advises passengers with disabilities to contact the station at least 24 hours before travel so that arrangements could be put in place, for example, a staff member would meet the person and assists them to board the train and that the ramps are in place for wheelchair users. The respondent also issues leaflets to staff entitled How May I Assist You? It is a guide for all staff who provides assistance. It also instructs staff to inform the staff at the station where the customer is exiting so that facilities are put in place there. This guide is updated on a regular basis through staff notices.
4.19 In relation to Section 4 of the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: “ …reasonableness must be judged according to the context of the individual case…….. The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations …… and they are indeed relevant to the decision as to what is reasonable in the particular case…. The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities….. 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,”
In applying this rationale to the case in hand, and having considered whether the facilities put in place to accommodate the complainant’s travel by train were reasonable, I am satisfied that the respondent devised “a reasonable solution to a problem”. The respondent provided spaces in the dining carriage for passengers in wheelchairs and because the complainant’s motorised wheelchair was larger that a standard one and could not traverse the ailse of the older trains, they provided him with facilities to store his own chair and provided assistance for him to travel in the designated area in a manual wheelchair. I find that the special facilities the respondent put in place to enable wheelchair users to travel by train satisfies section 4(1) of the Act. The respondent was unable to accommodate the complainant’s motorised wheelchair in the vestibule or other areas of the train, because of the limited space and the need to balance the complainants needs with the safety of other passengers using their service. I find that this does not constitute discrimination on the disability ground nor is it a failure to provide reasonable accommodation in accordance with Section 4(1) of the Act.
4.20 I am now going to consider nominal cost in accordance with Section 4(2) of the Equal Status Acts which provides:
(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”.
4.21 The question of nominal cost did not arise and it is not therefore necessary for me to consider this issue in detail. However, the question which would need to be addressed in considering this issue is, would the cost of the provision of accommodation to the complainant for his motorised wheelchair in the designated space on the Mark 3 trains be more than a nominal cost for the respondent. While this issue was not addressed by either the party, and the respondent did not provide any figures on this aspect of the provision of accommodation for the complainant’s motorised wheelchair, it seems permissible in the absence of figures to suppose that the cost of doing so would exceed any cost that could be considered nominal. At a minimum, in my opinion, the respondent would have to widen the corridors, doors, and the designated spaces for wheelchairs on all the older trains to accommodate the complainants wheelchair. I am satisfied that this would bring the cost of reasonable accommodation beyond nominal.
5. Decision
5.1 I find that the complainant was harassed in terms of Section 11 of the Equal Status Act. Under section 27(1) of that Act 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.”
5.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effect of the harassment had on the complainant. The harassment had a great impact on the complainant in that he decided to use the train less frequently because he was afraid of being harassed. Because of the severity of his disability, this greatly limited his ability to travel because the train service was essential to him for mobility. I order the respondent to pay to the complainant the sum of €3,000 (three thousand euro) to compensate him for the distress, humiliation and intimidation experienced by him as well as the loss of the amenity of the train to him.
5.3 Under Section 27(1)(b) of the Act, I order the respondent to display a clearly visible notice, in the dining car or in any other place on the train where there is a designated wheelchair space, stating that customers with disabilities are protected by the Equal Status Acts. The notice should also state that passengers with disabilities are welcome
to travel and enjoy the amenity of the train without interference. This notice should be displayed within 4 weeks of this Decision. All staff should be trained in relation to the provisions of the Equal Status Acts, 2000-2008.
___________________
Marian Duffy
Equality Officer
Nyamhovsa v Boss Worldwide Promotions
1. Claim
1.1. The case concerns a claim by Ms Josephine Nyamhovsa that Mr Steven Broadey, owner and manager of Boss Worldwide Promotions, directly discriminated against her on the grounds of gender and race contrary to Section 6(2)(a) and 6(2)(h) of the Employment Equality Acts 1998 to 2004, in subjecting her to harassment, discriminatory treatment with regard to promotion and terms and conditions of employment, and discriminatory dismissal.
2. Background
2.1. The complainant is a black woman of Zimbabwean nationality. She submitted that the respondent subjected her to a derogatory remark in front of one of her trainees; that he treated her different from white staff on his team in terms of team assignments; that he demoted her without explanation; that he treated her more poorly after May 2005, and that he dismissed her without notice or explanations on 17 October 2005, which she submitted amounts to discriminatory dismissal on grounds of gender and race.
2.2. The respondent submitted that the Tribunal has no jurisdiction in this claim, since there was no employer/employee relationship.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 17 February 2006. On 21 June 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A submission was received from the complainant on 18 June 2007. No submission was received from the respondent. A joint hearing of the claim was held on 12 October 2007. At the hearing, the complainant’s representative submitted 43 pages of additional written evidence, much of it printed material. The respondent submitted the complainant’s contract. Further evidence was offered from the respondent at the hearing, which was received by the Tribunal on 24 October 2007. In addition, the respondent, who was unrepresented, was given a two-week period, until 26 October 2007, to make any additional representations to the Tribunal in relation to the complainant’s written evidence, as well as matters canvassed at the hearing. The respondent did not avail of this opportunity.
3. Summary of the Complainant’s Case
3.1. The complainant commenced working for Mr Steven Broadey, owner and manager of Boss Worldwide Promotions Ltd, on 5 January 2004. She submitted in oral evidence that the position was a commission-based sales role, which included going door-to-door to sign people up as donors for a variety of charities. She submitted that she mainly worked on behalf of the development charity, Gorta.
3.2. At the hearing, the complainant submitted a recruitment brochure used by the respondent, in which she was pictured. The brochure outlines a five-stage “business development programme” to potential applicants: 1. Field Representative; 2. Leader; 3. Crew Leadership; 4. Assistant Ownership; 5. Ownership. The complainant submitted that she started as a field representative, progressed to leader, and subsequently moved into Mr Broadey’s office. A further promotion was agreed if she hit her target, which she submitted occurred in September 2004, and that she was promoted to Stage 5. However, the complainant also submitted a brochure in evidence from Cobra Group Ltd, the umbrella company of which the respondent’s company was a franchise, and she is not listed there as one of the employees promoted to Assistant Ownership or Ownership in 2004. Furthermore, she had training materials for stages 1 to 3 in her possession, which in evidence, she made available to the Tribunal. In view of the fact that the complainant herself made this written evidence available to the Tribunal, I do not infer that she sought to mislead the Tribunal over how much progress she made in the respondent organisation, but rather that she suffered confusion over this matter while giving evidence. However, in the light of the foregoing, I will assume that her promotion in September 2004 was to Stage 3, Crew Leader.
3.3. The complainant submitted that as crew leader, she would have had a significantly enhanced ability to generate an income for herself, as part of the commission awarded to her team members was paid out to herself. Therefore, a greater team meant greater earnings, in addition to the sales commission she earned individually.
3.4. The complainant further submitted that after her promotion, in September 2004, she went to Zimbabwe for a month, and that on her return she found herself with no crew to lead, just one male co-worker, and that she was offered no explanation for this move. She submitted that this signified a demotion to stage 2, leader and in the absence of explanations, amounts to discriminatory treatment in relation to access to promotion. She submitted that this meant she would sustain a loss of earnings, although she did not specify to the Tribunal the extent of this loss.
3.5. When asked at the hearing about her general terms and conditions of employment, the complainant submitted that she worked a 12-hour day, 6 days a week. Her starting times shifted between 9:30 am and 11 am. Her work day ended when her team finished their jobs. She submitted that she could not let anyone else stand in for her to do her work. She did not use any equipment of her own to perform her work. There was no basic obligation to report for work, but that it was generally understood that anybody who wished to progress within the organisation would be obliged to report for work. She submitted that in terms of tax details required by the respondent, she was asked to provide her PPS number. She was paid on commission: if a doorstep customer committed to a €10 monthly donation, she would receive €24, and more if the customer committed to more. She received only pay from the respondent and no benefits in kind, and paid self-assessed income tax.
3.6. The complainant submitted training materials for stages 1, 2 and 3 of the 5-stage development plan for field representatives. Each of the training plans is highly detailed and leaves virtually no part of the doorstep interaction with a potential donor to the discretion of the field representative. Examples of training categories include: “5 Steps – Introduction, Presentation, Short Story, Close, Rehash”, “Selling yourself – Icebreakers, Conversation/Relating, Body Language, Building Rapport”, or: “Impulse Factors – Guilt, Indifference, Fear of loss, Tone of Voice/Sense of Urgency, Sheepfactor/Joneses”.
3.7. The complainant also submitted a “Field issue form”, which she was obliged to fill out for any incident that involved members of her team during the doorstep sales process. She submitted that she herself had no authority to resolve complaints directly with the client charities.
3.8. Ms Nyamhovsa submitted that she was very successful in her sales representative role. In the brochure from Cobra Group Ltd, referred to in para 3.2 above, which reviews business successes and senior promotions within the group in 2004, Ms Nyamhovsa is praised as being the most successful employee among the entire group of franchises in the category “Donations raised per Fundraiser”. The brochure highlights that she raised £281,988.61 (€405,749.48 ) in 2004. On the other hand, Boss Worldwide Promotions does not rank among the top five franchises of Cobra in terms of “Donations raised per Office”, whereas the top performing franchise also features the 3rd and 5th best performing individual fundraisers.
3.9. The complainant submitted that she was subjected to harassment when Mr Broadey said to her: “You will be on the field for seventy gazillion years”, while her trainee listened. This occurred one day when she had forgotten her field representative badge in her car.
3.10. The complainant further submitted that a conference took place in Portugal in May 2005, in which senior management of Cobra Group Ltd met. She was only permitted to attend this conference after making representations to Mr Broadey. She submitted that she approached Mr Michael Scully, Vice-President and Product Owner of Cobra Group Ltd, whom she described as “Mr Broadey’s superior” to ask him what she could do to achieve further promotion, given that she was already hitting her targets. She submitted that Mr Scully advised her that he had already spoken to Mr Broadey about the possibility of her running a satellite office of the organisation. A meeting then took place at the margins of the conference between her, Mr Scully and Mr Broadey.
3.11. The complainant submitted that once the meeting had taken place, she experienced a significant change in Mr Broadey’s attitude towards her. The only trainees assigned to her from that point onwards were black Africans or non-English speakers, and that this subjected her to ridicule among her colleagues. However, when I asked her in oral evidence, she clarified that the composition of her teams made no difference in terms of sales she could achieve. She submitted this constituted discriminatory treatment in her conditions of employment.
3.12. The complainant submitted that her colleague told her that Mr Broadey had no intention of promoting her any further. I indicated to the complainant and her legal representative that this statement amounted to hearsay evidence and I would treat it as such.
3.13. The complainant submitted that on 17 October 2005, she was told: “Steve wants you upstairs”, and that when she saw Mr Broadey in his office, she was told to leave. She submitted that this turn of events was totally unexpected, that she was given no reasons for her dismissal and that no paperwork was completed with regard to her departure from the company. She submitted that subsequently she had difficulties receiving outstanding monies due to her, but that Mr Broadey’s secretary eventually processed payment in December 2005, after she had complained to Cobra Group Ltd Headquarters. She submitted that this amounts to discriminatory dismissal.
4. Summary of the Respondent’s Case
4.1. The respondent denies that the Tribunal has jurisdiction in the above complaint. He maintains that the complainant, like the other sales representatives who worked for his business, was a self-employed sole trader with whom he was trading, and therefore not an employee for the purposes of the Acts. He repeated this position in response to a considerable number of questions, and under cross-examination.
4.2. He submitted that the company had only two employees, himself as manager and his administrator. The number of field representatives would vary greatly, between zero and twenty. He estimated that during the complainant’s time with the company there would have been 15-20 field representative of various ethnic backgrounds, with a small percentage of Irish contractors also present. He submitted that at the date of the hearing of the complaint, there were no field representatives working in the company, and that the only employees at that time were himself and his secretary.
4.3. He submitted that work targets were only a suggestion, and that people who would not reach their targets might have continued with the company. He submitted that people would cease trading due to low commission earnings.
4.4. He submitted that training attendance was voluntary.
4.5. He denied the existence of any kind of promotional structure based on the five stages described in the company’s literature, and therefore denied that the complainant had been demoted following her trip to her homeland in September 2004.
4.6. He submitted that any field representative was free to interact directly with the company’s clients, and that in terms of team composition, any independently trading field representative was free to trade with any other field representative in the company.
4.7. However, with regard to the “Field Issues form” of which the complainant had submitted a copy, the respondent stated to the Tribunal that this was a feedback form for the client charities in case a donor or potential donor complained about a field representative. The respondent further stated that these forms would be submitted to him, as he had an agreement with the client charities to look after the customer service they received. Depending on how complaints were handled, the client charities would decide whether would continue to avail of the services of Boss Worldwide Promotions.
4.8. In cross-examination by the complainant’s legal representative, Mr Broadey admitted making the remark about the complainant’s abilities which is referred to in para 3.9 above, and offered the complainant his apologies during the course of the hearing.
4.9. He denied treating the complainant differently after the conference in Portugal described in para 3.10 above.
4.10. He agreed that he dismissed the complainant on 17 October 2005 without explanations. He submitted that he had reserved the right to cease trading with any field representative at any time, with no reason, on either verbal or written notice, and that this was a business decision that needed no justification.
4.11. At the hearing, the respondent offered the explanation that he considered ceasing trading himself at the time, and that he ceased trading with about ten individuals in October 2005. He submitted that the complainant was not singled out for her race or nationality in having her contract terminated, since most of the other individuals with whom he ceased trading during that time were non-Nationals also.
4.12. On 24 October 2007, the respondent submitted additional written evidence, which shows that apart from the complainant, he ceased trading with nine people, three Irish, two Nigerians, one Moroccan, one Estonian, one Slovakian and one citizen of the Czech Republic. The evidence took the form of a list on a single sheet of paper, containing names and nationalities.
4.13. In evidence, he submitted the complainant’s contract, named “Master Field Representative Agreement”. The respondent did not seek to rely on the contents of the contract during the course of the hearing, and I indicated to both parties that I would need to study the document further. The contents of the documents are therefore outlined in the next part of this decision, which states the considerations of the Equality Officer.
5. Considerations of the Equality Officer Jurisdiction
5.1. The first issue I have to consider is whether the Tribunal has jurisdiction to investigate and decide on the complainant’s case. The question is whether the contract between the complainant and the respondent constitutes a contract of employment, and therefore, whether she was an employee for the purposes of the Acts. S. 2(1) of the Acts defines “contract of employment” as (a) a contract of service or apprenticeship, or (b) any other contract whereby – (i) an individual agrees with another person personally to execute any work or service for that person […] whether the contract is express or implied and, if express, whether oral or written.”
5.2. The main test, under Irish law, for assessing this in work situations such as the complainant found herself was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: “[…] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
5.3. Murphy J added: “Whether Ms M. was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant and not upon any statement as to the consequences of the bargain.”
5.4. I therefore propose to examine the contract between the complainant and Boss Worldwide Promotions Ltd.
5.5. The contract states: “This Agreement is governed by Irish law.” It also states, “Nothing contained in this Agreement shall be construed to have effect as constituting any relationship of employer and employee between the Company and the Field Representative.”
5.6. However, most of the remaining clauses in the contract are highly prescriptive in how the Field Representative performs his or her tasks. Contractually regulated behaviours include: Full cooperation with disciplinary procedures; compliance with all campaign instructions; provision of daily operational reports; not making “any representation, claim, or commitment, or give any warranty, guarantuee [sic] or assurance”; not “issue any advertisement, undertake any promotion, offer any incentives, or undertake any other activities in connection with any Campaign”; not “criticise any other organisation, service or product, alter any Campaign Materials, or use any materials other than Campaign Materials.”
5.7. Under “Campaign service responsibilities”, the contract states that the field representative is obliged to “return all issued application forms (including all completed, partly completed, damaged and blank application forms), promotional materials, Group Products and any other form of property to the Company, the Group Company or the Client to the Company at the end of each Campaign Working Day.” The field representative is also obliged to report “every instance of a complaint or potential complaint” immediately to the company.
5.8. Under the heading “Obligation to attend training”, the contract states: “The Field Representative shall in good faith undergo any training the Company is to provide.”
5.9. The contract also contains a competition clause, stating: “The Field Representative shall not during any Campaign engage in any sales/marketing activities which are, directly or indirectly in competition with the Campaign Services (whether as principal, agent, reseller or though [sic] or on behalf of any third party; or after involvement in any Campaign for a reasonable period and within a reasonable territory, each prescribed in the relevant Campaign Agreement (whether as principal, agent, reseller, or through or on behalf of any third party) be involved in the provision of directly marketed services or products which are or may be in competition with services or products which were the subject of relevant Campaign Services.”
5.10. Termination is dealt with in para 4.4. of the contract, and also in Section 14. Para 4.4 reserves the right to terminate or suspend the Field Representative if a client or Group Company consider him or her unfit or unsuited to provide campaign services, with a right to request re-training from the Field Representative for the continuation of the contract. Section 14 outlines the other circumstances under which the contract can be terminated: fundamental breach of contract; breach of contract that is not remedied within a prescribed period; insolvency of the Field Representative; any change in law in relation to direct marketing; a serious complaint, or more than one complaint, about the Field Representative is received from any customer or customers; material breach of a code by the Field Representative; failure to provide campaign services without reasonable explanation for a continuous period of ten days. It is notable that there is no provision in the contract for the Company to terminate the services of the field representative without giving reasons.
5.11. I find that the contents of the contract directly contradict statements made by the respondent in oral evidence, viz. that training attendance was not compulsory (para 4.4 above); that field representatives were free to interact with clients directly (para 4.6 above); and that he had the right to terminate the contract without giving reasons for doing so (para 4.10 above). I wish to note that I attach greater weight to the terms of the written contract, not only because it is in writing, but also because it was agreed and signed by both parties at a time when no dispute had arisen between them. I therefore find it credible that the terms and conditions of the contract where intended to govern the working relationship between the complainant and the respondent. In the absence of any other corroborating evidence, I do not find the statements made to the Tribunal by the respondent to be credible. I find it reasonable to infer that they were only offered as a way to challenge the Tribunal’s jurisdiction.
5.12. Taking into account, then, the complainant’s oral evidence, and the terms of the written contract in existence between herself and the respondent, I find that:
– The complainant was supplying her labour only, but no materials, premises or other investment;
– The respondent provided her with work materials, and she was under a contractual obligation to account for same materials, at the end of each working day, with the greatest accuracy;
– The complainant had virtually no discretion in how to carry out her work; she was contractually obliged to undergo training, which identified performance of her work tasks in minute detail;
– The complainant was prohibited from carrying out similar services for any business concerns the respondent would identify as competitors; both during and after the work relationship;
– The complainant could not engage employees on her own account; she was limited to working with persons engaged by the respondent and – here I accept the complainant’s evidence as more credible than the respondent’s – was in fact dependent on working with whoever the respondent assigned to work in her team;
– The complainant could not address any complaints with the respondent’s clients directly; she was contractually obliged to notify the respondent immediately of such complaints, and any complaints arising could be a reason for termination of her contract.
5.13. I therefore find that the complainant’s terms and conditions of work are fully covered by the test developed in Denny, and that her contract with the respondent constitutes a contract of service within the meaning of the Acts. Therefore, the complainant is the respondent’s employee and I hold I have the power to investigate and decide on her complaints.
The Substantial Complaint
5.14. The complainant is alleging discriminatory treatment pursuant to S. 8(1)(b) (conditions of employment) and (e) (promotion or re-grading), discriminatory dismissal pursuant to S. 8(6)(c), and harassment pursuant to S. 14A(7)(a) of the Acts, on grounds of gender and race pursuant to S. 6(2)(a) and (h), respectively.
5.15. A person making an allegation of discrimination under the Acts has to present prima facie evidence of his or her allegation. Prima facie evidence has been described as “[e]vidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred.” [Gillespie & ors V Northern Health and Social Services Board & ors [1996] ECJ C342/93]. In the context of the Tribunal’s jurisdiction, this has been interpreted to mean that the complainant has to prove, on a civil standard of proof, that the alleged events occurred; and that someone to whom the discriminatory grounds applied differently would not have been so treated.
5.16. Once a prima facie case of discrimination has been established, the burden of proof then shifts to the respondent pursuant to S. 85A of the Acts, which states in subsection (1): “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
5.17. The first limb of establishing a prima facie case is to prove, on balance of probabilities, that the events complained of actually occurred. In this regard, I note that the respondent conceded the occurrence of two of the alleged incidents, viz. his remark “You will be on the field for seventy gazillion years” (see paras 3.9 and 4.8, above) and the fact that he terminated the complainant’s employment without notice or explanation (see paras 4.10 and 4.11 above).
5.18. With regard to the complainant’s allegation that she was demoted following her stay in Zimbabwe, I have already noted that in oral evidence, she was probably mistaken about the extent to which she had progressed in the company and that it was likely that she had only progressed to stage 3 (see para 3.2 above). However, I do not accept as credible the respondent’s assertion that there was no promotional structure in the company (see para 4.5 above), and that therefore the complainant could not have been demoted, since printed material from his own company and from Cobra Group Ltd clearly outlines the five-stage structure of which the complainant gave evidence, and expressly speaks of “promotion” with regard to stages 4 and 5. On the balance of probabilities, I find it credible that the complainant experienced having team members taken from her team to the extent that it equalled a demotion from stage 3, crew leader, to stage 2, leader, of the promotional structure within which she was working, that she was not given any explanation for this action, and that it adversely affected her ability to earn sales commissions to an unspecified amount.
5.19. Also in relation to the matter of her demotion, the complainant submitted written evidence to the Tribunal which shows that on 13 November 2004, she was again leading a team of seven field representatives. Therefore her demotion only lasted a comparatively short amount of time.
5.20. With regard to the complainant’s allegation that she had only black Africans and non-English speakers assigned to her teams, I also accept this statement as true in light of the fact she was not permitted to hire her own staff independently of the respondent; that both as an employee and as a team supervisor she was working under highly detailed instructions; and because of the promotional structure that existed at the company, as evidenced in the written documentation submitted. In view of these, the respondent’s assertion that anyone in his company would have been free to trade with anyone else in the company (see para 4.6 above), does not seem credible. However, I also note the complainant’s evidence that the composition of her teams made no difference in sales. Therefore I do not find sufficient evidence for less favourable treatment of the complainant under the Acts, with regard to specific employees assigned to her team.
5.21. The complainant also alleges that these team assignments occurred after the Cobra Group Ltd conference in Portugal, where her further promotion prospects were discussed between Mr Michael Scully, Steven Broadey and herself, and that in general, Mr Broadey treated her fundamentally differently than before. However, as noted, she did not provide specific evidence of detriment with regard to persons assigned to her team, and she did not provide any specific detail as to other differences in treatment by the respondent. I also note that this was the only allegation of the complainant that the respondent strongly disputed in oral evidence. In total, I find there is insufficient evidence to infer discriminatory treatment by the respondent after May 2005.
5.22. The complainant identified a colleague as her comparator, whom she described as “white French” and who, she submitted in evidence, was not harassed, did not receive discriminatory treatment, and was not discriminatorily dismissed in the manner she alleges in relation to herself. The complainant also submitted that a white, Irish male would never have received the same treatment from the respondent.
5.23. The respondent did not dispute the complainant’s general description of his treatment of the colleague, he only clarified that she was a French citizen of Moroccan ethnic origin, and therefore not “white” in the sense of a Caucasian ethnic origin. He offered this fact as evidence to the Tribunal that he does not discriminate against his workers on the basis of race.
5.24. Since it is common case between the parties that the colleague is of different nationality and different ethnic origin to the complainant, and that she was treated differently by the respondent, I find that the complainant has established a prima facie case of discrimination on grounds of race in relation to her allegations of harassment, demotion, and discriminatory dismissal.
5.25. I further note that following the Labour Court’s decision in Citibank v. Massinde Ntoko (Determination EED045), I am also entitled to assume a hypothetical comparator in order to weigh the complainant’s allegation that the respondent would not have treated a white, Irish man in the same manner as he treated her, as the complainant submitted I should do.
5.26. I will therefore proceed to consider how the respondent’s treatment of the complainant compares to how he would have treated, on balance of probabilities, a white Irish male, and it is for the respondent to rebut the allegations of the complainant and to prove that his treatment of her was for reasons other than her race and gender.
5.27. In relation to the complainant’s allegation of harassment, I already noted that the respondent admitted to making the alleged remark (para 4.8 above). In terms of how the respondent’s remark is connected to the complainant’s race and gender, I wish to note that in general, blatantly racist and sexist remarks appear to be declining, as public awareness of their offensiveness increases. However, I find that the remark of the respondent is directly connected to the complainant’s race and gender in that it links to longstanding, persistent stereotypes of black people as being less intelligent than white people , and similarly, of women being less intelligent than men.
5.28. I find that putting a black woman employee down in front of a trainee for such a trifling matter, in the way described above and as is common case between the parties, does constitute harassment as defined by S. 14(7)(a) of the Acts, being “conduct which … has the …effect of violating a person’s dignity and creating a … humiliating environment for the person” on the ground of race and gender. I am satisfied that the respondent would not have made such an undermining remark to a white, Irish man in front of a trainee. I am further satisfied that while the respondent might have commented on such a man’s forgetfulness, he would have been conscious of not undermining that man’s authority in front of a subordinate.
5.29. I note that the respondent did offer his apologies, but he did not offer an explanation that would rebut the presumption that it was made on grounds of race or gender, or that he would not make such a comment to an employee who was not black African, or a man. I therefore find that he failed to rebut the complainant’s allegation of harassment of her.
5.30. In relation to the complainant’s allegation of demotion, constituting discriminatory treatment under S. 8(1)(d) of the Acts, I already noted that the respondent’s contention that the complainant could not have been demoted because of an absence of a promotional structure, is in direct contradiction to printed evidence of his own company and Cobra Group Ltd. and therefore not credible. The respondent offered no other explanation for the complainant’s demotion and I do not think a white Irish man would have found himself similarly without a team and with reduced responsibilities solely as a result of taking a holiday. I therefore find that the respondent failed to rebut the complainants allegation of discriminatory treatment in relation to promotion or re-grading pursuant to S. 8(1)(d) of the Acts.
5.31. In relation to the complainant’s allegation of discriminatory dismissal, I note that the respondent acknowledged dismissing the complainant without notice or giving reasons, but that he insisted that in terms of his contractual relationship with the complainant, he was entitled to do so. Again, I note that this is in direct contradiction to the written contract between himself and the complainant, which he submitted in evidence. While the contract does not state any notice period, it does outline the reasons for which the agreement may be terminated by the respondent with sufficient clarity. There is no clause which permits the respondent to terminate the agreement for no reason whatsoever.
5.32. While it is not within the jurisdiction of the Tribunal to make a finding on this, I therefore note that it appears that in terminating the complainant’s work without giving reasons, the respondent was in breach of his own contract. Clearly his statement that he was entitled to do so does not amount to a rebuttal under the Acts, of the allegation that he was discriminatorily dismissing the complainant on the ground of race and gender.
5.33. The respondent further submitted that in October 2005, he terminated the contracts of a number of other field representatives at his company, and that most of them were not Irish. He submitted that he terminated their contracts because he considered ceasing trading. I note in this context that at the date of the hearing of the complaint, he was still trading (see para 4.2 above).
5.34. He submitted that this showed the complainant was not singled out on grounds of her race. As noted above, on 24 October 2007, the respondent submitted additional written evidence, which shows that apart from the complainant, he terminated the contracts of nine other employees, three Irish, two Nigerians, one Moroccan, one Estonian, one Slovakian and one citizen of the Czech Republic. I do not find this evidence to be a conclusive rebuttal of the complainant’s allegation. The fact that 70% of terminations conducted in a single calendar month affected non-Irish workers could equally demonstrate a generalised bias against non-Irish workers who were let go first when the respondent considered closing his business. I further note that in his additional evidence, the respondent did not submit details of the circumstances that attached to the termination of those contracts and therefore did not rebut the complainant’s allegation that she received less favourable treatment compared to other workers in his company.
5.35. I am also mindful of the fact that the complainant was one the respondent’s most successful employees (see para 3.7 above) and that she made a very significant contribution to the success of the respondent’s business. I find that there is no business rationale for terminating such a person’s contract ahead of those of other employees. I furthermore fail to see how any amount of business rationale could serve as justification to deprive a successful worker, against whom no complaints had been made, of her livelihood literally from one moment to the next, with no notice, no reasons, and no warning.
5.36. I therefore find that the respondent failed to rebut the complainant’s allegation of discriminatory dismissal pursuant to S. 8(6)(c) of the Acts.
6. Decision
6.1. Based on the foregoing, I find that the respondent discriminated against the complainant in terms of harassment pursuant to S. 14A(7) and discriminatory treatment – promotion and re-grading – pursuant to S. 6(1)(d) and discriminatory dismissal pursuant to S. 8(6)(c) of the Employment Equality Acts 1998 to 2004, on grounds of race and gender.
6.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent:
(i) pay the complainant the sum of € 5000 in compensation for harassment and discriminatory treatment and
(ii) pay the complainant the sum of € 45,000 in compensation for discriminatory dismissal.
6.3. This award relates to compensation for the distress and breach of rights under the Acts and is therefore not subject to tax. In calculating the compensation to be paid to the complainant, I am guided by the major contribution she made to the success of the respondent’s business, by the extraordinary set of circumstances that attached to her discriminatory dismissal, and by the finding of the Labour Court in Citibank v. Ntoko, that “an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive”.
______________________
Stephen Bonnlander
Equality Officer
DEC-S2009-024 – Full Case Report
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-S2009-074 – Full Case Report
Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISION
NO: DEC-S2009-074
A Complainant v A Secondary School
(Represented by Mason Hayes and Curran Solicitors)
File No. ES/2007/0091
Date of Issue: 6 November 2009
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – gender ground, section 3(2)(a) – harassment, section 11(1) – victimisation ground, section 3(2)(j) – Educational institution, section 7(1)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A complainant’s next friend referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 August 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 15 July 2009. Correspondence concerning the complainant’s right to remain anonymous – he did not attend the hearing- was received on 18 July 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination and harassment on the gender ground. This complaint was taken by the complainant’s next friend who maintains that a secondary school’s uniform requirement that prohibit boys from wearing an earring was discriminatory and, as a result, the secondary school (“the respondent”) treated the complainant less favourably contrary to sections 3(1), 7(1) and 11(1) on 26 February 2007 and thereafter. It was further submitted that the respondent victimised the complainant contrary to section 3(2)(j) The respondent was notified on 24 April 2007.
3. Case for the complainant
3.1. It was submitted that the complainant was placed in a named secondary school in order for him to be schooled in his own community. The complainant’s next friend – a father who appeared before this Tribunal on behalf of his son who at the time of the alleged incident was a minor – submitted that in doing so, he had expected the school to act “in loco parentis, treating him [the complainant] as a reasonable parent would be expected to do, that he would be treated as favourably as any other student in the school, and in accordance with the law of the land”. It was submitted that this complaint revolves around an initial act of discrimination which was followed by subsequent incidents of harassment and victimisation.
3.2. The complainant’s next friend submitted 10 incidents to support his claim of gender discrimination contrary to section 3(1), harassment on the gender ground contrary to section 11(1) and victimisation contrary to section 3(2)(j). In brief, these incidents consist of the following:
1. The initial alleged act of discrimination on 26 February 2007. It was submitted that the complainant was asked to remove an earring in accordance with the then school rules. The complainant was told he would be suspended or he would have to sit in the corridor as he would not be allowed back into class until he removed his earring. The complainant’s next friend submitted that his wife – when contacted by a named vice principal – had explicitly protested about this sanction and had only consented under protest to allow the complainant home. Contemporaneous notes taken by the complainant’s mother were submitted to the investigation and she gave direct evidence on the matter.
2. The following day, it was submitted, the complainant was asked if he was wearing his earrings. He was, and was told that unless he removed it he would be suspended. It was submitted that this constitutes this is harassment and/or victimisation contrary to the Equal Status Acts.
3. The complainant’s next friend submitted that another incident took place on 16 February 2007 but that he only became aware of it on 13 March 2007 when the complainant was told that he would be suspended because of an incident that had taken place 4 weeks previously. The complainant’s next friend submitted that this time delay was unacceptable and linked to the earring issue. It was submitted that discipline must be current and not randomly linked to other issues. It was submitted that this action was unprofessional and used as a vehicle to obtain revenge against the complainant against the school rule reversal which had occurred a day before (12 March 2007). It was submitted that since the complainant’s ‘principled’ stance on the schools alleged discriminatory and illegal rules there has been an escalation of disciplinary action against the complainant and that this has not been coincidental. The complainant’s next friend submitted that he put the educational institution on notice about the manner in which the complainant was illegally suspended and that he would view any subsequent incident within this context. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
4. It was submitted that the complainant was asked to remove his earring on 11 September 2007 by a named teacher. The complainant refused and was escorted to see a named vice-principal. It was submitted that the complainant refused to speak with the vice principal because he had been instructed by his next friend that should any incident occur, a teacher should contact the next friend and not talk to the complainant. It was submitted that the vice principal did not contact the next friend. It was submitted that at the very same time other pupils were in transgression of other school rules but that no action was allegedly taken against them. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
5. It was submitted that on 17 September 2007 a named teacher shouted at the complainant and told him to remove his earring. It was submitted that the complainant was not wearing his earring and told her so. It was submitted that the teacher had said that it looked like he was. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
6. It was submitted that the complainant was harassed and/or victimised on 19 February 2008 by a named teacher. It was submitted that at the time of the outburst the complainant was feeling unwell and was taking medication. It was submitted that the complainant had maturely approached the teacher and offered an apology. It was submitted that the teacher had refused the apology and insisted that the complainant apologise to the whole class. This, it was submitted, the complainant refused to do as he viewed this request as an attempt to humiliate him. The complainant was given detention. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
7. It was submitted that the complainant was again asked to remove his earring on 1 April 2008 by the named teacher and an entry was made in the complainant’s journal. It was submitted that the complainant made a note of other classmates with inappropriate makeup, body piercings, etc who were not taken to task by the teacher. It was submitted that this was evidence of the fact that the teacher was not treating all pupils the same. Only the complainant was singled out. It was submitted that the school management refused to meet the complainant’s parents. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
8. It was submitted that the named teacher forced the complainant to remain in class on 29 September 2008 against his will despite informing the named teacher that he wanted to retrieve his property from the PE hall and because he was unwell. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
9. It was submitted that the named teacher refused to meet with the complainant’s mother on 13 November 2008 to discuss the complainant’s progress at a teacher/parent meeting. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
10. The next friend submitted that the final act of victimisation took place when the complainant received his disability Central Application Office form that he had requested the respondent to fill in on his behalf. It was submitted that the respondent had downplayed the complainant’s health issues’ impact on the complainant’s education. It was submitted that the named person directed the form incorrectly to the Central Application Office when it should have been sent to the complainant. It was submitted that this is victimisation arising from the complainant’s principled stance to protect his right to equal treatment. It was submitted that this constitutes harassment and/or victimisation contrary to the Equal Status Acts.
3.3. The complainant’s next friend submitted that the respondent allowed female students to wear earrings while prohibiting them from male students. It was submitted that this was the case until the school management changed the school rules on 12 March 2007. The complainant’s next friend submitted that this rule change was directly because the next friend had lodged a complaint with the Equality Tribunal. It was submitted that this new rule concerning earrings allows male students to wear similar earrings as the females but that males are also expected to wear two earrings. The complainant’s next friend submitted that this was unfair as it is customary for boys/men to wear only one earring.
4. Case for the respondent
4.1. The respondent is an educational establishment within the meaning of section 7(1). It caters for over 1000 pupils.
4.2. The respondent denies all allegations made by the complainant’s next friend. It was submitted that, notwithstanding the subsequent change of school rules which allowed boys to wear earrings the same way as girls, it is contended that the respondent is and was fully entitled to request the complainant to remove the earring in accordance with the school rules. It was submitted that the rules concerning the appearance and dress code of pupils, through applied differently for boys and for girls, does not constitute less favourable treatment of boys viewed in the context of the generality of the rules on dress and appearance.
4.3. It was submitted that there was no discrimination as alleged on the gender ground and the request to remove the single earring did not constitute discrimination within the meaning of the Equal Status Acts. It was submitted that there is no basis for a claim of victimisation.
4.4. The respondent accepts that the complainant was suspended in March 2007. It was submitted that this was because the complainant had used unacceptable language to a teacher. Correspondence between the school and the complainant’s next friend was submitted as evidence concerning this incident. It was submitted that this was a standalone incident of bad behaviour on part of the complainant which was dealt with appropriately by the school’s Board of Management in compliance with its Code of Behaviour. The reason for the delay in dealing with the incident, it was submitted, was because the principal was out of the country with a number of students. The matter was dealt with shortly after his return.
4.5. In relation to the incident of 11 September 2007, the respondent submitted a student incident report in which the named teacher stated that she had asked the complainant to remove his earring and the complainant had refused. It was accepted that a teacher had mistaken a mark on the complainant’s ear as an earring and had asked him to remove it. This, it was submitted, was standard practice and any student who appeared to violate the school rules would have been treated in a similar manner.
4.6. The principal submitted that as soon as the earring issue was brought to his attention – he submitted that the issue had never occurred to him until then – he brought the issue to the attention of the Board of Managers after extensive consultation with students, parents and teachers. The rule forbidding boys to wear earrings was changed in March 2007.
4.7. It was submitted that there is a clear and compelling rationale for the school’s rules concerning dress and appearance in the overall context of the school’s management. It was submitted that any of the incidents of submitted on behalf of the complainant are completely unconnected to the complainant’s claim of discrimination on the gender ground.
4.8. The respondent’s representative submitted Schmidt v Austick’s Bookshops [1977] and An Application by the Governors of Ballyclare High School [2008] as precedent cases supporting an educational establishment’s right not to make identical dress code provisions for males and females.
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. First, I wish to address the issue of whether having different rules for boys/men and girls/women in relation to uniform requirements constitutes less favourable treatment in law. It is a common misconception that equality is about everyone being the same and therefore, that equality law is about ensuing that all persons receive same treatment. While literal interpretation can result in the aim of the legislation being understood as such, the case law on equality in courts and this Tribunal has tended to recognise and value the differences that arise from human characteristics, inter alia, race, gender, age, family status, etc. Equality legislation is about ensuring that no group protected by it experiences less favourable treatment because of their social status. This, in certain circumstances , means that equality law must recognise that same treatment can result in inequality. Therefore, in certain circumstances, different treatment is required to ensure that a person is not treated less favourably because of their social status. In such cases, such different treatment cannot be construed as discriminatory in law.
5.3. I note that the respondent referred to the UK case Schmidt v. Austick’s Bookshops as an authority on the issue of uniform requirements in employment for different sexes. The rule arising from this decision is that uniforms in the workplace need not be identical for both sexes. This is because a rule requiring same treatment could lead to an unworkable situation if men and women were required to wear the exact same uniforms. What is considered conventional and appropriate dress for women may not be so for male colleagues and vice versa. The Schmidt recognised the right of employers to impose different uniform requirements for men and women provided that there were restrictions concerning clothing imposed on both genders. This position has been upheld by the UK’s Employment Appeals Tribunal in Burrett v West Birmingham Health Authority [1994], Paul Fuller v Mastercare Services [2001], Department of Work and Pensions v Thomas [2003]. I note that the Court of Appeal has also favoured the approach taken in Schmidt, for example, Smith v. Safeway [1995].
5.4. The current case law therefore indicates that what constitutes ‘different treatment’ and ‘less favourable treatment’ in uniform questions is an issue of justification. This justification can only be made when a dress code is read as a whole (rather than a restricted interpretation of each gender’s specific dress requirements) and its purpose is shown to seek a conventional appearance among employees. While I note that the Schmidt case is about uniform requirements in an employment setting I find that the rules applied can follow in educational settings as set out in the judicial review proceedings in the High Court of Justice in Northern Ireland in the Ballyclare High School [2008] case where Weatherup J states: “there is a parallel on this issue in the employment sphere where employers require workers to comply with dress and appearance codes at work” .
5.5. I wish to distinguish this case from Tribunal decisions ES-S2009-008 and ES-S2009-010 which address the issue of hair length for boys and girls in the educational setting and the more permanent impact of such requirements. I do not find that the facts of this case are similar. The claim before me concerns a single earring that can be easily removed by the complainant and replaced when outside the school setting. I am satisfied that the earring rule has no impact on the manner in which the complainant chooses to dress outside the school unlike rules concerning hair length. I am also satisfied that the respondent school’s uniform requirements impose limitations and restrictions on both sexes. Furthermore, it is important to note, in accordance with Ballyclare High School [2008], that such an approach is not a fixed one. A school must have in place procedures that allow for change for such a dress code in line with changing patterns and lifestyles that influence the very same code. I am satisfied that such procedures are at place in this case. This is supported by the manner in which the dress code was altered in March 2007.
5.6. Having considered the precedent cases from the UK and the facts of this particular case, I am satisfied that under the Equal Status Acts it is not discriminatory – in the circumstances outlined above – to have different rules for women and men in relation to the wearing of earrings as part of an overall dress code requirement in the educational setting.
5.7. I note that the complainant’s next friend suggested that the new rule – allowing same treatment for boys and girls – was discriminatory as it does not take into consideration the fact that boys tend to wear only one earring. Here the complainant’s next friend is making an argument for the very same recognition of convention that the complainant was opposing in the first instance. I am satisfied that an educational institution has a right to determine its own uniform codes. Students and their guardians are naturally aware of these rules and there is a legitimate expectation that these rules are to be obeyed.
5.8. It was submitted that the removal of the complainant from the classroom was contrary to the National Educational Welfare Board’s regulations. The complainant’s next friend referred to guidelines issued by the same body and gave the Tribunal his interpretation of whether the respondent’s policies were in line with those of the National Educational Welfare Board. Such an issue is not a matter for this Tribunal to determine. Nor is it for this Tribunal to assess school rules or policies in isolation from specific incidents where a comparator can be presented. It is clear that if a school has explicit rules concerning discipline and parents and pupils are aware of these rules, the school has a legitimate expectation that pupils and their parents adhere to them. While the complainant’s next friend believed that the treatment his son received was unlawful, it is clear that the next friend had more legitimate means at his disposal to support his son’s ‘spirited stance’.
5.9. It is important to note that this Tribunal cannot condone parents who wilfully encourage their children to flaunt school rules and to ignore instructions given by their teachers. This is not an approach supported by the Acts. It is clear that school rules are in place to enable education institutions operate safely, effectively and to create a sense of order. It could be argued that these rules also help to prepare young people for the workplace. If a parent or student wishes to address school rules and/or policies, they have legitimate means of addressing such issues. It should also be clear that the only body who has the jurisdiction to determine whether a practice, policy or rule constitutes unlawful discrimination under these Acts is the Equality Tribunal.
5.10. It is important to point out from the onset that the complainant himself elected not to come to the hearing. Therefore, his next friend was able to provide a hearsay account of situations where he nor his wife were not present. The same situation applied to the school where written records were submitted to support some of the arguments. I note that the complainant argued that there was a discrepancy in relation to one written record – it was suggested that dates had been altered – but I find nothing there to support harassment within the meaning of the acts or victimisation.
5.11. I have been presented with no evidence to support an argument of harassment within the meaning of the Acts on the gender ground. As the complainant himself failed to give evidence on the matter, it is not clear how requests to remove his earring or the school’s expectation that he comply with school rules and disciplinary proceedings can be construed as creating an intimidating, hostile or degrading environment on the gender ground. I note that a girl wearing a single earring or, for example, large earrings would have been treated in the same manner. I accept the evidence of a named vice-principal who stated that she regularly has young women remove their make-up in her office. I note that the next friend argued that his son regularly observed others who violated school rules and got away with it. His wife also stated that she has regularly observed girls with heavily applied make up entering the school yard. I accept that this is the case. I find that in an educational establishment of this size – with an ambition to educate rather than to discipline – some students will rebelliously try to undermine these rules and some violations of the dress code will go unnoticed. I am not satisfied that such an omission can be construed as harassment on the gender ground. I have not been presented with any evidence to suggest that only female students attending the respondent school are able to undermine the dress code.
5.12. In relation to victimisation. I am satisfied that the complainant is covered under the victimisation ground in that he had, through his next friend, initiated proceedings in this Tribunal. Having heard the case in its entirety, I find that I have not been presented with any evidence to indicate that the complainant was subjected to any less favourable treatment than any other student would have been in similar circumstances regardless of gender or because the complainant had taken a complaint under these Acts. I have not been presented with any evidence that would support any contention that the complainant was the only person in the school who had to comply with the school disciplinary codes nor have I been presented with any evidence to support an argument that other students would not have been held accountable when discipline was broken.
5.13. I do not accept that the next friend’s interpretation of the Central Application Office form is correct. I do not accept that by describing the complainant’s disability as having a very minimal impact the named teacher was undermining the complainant. While I note that the complainant has – due to his health – missed up to 70% of his final school year, it is clear that despite of this absenteeism, the complainant was successful in completing his school year and his examinations. This, in my opinion, indicates that despite the extensive absenteeism the complainant is very capable of academic learning without any special treatment. The Central Application Office form is simply enquiring about the need for special treatment or facility an applicant would require in order for the applicant to be able to participate in academic learning. I have no jurisdiction to investigate this issue from a disability ground perspective as the complaint was brought forward on the gender ground only. I am satisfied that the form is not evidence of a prima facie case of victimisation.
5.14. I am satisfied that the issue concerning a named teacher, where it was discovered that the teacher refused to meet with the complainant’s parents, is an independent issue not associated with this complaint. The complainant’s next friend himself testified that a dispute had taken place between him and this teacher a number of years previously. I note that the complainant’s next friend submitted that the delay in moving the complainant to another class (a period of some 3 three months, including Christmas) constituted less favourable treatment. I have not been shown any evidence to support an argument that another student would have been moved immediately based on the say-so of a parent. I accept that an educational establishment of this size must investigate any complainants made by parents to justify the movement of pupils between classes and to ensure the effective running of the educational establishment. I am satisfied that as soon as the respondent became aware of the fact that a teacher was refusing to interact with the complainant’s parents, action was taken.
5.15. I note that the complainant’s next friend was unable to show evidence to explain how the named teachers would have been aware of the next friend’s intention to seek redress under the Acts. I note that the complainant’s next friend had instructed the complainant to carry a note with a reference to a pending investigation in this Tribunal and instructing teachers to contact him directly as to prevent any further issues occurring concerning victimisation. It is clear that such conduct is entirely inappropriate and I will not accept such anticipatory behaviour as admissible evidence to support the establishment of a prima facie case of victimisation. Having heard the evidence from the respondent it is clear that the school provided the complainant and his next friend with more favourable treatment in that the principal took over the role of a liaison person between the complainant and his parents. I am satisfied that the incidents complained of where independent incidents arising from the respondent’s disciplinary code.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant’s next friend has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 7(1) on the ground of gender. The complainant’s next friend has failed to establish a prima facie case of harassment on the gender ground. The complainant’s next friend has failed to establish a prima facie case of victimisation. Therefore, this complaint fails.
_________________
Tara Coogan
DEC-S2011-036- Full Case Report
DEC-S2011-036
Parker v Federal Security Limited (in receivership)
File Ref: ES/2009/094
Date of Issue: 30 August 2011
Delegation under the Equal Status Acts, 2000 to 2011
This complaint was referred to the Director of the Equality Tribunal on 27 August 2009 under the Equal Status Acts, 2000-2011. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2011, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2011. On 29th March 2011 my investigation commenced, when the case was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing of the matter was held on 12 July 2011 and the complainant was in attendance. Following the hearing, the complainant, who was unrepresented, made further written submissions and this process was concluded on 14 July 2011.
1. Dispute
This dispute concerns a claim by the complainant, Mr Parker (hereafter “the complainant”) that he was harassed contrary to Section 11 of the Equal Status Acts, 2000-2008 (hereafter “the Acts”), by employees of Federal Security Solutions Ltd (hereafter “the respondent”) on the grounds of gender and race in terms of Section 3(2)(a) and 3(2)(h) of the Acts.
Summary of the Complainant’s Case
2.1 The complainant is an Asian American post graduate student studying at the University of Limerick. The complainant submitted that he was subjected to incidents of racial abuse on several occasions by three different employees of the respondent. These incidents took place during the summer of 2009 when he was working on the data acquisition stage of his research at the University. This part of his research required him to work on campus, during the anti-social hours of 11pm to 3am, in order to monitor incoming data through a website. At this time, the swipe card system which should have allowed him to access to his office in the campus building, was not working and so he had to ask the night security staff to give him access to the building.
2.2 On 6 July 2009 around midnight, the complainant went to reception to ask for access to the building. Mr A, the Security Officer on duty asked him whether he was Chinese. The complainant refused to answer and asked Mr A if he was Chinese. Mr A replied that he was Irish. On the walk to his office, Mr A said that the complainant must be from the Orient – perhaps China, Korea or Japan. The complainant told him that a person became “oriental” by having facial deformities. Mr A dismissed this and said that the Orient Express meant no physical deformities. The complainant realised that he had had a similar conversation with Mr A in 2008 and this realisation increased his suspicion that the respondent employees engaged in racist abuses only against people who were not racially Europeans. The complainant believed that the respondent employees could not perceive individuals as individuals, but mere facial deformities or racist cartoon caricatures to be toyed with.
2.3 The complainant submitted that on 18 July 2009, after midnight, he was walking to his office with Mr B, a security officer employed by the respondent, when Mr B launched into a racist diatribe. Specifically he asked the complainant was nationality he was and the complainant asked him to guess. Mr B guessed Korean, and said that a few years ago Korean students worked late in this building. The complainant quizzed him about how he knew that “this abnormal quality of being Korean compelled someone to work late” and Mr B responded that no Irish person would work late. Mr B said that Irish students did not work late and only Chinese students work late at night and that is why they are doing well. The complainant quizzed him about whether Scottish or German students would work late and Mr B said no.
2.4 The complainant submitted that on 13 June 2009, when he was accessing the building after midnight, he was asked where he was from by Mr C, a security officer with the respondent. The complainant refused to answer and Mr C went on to talk about famous Irish writers, concluding that “there were no werewolves in (the complainant’s) country.” The complainant submitted that Mr C did not know what country he was from, but that he was “absolutely convinced that the complainant was not Irish because of his race and gender”.
2.5 The complainant also submitted that another incident arose much earlier than the three previously outlined incidents. On 3 January 2008, he was asked by the security guard, Mr A, what country he was from and when he told Mr A that he was from the United States, Mr A continued to ask what part of the US, adding that he (Mr A) visited South Carolina and Virginia regularly.
2.6 Following the incidents mentioned above, the complainant visited the security staff during the day to get the name of Mr B, so that he could make a complaint. He eventually did get the name although he submitted that there was a heated exchange between himself and Mr A, the officer on duty at the time. He submitted that Mr A tried to explain that the complainant was taking things up wrong and that his colleagues were just curious. The complainant also submitted that Mr A said that the security officers asked everyone similar questions. The complainant asked why they were so curious, but Mr A could not explain.
2.7 The complainant submits that he has taken this complaint in order to expose the racist employees of the respondent, to eradicate the insidious incidents of racist abuses and to ensure that non racially-European students can access the campus without abuses, lectures, interrogations or harassment.
2.8 The complainant submitted two emails from other students regarding their interaction with the respondent employees. The complainant also submitted that he tried to raise the issue with the respondent management, but they did not answer his emails and were not interested in resolving the problem.
2.9 The complainant further submitted that he is not a Chinese person, he has never been to China, he does not have Chinese ancestry, nor any other connection with that country. He submitted that they committed these racist abuses against him because they were convinced that his racial “abnormality” compelled him to perform the extraordinary act of working hard at night and at weekend, and that he “suffered from this Chinese pathology”. He submitted that “there is hysteria among the respondent’s employees that only Chinese students work hard”… and their “racist stereotypes and hatred” were confirmed by the complainant asking them for access to the building at night.
Summary of the Respondent’s Case
3.1 The respondent made a written submission which is summarised below. However the respondent has gone into receivership and the receiver, Mr Carson of Deloitte, contacted the Tribunal to advise that he would not be attending the oral hearing, as any award in favour of a third party would rank as an unsecured creditor and he did not anticipate any funds being available to distribute to such a creditor.
3.2 The respondent submitted that their night security staff were responsible for allowing access to campus buildings in situations where the swipe card access system was not working. It was submitted that this happened fairly frequently. As the security staff did not have access to a list of authorised persons, they were tasked with trying to establish the bona fides of the person requesting access. They would request to see a student id card, ask why access was needed and then they would walk with the student from the main reception to the specific building. The respondent submits that it would have been common for the security staff to chat to students during this walk.
3.3 Regarding the specific incidents with the security guards, the respondent outlined the conversations as described by their security staff. The respondent concluded that officers in question were simply making conversation. They further submitted that the complainant’s own evidence from two other students corresponds with the respondent’s view.
3.4 The respondent also described the training received by their security staff which includes a FETAC Leval 4 PSA training course/exam, a HR induction, on the job training, a company handbook and their Fairness and Respect at work policy. They also submitted that some of their security staff, including Mr A, have undergone specialist training such as Conflict Resolution and Suicide Prevention training, under the direction of the UL Counselling Department.
3.5 The respondent outlined their attempts to contact the complainant to investigate his complaint of racism. These attempts failed and they concluded that the complainant wished to pursue the matter through the Equality Tribunal.
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 2011 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 The complainant and the respondent both described the series of incidents between the two parties. The complainant was present at the oral hearing and he described the incidents in person. As the respondent was not present and the security guards could therefore not be interviewed, I can only give the appropriate weight to their written submission. However notwithstanding that, I note that there is actually very little conflict of evidence between the parties on the details of the conversations. The discrepancies arise from the interpretation put on the words used. Both parties agree that the complainant was asked a number of times, by various security officers, where he was from. The respondent claims that it was normal to talk to the students requesting night-time access to establish their bona fides, and that in the complainant’s case, the officers in question were primarily just making conversation on the walk to the building. The complainant on the other hand claims that he was repeatedly accused of being Chinese and that European students would not have been treated like this.
4.3 I note that the definition of harassment under the Acts was changed in 2004 and it is now defined at Section 11:
(5) (a) In this section –
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and…..
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
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 change to the Acts in 2004 had the effect of making the definition more subjective. It means that the complainant does not have to prove that the respondent intended to harass him/her, simply that that was the effect. This made it easier for complainants to overcome what can be a difficult hurdle. Nevertheless, there must still be an element of reasonableness in the analysis; otherwise the effect would be that it would be impossible for a respondent to defend themselves and I believe that this could not have been intended by the legislators. In the present case, it is clear to me that the complainant believes that the he has been subjected to unwanted conduct related to at least one of the grounds. However it is not clear to me at all how the conversations between the complainant and the respondent employees created an environment which could reasonably be described as hostile, degrading, humiliating or offensive. I find that even if I take the complainant’s case at its height, there is nothing to suggest that the respondent employees were engaged in anything more than social small talk on the walk between the buildings. I note that it is extremely common for Irish people to ask strangers where they come from and that this extends to strangers of any nationality, including Irish people. In my own experience I find that it is usual to be asked what part of Ireland I am from or indeed what area of the city I am from.
4.4 However depending on the manner and form of words used, I do accept the complainant’s basic contention that in some circumstances, being asked such questions could be potentially be construed as harassment on the race ground. Therefore I asked the complainant to describe at the oral hearing how he found the conversations to be offensive to him. The complainant mentioned being “accused of being Chinese” on a number of occasions and when I asked him why he used this expression, he was adamant that being called Chinese was an accusation and not a neutral description. He said that it was associated with being deviant, sneaky and underhand. He said that the security guards were not complimenting the Chinese students for working hard and doing well at college; they were instead accusing them of deviant behaviour (staying late) and getting ahead as a result of not following the normal rules of engagement. He said that Chinese were associated with being surreptitious, untrustworthy, precisely due to the racial deformities of the eyes and skin colour. He likened it to the perception of the Jews under the Nazi regime. He also stated that in the US, the term “Oriental” has an extremely negative connotation and may be equated to the term “nigger”. This may or may not be the case in the US, however I do not accept that the term has the any such connotation in Ireland.
4.5 I am conscious that the EU Directives on race and gender which underpin the Acts provide very strong protection for a complainant. I am also conscious of the difficulty which complainants may face in terms of making out a case of racial harassment, given that there is unlikely to be “a smoking gun”. However in this case, the basis facts are generally agreed between the parties and as noted earlier, the difference lies in the interpretation given by each party. Conscious of the subjective element of a harassment claim, I listened carefully to the complainant’s own interpretation of events. From this, I could only conclude that the complainant himself had a very negative association with the term Chinese and I do not accept it is a view shared by the majority (or even minority). I find it completely unreasonable to ask the Equality Tribunal to uphold what is essentially a personally held and extremely racist and negative view of Chinese people. The complainant insisted that this is the prevailing stereotype even though I might not personally be aware of it. I do not accept this. I note that the complainant agreed that his upset was not caused by the issue of mistaken identity (he said that he would not have minded being mistaken for Canadian for example); the reason for his upset was specifically the association with China.
4.6 In summary, I find that the security officers engaged in fairly typical small talk with the complainant. I support of this view, I note that the emails from fellow students, (which were submitted by the complainant himself), state the security guards were simply being friendly. I also note the respondent’s submission that the security guards generally did engage with night time visitors, as a matter of good practice. I find that the reason the subject matter of the conversations was considered racist by the complainant was a result of his own interpretation of what it means to be Chinese.
4.7 I therefore find that he has not established a prima facie case of discrimination on the race ground. No specific evidence was submitted regarding the gender ground. However for the purpose of completeness I considered whether the combination/totality of the circumstances (race and gender) might have contributed to the treatment. I did not find any fact or circumstance which supported that view.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Respondent.
DEC-S2011-015- Full Case Report
Equal Status Acts 2000-2008
Decision
DEC-S2011-015
A Parent (on behalf of her son) v. A Supermarket
File Reference: ES/2009/048
Date of Issue: 29th March 2011
Decision
Equal Status Act, 2000 – 2008, Direct discrimination, Section 3(1) – less favourable treatment – Disability, 3(2)(g) – refusal to provide a service, Section 5(1), Section 4 – refusal to provide reasonable accommodation Section 38A – prima facie case, Section 11 – harassment, Defence – section 11(3).
Delegation under Equal Status Acts, 2000-2008
The complainant on behalf of her son referred complaints to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 22nd April 2009. On the 22nd of November 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On this date my investigation commenced. A submission was received from the complainant on the 8th October 2009 and from the respondent on 25th November 2009. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 10th of February 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant on behalf of her son that he was discriminated against on the disability ground when the respondent refused to allow his guide dog to stay in the shop. The complainant alleges that the respondent discriminated against her son in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant’s Case
2.1 The complainant submitted that she and her son together with his guide dog entered the respondent’s shop on the 28th January 2009. Her son is 7 years old and suffers from autism and he uses guide dog assistance for over 3 years. They walked around the shop and picked up some groceries and proceeded to the checkout. While they were in the queue they were approached by a member of security and they were asked to leave because dogs are not allowed in the shop. The complainant explained that the dog was a guide dog and pointed out the dog’s high visibility jacket with the identification of the Irish Guide Dogs Association on it. The security refused to accept this and asked them to leave. The complainant then called the manager who again refused to accept that the dog was a guide dog even after she showed him the dog’s ID from the Irish Guide Dogs Association. She said that the manager told them that neither of them was blind and he did not accept that the dog was assisting anyone and threw the ID back at her. He suggested that the dog was a pet and asked her and her son to leave the shop. She said that he was supported all the time by the security officer who was very aggressive towards them and was shouting at her to get out and called her a liar.
The complainant said that she left the shop after paying for the groceries and both she and her son were very distressed. She submits that the treatment they were subjected to constitutes discrimination and harassment of her son because of his disability.
2.2 The complainant contacted one of the Directors of the company and made a complaint. Following a meeting with him the complainant received a letter of apology. She was not satisfied that the respondent understood that discrimination had occurred or that procedures were in place to prevent it happening in the future. She said that she was in the shop without her son but with the guide dog on two other occasions, once she was approached by the manager and she told him she did not want to talk to him. The other occasion was about 6 months later and she was told by the same security guard that dogs were not allowed in the shop, but after she showed him the dog’s jacket he left her alone.
3 Respondent’s Case
3.1 The respondent denies that the complainant was discriminated against. The respondent accepted that the complainant and her son were asked to take the guide dog outside because the security person did not recognise him as a guide dog. The manager said that he recognised the dog as a guide dog but he did not see the guide dog assisting anybody. He said that he tried to explain to the complainant that the security guard may have thought that, because neither she nor her child are blind that they were not entitled to have the guide dog in the store. The manager denied that he said to the complainant that the dog was not assisting anybody and that neither she nor her son is blind.
3.2 The company director submitted that the security guard made an error of judgment and his actions were against company policy. The security guard had full training but the training did not include training about guide dogs. The security guard was disciplined about the incident. After the incident the company reviewed their training and ensured that all the employees were fully trained about all disability issues. They also sought advice from the Irish Guide Dogs Association. After the respondent received the complaint, the operations manager wrote to the complainant and apologised for the incident and offered an explanation. Further correspondence was entered into and the respondent sent the complainant and her son 2 vouchers in the amount of €300.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to the Equal Status Act and if the respondent failed to provide the complainant’s son with reasonable accommodation in accordance with Section 4 of the Acts.
I have also to consider whether the conduct of the respondent constituted harassment contrary to Section 11 of the Acts. 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 disability ground)…. A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds … are … that one is a person with a disability and the other either is not or is a person with a different disability,” and Section
5. — (1) provides: ” A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.
and Section 4 provides : — (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.”
The burden of proof is set out in Section 38A which provides:
38A. — (1)” Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”
4.2 The complainant submits that they were discriminated against on the grounds of disability when she and he were not allowed to shop accompanied by the guide dog. The respondent accepts that the complainant was asked to leave the shop because of the guide dog.
4.3 I am satisfied that the complainant’s son has a disability and is covered by the Equal Status Acts. I am also satisfied that the complainant was refused a service in the respondent’s shop when she and her son were requested to leave the shop because they were accompanied by a guide dog which was assisting a person with a disability. I note that the respondent accepts that the complainant was requested to leave the shop because of the guide dog. Therefore the matter I have to consider is whether that request constitutes failure to provide reasonable accommodation contrary to Section 4 of the Acts. Section 4 requires a respondent to provide “special treatment or facilities” for a person with a disability to enable them to avail of a service. In this case the complainant’s son was shopping with her in the respondent’s shop and she had in her possession all the identification necessary to establish that the dog which accompanied them was a guide dog assisting a child suffering from autism. The complainant said that the guide dog, which is provided by the Irish Guide Dogs Association, for children with autism, is a new service which is in operation for the last 7 or 8 years. The purpose of the guide dog is to direct children with autism and keep them safe. The dog is registered to her and she has full control of the dog at all times. She submitted that the guide dog is her son’s lifeline he guides him to and from school to the shops and when they are out and about.
4.4 From the evidence, I am satisfied that it would have been unduly difficult for the complainant’s son to go to the shops with his mother without the assistance of his guide dog. I am satisfied therefore that the respondent in asking that the guide dog be removed from the shop failed to provide reasonable accommodation to the complainant’s son. For the foregoing reasons I find that the respondent did unlawfully discriminate against the complainant by refusing to provide reasonable accommodation to a person with a disability in accordance with Section 4 of the Equal Status Acts when she was asked to remove the guide dog from the shop.
4.5 The next matter I have to consider is whether the complainant was harassed contrary to the Acts. Section 11 of the Acts provides inter alia:
11. — (1) “A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (”the victim”) where the victim —
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
…………….
(2) A person (”the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
………
(5) (a) In this section —
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
….
(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.”
4.6 The complainant submitted that the security officer acted in an aggressive manner towards them when he asked them to leave the store because of the guide dog. She said that he shouted at them to get out and called her a liar and said that they could not have the dog in the store because neither of them were blind. She also said that when the manager came on the scene he disregarded the ID for the dog and threw it back at her. She informed him that the dog was a guide dog. She said that he also shouted at them that neither of them was blind and that the dog was a pet and was not allowed in the store. The complainant stated that her son because of his condition is very sensitive to loud noises and lights and he became very upset at the shouting and when they left the shop a customer had to come to her assistance. She denied that she ever raised her voice. The manager stated that he went to the checkout after he heard commotion. He said that there was shouting by all parties and when he tried to explain to the complainant why the security guard had assumed the dog was not a guide dog the shouting continued. I am satisfied from the evidence that the security man did shout abuse and call names during the course of the incident and he thereby created an intimidating and hostile environment for the complainant and her son while they were shopping in the respondent’s store. I am satisfied therefore that the complainant was harassed contrary to the Acts.
The next matter I have to consider is whether the defence under section 11(3) applies. Section 11(3) provides:
(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.
4.7 I note that when the manager came on the scene he did not make any attempt to stop the abusive behaviour of the security guard and in fact the shouting and abusive treatment continued until the complainant and her son left the shop. I am satisfied that the manager took no steps to prevent the harassment of the complainant and I find therefore that the defence cited above does not apply.
5. Decision
5.1 I find that the complainant was discriminated against on the disability ground contrary to the Equal Status Acts. Under section 27(1) of that Act 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.”
5.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant’s son. I note his sensitivity to noise and that he was upset and crying after he left the shop. Likewise I note that the respondent did apologise for the incident and offered vouchers to the complainant and her son. Taking these matters into consideration, I order the respondent to pay to the complainant on behalf of her son the sum of €1,500 (one thousand five hundred euro) to compensate him for the discriminatory treatment in relation to his guide dog and the distress and upset experienced by him as a result of the harassment.
___________________
Marian Duffy
Equality Officer
29th March 2011
DEC-S2006-067 – Full Case Report
Belton v Dun Laoghaire Rathdown County Council
Headnotes
Equal Status Acts 2000-2004, – Direct discrimination, Section 3(1)(a) – Harassment, Section 11(1)(a) – Victimisation, Section 3(2)(j) – Disability Ground, Section 3(2)(g) – Disposal of goods and supply of services, Section 5(1) – Prima Facie case.
1. Dispute
1.1 This dispute concerns a claim by Geoffrey N. Belton that on 4 February 2005 he was treated in a discriminatory manner by the respondent, contrary to Section 5, in terms of Section 3(1) (a) and 3(2) (g) and Section 4 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 In January 2005 the respondent introduced a new refuse collection regime whereby persons could present their household rubbish in wheelie bins (category A). The complainant retained the use of plastic bags for presenting his household waste as, due to his disability, he could not use a wheelie bin. On 4 February 2005 the complainant received a bill from the respondent requesting payment in advance of charges relating to refuse collection. The bill was structured in a manner such that a larger charge was payable by persons availing of the bagged refuse method (category B) than was payable by persons availing of the wheelie bin service. The latter had a much smaller standing charge which could be subject to a waiver in certain specific circumstances and the remainder of their bill would consist of weight and bin lift charges. This left persons using the bagged method for presenting household waste at a financial disadvantage, as the annual charge was fixed and the complainant states that this is discriminatory on the disability ground.
2.2 The complainant further states that he was harassed on the grounds of his disability when the respondent issued literature to him regarding the new collection methods, subsequent to his having written to the respondent querying a number of aspects of the refuse collection service and billing methods. The complainant states that the non-response by the respondent to his many queries, written and by telephone, constitutes victimisation by the respondent on the disability ground as the complainant was opposing by lawful means, through his queries, an act of discrimination under the Equal Status Acts 2000-2004. As a result of the non-response to his queries the complainant informed the Council that he would no longer be availing of the refuse collection service.
3 Respondent’s Case
3.1 The respondent introduced the wheelie bin method of refuse presentation for collection by the County Council in January 2005, following the Government policy statement of March 2002 instructing County Councils to introduce waste charges based on usage. The wheelie bins are fitted with microchips which are activated when lifted and which produce data on the number of lifts and the weight of each bin in question.
3.2 Section 52 of the Protection of the Environment Act 2003 permits local authorities to make charges in respect of the provision of any waste service by or on behalf of that authority and to vary those charges in relation to “persons, premises or services of different classes or descriptions or, ………………………………….. in respect of different quantities, volumes or types of waste”. The local authorities are also permitted under the Act to waive, on the grounds of hardship, all or a portion of a charge made by it.
3.3 The respondent had circulated information to all households prior to the introduction of the wheelie bin service about the latter. It was a scheme that householders had to opt into. The complainant had corresponded with Councillor Mary Elliot in 2000 regarding the difficulties which the introduction of the wheelie bin service would present for him and had been informed that he would be permitted to continue to present bagged waste for collection.
3.4 The County Council had estimated, based on previous years data, the average amount of refuse disposed of per household per annum and had issued bills based on this average to all households in January 2005. All households were invited to pay the total estimated annual cost in advance, or in two equal instalments over the year. The estimated annual cost was based on each household leaving an estimated amount of refuse out for collection each fortnight. All bills (both categories) included a standing charge of €80 which qualifies for a waiver in specific circumstances (higher waiver also available in specific circumstances for large families).
Households in category A would pay the remainder of the charges based on the number of lifts per bin and the weight of each bin lifted. Households in category B were invited to pay the balance of the estimated annual cost in advance or in two equal instalments over the year, but would be expected to pay this cost, irrespective of the weight of the bagged refuse or frequency of presentation of collection i.e weekly, fortnightly .
3.5 In March 2005 the Council began a review of the method of charging for households presenting bagged waste. In July 2005, following the review, the Council ordered and issued labels, at a fixed charge per label for standard size “refusacs”, to all households presenting bagged waste. The Council then waived all charges for those households up to July 2005 and refunded any payments made for that period in respect of such households. Refuse collection for the months January to July for such households was therefore free.
4 Conclusions of the Equality Officer
4.1 The complainant bases his complaint of discrimination on the disability ground on the fact that the payment requirements for households in category B were different to those for households in category A. The complainant was unable to produce any information in relation to the numbers of disabled persons in either category. The Council stated that approximately 25 householders out of 900 in category B had disabilities. Statistics were not available for the number of householders with disability in category A.
4.2 The complainant states that persons presenting bagged waste were at a financial disadvantage vis a vis those presenting wheelie bins but was unable to produce any data on the average cost per household per annum for either method of waste presentation for comparison. While it is clear that persons presenting wheelie bins could potentially reduce costs by presenting less waste or by presenting it less frequently, it is also clear that households presenting wheelie bins with large quantities of waste on a regular basis could also potentially face higher bills for refuse collection than persons presenting bagged waste at a fixed charge. In short the complainant has not established that he, or any other person availing of the bagged waste collection service, was actually disadvantaged by the billing structure introduced by the respondent.
4.3 I am satisfied that all persons presenting bagged waste for collection by the respondent County Council were initially disadvantaged to the extent that they were unable to avail of the opportunity to reduce the annual cost of waste collection because they were to be charged a fixed amount per annum, a portion of which could be waived, for stated specific reasons, by the County Council. However, I am satisfied that the imposition of those charges by the County Council was not based either directly or indirectly on the basis of disability and is in accordance with Section 52 of the Protection of the Environment Act 2003.
4.4 I am satisfied that the complainant has failed to establish a prima facie case of discrimination on the disability ground under Section 38(A) of the Equal Status Acts 2000-2004 in relation to the structure of the charges imposed by the respondent for bagged household waste collection. The respondent had arranged, in advance of the introduction of the wheelie bin service, that the complainant could present waste for collection in bagged form and thus could avail of the service provided. I am satisfied that in doing so the respondent was providing reasonable accommodation to the complainant in accordance with Section 4 of the Equal Status Acts 2000-2004.
4.5 I am satisfied that the complainant has failed to establish a prima facie case of harassment on the disability ground under Section 38 (A) of the Equal Status Acts 2000-2004 in relation to the issue to him by the Council of information literature about refuse collection methods. The literature was issued en masse to all households as part of the drive to inform households about the new methods of refuse collection and related charges. These were issued automatically to all registered households and were not directed at the complainant in particular, or in any way related to his disability.
4.6 I am satisfied that the complainant has failed to establish a prima facie case of victimisation under Section 38 (A) of the Equal Status Acts 2000-2004. The complainant had made a number of inquiries with the respondent by telephone and in writing. Some of these queries were dealt with by telephone and some were in train, but because of the overwhelming demand on the Council’s services, related to the introduction of the new wheelie bin service, had not been responded to promptly. This was unrelated to the complainant’s disability and was not in any way connected to his complaint against the Council. It was, rather, an existing difficulty for all persons seeking to pose queries with the County Council which did not have the resources to respond to all queries promptly. When they did respond to the complainant they did so courteously and apologetically for the delays encountered.
4.7 Ultimately, the respondent addressed the overall issue of the structure of charges for households using bagged waste for collection and introduced a more equitable structure for all concerned. The Council also abolished charges for households in this category from January 2005 to July 2005. Persons availing of bagged refuse collection therefore enjoyed the benefit of charges in 2005 that were in fact more favourable than those imposed on households that were availing of wheelie bins.
5 Decision
5.1 I find that the complainant has failed to establish a prima facie case of (i) discrimination (ii) harassment or (iii) victimisation on the disability ground.
______________________________
Dolores Kavanagh
Equality Officer
DEC-S2010-025-Full Case Report
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-025
Wang v Jo Jo Paris Angel
File Ref: ES/2008/199
Date of Issue: 14 May 2010
Keywords: Equal Status Acts 2000-2008 – Section 3(2)(h), race ground -prima facie case – discrimination – victimisation
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 14 October 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 22 January 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 19th April, 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Ms Wang that she was discriminated against, and victimised by the respondent on the grounds of race in terms of Sections 3(2)(h) and 3(2)(j) of the Equal Status Acts, 2000-2008 in being treated less favourably at the respondent’s shop.
2. Summary of the Complainant’s Case
2.1 The complainant is a Chinese national. On the 12 September 2008 she was shopping with her friend in the respondent’s store and she tried on a dress which she liked. It was too big, but she decided to buy it anyway because she liked it. After purchasing it, they left the shop and a short time later they saw the same dress in her size in another shop. They went back to the respondent’s shop and Ms Wang asked if it was possible to return the dress. She said that she knew it was a final sale item, but as she works in retail herself, she knows that it is sometimes possible to make exceptions. The person who dealt with her request was a named store manager. The store manager was very aggressive to her and said that “you Chinese people always make trouble”. He told her that eight out of ten people are coming back to try to return the products. Ms Wang was very embarrassed as there were other people in the shop at the time. She told him that what he was saying was not fair and it was racist. He replied that it was the truth. Ms Wang said that he ultimately gave her a credit note but it was difficult to get it, and he did so in a rude manner.
2.2 Ms Wang asked for his name and said that she would be making a complaint. She subsequently made the complaint and received in return a voucher for €20 and an apology from the store management as a gesture of goodwill. Ms Wang says she was very upset by the incident and she never spent either the voucher or the credit note, because she did not want to return to the shop.
2.3 The complainant withdrew her claim of victimisation during the oral hearing, when the specific meaning of “victimisation” under the Acts was explained to her.
2.4 The complaint’s friend who was with her during the incident, gave evidence at the Tribunal which corroborated her account of the incident. They both disputed the store manager’s evidence that he had only arrived at the end of the whole incident to be briefed by one of the employees. They said that he was present throughout the incident.
3. Summary of the Respondent’s Case
3.1 The store manager who was named in Ms Wang’s complaint gave evidence at the oral hearing. He said that he had only arrived at the end of the incident, but he was told by his employees that the complainant had come into the shop, tried on lots of clothes, spent a couple of hours there and eventually looked for a discount on her purchase. They did not give a discount because it was a sale item and they also explained to her that it could not be returned. Then only a few minutes after she bought it, she came back looking for a refund. They explained that they did not offer refunds on sale items. The store manager came over and heard the whole story and he explained the policy to the complainant. The complainant kept looking for a refund and he admits that he did get upset because she was so persistent and because he is tired of so many people asking for refunds. He offered her a credit note which she accepted. He denies that he ever mentioned her nationality and he says that it was the complainant who brought up the issue of nationality by asking if he was treating her this way because she was Chinese.
3.2 The respondent also presented as a witness one of their employees who was working in the shop at the time of the incident. The employee said that the complainant had spent a long time there, tried on a lot of clothes, made a mess and asked for a discount. When she came back to ask for a refund she asked her boss to explain the policy. She said that the complainant yelled at her boss and that it was the complainant who brought up the issue of nationality, not her boss.
3.3 The representative for the respondent wished to point out that if the manager had given offence to the complainant, the respondent immediately apologised for it and offered a voucher as a gesture of goodwill. This happened prior to the Tribunal complaint and with the objective of maintaining a good relationship with their customer. The respondent’s representative further pointed out that the manager involved in the dispute is from Pakistan and thus as a non-national himself, he would be aware of race issues.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 The heart of this complaint is the alleged racist comment which was made to the complainant. As the parties completely disagree on whether the remark was made, it becomes an issue of credibility. During the oral hearing, both the complainant’s and the respondent’s account of the incident appeared to be exaggerated. In particular the respondent witness and manager’s story of the complainant spending hours trying on clothes, making a mess and haggling with them, was simply not very credible. The friend of the complainant however gave a straightforward and factual account of what happened and I found her credible. I therefore find as a fact that the manager said to them that Chinese people caused trouble. I do believe however that he was referring to the issue of returning clothes, rather than insulting them generally.
5. Decision
5.1 On the basis of the foregoing, I find in favour of the Complainant and order that the Respondent pay her €400 for the upset caused. I find that the incident was somewhat mitigated by the respondent company’s immediate offer of an apology and a voucher as a goodwill gesture.
Elaine Cassidy,
Equality Officer
14 May 2010=0p’