Cases
Gina Davis v Dunnes Stores DEC-S2005/022
“1. Dispute
1.1 This dispute concerns a claim by Gina Davis that on 27 September 2002, she was treated in a discriminatory manner by a member of the respondent’s staff, contrary to Sections 5 and 3(2) (e) and (h) of the Equal Status Acts 2000-2004 . 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 Acts 1998-2004 and under the Equal Status Acts 2000-2004, 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 Complainants’ Case
2.1 The complainant is an Irish national and a practicing Muslim. On the date in question she states that she was treated in a discriminatory manner by a shop assistant because she, the complainant, was wearing a distinctive head-scarf and Islamic dress (described by the complainant as a long black coat).
3. Summary of Respondent’s Case
3.1 The respondent denies that discrimination occurred and states that the shop assistant treated the complainant in a manner consistent with the way in which all other customers are treated and with store policy in relation to use of the store’s fitting room facilities i.e that only four items are allowed per customer and customers are not allowed to bring certain items into the fitting rooms with them e.g. panties.
4 Background
4.1 Complainant
The complainant states that she accompanied her mother, who was not wearing Islamic attire or a head-scarf, to the respondent store on the date in question to do some shopping. They selected some items of clothing and approached the fitting rooms. The complainant’s mother was slightly ahead of her as they neared the entrance to the fitting rooms. The fitting room assistant was talking on the phone as they approached. The complainant’s mother held some items out in clear view of the attendant and proceeded into the fitting rooms.
The complainant was pregnant at the time and was pushing a buggy in front of her. She made to follow her mother into the fitting rooms and states that the attendant addressed her in a rude fashion and told her to stand back and place any items which she was not going to try on on a nearby chair. The complainant did as the attendant requested and then held out the items which she intended trying on for the attendant to see. A queue of people seeking to use the fitting rooms had begun to form behind the complainant. The complainant states that the attendant then started to rummage through the items which she was holding out and asked the complainant whether she had any panties in through the items. The complainant protested at this and the attendant then stated that she was going to fetch security.
The complainant was extremely upset by the manner in which she was treated in such a public place and was shocked to hear that the attendant was going to fetch security when she had done nothing wrong. Her mother had not been treated in this manner and the only difference between them as far as the complainant could see was the manner in which they were dressed. The complainant feels that she was treated less favourably than her mother on the grounds of race and religion. It is the complainant’s contention that the manner in which she was dressed led the attendant to conclude that she was of another race or nationality, as well as a Muslim.
4.2 Respondent
The respondent states that the attendant referred to by the complainant is a senior and very experienced and respected member of staff who has always been polite and helpful in her duties and to customers.
On the date and at the time in question the attendant was occupied on the phone when the complainant approached. The attendant was assisting another customer by checking the availability of a particular item in other stores in the chain.
The attendant saw a “dark figure with a buggy in front”, the complainant, approach. The attendant asked the complainant to hold on a minute as she had to check her through. The attendant could not clearly see how many items the complainant had as they were partially wrapped over the customer’s arm. The complainant asked why she was being checked through in this manner as her mother had not been checked through in the same way. The attendant terminated her phone call in order to deal with the complainant. The complainant then accused the attendant of being racist. The attendant asked the complainant whether her mother had gone through to the fitting rooms and the complainant confirmed that she had. The complainant then called out to her mother and a lady came out of one of the fitting rooms.
The complainant then stated “Mom, she is a racist, she did not check you through but she is checking me through. The attendant asked the complainant’s mother to confirm that she had checked her through in the normal way and she did so. The complainant’s mother asked the complainant to calm down that the attendant “was only doing her job, she did check me through”.
The complainant repeated that the attendant was racist. The attendant was shocked at this and stated that she was going to fetch security as she was not going to deal with this. The attendant saw a colleague passing nearby and asked her to get somebody from security. A member of the security staff and a manager arrived and the manager took the attendant away out of the situation. The security officer spoke with the complainant and her mother and calmed the complainant down.
The complainant subsequently wrote to the store manager about the incident. The drapery manager wrote to the complainant indicating that she would like to speak further with the complainant about what had happened and inviting the complainant to contact her. The complainant declined to do so in a further letter. The store manager then wrote to the complainant refuting the complainant’s allegations and indicating that it was the complainant who was discourteous to the attendant.
At the Hearing of this complaint the respondent submitted a written statement from the security officer who attended at the fitting rooms on the day in question. The complainant confirmed that the statement was an accurate account of what occurred after the security officer arrived at the fitting rooms on the day in question. The statement indicates that the security officer calmed the complainant down and invited the complainant and her mother to have a cup of tea in the store’s restaurant. The statement also indicates that the security officer vouched for the fitting room attendant to the complainant and that the complainant’s mother agreed with the security officer that the attendant was “ a lovely person” and had been very helpful to her “on numerous occasions.”
The statement also indicates that the complainant’s mother asked the complainant, who was pregnant at the time, to calm down and that she, the complainant was “probably a bit touchy in your condition”.
5. Prima Facie Case
Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a ) Applicability of a discriminatory ground (e.g. the race or religion ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the complainant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case – Complainant
6.1 Religion Ground
The complainant is a Muslim and this is not disputed by the respondent. This fulfils (a) at 5.1 above. It is common case that the complainant was asked by the fitting room attendant to wait until she checked her through. This fulfils (b) at 5.1 above. In relation to key element (c) above the complainant has indicated that she was pushing a child’s buggy and had more than the permitted number of items in her possession as she approached the fitting rooms. While it is clear that two of the items, i.e two pairs of baby tights, were not to be tried on by the complainant, the fact remains that she had additional items which her mother did not have. The attendant asked her to place the items on a nearby chair and proceeded to check the remaining items. While the method of checking these items is in dispute, it is clear from all of the evidence provided that the Islamic dress worn by the complainant, while distinctive, was not the only difference between her and her mother. The additional items and/or the fact that the complainant was pushing a buggy towards the fitting rooms are all matters which might have drawn the attendant’s attention in that, while the complainant states that she did not have the items to be tried on by her wrapped over her arm but was holding them in plain sight, it is difficult to accept that this was so when the complainant would have been controlling the buggy and holding the items at the same time.
I am further struck by the fact that the complainant compares what she sees as the difference in treatment received by her and her mother alone to arrive at the conclusion that discrimination occurred. Evidence was presented to the effect that the complainant’s mother is familiar with the fitting room attendant from visits to the store on “numerous occasions”. The complainant gave no indication that she was familiar with the attendant. It is possible that the attendant was simply more familiar with the complainant’s mother and was therefore less methodical in checking her through than she was with the complainant. In short, the method in which the complainant was checked through could be the norm while the manner in which her mother was checked through is the exception, and is not based on any discriminatory motive. The complainant did not out forward any other comparators from which to draw her conclusions.
In light of the evidence presented I am not satisfied, on balance, that the complainant has established that the treatment which she received was less favourable than the treatment which somebody with a different religion or no religion would have been treated in the same or similar circumstances. The complainant has failed to satisfy key element (c) at 5.1 above and has therefore failed to establish a prima facie case of discrimination on the religion ground.
6.2 Race Ground
The complainant is an Irish national, as is the fitting room attendant. The complainant contends that the attendant imputed a different race/nationality to her by dint of the complainant’s attire, something which the complainant states she has previously experienced, and which is not difficult to accept as something that might occur. The respondent disputes the complainant’s assertion in this regard.
The complainant is basing her assertion in this regard on previous experience and has provided no evidence to show that that is what happened on this occasion. Even if I were to accept that the fitting room attendant had imputed another race/nationality to the complainant and that the complainant was covered by the race ground in accordance with 5(a) above, and I am not satisfied that that is the case, the complainant would have to further show that she was treated in a specific manner and that this treatment was less favourable than that which someone not covered by the ground would be receive in the same or similar circumstances. In the instant case the complainant cites her mother as the direct comparator and states that she was treated in a less favourable manner than her mother on the basis that the attendant imputed that she was of another race/nationality by dint of her attire. For the reasons set out at 6.1 above, I am not satisfied, on balance, that this was the case, i.e the complainant’s attire was not the only thing that differentiated her from her mother at the time in question.
I am not satisfied, on balance, that the complainant, by dint of her attire, was identified by the fitting room attendant as being of another race or nationality. I am not satisfied that the treatment of the complainant by the fitting room attendant was such that it was less favourable than the treatment received by the complainant’s mother on the race ground as there were differences other than the attire of the complainant and her mother which could have given rise to the complainant having been stopped by the fitting room attendant. The complainant has failed to fulfil (a) or (c) at 5(1) above and has therefore failed to establish a prima facie case of discrimination on the race ground.”
Nandla (Sewa Singh) v Dowell Lee
[1982] UKHL 7 [1983] IRLR 209, [1983] 2 WLR 620, [1983] ICR 385, [1983] 2 AC 548
Lord Fraser of Tullybelton
“The main question in this appeal is whether Sikhs are a ” racial group ” for the purposes of the Race Relations Act 1976 (” the 1976 Act”). For reasons that will appear, the answer to this question depends on whether they are a group defined by reference to ” ethnic origins “.
…..
The main purpose of the 1976 Act is to prohibit discrimination against people on racial grounds, and more generally, to make provision with respect to relations between people of different racial groups. So much appears from the long title. The scheme of the Act, so far as is relevant to this appeal, is to define in Part I what is meant by racial discrimination and then in later Parts to prohibit such discrimination in various fields including employment, provision of goods, services and other things, and by section 17 in the field of education. There can be no doubt that, if there has been racial discrimination against the appellants in the present case, it was in the field of education, and was contrary to section 17(a) which makes it unlawful for the proprietor of an independent school to discriminate against a person in the terms on which the school offers to admit him as a pupil. The only question is whether any racial discrimination has occurred.
Racial discrimination is defined in section 1(1) which provides as follows:
” A person discriminates against another in any circumstances relevant
” for the purposes of any provision of this Act if—
” (a) On racial grounds he treats that other less favourably than he
” treats or would treat other persons; or
” (b) He applies to that other a requirement or condition which he
” applies or would apply equally to persons not of the same
” racial group as that other but—
” (i) which is such that the proportion of persons of the same
” racial group as that other who can comply with it is
” considerably smaller than the proportion of persons not
” of that racial group who can comply with it; and
” (ii) which he cannot show to be justifiable irrespective of the
” colour, race, nationality or ethnic or national origins of
” the person to whom it applied; and
” (iii) which is to the detriment of that other because he cannot
” comply with it.”
The type of discrimination referred to in paragraph (a) of that subsection is generally called ” direct ” discrimination. When the present proceedings began in the county court, direct discrimination was alleged, but the learned judge held that there had been no direct discrimination, and his judgment on that point was not challenged in the Court of Appeal or before your Lordships’ House. The appellant’s case in this House was based entirely on ” indirect” discrimination, that is, discrimination contrary to paragraph (b) of subsection 1(1). When the proceedings began the appellants claimed damages, but that claim was not pursued before this House. Having regard to section 57(3) of the 1976 Act, it would have been unlikely to succeed.
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…….. As I have already said, the first main question is whether the Sikhs are a racial group. If they are, then two further questions arise. Question two is what is the meaning of ” can ” in paragraph (i) of section 1(1)(b), and question three is, what is the meaning of “justifiable” in paragraph (ii) of that subsection?
“Ethnic origins”
Racial group is defined in section 3(1) of the Act which provides:
” ‘ Racial group ‘ means a group of persons defined by reference to colour, ” race, nationality or ethnic or national origins, and references to a person’s ” racial group refer to any racial group into which he falls “.
It is not suggested that Sikhs are a group defined by reference to colour, race, nationality or national origins. In none of these respects are they distinguishable from many other groups, especially those living, like most Sikhs, in the Punjab. The argument turns entirely upon whether they are a group defined by ” ethnic origins “. It is therefore necessary to ascertain the sense in which the word ” ethnic ” is used in the Act of 1976. We were referred to various dictionary definitions. The Oxford English Dictionary (1897 edition) gives two meanings of “ethnic”. The first is “pertaining ” to nations not Christian or Jewish; gentile, heathen, pagan “. That clearly cannot be its meaning in the 1976 Act, because it is inconceivable that
Parliament would have legislated against racial discrimination intending that the protection should not apply either to Christians or (above all) to Jews. Neither party contended that that was the relevant meaning for the present purpose. The second meaning given in the Oxford English Dictionary (1897 edition) was ” pertaining to race; peculiar to a race or ” nation; ethnological “. A slightly shorter form of that meaning (omitting ” peculiar to a race or nation “) was given by the Concise Oxford Dictionary in 1934 and was expressly accepted by Lord Denning M.R. as the correct meaning for the present purpose. Oliver and Kerr L.JJ. also accepted that meaning as being substantially correct, and Oliver L.J. at [1982] 3 W.L.R. 941G said that the word ” ethnic ” in its popular meaning involved ” essentially a racial concept—the concept of something with which the ” members of the group are born; some fixed or inherited characteristic “.
The respondent, who appeared on his own behalf, submitted that that was the relevant meaning of “ethnic” in the 1976 Act, and that it did not apply to Sikhs because they were essentially a religious group, and they snared their racial characteristics with other religious groups, including Hindus and Muslims, living in the Punjab.
My Lords, I recognise that ” ethnic ” conveys a flavour of race but it cannot, in my opinion, have been used in the 1976 Act in a strictly racial or biological sense. For one thing, it would be absurd to suppose that Parliament can have intended that membership of a particular racial group should depend upon scientific proof that a person possessed the relevant distinctive biological characteristics (assuming that such characteristics exist).
The practical difficulties of such proof would be prohibitive, and it is clear that Parliament must have used the word in some more popular sense.
For another thing, the briefest glance at the evidence in this case is enough to show that, within the human race, there are very few, if any, distinctions which are scientifically recognised as racial. I respectfully agree with the view of Lord Simon of Glaisdale in Ealing L.B.C. v. Race Relations Board [1972] AC 342, 362, referring to the long title of the Race Relations Act 1968 (which was in terms identical with part of the long title of the 1976 Act) when he said :
” Moreover ‘ racial’ is not a term of art, either legal or, I surmise, ” scientific. I apprehend that anthropologists would dispute how far ” the word ‘ race ‘ is biologically at all relevant to the species amusingly ” called homo sapiens “.
A few lines lower down, after quoting part of section 1(1) of the Act, the noble and learned Lord said this: ” This is rubbery and elusive language—understandably when the ” draftsman is dealing with so unprecise a concept as ‘ race ‘ in its ” popular sense and endeavouring to leave no loophole for evasion.”
I turn, therefore, to the third and wider meaning which is given in the 1972 Supplement to the Oxford English Dictionary. It is as follows: ” pertaining to or having common racial, cultural, religious, or linguistic ” characteristics, esp. designating a racial or other group within a larger ” system;”. Mr. Irvine, for the appellant, while not accepting the third (1972) meaning as directly applicable for the present purpose, relied on it to this extent, that it introduces a reference to cultural and other characteristics, and is not limited to racial characteristics. The 1972 meaning is, in my opinion, too loose and vague to be accepted as it stands. It is capable of being read as implying that any one of the adjectives, ” racial, cultural, ” religious or linguistic ” would be enough to constitute an ethnic group.
That cannot be the sense in which “ethnic” is used in the 1976 Act, as that Act is not concerned at all with discrimination on religious grounds. Similarly, it cannot have been used to mean simply any ” racial or other ” group “. If that were the meaning of ” ethnic “, it would add nothing to the word group, and would lead to a result which would be unacceptably wide. But in seeking for the true meaning of ” ethnic ” in the statute, we are not tied to the precise definition in any dictionary. The value of the 1972 definition is, in my view, that it shows that ethnic has come to be commonly used in a sense appreciably wider than the strictly racial or
biological. That appears to me to be consistent with the ordinary experience of those who read newspapers at the present day. In my opinion, the word ” ethnic ” still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly thought of as being associated with common racial origin.
For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: —
(1)a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion, different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups.
A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it, and is accepted by other members, then he is, for the purposes of the Act, a member. That appears to be consistent with the words at the end of subsection (1) of section 3:
” References to a person’s racial group refer to any racial group” into which he falls.” In my opinion, it is possible for a person to fall into a particular racial group either by birth or by adherence, and it makes no difference, so far as the 1976 Act is concerned, by which route he finds his way into the group. This view does not involve creating any inconsistency between direct discrimination under paragraph (a) and indirect discrimination under paragraph (b). A person may treat another relatively unfavourably ” on ” racial grounds ” because he regards that other as being of a particular race, or belonging to a particular racial group, even if his belief is, from a scientific point of view, completely erroneous.
Finally on this part of the argument, I think it is proper to mention that the word ” ethnic ” is of Greek origin, being derived from the Greek word ” ethnos “, the basic meaning of which appears to have been simply ” a group ” not limited by reference to racial or any other distinguishing characteristics—see Liddell & Scott’s Greek-English Lexicon (8th edition) (Oxford 1897). I do not suggest that the meaning of the English word in a modern statute ought to be governed by the meaning of the Greek word from which it is derived, but the fact that the meaning of the latter was wide avoids one possible limitation on the meaning of the English word.
My Lords, I have attempted so far to explain the reasons why, in my opinion, the word ” ethnic ” in the 1976 Act should be construed relatively widely, in what was referred to by Mr. Irvine as a broad, cultural/historic sense. The conclusion at which I have arrived by construction of the Act itself is greatly strengthened by consideration of the decision of the Court of Appeal in New Zealand (Richmond P., Woodhouse and Richardson JJ.) in King-Ansell v. Police [1979] 2 N.Z.L.R. 531. That case was discovered by the industry of the appellants’ counsel, but unfortunately not until after the Court of Appeal in England had decided the case now under appeal.
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The respondent admitted, rightly in my opinion, that, if the proper construction of the word “ethnic” in section 3 of the 1976 Act is a wide one, on lines such as I have suggested, the Sikhs would qualify as a group defined by ethnic origins for the purposes of the Act. It is, therefore, unnecessary to consider in any detail the relevant characteristics of the Sikhs. They were originally a religious community founded about the end of the fifteenth century in the Punjab by Guru Nanak, who was born in 1469. But the community is no longer purely religious in character.
Their present position is summarised sufficiently for present purposes in the opinion of the learned county court judge in the following passage:
” The evidence in my judgment shows that Sikhs are a distinctive ” and self-conscious community. They have a history going back to ” the fifteenth century. They have a written language which a small ” proportion of Sikhs can read but which can be read by a much higher proportion of Sikhs than of Hindus. They were at one time politically supreme in the Punjab.The result is, in my opinion, that Sikhs are a group defined by a reference to ethnic origins for the purpose of the 1976 Act, although they are not biologically distinguishable from the other peoples living in the Punjab. That is true whether one is considering the position before the partition of 1947, when the Sikhs lived mainly in that part of the Punjab which is now Pakistan, or after 1947, since when most of them have moved into India.
CB High School Clonmel -v- Mary Stokes (for John Stokes)
[2011] IECC 1
Teehan J.
“1. The Appellant School had 140 places for new students at the beginning of the academic year 2010/2011. There were 174 applicants. A small number of students with exceptional needs, and a larger number of applicants with a brother or brothers already in the school, were automatically given places at, as it were, the head of the queue. This was in accordance with the Admissions Policy of the school.
2. The next – and final – category of applicant catered for by means of being automatically accepted for a place in the school was those boys whose fathers were past pupils of the High School. This again was in accordance with the Admissions Policy. This meant that 83 places were filled.
3. The next stage was to fill the remaining places by means of a lottery involving the boys who had not yet been selected for places. (There is a reference in the decision of the Equality Officer to the fact that four applicants who had maximum eligibility, but who had applied late, were added to the list of those taking part in the lottery; I do not recall hearing evidence of this on the appeal hearing before me, but it seems likely that convincing evidence to this effect was given at the earlier hearing). Among these was John Stokes, a member of the Travelling Community. He was deemed an appropriate applicant, by reason of his parents’ intention to submit their son to a Roman Catholic education in accordance with the Mission Statement and Christian ethos of the school, and of his having attended one of the recognised feeder schools at primary level (and who also, presumably, applied on time), but he was one of the unsuccessful candidates when the draw was made.
4. Some of the criteria for priority selection were not material in relation to the selection of students for the school year 2010/2011.
5. The evidence before me was that 36 students were admitted under the “parental rule”. None of these was a member of the Travelling Community. This was in accordance with the evidence which was that, historically, very few members of that community have undergone second level education (the evidence in this case was that a number of Traveller children attended the High School over the past 20 to 30 years, but they formed a tiny proportion of the school population). It is the contention of the respondent that this rule thereby discriminates against that community, and thus runs counter to the provisions of the Equal Status legislation and the legislation pertaining to education.
6. The High School is one of only two secondary schools for boys in a town with a population of 24,000. The other is the Vocational School; like many parents in the town, Mrs Stokes was unwilling to have her son attend this school, although I have no reason to believe that such bias is in any way warranted.
……………
14. The first issue can be broken into two parts:
(i) having regard to the provisions of the Equal Status Legislation, is the “parental rule” discriminatory against Travellers? And
(ii) if so, can it be objectively justified by reference to a legitimate aim, the means to the achieving of which could be deemed both appropriate and necessary?
15. The evidence from the Respondent’s witnesses painted a very stark picture of members of the Travelling Community availing only in minuscule numbers of access to secondary education over the last few decades. By contrast, while there was no specific evidence in relation to this, it is notorious that, since the advent of free secondary education in the late 1960s and the raising of the school leaving age to 16, the overwhelming majority of students in the general population have attended secondary school to at least Junior Certificate level. Accordingly, it can be stated unequivocally that the “parental rule” – an ostensibly neutral provision as provided for by the amended section 3 (1) (C) of the Equal Status Act 2000 – is discriminatory against Travellers. Of course, the Respondent must be shown to be at a particular disadvantage, but I am satisfied that groupings such as members of the Travelling Community (and also the Nigerian Community and the Polish Community, for example, where parents of boys were most unlikely to have attended the school previously) are particularly disadvantaged by such rule.
16. That having been established, the onus is on the Appellant
(A) to objectively justify that there was a legitimate aim;
(B) to prove that the measure was appropriate; and
(C) to establish that such measure was necessary.
17. With regard to the question of the legitimacy of the aim, the Respondent has adverted in argument to the school’s Admissions Policy, and the lack of any direct correlation between the stated aims and the “parental rule”. Dealing with “Goals”, one of the criteria referred to is “supporting the family ethos within education”. While this goes on to justify the “sibling rule “, with no reference to parents, I find that the overall aim of the Board in introducing the “parental rule” is entirely in keeping with this goal and the “characteristic spirit of the school”, a concept to which it must have regard in accordance with section 15(2) (b) and (d) of the Education Act 1998. The Appellant has thus objectively justified to the satisfaction of this Court that the aim of the Board in this regard was wholly legitimate.
18. As to whether the measure was appropriate, the evidence of Mr. Bannon concerning the history of the admissions policy is of importance. In all but two years in recent times, there have been more applicants than places for incoming students. At one time, priority was given to students where there were “exceptional circumstances”. This led to a situation where almost all applicants sought to come in under this heading. Prior to that, the lottery applied to all applicants, while at one time entry was by means of an assessment test. These policies were at opposite ends of the spectrum and each, for obvious reasons, was highly unsatisfactory. The current policy falls somewhere between these extremes. This in itself does not mean that the policy is appropriate, but it is one which is reviewed annually and I am satisfied that, having regard to all the many relevant considerations of which the Board must take account, it strikes the correct balance and is, therefore, appropriate.
19. In relation to the necessity test, Mr. Bannon gave evidence at some length concerning the links between the school and the community in Clonmel. In the 19th century, the people of Clonmel invited the Christian Brothers to set up a school in the town. The resultant bond has been strong. There is an active past pupils’ union which incentivises high achievement by pupils at the school; former students have been active in providing mentoring, bursaries for sports and financial assistance for the sons of impoverished parents; and the activities of such former students in the very difficult but necessary task of bridging the shortfall in funds provided by the Department and the outgoings of the school would most probably be considerably less were such strong bond not in place. Mr. Bannon spoke of “a sense of ownership about the school where people have attended”, and gave very concrete examples of this in the course of his evidence. Mr. Ó Dulacháin, in argument, has made reference to the fact that parents of past pupils “may more likely be employed or in higher positions of responsibility”; he goes on to argue that through this evidence, Mr. Bannon thus sought to introduce “opaque criteria” referring “either to wealth or standing”. In fact, there was no evidence to the effect that past students of this school – a non-fee-paying school – hold a disproportionate amount of wealth or standing in the community, and the matters canvassed in the course of Mr. Bannon’s evidence in this regard are manifestly important considerations in the formulation of school policies. In the light of all this (and, in particular the highly important issue of funding) I find — and not without hesitation — that the inclusion of the “parental rule” was a necessary step in creating an admissions policy which is proportionate and balanced.
20. It may be that the Oireachtas should look (or look again) at the issue of providing a mandatory requirement for positive discrimination in schools’ admissions policies. In the instant case, however, it is common case that our legislators — who must, like the courts and, indeed, school boards who frame admissions policies, seek to strike a balance between legitimate competing interests – have not enjoined such measure.
21. Having made such findings, the “de minimis” issue does not arise for consideration.
22. I would therefore allow the appeal, and set aside the order of the Equality Officer.”
Doherty & Anor -v- Sth Dublin County Council & Ors
[2007] IEHC 4
Charleton J.
“7. There is equality of treatment between members of the Irish Traveller Community and the settled community vis à vis the provision of housing in bricks and mortar. Anyone, without distinction, will have an entitlement to same upon being homeless. Members of the Irish Traveller Community have a special and unique additional provision made for them in the form of caravan sites, site works and loans for the purchase of caravans. The fact that this additional option is available only to Travellers, from whatever country, does not mean, in my judgment, that it can be exercised in all and every circumstance so as to apparently continue the state of homelessness that gives rise, in the case of all citizens, to the requirement of the local authority to seek to offer accommodation to homeless persons that they might reasonably be expected to reside in.
28. This is the first case in which a claim has been made by a member of the Irish Traveller Community to be provided with more than a site. In all the previous cases to which I have been referred, the argument has been as to whether there is a statutory duty on a housing authority to make provision for sites for members of the Irish Traveller Community and as to whether in particular circumstances, that duty has been fulfilled. In McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July 1980), it was held that the offer of provision of chalet accommodation to the plaintiff, was in the circumstances, a reasonable discharge by the defendant of its duty to house the plaintiff. In O’Reilly and Others v. Limerick County Council and The Attorney General and Human Rights Commissioner, (Unreported, High Court, 29th March, 2006), it was held by MacMenamin J. that a choice to resume accommodation in unacceptable conditions may not disentitle an applicant to relief and that there is a duty on a county council to fully advise those members of the Irish Traveller Community who were uneducated as to their full rights with regard to housing.
29. Since University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February, 1991), a line of authorities have followed the judgment of Barron J. in that case that the scheme of the Housing Acts contemplates not only that an assessment of housing needs should be made in relation both to the Irish Traveller Community and to settled persons, but that it should be acted upon. In two cases, orders were made by the High Court that serviced halting sites should be provided by housing authority respondents within a period of 12 months. In County Meath V.E.C. v. Joyce and Others [1994] 2 ILRM 210, Flood J. ordered that Meath County Council should bring their assessment of housing and serviced camp site needs up to date and to provide sites within 12 months of the date of the perfection of the order he made in that regard. In John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10 June 1994), Costello J. made an order that the County Manager should carry out works at specified locations providing for hard core sites, an electricity supply and drainage to certain members of the Irish Traveller Community. All of these judgments followed the decision of Barron J. in University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February 1991). Having first decided that s. 13 of the Housing Act, 1988 imposed a duty to provide caravan sites, as opposed to merely empowering a housing authority to do so, Barron J. went on:-
“Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s. 13 applies to the provision not of dwellings but of caravan sites. It is I think significant that s. 56(2) of the 1966 Act is to apply to serviced halting sites as it does to dwellings. In my view, s. 13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings in the same way as s. 56(1) requires them to provide the latter. Such obligation is, of course, subject to all the provisions which limit the obligations of the housing authority under s. 56 of the 1966 Act. The section does however mean that the housing authority cannot meet its statutory obligations by offering only a conventional dwelling to Travellers. It must bring into force the estimate, assessment and scheme respectively required by ss. 8, 9 and 11. If in accordance with the result of these matters, the housing authority has obligations in accordance with its resources for persons who are Travellers, then those obligations must be fulfilled. In the case of those persons to whom s. 13 applies and who do not wish to be provided with dwellings, the obligation must be fulfilled by the provision of caravan sites. As a matter of construction of s. 13, it seems to me that the statutory obligation to provide a caravan site for Travellers is identical to the statutory obligation to provide dwellings for those of the settled community. The only difference in the obligation lies in the nature of the housing to be provided. Whether the person in need is a traveller or a member of the settled community, once the duty exists it must be performed. In the one case, it is performed by providing a caravan site; in the other by providing conventional housing. I refer only to the position of those Travellers who live permanently in a particular area and whose need for a caravan site is as a permanent home. The provision of a temporary halting site or sites is a different matter and does not arise in the present case.”
30. As a matter of fact, the respondent Council has made available to the applicants a halting site on a temporary basis. It is the intention of the Council to redevelop the site in which they currently reside so as to make provision for them on a permanent basis so that their caravan can be used in conjunction with a day house as explained above. This accommodation will be available within a period of 18 months from the date of this judgment. There has therefore been no failure by the respondent housing authority to fulfil its duty under the relevant provisions of the Housing Acts. It would be desirable were this accommodation to be available immediately. The housing authority, however, has obligations only in accordance with its resources and according to the scheme of priorities set out by it.
Human Rights
31. The applicants argue that their status as members of the Irish Traveller Community means that special arrangements are required to be made for them, even apart from the statutory provisions already referred to. It has been argued that the scheme under the Housing Acts operates on the basis of an untrammelled choice to be made by a member of the Irish Traveller Community between accommodation in bricks and mortar and in a caravan. It is urged that this interpretation be placed upon the Acts because of s. 2 of the European Convention on Human Rights Act, 2003. This provides:-
“2(1) In interpreting and applying any statutory provision or rule of law, the court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provisions or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
32. It is further argued that the respondents, and in particular the housing authority, have an obligation to treat the applicants in a special way having regard to their status as members of the Irish Traveller Community and that this obligation arises by virtue of s. 3 of the European Convention on Human Rights Act, 2003 which reads:-
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
33. Under the Act, judicial notice has to be taken by all courts of the Convention provisions and the decisions in relation thereto. If in any proceedings before the High Court, or the Supreme Court exercising its appellate jurisdiction, it emerges that a provision of Irish legislation is incompatible with any Article of the Convention, then a declaration of incompatibility should be made under s. 5 of the Act of 2003. This does not affect the continuing operation of the law. An ex gratia payment of compensation may be made once an application for compensation by a party wronged has been made to the Attorney General. It is not stated, but it is to be inferred, that where a declaration of incompatibility with the European Convention on Human Rights has been made by a court that a political will may exist to alter relevant legislation in favour of compatibility.
34. The European Convention on Human Rights was agreed between the signatory governments in Rome in November, 1950. Its text sets out the fundamental rights which the citizens of Europe are entitled. The Articles pleaded here were Articles 8 and 14. Article 14 prohibits discrimination and provides:-
“14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 8 secures rights whereby the State must respect private and family life. This provides:-
“8. – (1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 3 is also relevant in that it prohibits torture. It states:-
“3. No one shall be subjected to torture or to inhumane or degrading treatment or punishment.”
35. These Articles may be contrasted with Article 40.3 of Bunreacht na hÉireann which provides:-
“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
36. The guarantee in Article 40.3 is a promise never to infringe a right. Thus, there can be no laws passed in Ireland which infringe constitutional rights or, in the case of a conflict, which do not draw a reasonable balance between the interaction of two differing rights. When it comes, however, to taking positive action to defend and vindicate the personal rights of the citizen, the text of the Constitution makes it clear that the State is only obliged to do as much as is practicable, or in the original text “sa mhéid gur feidir é”. It is easier to find a circumstance where a State body is actively infringing on someone’s constitutional rights than to define the circumstances under which the State must positively intervene to uphold a right. For instance, if a law were passed, or an administrative measure adopted, providing that members of the Irish Traveller Community could never be housed in communities that were settled, this would be a positive denial of their constitutional right as human persons to be treated equally before the law. The State cannot set out to infringe constitutional rights: but when is it obliged to intervene to uphold them? Many rights could be set at nought by reason of the inability of a citizen to provide the means to exercise them. There is certainly a constitutional right to life and a provision denying access to particular medicines which are necessary for the exercise of that right would be unlawful but where a citizen did not have the means to purchase necessary medicine would that mean that the State had an obligation to intervene by providing him or her with some form of welfare in that regard? The answer may be that the State could, in certain circumstances, have an obligation consistent with its financial and administrative commitments. A similar problem arises in relation to the European Convention on Human Rights. It is to be noted that there is no positive obligation to intervene to uphold private and family life in Article 8 and that, expressly, the text forbids “interference by a public authority with the exercise of this right”. The courts of England and Wales and the European Court of Human Rights have attempted to grapple with this issue without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right. Counsel for the applicant argued that no more than practicable assistance could be offered from State resources and that a citizen has a general obligation to have recourse to welfare as a last resort only.
37. In Anufrijeva and Anor v. Southwark London Borough Council [2004] 1 QB 1124 the Court of Appeal of England and Wales dealt with three different cases that concerned the right to a family and private life under Article 8 of the Convention. Lord Woolf C.J. noted at para. 25 in relation to the problem of deciding when a positive obligation of intervention was cast on State authorities, apart from a duty not to interfere:-
“Strasbourg provides little guidance in this area, for we are not aware of any case where the Court of Human Rights has held a state in breach of the Convention for failure to provide housing to a certain standard, or for failure to provide welfare support. … The dearth of authority is evidenced by the fact that counsel on each side attached importance to two recent decisions, which seem to us of only peripheral significance.”
38. These cases were Botta v. Italy (1998) 26 EHRR 241 where a physically disabled person failed in a claim under Article 8 on the assertion that his rights were infringed because there were no facilities to enable him to get down into the sea in a resort distant from his home. In Zehnalová and Zehnal v. Czech Republic, Reports of Judgments and Decisions 2002 – V, p. 337, a complaint under Article 8 failed where the national authorities had failed to provide access for physically disabled persons to all public buildings. This, the court held, was to invoke rights which were “too wide and indeterminate” as to give “convincing proof of an attack on their private lives”. It may be speculated that some minimum welfare provisions may constitute a positive obligation inherent in effectively respecting private and family life. In Anufrijeva, the Court of Appeal offered these observations, at paras. 43 to 45, as to the formulation of a useful legal test:-
“… Article 8 is capable of imposing on a State a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R(J) v. Enfield London Borough Council [2002] EWHC 735 (Admin), where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J. to find that Article 8 was infringed on the facts of that case … insofar as Article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant’s private and family life were at risk: see the approach of the Court of Human Rights to the positive obligation in relation to Article 2 in Osman v. United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J. in N. [2003] EWHC 207 (Admin) at 126-148. Where the domestic law of a State imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of Article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.”
39. In this regard, I note that Costello J. in John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10th June, 1994) stated that conditions which are totally unacceptable in a Christian community and which could be relieved if the statutory powers of a local authority were exercised, and without any great expense can give rise to an obligation to intervene, he said:-
“I am also satisfied that the County Manager has power to deal with an emergency and that this power in the circumstances of a case now amounts to a duty.”
40. I would find it impossible to apply the tests of culpability and of inhuman treatment where a number of offers of housing have been made, and where the best form of halting site accommodation is to be made available to the applicants within 18 months.
41. It is argued, in addition, that the housing legislation should be interpreted in favour of the applicants. The limits to which the interpretation requirement set out in the corresponding provision of the United Kingdom Human Rights Act, 1998 may be taken are to be found in the decision of the House of Lords in Ghaidan v. Godin-Mendoza [2004] 3 WLR 113 where it was held that a definition of spouse as extending to a person living with a tenant “as his or her husband or wife” could encompass a surviving homosexual partner who is not, under the decision, to be put in any less secure a position than the survivor of a heterosexual relationship in respect of statutory tenancy rights.
42. It has been urged on the Court that what is reasonable in terms of accepting or refusing accommodation, within the definition of homelessness in s. 2 of the Housing Act, 1988, must take into account the particular circumstances of the applicants living, as they have, all their life either as nomads on the side of the road or, for the about the last ten years in various halting sites. Circumstances can occur where persons who have led a nomadic way of life may find it difficult to accept, on a permanent basis, settled accommodation. It is not, however, what the applicants are being asked to do here. In asserting their rights to nomadic accommodation, they are being met with an answer, from the Council, that a symbolic vestige of their tradition may be preserved in the shape of a site for their caravan with a day house, but only after a reasonable interval of time for the purposes of re-development. In the meanwhile it is not unreasonable that the available accommodation is in bricks and mortar and nor is it unreasonable that the County Council will not go and immediately buy them a plumbed, centrally heated mobile home with electricity supply: this is not in accordance with the scheme of priorities set down by the Council under the Housing Acts and its provision is outside the relevant regulations made under s. 15 of the Housing Act, 1988, as amended.
43. A duty to take into account the sensitivities of members of the Roma communities, whether Gypsies from the neighbouring kingdom, members of the Sinti from Central Europe, or members of our own Irish Traveller Community, can arise when interpreting administrative measures. These obligations are not, however, unlimited. In Chapman v. United Kingdom (2001) 33 EHRR 18 the European Court of Human rights dismissed an argument that a nomadic lifestyle gives rise to an automatic duty on States to intervene in favour of preserving this way of life, stating, at paras. 96 to 99, as follows:-
“Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.
It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-Gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English Courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violationof Article 8. This would be tantamount to imposing on the United Kingdom, as on other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to the protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.
It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not of judicial decision.”
44. This decision was followed by the European Court of Human Rights in the decision in Codona v. The United Kingdom, judgment delivered on 7th February, 2006. The applicant was a Gypsy who lived with her young son and other members of her extended family in caravans. Injunction proceedings were issued against her because the site on which the caravans were placed did not have the relevant planning permission. During the course of court proceedings the applicant averred that she did not “wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs. Codona wishes to live in a caravan and have the support of her extended family around her”. The housing authority, on examining the case, concluded that they could only offer bricks and mortar accommodation in a bed and breakfast establishment until it could make a final offer of accommodation. The application before the Court of Human Rights was, in essence, for relief under Article 8 on the complaint that the response of the Council did not take into account her rights as a Gypsy under Article 8 of the Convention. The court held:-
“Following Chapman, the court does not rule out that, in principle, Article 8 could impose a positive obligation on the authorities to provide accommodation for a homeless Gypsy which is such that it facilitates their “Gypsy” way of life. However, it considers that this obligation could only arise where the authorities had such accommodation at their disposal and were making a choice between offering such accommodation or accommodation which was not “suitable” for the cultural needs of a Gypsy. In the instant case, however, it appears to be common ground that they were, in fact, no sites available upon which the applicant could lawfully place her caravan. In the premises, the court cannot conclude that the authorities were then under a positive obligation to create such a site for the applicant (and her extended family). Such would be to extend the positive obligation imposed by Article 8 far beyond the – limited – bounds established in previous case law. In particular, to accept that the authorities were under such an obligation would be to have the effect of imposing upon the respondent State the positive obligation to create either one or more caravan sites so as to equate supply with demand. The court recalls that this was precisely the obligation that the Grand Chamber found that the contracting states could not be said to owe in Chapman (para. 98). The court does not find that there are any compelling reasons in the present case to depart from the position adopted by the Grand Chamber in Chapman.”
45. In addition to the foregoing, I can find nothing in any other decision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of Article 8 of the European Convention on Human Rights.
46. I would add that the decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights. Whether welfare is provided, and at what level, and in what particular circumstances, is essentially a matter of political decision. The discourse of politics in this area tends to move between the poles of urging self-reliance and of offering cradle-to-grave support. Like a family, the resources of any nation are limited and it is a matter for political and executive decision as to what resources should be committed to what problems and with what priority. A breach of legislation prescribing such an allocation, as in housing, calls for judicial intervention. Where, however, a plea is made that the court should declare the absence of welfare support to be wrong in a particular situation of itself, the applicant should show a complete inability to exercise a human right for his or her own means and a serious situation that has set the right at nought with the prospect of serious long term harm. Any proposed intervention by the court should take into account that it is the responsibility of the legislature and executive to decide the allocation of resources and the priorities applied by them. “
Fitzgerald -v- Minister for Community, Equality and Gaeltacht Affairs
[2011] IEHC 180
Mr. Justice Hogan delivered on 5th May, 2011
1. This statutory appeal has its origins in a complaint made by the appellant, Paddy FitzGerald, to the Equality Tribunal on 5th June, 2007. In that complaint Mr. FitzGerald maintained that he had been harassed and victimizedby agents of South Tipperary County Council, contrary to the provisions of the Equal Status Acts, 2000-2004. The gist of the complaint was that Mr. FitzGerald was prevented from making his lands arable due to their insistence that planning permission was first required.
2. When pressed by the Tribunal to give particulars as to how his claim fell within the Equal Status Acts, Mr. FitzGerald maintained that he had been discriminated on grounds of race. The Tribunal then drew Mr. Fitzgerald’sattention to the definition of “race” which was contained in the provisions of s. 3(1) of the Equal Status Act 2000 (“the 2000 Act”) and asked him for his comments. Mr. FitzGerald then responded to this query by saying that he was “a member of the farming community: (an ethnic group).”
3. In its decision of 8th January, 2009, the Director of the Tribunal exercised her statutory power pursuant to s. 22 of the 2000 Act to dismiss a claim in limine where she was of opinion that the claim had been made “in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.” The Director concluded that the claim was misconceived and had no prospect of success:
“Membership of the farming community per se has not been defined as an ethnic group by legislation or case law. In my view, the claim does not fall within protected grounds and, accordingly, the Tribunal has no jurisdiction to investigate this claim. As Mr. FitzGerald’s complaints of discrimination and victimization are not based on grounds covered by the Acts, they have no basis in law and therefore have no prospect of success.”
4. Mr. FitzGerald appealed this decision to the Circuit Court pursuant to s. 22(2) of the 2000 Act (as inserted by s. 56 of the Equality Act 2004). The appeal came on before His Honour Judge Teehan on 14th April, 2010, who affirmed the decision of the Director and refused to make a reference to the Court of Justice pursuant to Article 267 TFEU on the ground that the matter is obvious. Mr. FitzGerald now appeals this decision on a point of law to this Court pursuant to s. 22(4) of the 2000 Act (as inserted by s. 56 of the 2004 Act). This sub-section provides that:-
“(4) No further appeal lies, other than an appeal to the High Court on a point of law.”
5. Section 22(4) plainly excepts the jurisdiction of the Supreme Court for the purposes of Article 34.4.3 of the Constitution, so that no appeal to that Court lies against my decision. In these special circumstances, this Court is therefore constituted for this purpose as a court of last resort within the meaning of Article 267(3) TFEU, as there is “no judicial remedy [available] under national law”. It follows that where a point of Union law arises for resolution, this Court is under a mandatory obligation to refer any such question to the Court of Justice, save in interlocutory matters or – more pertinently – where the issue is acte clair: see, e.g., Case 238/81 CILFIT [1982] ECR 3415. The concept of acte clair is not simply confined to those cases where the point has already been determined, but also embraces those cases where the answer is obvious.
6. It is against this general background that the appeal requires to be considered. I propose to commence with an analysis of s. 3 of the 2000 Act and then to consider the EU law arguments.
Section 3(1) of the Equal Status Act 2000
7. The main objective of the Equal Status Acts is to preclude certain types of discrimination by both public and private actors in respect of the provision of goods and services. This is plain from the structure of the 2000 Act, but this objective also clearly emerges the Long Title which provides:
“An Act to provide equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for an investigating and remedying certain discriminations and other unlawful activities to provide for the administration by the Equality Authority of various matters pertaining to this Act, to amend the Employment Equality Act, 1998 in relation thereto and in certain other respects and to provide to related matters”. (emphasis supplied).
8. To this end, s. 3(1) of the Equal Status Act 2000 provides for a prohibition of a general nature:
“(1) For the purposes of this Act, discrimination shall be taken to occur –
(a) where a person is treated from less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…
9. There then follows ten discrete prohibited grounds: gender, marital status, family status, sexual orientation, religious belief, age, disability, membership of the Traveller community and victimization. To this must be added the ground specified by s. 3(2)(h) and which is the one at issue here:
“that they are of different race, colour, nationality or ethnic or national origins (“the ground of race”).
10. There is no statutory definition of the term “ethnic origins”. In these circumstances, the reference to ethnic group must, of course, be understood in the context in which the term appears: see, e.g., the comments of Henchy J. in Dillon v. Minister for Posts and Telegraphs, Supreme Court, 3rd June, 1981. The fact that the words “ethnic origins” appears in the same context as race, colour, nationality or national origins confirms – as if confirmation was needed – that the reference here is principally to immutable characteristics in respect of which the individual has no control. It must, of course, be recognized that there are undoubtedly instances where an individual belonging to one nationality or ethnic group might elect to adhere to another, but, for present purposes, at least, it is sufficient to point out that these are exceptional cases which do not take from the general point.
11. So far as a description of ethnicity is concerned, it is probably difficult to improve on the definition offered by Lord Fraser in Mandla v. Dowell Lee [1983] A.C. 548, 562:-
“The conditions which appear to me to be essential are these: —
(1) a long shared history, of which the group is conscious as distinguishing
it from other groups, and the memory of which it keeps alive; (2) a cultural
tradition of its own, including family and social customs and manners, often
but not necessarily associated with religious observance. In addition to
those two essential characteristics the following characteristics are, in my
opinion, relevant; (3) either a common geographical origin, or descent from
a small number of common ancestors; (4) a common language, not necessarily
peculiar to the group; (5) a common literature peculiar to the group;
(6) a common religion, different from that of neighbouring groups or from
the general community surrounding it; (7) being a minority or being an
oppressed or a dominant group within a larger community, for example
a conquered people (say, the inhabitants of England shortly after the
Norman conquest) and their conquerors might both be ethnic groups.”
12. In Mandla the principal issue was whether Sikhs were a group defined by “ethnic origins” for the purposes of the (United Kingdom’s) Race Relations Act 1976. Giving that term a wide definition, the House of Lords held that they were. While “biologically indistinguishable” from others living in the Punjab, the evidence showed that Sikhs were a “distinctive and self conscious” community with a particular history, language and (originally) religious tradition.
13. Viewed from that perspective and applying this test, it is self evident that members of the farming community are not an ethnic group in that sense. While it is naturally true that farmers as a group have their own proud traditions and history, this is no more than could be said in respect of any other occupational group such as teaching, medicine, accountancy and the law. The fact that an occupational group may have its own perspective in respect of its traditions and history does not make it an ethnic group for this purpose. Nor can it be said that farmers share some immutable or quasi-immutable characteristic that it is one of the triggering factors of s. 3(2)(h).
14. It follows, therefore, that, at the risk of stating that which is all too obvious and self evident, farmers do not constitute an ethnic group. It equally follows, therefore, the Director of the Tribunal was amply justified in invoking the powers conferred by s. 22 of the 2000 Act to strike out this claim in limine. It follows in turn that Judge Teehan was perfectly correct in affirming that decision.
The European Union Law Argument
15. It remains to consider Mr. FitzGerald’s final argument, namely, that Council Directive 2000/43/EC (“the Equal Treatment Directive”) was not properly transposed into domestic law via the Equality Act 2004. One of the declared objects of the 2004 Act – as reflected in its Long Title – is to give effect to the Equal Treatment Directive.
16. Article 2(1) deals with the concept of discrimination by providing that:-
“1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.”
17. Article 3, on the other hand, deals with the scope of application of the Directive by providing:-
“1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations;
(e) social protection, including social security and healthcare;
(f) social advantages;
(g) education;
(h) access to and supply of goods and services which are available to the public, including housing.”
18. At the hearing before me, Mr. FitzGerald placed great emphasis on the fact that Article 3 applies to all persons. So it does. But this does not mean that either Article 3 in particular or the Directive in general prohibits all differentiation or even all discrimination between all categories of persons for all purposes. Rather, Article 2 prohibits discrimination on racial or ethnic grounds and Article 3 identifies the scope of the prohibition by providing, for example, that there can be no discrimination on racial or ethnic grounds in matters such as housing and education. The Directive simply does not apply to any other form of discrimination other than race or ethnic grounds.
19. In this respect, therefore, there is absolutely no ambiguity regarding either the concept of discrimination or its scope of application, at least so far as the present case is concerned. Nor is there anything to suggest that the 2004 Act does not adequately transpose the Directive.
20. In these circumstances, the present case is so plainly acte clair that it obviously falls within the CILFIT exception. Any reference to the Court of Justice would be a pointless and redundant exercise. For these reasons I do not consider it appropriate to make the reference sought.
Conclusions
21. It follows, therefore, that for the reasons stated I must affirm the decision of Judge Teehan.
Edward Kelly v Greville Arm’s Hotel, Granard
Key words
Equal Status Act 2000 – Direct discrimination, section 3(1)(a) – Discrimination on the Race ground, section 3(2)(h) – Supply of goods and services, section 5(1) – Refusal of service in a Hotel
Dispute
This dispute concerns a complaint by Edward Kelly that he was discriminated against, contrary to Sections 3(1), 3(2)(a) and 3(2)(h) of the Equal Status Acts 2000-2004, by Ms Christina Flood of the Greville Arm’s Hotel, Granard on the grounds of race. The complainant states that when he visited the Greville Arm’s Hotel, Granard with a friend on 18 October 2002, he was informed by the owner, Ms Christina Flood that he was not being served.
Delegation under the Equal Status Act, 2000
This complaint were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
Complainant’s Evidence
Mr Kelly has lived in Granard all his life.
He had never visited the Greville Arm’s Hotel prior to 2002
Each weekend, he usually met Padraig Cunningham and some other friends for drink in Granard.
On Friday 18 October 2002, Mr Cunningham asked Mr Kelly to accompany him to a party that Mr Cunningham’s girlfriend had been invited to in the Greville Arms Hotel.
At the Hearing on 17 January 2006, Mr Cunningham gave evidence that when they arrived in the bar of the hotel, his girlfriend came to him and told him that Ms Flood, the manager, had told her she was not serving Mr Kelly as she did not want “his kind” in the hotel.
At the Hearing, Mr Kelly said that he believed that this comment was a reference to the fact that other Kellys in the town had a bad name and that her comment constituted discrimination on the race ground under equality legislation.
At the Hearing, it was pointed out to Mr Kelly that this allegation against Ms Flood was hearsay evidence in the absence of direct evidence at the Hearing from Mr Cunningham’s girlfriend.
Mr Kelly said that he later spoke to Ms Flood directly who told him that he was not been admitted because he had not got an invitation
Evidence of Respondent and her Witness
Ms Christina Flood said that Mr Kelly was not known to her prior to 18 October.
She said that she had let out the bar that night to a staff member who was having a 21st birthday party.
Most of the regular customers would have been invited and those that weren’t would have been told about the party in advance to avoid disappointment when they arrived
During the night, Ms Flood would consult with the party host if there was a doubt in her mind as to whether an arrival had been invited.
This was the case with Mr Kelly. When she saw him, she checked with the host who told her he had not been invited. She then approached Mr Kelly personally and explained to him that it was a private party and that he would have to leave.
Mr Kelly was one of a few people turned away that night and she was surprised that a complaint of discrimination was received subsequently. She said that she never made a comment like “your kind” to anyone that evening
Ms Elaine Neilon, who was bar duty that evening, also gave evidence that she saw Ms Flood consulting with the host when Mr Kelly arrived and then talking to him before he left
Conclusions of the Equality Officer
The Equal Status Acts 2000 – 2004 identify a number of grounds under which it is illegal to discriminate against an individual. “Race” is one of these grounds and the Acts provide that discrimination occurs on the race ground where a person is treated differently because “they are of different race, colour, nationality or ethnic or national origin”
In this particular case, the complainant is a white male from Ireland who believes that he suffered discrimination on the race ground because a comment relating to his “kind” was allegedly made by Ms Flood on 18 October 2002.
Having given consideration to this point, I find that I cannot accept that Mr Kelly is covered by the race ground as provided for by the Equal Status Acts. As I see it, the race ground is designed to afford protection from discrimination to those of a different colour, nationality or ethnic origin who reside in Ireland and clearly Mr Kelly does not fall under any one of these categories.
In the circumstances, I find that I cannot accept that Mr Kelly’s complaint is admissible under the Equal Status Acts and, accordingly, I find for the respondents in the matter.
Decision
I find that a prima facie case of discrimination has not been established by the complainant on the race ground.
Accordingly, I find in favour of the respondents in the matter
Brian O’Byrne
Equality Officer
DEC-S2010-009 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC-S2010-009
PARTIES
X v A Post-Primary School
File Reference: ES/2007/0169
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Disability Ground, Section 3(1)(g) – Section 3(1)(h), Race Ground – Traveller community Ground, Section 3(2)(i) – Reasonable Accommodation, Section 4(1) – Disposal of Goods and Services, Section 5(1) – Access to Education, Section 7(2)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 14th December, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 2nd October, 2009. Final communication with the parties took place on 18th January, 2010.
1. Dispute
1.1 The complainant, Mrs. X claims that her son, Mr. Y, was discriminated against by the respondent on the grounds of his disability, race and membership of the Traveller community in terms of sections 3(1), 3(2)(g), 3(2)(h), 3(2)(i) and section 4 of the Equal Status Acts, 2000 to 2008 and contrary to section 7(2) of the Equal Status Acts, 2000 to 2008 in terms of its failure to put appropriate measures in place to accommodate his special educational needs as a student with a disability and its subsequent refusal to allow him to return to the school on a full-time basis in September, 2007.
2. Summary of the Complainant’s Case
2.1 The complainant’s son, Mr. Y, is a member of the Traveller community, and he is a person with Attention Deficit Hyperactivity Disorder (ADHD) and special educational needs. He attended the respondent’s secondary school as a student for two years from September, 2005 until the end of the academic year in June, 2007, when he was fourteen years of age. The complainant stated that her son started to experience a number of difficulties in terms of his attendance record and behaviour shortly after commencing his education at the school. The complainant accepted that her son had a very poor attendance record and that he engaged in aggressive behaviour, however, she felt that these difficulties were largely attributable to his disability and were exacerbated by the lack of support which he received from the respondent in managing the issues that arose. The complainant accepts that her son had access to a full-time Special Needs Assistant at the school and that the respondent put measures in place to provide one to one tuition in a number of different subjects. However, she felt that the respondent could have put further measures in place to accommodate his needs as a person with a disability but that it failed to do so. The complainant claims that the respondent failed to utilise the full range of existing structures and supports that were available to it in order to provide assistance for her son (including the services of the Educational Welfare Officer and the NEPS psychologist) and it was submitted that it should have put measures in place such as an Individual Education Plan (IEP) and a behaviour management plan.
2.2 The complainant stated that her son, Mr. Y, became frustrated and withdrawn as a result of the difficulties he was experiencing at the school and this contributed towards his reluctance to attend school on a consistent basis. She stated that her son was suspended from the school on a number of occasions during the course of his attendance in relation to issues that arose as a result of his behaviour. The complainant stated that the blame in relation to these difficulties always seemed to be attributed directly to her son and she contended that he was the only student to be suspended arising out of these incidents. The complainant stated that the school adopted a very negative approach in dealing with the difficulties that arose in relation to her son and she felt that this negative approach was influenced by his Traveller background. The complainant claimed that it is well known that Traveller children had no access to the respondent’s school until ten years ago and she submitted that the treatment of her son was part of a similar pattern.
2.3 The complainant stated that she received a letter from the respondent on 10 September, 2007 in which it was indicated that it would not be in the best interests of her son or the other students at the school if he sought to be re-enrolled for the forthcoming school year. The letter went on to refer to his poor attendance record over the previous two years and it stated that the optimum the respondent could offer at that juncture was five hours resource teaching per week in an effort to address his behavioural difficulties and to bring him up to a comparable level with some of his contemporaries which may enable him at some stage in the future to attempt the Junior Certificate. It was submitted that the complainant’s son was entitled to full-time education and that the offer of five hours resource teaching per week, in the absence of any other full-time education, was totally inadequate especially in light of the special educational requirements that arose as a result of his disability. The complainant accepts that she was invited by the respondent to attend a number of meetings following the receipt of this letter. However, she claims there was no point in discussing the matter any further with the respondent as she felt that it had little interest in educating her son because he comes from a Traveller background. The complainant stated that her son did not return to the school for the academic year 2007/08 and as a result missed out completely on his education from September, 2007 until February, 2008 when he turned fifteen years of age and was accepted to a FAS Training Centre.
3. Summary of the Respondent’s Case
3.1 The respondent stated that upon enrolment of the complainant’s son, Mr. Y, in March, 2005, it had discussions with the Principal of his primary school, the Visiting Teacher for Travellers (VTT) and the resource teacher for his primary school and it also obtained a copy of the psychological report which set out the details of his disability. As a result of these discussions and in light of the psychological report, the respondent applied to the National Council for Special Education (NCSE) for teaching support and a full-time Special Needs Assistant to be made available to Mr. Y. He was ultimately granted 5 hours of resource teaching support and access to a full-time Special Needs Assistant (SNA). Mr. Y commenced at the school on 29 August, 2005 and within a period of a few days he displayed severe behavioural problems and teaching staff found it difficult to manage him in class. He also displayed signs of aggression and a lack of ability to concentrate in class. In view of the number of incidents arising in his first few days of school, the respondent stated that it became necessary to monitor Mr. Y’s behaviour and the school Principal requested the SNA to record incidents (a record of which was submitted to the Tribunal in evidence). The respondent stated that Mr. Y was suspended for a period of three days on 8 September, 2005 following an incident in which he had assaulted a student and intimidated other students on the basketball court. The respondent stated that the complainant, Mrs. X, was notified of this suspension in writing and informed of the procedure for the re-admittance of her son to the school following the suspension. However, neither the complainant not her son attended the school as requested following the suspension. On the same day, the school Principal had discussions with the VTT with a view to accommodating Mr. Y’s needs and a special timetable was drawn up to provide as much one to one tuition as possible in an effort to improve his potential for learning.
3.2 The respondent stated that it put a wide range of other special measures in place in order to accommodate Mr. Y’s special educational needs as a person with a disability including one to one tuition, contact with the Special Educational Needs Organiser (SENO), the Educational Welfare Officer, the Visiting Teacher for Travellers and allowing him to attend school for half days. The respondent also stated that it requested a number of meetings with the complainant, Mrs. X, throughout the school years with a view to resolving the difficulties with her son, however she failed to attend these meetings on a number of occasions. The respondent stated that despite these efforts Mr. Y continued to cause severe disruption in classes, was argumentative and aggressive towards others and regularly intimidated and bullied other students. The respondent stated that Mr. Y was suspended on two further occasions in February, 2006 and September, 2006 arising from incidents where he had been involved in the intimidation and bullying of other students. The respondent stated that during the school years commencing September, 2005 and September, 2006, it made numerous attempts to address Mr. Y’s educational needs and his behavioural difficulties. However, during this period he failed to avail of the special measures and resources that were put in place and his attendance record of 61 days out of a possible 330 days was totally unacceptable. With a view to resolving the difficulties being encountered with Mr. Y and with a view to reaching a mutually acceptable arrangement for all, the respondent requested a number of meetings with the complainant, Mrs. X and the VTT throughout the school years, however the complainant failed to attend the scheduled meetings. In or around March, 2007, the VTT advised the Principal of the school that Mrs. X wished her son to attend school on a full day basis. A meeting was scheduled to take place between the Principal, the VTT and the complainant on 16 March, 2007, however the complainant failed to meet the appointment.
3.3 No further contact was received by the respondent from the complainant, Mrs. X, until 31 August, 2007 when she attended the school to enrol two other students late into the school year. When attending on this date, the complainant also indicated she wanted her son, Mr. Y, to attend on a full time basis for his third year. The respondent agreed to take the first two students immediately but advised it was not in a position to allow her son, Mr. Y, into a third year class as he had attended on so few days during the previous two years. The complainant returned to the school with the VTT on 7 September, 2007 to discuss her son’s return to school and during the discussion that took place it was explained to the complainant that it would not be in the best interests of her son or indeed the other students to place him back in a mainstream third year exam group especially in light of his lack of attendance and behavioural difficulties in the previous two years. The complainant suggested that it was a waste of time discussing the matter and she requested the respondent to address the matter in writing. The respondent subsequently wrote to the complainant on 10 September, 2007 and outlined the aforementioned situation and stated that the optimum it could offer to her son at that juncture would be five hours resource teaching in an effort over time to address his behavioural difficulties and to bring him up to a comparable level with some of his contemporaries which may enable him at some time in the future to follow and attempt the Junior Certificate programme.
3.4 The next contact the respondent received from the complainant was her notification of a possible complaint under the Equal Status Acts on 19 October, 2007. On 22 October, 2007 the complainant was given an appointment to meet the Board of Management on 7 November, 2007 to discuss a matter unrelated to the present complaint. At the meeting the complainant was asked about her earlier request to place her son back in school but she refused to discuss the matter advising that she was not concerned about her son, Mr. Y, at that juncture because of his age. On 8 November, 2007 and at the request of the Board of Management, the Principal of the school wrote to the complainant, Mrs. X, once again and requested that she set out in writing the reasons for wanting her son to return to school in view of his low attendance in the past and to outline what had since changed. The respondent stated that the complainant failed to respond to this letter and failed to provide any reasons as to why her son would access future resources made available to him on a regular basis. The respondent denies that it has discriminated against the complainant on the grounds of his disability, race or his membership of the Traveller Community and it stated that similar action would have been taken against any other student who displayed such a disregard for resources provided and who presented such adverse behaviour towards others, regardless of their status. It submitted that the action taken was done so in a manner which took account of his disability and similar action would have been taken in respect of any other student with such a disability and behavioural propensities. The respondent also stated that Travellers have attended the school since the late 1970’s and that since 1999 there have been members of the Traveller community in attendance at the school every year. The respondent stated that manner in which the complainant and her son were treated was no different, and certainly no less favourable, than would be the case with any other student, Traveller or non-Traveller.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 The respondent is an educational institution which, inter alia, provides post-primary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2008 which states that:
“7.- (2) An educational establishment shall not discriminate in relation to –
(a) the admission or the terms or conditions of admission of a person as a student to the establishment
(b) the access of a student to any course, facility or benefit provided by the establishment.
(c) any other term or condition of participation in the establishment by a student
(d) the expulsion of a student from the establishment or any other sanction against the student”
I will now proceed to examine the complaint on each of the grounds claimed i.e. the disability, race and membership of the Traveller community grounds.
Disability Ground
4.3 In the present case, it was not disputed that the complainant’s son, Mr. Y, has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and I am therefore satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. The question that I must decide in relation to this issue is whether Mr. Y was treated less favourably than another student would have been, in similar circumstances, on the grounds of his disability in terms of the manner in which the respondent dealt with his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school. In considering this issue, I note that it was accepted by both parties that the complainant’s son had special educational needs and requirements arising from his disability. I am satisfied that the respondent did, in fact, put a number of special measures and facilities in place in order to accommodate these special educational needs and requirements. However, I note that it is disputed between the parties as to whether these actual measures were appropriate and/or sufficient to fully accommodate these needs (and I will address this issue in greater detail in the section of my conclusions that deals with “Reasonable Accommodation”).
4.4 Notwithstanding the foregoing, I accept the respondent’s evidence that it would have dealt with any student in a similar manner regardless of whether or not that student had a disability. Having regard to the totality of the evidence, I am satisfied that the complainant has not adduced any evidence from which I could reasonable conclude that her son was treated less favourably than another student would have been, in similar circumstances on the grounds of his disability, in terms of the manner in which his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school were dealt with by the respondent.
Section 7(4)(b) of the Equal Status Acts
4.5 In considering this issue, I have also taken cognisance of the provisions of section 7(4)(b) of the Equal Status Acts which states:
“7(4) Subsection (2) does not apply –
(b) to the extent that compliance with any of its provisions in relation to a student with
a disability would, by virtue of the disability, make impossible, or have a seriously
detrimental effect on, the provision by an educational establishment of its services to
other students”
Having regard to the evidence adduced in the present case, I have not been presented with sufficient evidence from which I could reasonably conclude that the behavioural difficulties which were presented by Mr. Y were of such a nature that the continued provision of educational services to him would have seriously disrupted or negated the education of other students. I also note that the respondent did not seek to rely upon this provision of the Acts as a defence in terms of the manner in which it dealt with the complainant. In any event, as I have already found that the respondent did not directly discriminate against Mr. Y on the grounds of his disability, it is therefore not necessary for me to consider any further the aforementioned provisions of the Acts in my deliberations on this matter.
Reasonable Accommodation
4.6 In the case of disability in considering whether discrimination occurred, consideration must also be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with the provisions of section 4 of the Equal Status Acts. The question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of Mr. Y, as a person with a disability, by providing special treatment or facilities. In considering this issue, I note that there have been a number of pieces of legislation enacted in recent years which make provision for the education of persons with disabilities and for the provision of special facilities and measures to accommodate such persons in terms of their educational requirements. I am of the view that I must take cognisance of the obligations that are placed upon the respondent under this legislation, as the provider of post-primary educational services, in terms of my deliberations as to whether it has discharged it’s obligation to provide reasonable accommodation to Mr. Y in the circumstances of the present case within the meaning of section 4 of the Equal Status Acts.
4.7 I have identified the following key questions which must be addressed in considering whether or not the respondent provided reasonable accommodation to the complainant’s son, Mr. Y, in accordance with its obligations under section 4 of the Acts.
1. Did the respondent do everything it reasonably could do to accommodate his needs as a person with a disability in terms of the manner in which it dealt with his special educational requirements and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school.
2. Did the respondent’s decision not to allow Mr. Y to return to full-time education in September, 2007 and it’s offer to provide him with only 5 hours of resource teaching support per week (with no further access to full-time education) amount to a failure to provide reasonable accommodation in accordance with its obligations under section 4 of the Acts.
4.8 In considering the first question identified above, I note that the respondent was fully aware of the nature of Mr. Y’s disability and that he would require special facilities prior to his commencement at the school in September, 2005. It is clear from the evidence adduced that following his enrolment at the school in March, 2005, the respondent had discussions with the Principal of his primary school, the Visiting Teacher for Travellers (VTT) and the resource teacher from his primary school and that it also acquired a copy of his psychological report which set out details of his disability. I am satisfied that the respondent, upon being apprised of the nature of Mr. Y’s disability, endeavoured to put special measures in place in order to accommodate his special educational requirements (and thereby to provide him with reasonable accommodation within the meaning of section 4 of the Equal Status Acts) upon his commencement at the school. This is evidenced by that fact that he was facilitated with 5 hours of resource teaching support per week and access to a full-time Special Needs Assistant (following an application on his behalf to the National Council for Special Education) following his commencement at the school in September, 2005.
4.9 It is clear from the evidence adduced that a number of difficulties arose from an early juncture in terms of Mr. Y’s attendance at the school, most notably his propensity to engage in disruptive and inappropriate behaviour and his very poor attendance record. I note that it was not disputed between the parties that Mr. Y did, in fact, engage in disruptive and inappropriate behaviour at an early stage following his commencement at the school. I am satisfied that this inappropriate behaviour was of such a serious nature that it left the respondent with no alternative but to invoke its disciplinary procedures in order to address the issues that arose which resulted in him being suspended for a period of three days in September, 2005. I note the respondent’s evidence that it had contact with the complainant, Mrs. X, the Visiting Teacher for Travellers, the Special Educational Needs Organiser (employed by the National Council for Special Education) and the County Educational Service around this time in order to discuss the issues surrounding Mr. Y’s educational requirements and behavioural difficulties and to endeavour to put measures in place to deal with these issues upon his return to school.
4.10 There is a clear dispute in the evidence of the parties as to whether the measures which the respondent put in place were sufficient to accommodate the complainant’s special educational requirements and the behavioural and absenteeism issues that arose during the course of his attendance at the school. The complainant’s case is that these measures were not adequate to accommodate Mr. Y’s special educational requirements and the behavioural issues that arose as a result of his disability and it submitted that the respondent should have put further measures in place such as the implementation of an Individual Education Plan (IEP), a behaviour management plan and also that it could have availed of the services provided by the area psychologist acting on behalf of the National Educational Psychologist Service (NEPS). Having regard to the evidence adduced, it is clear that the measures which were put in place were not sufficient to accommodate his special educational requirements nor were they successful in addressing Mr. Y’s inappropriate behaviour or his absenteeism from school which became apparent in the early weeks of his first year at the school. I am not satisfied from the evidence adduced that the respondent did in fact put in place a coherent Individual Education Plan (IEP) for Mr. Y in order to address his special educational requirements. I accept that the sections of the EPSEN Act relating to IEP’s had not commenced at the time of Mr. Y’s attendance at the respondent’s school, however, I am satisfied that many schools (including the respondent) were fully aware of the IEP process at that juncture and were implementing this process in order to facilitate the progress of children with special educational needs.
4.11 It is clear that the levels of Mr. Y’s absenteeism became progressively worse throughout the duration of his attendance at the school and I note the respondent’s evidence that he attended the school on only 61 days out of a possible 330 days during his two years at the school (i.e. 38 days out of a possible 165 school days in 2005/06 and 23 days out of a possible 165 school days 2006/07). The respondent submitted that it was as a result of this poor attendance record that it came to the conclusion in September, 2007 that it would not be in his best interests to be re-enrolled for the school year 2007/08 (as was outlined to the complainant in a letter dated 10 September, 2007). I accept that Mr. Y continued to cause difficulties in terms of his behaviour when he did attend school. I also accept that the complainant, Mrs. X, failed to attend a number of meetings which had been scheduled by the respondent in order to discuss the issues that arose in relation to her son and it is clear that this may have created certain difficulties for the respondent in terms of the manner in which it attempted to deal with these issues. However, notwithstanding the foregoing and given the fact that Mr. Y was a child with special educational needs, I am of the view that it is necessary for the respondent to demonstrate that it did all that was reasonable, in the circumstances, to try and address his absenteeism from school if it is to legitimately justify the reasons put forward for the decision that he should not be re-enrolled at the school in September, 2007.
4.12 In considering this issue, I have taken cognisance of section 21 of the Education (Welfare) Act, 2000 which makes provision in relation to the obligations that are placed upon the Principal of a post-primary school in terms of the attendance records of it’s students.
“21.-(1) The principal of a recognised school shall cause to be maintained in respect of each school year a record of the attendance or non-attendance on each school day of each student registered at that school”
and
“(4)(b) Where the aggregate number of school days on which a student is absent from a recognised school during a school year is not less than 20, or
(d) Where a student is, in the opinion of the principal of the recognised school at which he or she is registered, not attending school regularly, the principal of the school concerned shall forthwith so inform, by notice in writing, an educational welfare officer”
Having regard to the foregoing, there is a clear and unambiguous obligation upon the Principal of a school to notify the Educational Welfare Officer of any difficulties that arise in terms of the non-attendance of a student at the school. In the present case, there was a dispute in the evidence of the respective parties as to whether or not the respondent complied with it’s statutory obligations in this regard. The Assistant Principal, Mr. Z (who was acting in the capacity of Principal at that juncture), gave oral evidence that he contacted the Educational Welfare Officer in relation to Mr. Y’s poor attendance record and that he provided all of the relevant information in this regard. At the hearing of the complaint, I requested the respondent to provide copies of any records (or other documentation) that existed in relation to it’s contact with the Educational Welfare Officer in the case of Mr. Y. However, the respondent informed me in correspondence after the hearing that Mr. Z did not keep any copies of the reports which he claims were made to the Educational Welfare Officer except for a diary entry dated 27 March, 2006 which contained the name and telephone number (in Cork) of an Educational Welfare Officer. I note that this diary entry did not make any reference to the case of Mr. Y and I am therefore of the view that it is of very little evidential value in terms of the present case.
4.13 Having regard to the clear requirement that is placed upon a school Principal to notify the Educational Welfare Officer, in writing, of any difficulties in terms of the poor attendance of a student (as stated in the aforementioned provisions of the Education (Welfare) Act), I have great difficulty in accepting the totality of Mr. Z’s evidence as to whether the respondent did, in fact, comply with it’s statutory obligations in terms of the reporting of Mr. Y’s attendance difficulties. In coming to this conclusion, I have also taken into consideration the evidence of the complainant, Mrs. X, that she did not obtain any contact or support from the Educational Welfare Officer in terms of her efforts to address the difficulties that arose in relation to her son’s attendance at the respondent’s school. Based on the evidence adduced, I am satisfied that if the respondent had properly complied with it’s statutory obligations in terms of the manner in which it dealt with Mr. Y’s absenteeism from school, it would have resulted in the services of the Educational Welfare Officer being made available in order to provide support and ultimately to address the issues that arose in this regard. Having regard to the foregoing, I am satisfied that the respondent’s failure in this regard amounted to a failure to do all that was reasonable to accommodate the needs of Mr. Y, as a person with a disability, within the meaning of section 4 of the Equal Status Acts.
4.14 This conclusion leads to my consideration of the second question identified above i.e. whether the decision not to allow Mr. Y to return to full-time education in a third year class in September, 2007 and it’s offer to provide him with only 5 hours of resource teaching support per week (with no further access to full-time education) amounted to a failure to provide reasonable accommodation in accordance with its obligations under section 4 of the Acts. In considering the obligations that are placed upon a post-primary school to provide educational services to its students, I have taken cognisance of the provisions of section 9(2) of the Education Act, 1998 which states:
“9. — A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to —
(a) ensure that the educational needs of all students, including those with a disability or other special educational needs, are identified and provided for”
I note the respondent stated in evidence that it took the decision that Mr. Y should not be re-enrolled for the school year 2007/08 on the basis of his poor attendance record over the previous two years with the result that it would not have been in his interest, or the interests of the other students, to place him in a mainstream third year exam group (a letter to this effect was issued to the complainant, Mrs. X on 10 September, 2007). I accept the respondent’s contention that Mr. Y would not have been in a position to participate in and complete his Junior Certificate examinations in the school year commencing September, 2007/08 given the level of his absenteeism in the previous two years. However, I cannot accept that the respondent’s offer to provide him with only 5 hours of resource teaching per week, without further access to the normal standard of full-time education provided to other students, would have been adequate to address his educational needs and thereby comply with it’s obligations under section 9(a) of the Education Act, 1998. Furthermore, I am not satisfied that the respondent’s offer in this regard would have been in any way sufficient to cater for the special educational requirements that arose as a result of his disability.
4.15 The respondent stated in oral evidence at the hearing of the complaint that it would have been prepared to facilitate Mr. Y in repeating second year. However, I have not been presented with any evidence that this option was presented to Mrs. X as a viable alternative during the course of the contact that it had with her subsequent to the letter which was issued on 10th September, 2007 (i.e. on 22 October, 2007 and 8 November, 2007). Indeed, I note that Mrs. X stated in evidence that she would have seriously considered this option if it had been presented to her at the time. I have taken into consideration the respondent’s evidence that the purpose of this further contact was to afford Mrs. X the opportunity to set out in writing the reasons for wanting her son to return to the school in view of his low attendance in the past and to outline what had changed since. However, based on the evidence adduced, I have not been presented with any evidence from which I could reasonably conclude that the respondent would have been prepared, in any circumstances, to facilitate the complainant in terms of his access to full-time education for the school year 2007/08. Having regard to the foregoing, I find that the respondent’s decision not to provide Mr. Y with access to full-time education for the school year September, 2007 and it’s offer to provide him with only 5 hours of resource teaching support per week (with no further access to full-time education) amounted to a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts.
4.16 In considering the obligation that was incumbent upon the respondent to provide reasonable accommodation to Mr. Y, in the present case, within the meaning of section 4 of the Equal Status Acts, I have also taken cognisance of the provisions of section 4(4) of the Acts which states:
“(4) Where a person has a disability that, in 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”
Having regard to the evidence adduced in the present case, I have not been presented with sufficient evidence from which I could reasonably conclude that the respondent can legitimately rely upon this defence in relation to the discharge of it’s obligations to Mr. Y in accordance with the provisions of section 4 of the Equal Status Acts. I also note that the respondent did not seek to rely upon this provision of the Acts as a defence in terms of the manner in which it dealt with the complainant.
Race Ground
4.17 The complainant submitted that her son has also been subjected to discrimination by the respondent on the grounds of his race. It was submitted that the complainant’s son, Mr. Y, as a member of the Traveller community, is a member of an ethnic minority which resides within the State and accordingly, he is covered by the definition of race within the Equal Status Acts. The complainant, in support of the argument in relation to this aspect of her complaint, also referred to the ongoing campaign that is currently taking place to have members of the Traveller community recognised as an ethnic minority within the State. Having given consideration to this aspect of the complaint, I find that I cannot accept that the complainant, Mrs. X, or her son, Mr. Y, are covered by the race ground as provided for within the Equal Status Acts. The “race” ground is designed to afford protection against discrimination to those of a different colour, nationality or ethnic or national origins who reside within the State. Having regard to the evidence adduced in the present case, I find that the complaint under the race ground is not admissible within the meaning of the Equal Status Acts.
Traveller community ground
4.18 It was not in dispute between the parties that the complainant, Mrs. X, and her son, Mr. Y, are both members of the Traveller community. The complainant claims that her son, Mr. Y, was subjected to discrimination on the grounds of his membership of the Traveller community in terms of the manner in which his educational requirements were dealt with by the respondent. The question that I must decide in relation to this issue is whether the complainant’s son was treated less favourably than another student would have been, in similar circumstances, on the grounds of his membership of the Traveller community in terms of the manner in which the respondent dealt with his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school.
4.19 Based on the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the manner in which Mr. Y’s educational requirements and his behavioural difficulties and absenteeism were dealt with dealt with by the respondent was in any way influenced by his membership of the Traveller community. In coming to this conclusion, I note the respondent’s evidence that it also experienced behavioural difficulties with another student in Mr. Y’s class, who was a member of the settled community, and that this student was subjected to the same disciplinary code and sanction of suspension in relation to his inappropriate behaviour. Having regard to the totality of the evidence, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that her son was treated less favourably than another student would have been in similar circumstances on the grounds of his membership of the Traveller Community in terms of the manner in which his educational requirements (including the request to return to the school on a full-time basis in September, 2007) and the behavioural difficulties and absenteeism that arose during the course of his attendance at the school were dealt with by the respondent.
4.20 I am also satisfied that I have not been presented with any evidence which would support the complainant’s contention that the respondent’s school “had a known history” of denying admission to members of the Traveller community. I would point out that I do not have any jurisdiction to investigate or indeed consider any general allegations of the maltreatment of members of the Traveller community by the respondent save for those issues that come within the scope of the present complaint under the Equal Status Acts. However, notwithstanding the foregoing, I have taken note of the respondent’s evidence that some 15 members of the Traveller community have attended the school since the year 2000 and also the complainant’s evidence that another one of her children has attended the respondent’s school without experiencing any difficulties (and continues to do so). The respondent has also adduced evidence that it actively engages with the relevant supports that are available in terms of the provision of education to members of the Traveller community. In the present case, I am satisfied that there is clear evidence that the respondent actively engaged with the Visiting Teacher for Travellers in terms of the provision of educational services to the complainant’s son and during the course of it’s interaction in relation to the behavioural difficulties that arose during the course of his attendance at the school.
4.21 Having regard to the totality of the evidence adduced, I therefore, find that the complainant has not established that her son, Mr. Y, was treated less favourably than a non-Traveller would have been treated in a similar situation in terms of the manner in which his educational requirements and the management of his behavioural difficulties and absenteeism were dealt with by the respondent. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground.
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 race and Traveller community grounds in terms of sections 3(1), 3(2)(h), 3(2)(i) and 7(2) of the Equal Status Acts.
5.2 I also find that the respondent has discriminated against the complainant on the disability ground in terms of section 3(2)(g) and 7(2) of the Equal Status Acts by failing to provide reasonable accommodation in accordance with section 4(1) of the Acts. Accordingly, I find in favour of the complainant in relation to this element of the complaint.
5.3 Under Section 27(2) of the Equal Status Acts the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award in this case I have taken into consideration that the respondent did in fact endeavour to put a number of special measures in place in order to facilitate Mr. Y’s special educational requirements and to address the issues that arose in relation to his inappropriate behaviour. I have also taken into consideration that the complainant, Mrs. X, failed to attend a number of meetings which had been scheduled by the respondent in order to discuss the issues that arose in relation to her son and that her failure to engage on these occasions may have created certain difficulties for the respondent in terms of the manner in which it attempted to deal with the issues that arose. However, notwithstanding the foregoing, I have also taken into account the effects on Mr. Y of the respondent’s ultimate failure to provide him with reasonable accommodation within the meaning of section 4 of the Acts in terms of the manner in which it dealt with his absenteeism from school and the request that he be facilitated with a return to full-time education in September, 2007. I have also taken into consideration that Mr. Y did not complete his post-primary education after his attendance at the respondent’s school had terminated and the effect that this has had on his academic achievements. In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €3,000 as redress for the effects of the discrimination.
5.4 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent put in place a system that will facilitate the timely compliance with it’s statutory obligations under the Education (Welfare) Act, 2000 to report to the appropriate educational authorities any issues which may arise in the future in relation to the non-attendance of students at the school.
Ealing London Borough Council v Race Relations Board
[1971] UKHL 3 [1972] AC 342, [1972] 2 WLR 71 3
Lord Donovan
my lords,
The Appellant Council (” the Council”) is the housing authority for the
Borough of Ealing. As such it keeps a register of all applications for housing
accommodation within the Borough and a waiting list containing names
transferred from that register. A points scheme adopted by the Council,
which takes into account among other things the time the applicant has
been waiting, governs the allocation of council accommodation to those
on the waiting list. Another rule of the Council governing admission to
the waiting list reads thus:
” Rule 3 (1) An applicant must be a British Subject within the
” meaning of the British Nationality Act, 1948 “.
That Act defines a British subject as including both British subjects and
Commonwealth citizens.
In 1966 and again in 1968 a Mr. Zesko, a Polish national of excellent
antecedents and character, sent in an application to the Council for housing
accommodation describing himself therein as a Polish national. On each
occasion because of the rule just quoted the Council declined to put him
on the waiting list.
Section 1 (1) of the Race Relations Act, 1968 (“the 1968 Act”), enacts
that a person discriminates against another for the purposes of the Act if
” on the ground of colour, race or ethnic or national origins, he treats that
” other, in any situation to which section 2, 3, 4 or 5 below applies, less
” favourably than he treats or would treat other persons. . . .” Section 5
of the Act deals specifically with discrimination against a person in the
matter of the disposal of housing accommodation and makes such discrimina-
tion unlawful.
A complaint on behalf of Mr. Zesko was lodged with the Race Relations
Board now operating under the 1968 Act (” the Board “) that in the foregoing
circumstances the Council were in breach of section 5. In accordance with
the Act the Board investigated the complaint and formed the opinion that
it was well-founded. So it proceeded, as required by the Act, to try arid
secure a settlement and an assurance against repetition of such alleged
discrimination.
Taking the view, however, that it had committed no unlawful Act, the
Council on the 21st November, 1969, issued in the High Court an Originating
Summons claiming a number of declarations against the Board, of which it
is sufficient to quote No. 5, namely: ” That the Council are and were at all
” material times entitled to decline to place Zesko upon their housing
” waiting list on the grounds that he was not at the material time a British
” Subject but was on the contrary a person of foreign or alien nationality.”
It is the Board’s case that the High Court had no jurisdiction to grant
any such declaration or indeed any of the other reliefs asked for in the
Originating Summons ; and they so contended when the Summons was heard
by Swanwick J. in October, 1970. The contention is based primarily on
certain of the provisions which govern the right of the Board to bring
civil proceedings in England and Wales and which are contained in section 19
of the 1968 Act.
The striking feature of these provisions is that the Board is confined to
bringing proceedings in certain nominated County Courts and in those alone.
The judge is to be assisted by two assessors having special knowledge and
experience of problems connected with race and community relations. The
2
Board may sue for an injunction or for damages or for both: and for a
declaration that an act is unlawful under the provisions of the Act. A right
of appeal is given to the Court of Appeal on questions of fact or law.
All this, says the Board, amounts to a comprehensive and exclusive code
of proceedings for problems of race and community relations. Under it the
Board itself cannot go to the High Court and seek a declaration. Why,
therefore, should its opponent be allowed to do so? It is to be observed
in this connection, however, that the Board’s opponent can initiate no action
of any kind in the nominated County Court. He must sit down and
wait till he is taken there by the Board.
Other arguments were used by the Board in support of its contention
which are set out in the judgment of the learned judge. In my opinion, their
persuasive force was small and they were adequately disposed of by him
in his reserved judgment. He went on to say, quite rightly, that clear words
are necessary to oust the jurisdiction of the High Court and there are none in
the Act of 1968. Nor can any necessary implication to that effect be drawn
from its language. His observations were prompted by Viscount Simonds’
remarks in Pyx Granite Ltd. v. Ministry of Housing and Local Government
[1960] A.C. 260, 286 that ” It is a principle not by any means to be whittled
” down that the subject’s recourse to Her Majesty’s courts for the determina-
” tion of his rights is not to be excluded except by clear words. That is,
” as McNair J. called it in Francis v. Yiewsley and West Drayton Urban
” Council [1957] 2 Q.B. 136, 148, a ‘ fundamental rule ‘ from which I would
” not for my part sanction any departure.”
I certainly can see no justification for ousting the jurisdiction of the High
Court in the manner desired by the Board ; and I proceed, therefore, to
consider the substance of the Originating Summons.
The question which it raises is one of construction: namely, whether the
refusal of the Council to place Mr. Zesko’s name on their housing waiting
list was discrimination against him on the ground of ” national origins “
within the meaning of section 1(1) of the 1968 Act. The Council did not
use the expression ” national origins ” in this context. It simply applied its
rule that every applicant wishing to be placed on its waiting list for housing
accommodation must be a British subject within the meaning of the British
Nationality Act, 1942; and at the time Mr. Zesko was a Pole. Had
“discrimination” been defined in section 1(1) as including discrimination
on the ground of nationality, the Council’s rule would clearly have fallen
foul of it. So the question comes to this: do the words ” national origins “
amount for present purposes to the same thing as ” nationality “?
The Act itself contains no definition of ” national origins “. It must, I
think, mean something different from mere nationality, otherwise there would
be no reason for not using that one word, as indeed the Act does in later
provisions to which I shall have to refer. But looking at the matter from
the point of view of a would-be discriminator on the grounds of ” national
” origins ” what sort of matters would he take into account which were not
simply present nationality?
One example which readily suggests itself is that of a naturalised person.
The would-be discriminator may say, “Yes, I know he has become a
” naturalised British subject, but he was born a German and I bear a grudge
” against all such persons “. Any consequent discrimination could then be
said to be on the ground of national origins, i.e., the nationality received at
birth.
If this is what ” national origins” means, this difficulty arises for the
Board, namely, that the Council plainly did not reject Mr. Zesko’s application
because he had been born a Pole but because at the moment of his application
he was not a British subject. Had he been, there is no doubt (in the light
of subsequent events) that he would have been put on the waiting list, despite
his Polish origin. I am conscious that it may be said that this is still dis-
crimination on the grounds of national origins, and that the fact that these
have remained unchanged makes no difference: but of this I am not con-
vinced. Four grounds of discrimination only are specified in section 1(1).
3
Discrimination on any other ground, e.g., religion or politics is not unlawful
under the Act. When one finds that the Council was indifferent to Mr.
Zesko’s national origins but concerned only with his present nationality, and
present nationality is not expressly made a ground of possible discrimination,
I hesitate to assert that nevertheless it is.
It is argued alternatively by the Board that the phrase ” national origins “
is wide enough by itself to embrace nationality and in many cases this may
be so. But the Act of 1968 is dealing with discrimination on grounds existing
at the time it occurs: and I find ” national origins ” a very inapt phrase to
embrace present nationality.
There are certain provisions in the Act which expressly mention
“nationality”. Thus, section 8(11) preserves the legality of selecting for
employment a person of a ” particular nationality ” or descent if the work
requires attributes especially possessed by such person.
Section 27(9) preserves the legality of present or future rules restricting
employment in the service of the Crown or of certain prescribed public
bodies to persons of particular birth, citizenship, nationality, descent or
residence.
Both sides rely upon these provisions. The Board argues that ” national
” origins” is thus shown to include nationality otherwise the provisions
would, to this extent at least, be otiose. The Council replies that if the true
construction of ” national origins” does not include present nationality,
saving provisions like section 8(11) and section 27(9) cannot be extended so
as to achieve that result: it being common for such clauses to err on the
side of caution. I think there is force in the Council’s reply and I do not
think the provisions in question shed a crucial light upon the interpretation of
” national origins ” in section 1(1).
If the Council is to be stigmatised as being guilty of an unlawful act under
the 1968 Act I think that conclusion ought to be reached with reasonable
confidence. Giving the rival arguments the best consideration I can I must
say that I do not feel that measure of confidence. Instead, I still feel much
doubt about it; and in that state of mind I would allow this appeal and
make the declaration suggested by my noble and learned friend, Viscount
Dilhorne. It follows from what I have previously said that I would dismiss
the cross-appeal.
I should perhaps add that since these proceedings were begun Mr. Zesko
has become a naturalised British subject and been placed on the housing
waiting list. This does not render the proceedings academic since he would
have lost the benefit of a certain amount of waiting time, assuming that the
contentions advanced on his behalf had been correct.
Viscount Dilhorne
My lords,
On the 15th June, 1965, the Appellants adopted certain “Conditions and
Rules of Acceptance of Housing Applications “. One of the conditions was
that to be accepted on the Council’s waiting list and to be assessed under
the points scheme, the applicant ” must be a British subject within the mean-
” ing of the British Nationality Act, 1948″. Presumably it was in the
Council’s opinion not right to allot council houses to aliens when so many
British people were wanting houses.
On the 30th August, 1966, a Mr. Zesko applied to the Appellants for a
house. In his application form he stated that he and his wife were Polish
and had been born in Poland. In fact his nationality was Russian for we
were told that at the time of his birth Poland formed part of Russia and
that in fact he was born in Siberia. His application was rejected on the
ground that he was not a British subject. Mr. Zesko had a fine war record,
and, when he applied for naturalisation, he was granted it. He then re-
newed his application for a house and was put on the waiting list. The
only effect this appeal may have so far as he is concerned is that if it is
4
dismissed, the Appellants will have to treat him as if he had been put on
the waiting list when he first applied, in which event he will gain an advantage
in the housing queue.
The Race Relations Act, 1968, came into operation on the 25th November,
1968 (s.29(3)). S.l(l) is in the following terms: —
” For the purposes of this Act a person discriminates against another
” if on the ground of colour, race or ethnic or national origins he treats
” that other, in any situation to which section 2, 3, 4 or 5 below applies,
” less favourably than he treats or would treat other persons, and in this
” Act references to discrimination are references to discrimination on
” any of those grounds “.
Discrimination is made unlawful in respect of the provision of goods, facili-
ties or services by s.2, in relation to employment by s.3, in relation to
membership of trade unions, employers’ and trade organisations by s.4
and in relation to housing accommodation by s.5.
On the 2nd June, 1969, the Respondent’s Chief Conciliation Officer wrote
to the Appellants telling them that the Race Relations Board had considered
the complaint made by the Anglo-Polish Conservative Society on behalf of
Mr. Zesko that the Appellants had unlawfully discriminated against him by
refusing to consider his application for housing as he was not a British
subject. He said that the Board had formed the opinion that the Council
had acted unlawfully and contrary to s.5(c) of the Act and he sought in
accordance with s.15(3)(b) of the Act to seek a settlement of the differences
between Mr. Zesko and the Council and an ” assurance against any repetition
” of the unlawful act or the doing of further acts of a similar kind “.
No such assurance was forthcoming, as the Council maintained that they
had not acted unlawfully as alleged and, on the 14th November, 1969,
the Chief Conciliation Officer wrote saying that the Board had decided to
maintain their opinion that unlawful discrimination had occurred. He again
asked formally whether the Council was prepared to reach such a settlement
and give such an assurance but he imagined that the answer would be in
the negative and said that ” the Board would then have to determine whether
” or not to bring proceedings However, they would defer their determina-
” tion until after the High Court proceedings had been disposed of.”
High Court proceedings were instituted—in the light of the foregoing,
it would seem with the agreement of the Board—on the 21st November, 1969,
by Originating Summons claiming five declarations. The action was heard
by Swanwick. At the hearing Mr. MacCrindle for the Respondents con-
tended that the court had no jurisdiction to grant the relief claimed, and,
alternatively, if it had jurisdiction, in the exercise of its discretion it should
refuse to make any of the declarations claimed. Swanwick J. rejected these
contentions but held that there had been unlawful discrimination against
Mr. Zesko and dismissed the Summons.
From his decision the Appellants have, with leave, appealed direct to
this House, and the Respondents have again contended that there is no
jurisdiction to grant the relief claimed, and alternatively, that if there is
jurisdiction, in the exercise of discretion relief should not be granted.
It will be convenient to consider these two contentions first.
S.19 of the Race Relations Act, 1968, provides by subsection (1) that: —
“Civil proceedings may be brought in England and Wales by the
” Race Relations Board, in pursuance of a determination of theirs under
” section 15 of, or Schedule 2 or 3, to this Act and not otherwise, in
” respect of any act alleged to be unlawful by virtue of any provision
” of Part 1 of this Act”
and that in such proceedings an injunction or damages or an injunction and
damages or ” a declaration that that act is unlawful by virtue of that provision
” or any other provision of the said Part 1 ” may be claimed.
S. 19 (2) provides that proceedings under the section may be brought in a
county court appointed to have jurisdiction to entertain such proceedings
in the Lord Chancellor ” and shall not be brought in any other court “.
5
8.19(10) inter alia provides that:
“… except as provided by ” this Act ” no proceedings, whether civil
” or criminal, shall lie against any person in respect of any act which
” is unlawful by virtue only of a provision of Part 1 of this Act.”
The proceedings instituted by the Appellants were not brought against
any person in respect of any act which is unlawful by virtue of Part 1 and
s.l9(10) therefore does not apply to them. S. 19(2) is expressed to apply to
” proceedings under this section”. Proceedings under the section are
proceedings by the Race Relations Board and it is those proceedings which
cannot be brought in any other court than one appointed by the Lord
Chancellor. S. 19 (2) does not, therefore, prevent the institution of proceedings
such as those in this case.
Proceedings brought by the Race Relations Board under the section must
be in pursuance of a determination of the Board under section 15 or Schedule
2 or 3 ” and not otherwise ” and ” in respect of any act alleged to be
unlawful ” by virtue of the Act.
Section 19 and sections 20-24 all deal with the enforcement of the Act by
the Race Relations Board. I can find nothing in the Act which ousts the
jurisdiction of the courts to grant a declaration. The Council are not bringing
any proceedings to which section 19 applies.
I, therefore, reject this contention of the Respondents. Whether any of the
declarations sought should be made is a matter of discretion. A Borough
Council, accused by the Board of having acted unlawfully in the administra-
tion of its housing scheme, may well seek to have the allegation disposed of
one way or the other at the earliest possible moment. If they do not do so,
and have to wait to see whether the Board decides to institute proceedings,
they may be left in doubt about how to deal with applicants for houses. If
the Respondent’s are right, it is only if the Board starts proceedings that the
Council can clear itself of the imputation cast upon its conduct.
Where, as in this case, there is no dispute as to the facts and where the
legality of the Council’s action depends and solely depends on the construction
of the Act, the issue of an Originating Summons is a convenient procedure
for determining the question of construction. If the Appellants are entitled
to any of the declarations they claim, I see no reason to refuse in the exercise
of discretion to make a declaration.
I, therefore, reject the Respondents second contention.
Whether the Council acted lawfully or unlawfully depends on the meaning
to be given to the words “national origins” in section 1(1). Those words
appear in section 1(1) (repealed by the 1968 Act), section 5(1) and section 6(1)
of the Race Relations Act, 1965. Our attention was not drawn to their use
in any other Act and in neither Race Relations Act is the meaning to be
given to these words defined. They must have been intended in the 1968 Act
to have the same meaning as they had in the 1965 Act and I propose first
to consider whether the 1965 Act throws any light on the meaning to be
given to them.
The long title to that Act is in the following terms :-
” An Act to prohibit discrimination on racial grounds in places of
” public resort: to prevent the enforcement or imposition on racial
” grounds of restrictions on the transfer of tenancies: to penalise incite-
” ment to racial hatred: and to amend section 5 of the Public Order
” Act.”
Section 1(1) provides that it is unlawful for, inter alia, proprietors of places
of public resort ” to practise discrimination on the ground of colour, race
” or ethnic or national origins “. Section 5(1) makes it unlawful to withhold
a licence or consent to the disposal of a tenancy on the same grounds and
section 6(1) makes it an offence to do certain acts with intent to stir up hatred
” against any section of the public in Great Britain distinguished by colour,
” race or ethnic or national origins “.
The words quoted in these three sections show the meaning to be attached
to the word ” racial ” in the long title.
6
The question to be decided in this appeal is whether discrimination in
favour of British subjects within the meaning of the British Nationality Act,
1948, and against aliens is discrimination on the ground of “national
origins “.
” Nationality “, in the sense of citizenship of a certain State, must not be
confused with ” nationality ” as meaning membership of a certain nation
in the sense of race. Thus, according to International Law, Englishmen and
Scotsmen are, despite their different nationality as regards race, all of British
nationality as regards citizenship. Thus further, although all Polish individuals
are of Polish nationality qua race, for many generations there were no Poles
qua “citizenship.” (Oppenheim’s Internation Law, 8th Ed: Vol. I, p. 645).
Just as ” nationality ” can be used in these two senses, so can the word
” national”. Bearing in mind the racial objects of the 1965 and 1968 Acts,
and that the words ” national origins ” with the other words with which it
appears to explain what is meant by the word ” racial” in the long title, I
think that the word ” national ” in ” national origins ” means national in the
sense of race and not citizenship.
The long title of the 1968 Act is in the following terms: —
“An Act to make fresh provision with respect to discrimination on
” racial grounds, and to make provision with respect to relations between
” people of different racial origins.”
And again the use of the words ” colour, race or ethnic or national origins ” in
section 1(1) show the content of the word ” racial “.
The word ” Nationality ” does not appear in the 1965 Act. In the 1968
Act it appears in two places. Section 8(11) of that Act states that: —
” Section 3 above ” (the section dealing with employment) ” shall not
” render unlawful the selection of a person of a particular nationality or
” particular descent for employment requiring attributes especially
” possessed by persons of that nationality or descent.”
And section 27(9) is in the following terms: —
” Nothing in this Act shall—
” (a) invalidate any rules . . . restricting employment in the service
” of the Crown or by any public body prescribed for the purposes of
” this subsection by regulations made by the Treasury to persons of
” particular birth, citizenship, nationality, descent or residence.”
In both section 8 and section 27 ” nationality ” is used in the sense of citizen-
ship of a State. It was argued for the Respondents that these references to
nationality would not be necessary unless nationality in the sense of citizen-
ship of a State was comprehended in the words ” national origins “, for, it
was said, if that were not the case there would be no need to refer to it in these
saving clauses. I am not convinced by this reasoning that one should on this
account construe the words ” national origins ” in both Acts, for the meaning
must be the same in both, as including nationality. I think that it is likely that
these references to nationality were made ex abundanti cautela, it being
realised that the interpretation to be given to ” national origins ” might lead
to difficulties.
As a step towards determining whether there has been unlawful dis-
crimination one has to consider the characteristics of the individual alleged
to have been discriminated against and then to decide whether he was
discriminated against on account of his colour, race or ethnic or national
origins. Consideration of those matters involves consideration of his ante-
cedents. Mr. Zesko’s race was Polish. His national origins were Polish.
Was he discriminated against on that account? If that was the ground of
the discrimination it was not removed by his naturalisation, and the fact
that despite his race and his Polish origin he was after naturalisation
accepted on the waiting list shows, in my view, that he was not discriminated
against on account of his national origins. The ground for the discrimination
was that he was not a British subject. It was his nationality at the time
he applied, not his national origins, that led to the refusal to put his name
on the waiting list:
7
” The first and chief mode of acquiring nationality is by birth: indeed,
” the acquisition of nationality by another mode is exceptional, since
” the vast majority of mankind acquires nationality by birth and does
” not change it afterwards.” (Oppenheim’s International Law 8th Ed.:
Vol 1 p. 651).
This is, no doubt, true and affords a foundation for the argument that
discrimination against aliens is in the vast majority of cases discrimination
consequent upon their national origins. It was not in this case discrimination
on the ground of national origins but on the ground of the nationality
possessed at the time of the making of the application to go on the waiting
list. An applicant’s nationality may have been acquired at birth. It may
be that his nationality is due to his national origins but the Council, as I
understand the position, concern themselves with what an applicant is and
not with what his origins were.
While I recognise that the question for decision is a difficult one, owing
to the omission in the Acts of any indication of the meaning to be given
to the words ” national origins “, and one on which different views may be
held, it must I think be recognised that ” nationality ” and ” national origins “
have not the same meaning, and that if it had been Parliament’s intention,
either in 1965 or in 1968, to make discrimination between British subjects
and aliens unlawful, that could easily have been achieved by the addition of
the words ” or nationality ” after ” national origins “.
The fact that Parliament did not do so and the fact that there is no clear
indication in either Act that it intended to do so and the other reasons I
have stated lead me to the conclusion that the Appellants did not act
unlawfully in breach of section 5 of the 1968 Act in refusing to enter
Mr. Zesko’s name on the waiting list.
Of the five declarations sought by the Appellants, four do not appear to
me apposite and the fourth declaration sought requires, in my view, slight
amendment so that it should be declared that by declining on or about the
4th February, 1969, to place Mr. Zesko on their housing waiting list on
account of his not then being a British subject within the meaning of the
British Nationality Act, 1948, the Council did not commit a breach of
section 5 of the Race Relations Act, 1968.
For the reasons I have given, I think that this appeal should be allowed,
that a declaration in the above terms should be made, that the other
declarations sought should not be granted, and that the cross-appeal should
be dismissed.
DEC-S2004-189 Full Case Report
Tatlhego Maphosa v Dublin Bus
1. Dispute
1.1 This dispute concerns a complaint by Mr Tatlhego Maphosa that he was discriminated against, contrary to the Equal Status Act 2000, by Dublin Bus. The complainant maintains that he was discriminated against on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 The complainant states that, while waiting for the No 111 bus at the terminus in Loughlinstown, a female bus driver pulled up to the stop, looked at him for a moment and then pulled away without opening the bus doors.
3. Summary of Respondent’s Case
3.1 The respondents reject that any discrimination occurred. The bus driver denies any recollection of the incident and says that she would never have left anyone standing at a bus stop.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5. Evidence of Complainant
Mr Maphosa was a regular visitor to the Loughlinstown Leisure Centre at the time of the incident on 18 December 2002. He used to travel to and from the Centre from his home, on either the No 111 or No 7 bus whichever arrived first.
At 9pm on 18 December 2002, after he had finished in the Leisure Centre, he went outside and waited at the terminus of the No 111 and No 7 buses. Both buses use the same bus stop.
Two buses were parked in the bay near the bus stop. The nearest was the No 111, 10 feet away, and he was able to clearly see the female driver who was reading a newspaper. He is also sure that the bus driver was able to see him and said he could not accept otherwise as it was very bright at that location..
At 9.10 pm the No 111 started to approach the bus stop. He was already standing at the stop beside the kerb and put out his hand for the bus.
The female bus driver pulled up at the stop but did not open the doors. The driver looked directly at him and then drove away. At the Hearing, he clearly identified Ms Laura Hughes as the driver in question.
After the No 111 had left, he approached the No 7 bus where a white male driver was sitting. He believes that the driver was Irish as he had an Irish accent.
He boarded the bus and asked the driver if he had seen what had happened. The driver replied “Sorry, none of my business”.
When the driver told him he would not be leaving for a further 10 minutes, he got off again to see if another bus arrived. Eventually he did take that No 7 bus home.
There were no other people waiting in the vicinity of the bus stop when he was there and he was the only person to board either of the two buses.
Because of the attitude of the male driver, he decided not to complain personally to Dublin Bus but instead to refer the matter to his solicitor.
As a result of the incident, he says that he has not used Dublin Bus services since.
The next day, he went to his solicitor who immediately sent a letter of complaint to the secretary of Dublin Bus alleging discrimination. The letter dated 19 December 2002, gave precise details of the incident and even identified the registration number of the No 7 bus driven by the white male driver.
Respondents Evidence
Dublin Bus state that, on receipt of the written complaint, the incident would have been referred to the Garage Manager in Donnybrook for investigation. From the timesheets available, the manager identified Ms Hughes as the driver of the No 111 bus and a gentleman of Asian origin, Mr A, as the driver of the No 7 bus that evening.
Mr A left Dublin Bus shortly afterwards to live in England and was only contacted by the Garage Manager about the incident in September 2003. In his report, the Garage Manager stated that Mr A had told him in September 2003 that ” a person answering Mr Maphosa’s description did board his bus but made no comment to him regarding any incident with the previous bus driver”.
Dublin Bus again spoke to Mr A in March 2004 and offered to pay his fares and expenses to enable him to attend the Hearing as a witness. On the understanding that he would attend, Dublin Bus notified the Equality Officer in March 2004 that Mr A would be attending the Hearing as a witness.
The company were unable to contact Mr A subsequently to confirm the Hearing arrangements. As a result, they informed the Equality Officer, on the day of the Hearing itself, that Mr A would not be attending.
Ms Laura Hughes gave evidence that she was working as a “spare driver” in December 2002 and was not a regular on any specific route. She seldom operated the No 111 bus and had not been on that route for 6 months prior to 18 December 2002 and she was not on the route again for a good while after.
On 18 December 2002, she had been on the No 111 since 3 pm. The return trip took approximately 40 minutes and she would have departed from the Loughlinstown terminus on perhaps 12 or 13 occasions that day. On several occasions there were no passengers waiting at the bus terminus.
It was several weeks after the alleged incident that she was approached by the Garage Manager and asked about it.
She said that she does not recall anything untoward happening that evening and certainly has no recollection of any incident involving Mr Maphosa. It is possible that she left the terminus that evening on several occasions without having taken on any passengers.
Ms Hughes said that, as far as she can recall, there was a No 7 bus waiting behind her at 9.10 pm on 18 December 2002 but she would have no specific recollection of who was in it. She does not recall speaking to another driver that night.
She denied that she would have ever deliberately left a passenger at a bus stop and that it was not in her nature to discriminate against anyone.
Her normal procedure when departing from the No 111 terminus is to pull up slowly to the bus stop. If there were no passengers standing at the stop, she would cast a glance over towards the pub entrance, particularly when the weather was bad, to see if any potential passengers were sheltering and to give them a chance to board.
She said that she is normally very watchful when waiting at the terminus as there are often junkies and cider drinkers hanging around. She had also heard of other incidents where children had interfered with the engine at the terminus and another incident where a bus had been set on fire at that particular terminus.
She said that it was unusual to pick up “non-white” people in Loughlinstown and that “you would notice if you picked up a coloured person” on the route.
Ms Hughes said that she had been employed by Dublin Bus for 6 years and had attended a number of equality training sessions in Dublin Bus over the years including a specific course on the Equal Status Act 2000 in April 2002.
Additional Evidence
At the Hearing, the respondents were asked to produce printouts of the drivers journey modules for 18 December 2002 for Ms Hughes and Mr A. The company explained that these printouts would provide specific details of the journeys undertaken, the departure times from each terminus, the timings of stops on the way and the fares collected at each stop.
These printouts were submitted some weeks after the Hearing. However, when these printouts were closely examined on receipt, the printouts showed that Mr A’s bus appears to have departed from Loughlinstown at 21.06 pm while Ms Hughes bus departed at 21.07 pm. In essence, this would appear to indicate that Mr A’s bus left Loughlinstown before Ms Hughes’ bus which is contrary to the evidence provided by the respondents at the Hearing.
On detecting this, the respondents were asked to carry out some further research with a view to obtaining a print-out of the schedule for the next No 7 bus which would have left Loughlinstown after Ms Hughes’ bus. In addition, the respondents were asked for a description of the driver of that bus – man or woman, Irish or foreign national. The reply received indicated that the driver of the next No 7 bus was an Irish male. The respondents were also requested to submit a printout of that driver’s journey schedule for 18 December 2002. However, when a printout was eventually submitted the detail on it referred to a No 7 bus which apparently left Loghlinstown at 20.50 pm, 15 minutes prior to the alleged incident. For this reason, the printout was of little assistance to the investigation.
6. Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) of the Act specifies the race ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainant claims that he was discriminated against on the grounds of his race contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000 in the treatment he received in not being allowed board a bus on 18 December 2002.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it can be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
7. Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants.
There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Existence of a discriminatory ground (e.g. the race ground)
(b) Establishment of facts to show that specific treatment occurred
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground.
7.2 What constitutes “prima facie evidence’ and how a “prima facie case” is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that he is black. In relation to (b), the respondents deny any knowledge of the alleged incident of discrimination. To determine whether a prima facie case exists, I must, therefore, decide firstly whether I am prepared to accept, on the balance of probabilities, that the alleged incident occurred as described by the complainant and, if so, whether the alleged treatment afforded the complainant on 18 December 2002 was less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances.
7.4 In this particular case, I am faced with conflicting evidence from Mr Maphosa and Ms Hughes. Mr Maphosa states that Ms Hughes clearly saw him at the bus stop but chose not to allow him to board the bus. For her part, Ms Hughes states that she has no recollection of such an incident and that she would never deliberately refuse access to a passenger.
7.5 In the absence of Mr A, the only person who the respondents maintain might be able to throw some light on the incident, I find that I have no independent evidence on which to base my decision and, therefore, I must decide, on the balance of probabilities, whether or not I am prepared to accept that the incident occurred as described by Mr Maphosa.
7.6 In deliberating on the evidence before me, I note that, at the Hearing, the complainant provided a clear and detailed account of what he maintains happened on 18 December 2002. I also note that his account accurately reflects the contents of his solicitor’s letter to Dublin Bus on 19 December 2002, the day after the incident.
The respondents, for their part, maintained at the Hearing that the alleged incident did not occur as claimed. In their defense, they identified Mr A as the driver of the Number 7 bus that was stationed behind Ms Hughes’ bus on the night. As part of their enquiries into the complaint, they say that it was the following September before they contacted Mr A in England and that it was only then that he informed them that he recalled a man meeting Mr Maphosa’s description getting on to the No 7 bus on 18 December 2002, but that the man made no complaint to Mr A. As Mr A failed to attend the Hearing to give direct evidence, this information must be regarded simply as hearsay.
What emerged subsequent to the Hearing is, to me, more significant. As stated above, the printouts supplied by Dublin Bus after the Hearing indicate that Mr A’s bus left the terminus before Ms Hughes’ bus. In addition, Dublin Bus have now confirmed that the No 7 bus which followed Mr A’s bus was driven by an Irish male, which supports the evidence given by Mr Maphosa, yet this man does not appear to have been consulted about the incident, which to me casts a cloud over the respondents evidence.
7.7 From hearing the complainant’s evidence at first hand and from questioning him on the detail of his complaint, I found him to be a very credible witness. For this reason, and the fact that confusion now exists as to who was driving the relevant No 7 bus on the night, I find that I am prepared to accept, on the balance of probabilities, that the incident happened as outlined by Mr Maphosa and that Mr Maphosa was refused access to the No 111 bus by Ms Hughes on 18 December 2002.
7.8 Having accepted, on the balance of probabilities, that the incident did occur in the manner described by Maphosa, I now must decide whether the treatment afforded the complainant on 18 December 2002 was less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances.
In considering the matter from Ms Hughes perspective, I note that she has said that she was not familiar with the route itself and that it was unusual to see “non-white” people on the No 111 route. I have also noted her comments about having to be “watchful” at the Loughlinstown terminus because of previous incidents in and around the terminus.
From listening to these comments from Ms Hughes, I do not consider it inconceivable that she may have felt uneasy on 18 December 2002 on seeing a lone black man waiting at the terminus to board her bus. I also do not consider it inconceivable that she may have decided, for reasons pertaining to her own security, that it would be safer not to allow the man board the bus. The question to be asked, however, is whether such a decision can be justified as having been taken for a non-discriminatory reason.
7.9 Section 15(1) of the Equal Status Act 2000 states thatnothing in the Act shall be construed as requiring a person to provide a service in circumstances which would lead a reasonable individual to the belief, on grounds other than discriminatory grounds, that the provision of the service “would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought “.
In this particular instance, Ms Hughes has admitted that Mr Maphosa was unknown to her before 18 December 2002 and, therefore, she would have had no reason to suspect that Mr Maphosa himself was likely to engage in criminal or disorderly conduct. For this reason, I cannot accept that the refusal to grant Mr Maphosa access to her bus was in accordance with Section 15(1) of the Equal Status Act 2000.
While it is possible that a female bus driver might feel uneasy on seeing a lone man waiting at the terminus to board her bus, there is no evidence before me to indicate that Ms Hughes has ever before refused to allow a man (white or black) to board her bus in similar circumstances. In the absence of such evidence, I find, on the balance of probabilities, that the only real conclusion that I can reach in this instance is that it was Mr Maphosa’s colour that prompted Ms Hughes to refuse him access to the bus and it is this action that I consider constituted discrimination on the race ground, contrary to the provisions of the Equal Status Act 2000.
Accordingly, I find that a prima facie case of discrimination on the race ground has been established by the complainant and that the respondents have failed to rebut the allegation.
8. Decision
8.1 I find that a prima facie case of discrimination has been established by the complainant on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation.
Accordingly, I find in favour of the complainant and I order that the respondents pay Mr Maphosa the sum of €1200 for the humiliation and distress suffered by him.
Brian O’Byrne
Equality Officer
15 December 20041
Website: www.odei.ie
Equal Status Act 2000
EQUALITY OFFICER’S DECISION NO: DEC-S2002-101
Equal Status Act 2000
Summary of Decision DEC-S2002-101
Sajjad Sajjadi v The Turk’s Head
Key words
Equal Status Act 2000 – Direct discrimination, section 3(1)(a) – Race ground, section
3(2)(h) – Supply of goods and services, section 5(1) – Refusal of admission to pub –
Request for ID – Burden of Proof. – Vicarious liability, section 42
Dispute
This dispute concerns a complaint by Sajjad Sajjadi that he was discriminated against, contrary
to the Equal Status Act 2000, by the Turks Head Pub, Dublin.
The complainant maintains that he was discriminated against on the ground of race in terms of
sections 3(1)(a) and 3(2)(h) of the Equal Status Act 2000 in being denied a service which is
generally available to the public contrary to Section 5(1) of the Act.
Summary of the Complaint
The complainant states that on 25 September 2001, he was refused admission to the Turks Head
pub by a doorman despite producing a student ID card, containing a photo and showing that he
was 33 years of age. The complainant claims that he was refused admission because of his race.
The respondents totally reject that they operate a discriminatory policy against anyone. They
claim that the Turks Head has a policy of only accepting Garda Age Cards or Passports as proof
of identification and that the complainant was refused admission because he could produce
neither.
Decision
In light of the complainants age (33), and the fact that no allegation was made that the
complainant had drink taken or had caused trouble before, the Equality Officer found that the
complainant had suffered racial discrimination in not being admitted on production of his student
card .
The Equality Officer found that the complainant had been discriminated against on the race
ground and ordered that the respondents pay him the sum of €1500 for the distress, humiliation
and loss of amenity suffered.
Complaint under the Equal Status Act 2000
Decision No. DEC-S2002-101
Sajjad Sajjadi
5
(Represented by Gerard Maguire & Co, Solicitors)
V
The Turk’s Head
1. Dispute
1.1 This dispute concerns a complaint by Sajjad Sajjadi that he was discriminated against,
contrary to the Equal Status Act 2000, by the Turks Head Pub, Dublin.
The complainant maintains that he was discriminated against on the ground of race in terms of
sections 3(1)(a) and 3(2)(h) of the Equal Status Act 2000 in being denied a service which is
generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainants’ Case
2.1 The complainant states that on 25 September 2001, he was refused admission to the
Turks Head pub by a doorman despite producing a student ID card showing that he was 33 years
of age. The complainant claims that he was refused admission because of his race.
3.. Summary of Respondent’s Case
3.1 The respondents totally reject that they operate a discriminatory policy against anyone.
They claim that the Turks Head has a policy of only accepting Garda Age Cards or Passports as
proof of identification and that the complainant was refused admission because he could produce
neither.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal
Status Act 2000. In accordance with her powers under section 75 of the Employment Equality
Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to
myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the
exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5 Evidence of Parties
5.1 Complainant’s Evidence
Mr Sajjadi has lived in Ireland for 8 years
He applied for and was granted Irish citizenship several years ago
6
He is originally from Azerbaijan
He is currently a student in Bolton Street Technical College
He was 33 years of age at the time of the alleged act of discrimination
Mr Sajjadi has previously been in the Turks Head on 4 or 5 occasions. He had no
difficulty gaining admission.
He also considers himself a personal friend of Mr Marcus Danson who works for the
Turks Head and appeared as a witness for the pub at the Hearing.
On 25 September 2001, Mr Sajjadi arranged to meet some college friends in the Turks
Head that evening.
Mr Sajjadi arrived at the door of the Turks Head around 8.30 pm
He states that he remembers two gentlemen standing at the entrance, Mr X, a doorman,
and Mr Rory Keogh, the Manager.
Mr Sajjadi recognised Mr Keogh from having been introduced to him previously in the
Turks Head by his friend Marcus Danson
When he went to enter, he states that Mr X blocked him with his arm and asked him for
ID.
Mr Sajjadi produced his student card, containing his photo and date of birth, but this was
not acceptable to Mr X
Mr Sajjadi then produced a student travel card and several bank cards. These also were
not acceptable to Mr X who insisted that a passport was necessary. Mr Sajjadi did not have
his passport with him.
Mr Rory Keogh was standing beside Mr X during this period. Mr Keogh also looked at
the student card when Mr X was examining it but walked inside without making any
comment.
Mr Sajjadi asked for permission to go inside and tell his friends that he would not be able
to join them but this request was refused by Mr X.
Mr Sajjadi remained at the entrance for up to 30 minutes until he was spotted by one of
his friends inside.
At his friend’s request, Mr Rory Keogh came to the front door and spoke to Mr X
7
Mr Keogh then looked at Mr Sajjadi’s student card again and said to Mr X “This one’s
OK”
Mr Sajjadi was upset by Mr Keogh’s remark which he considered discriminatory
Mr Sajjadi then went into the pub, explained to his friends what had happened.
Because he was so upset, he decided to leave within a few minutes of meeting his friends.
5.2 Respondents’ Evidence
Evidence of Ms Rita Barcoe
She is the General Manager of the Turks Head
She has managed the Turks Head for over six years
The pubs caters mainly for younger customers
As it is located in the Temple Bar area, 70% of its business would come from a passing
trade
The Turks Head has a multi-national customer base
The pub has a number of foreign nationals working for it
Doormen are employed every night with more on duty at weekends
Doormen are employed on contract from a security firm
On foot of the Equal Status Act 2000, the pub drafted its own policy to be applied by its
doormen
The doorman who dealt with the complainant on the night (Mr X) was not available to
attend the Hearing.
Mr X was employed by the pub for over a year prior to the incident but has since left
their employment.
Ms Barcoe described Mr X as a gentle considerate person who she believed would not
have engaged in or condoned any form of discriminatory treatment
On seeing the complainant at the Hearing, Ms Barcoe accepted that she personally would
not have seen any reason for requesting ID from him.
8
Evidence of Mr John Kelly, Head of Security
John Kelly personally trains new door staff on arrival.
The Turks Head has a strict security policy in place.
Potential customers are refused if they appear underage, intoxicated or have caused
trouble before.
ID is sought where a person is unfamiliar or possibly underage. This provides an
opportunity to assess a person’s condition
The pub insists on Garda Age Cards or passports being produced where there is a
question about someone’s age.
The pub has experienced many cases where student cards had been faked to gain
admission
It is usual to ask a manager for a second opinion in cases where a doorman believes that a
fake student ID card has been produced
Student cards have been accepted for ID purposes in the past where door staff had no
cause for concern about an individual
Mr Healy accepted that, on meeting Mr Sajjadi at the Hearing, that he would not have
thought him to be under-age.
Evidence of Mr Rory Keogh, Bar Manager with the Turks Head
Mr Keogh does not recall meeting Mr Sajjadi prior to 25 September 2001
Mr Keogh recalls Mr John Healy, a witness for the complainant at the Hearing,
approaching him on the floor and accusing the pub of being racist for not allowing his friend,
Mr Sajjadi, in.
Mr Keogh only saw Mr Sajjadi for the first time that night when he was asked to go to
the door by Mr Sajjadi’s friend.
Mr X informed him that the complainant had not been able to produce acceptable ID and
that he had become irate and abusive when refused admission.
Mr Keogh asked to see Mr Sajjadi’s ID and, having satisfied himself that it was genuine,
indicated to Mr X that the complainant was to be admitted.
Mr Keogh did not say “this one’s OK” to Mr X
9
Without knowing his age, Mr Keogh stated that he personally would have thought Mr
Sajjadi was at least 22 or 23 years of age.
Mr Keogh shook hands with Mr Sajjadi on the night, having explained to him the pubs
requirements with regard to Garda Age Cards
Evidence of Mr Marcus Danson
He is a bar manager in the Turks Head
He has known Mr Sajjadi for many years having originally shared a house together
Mr Sajjadi had been in the Turks Head on several occasions prior to 25 September 2002.
Mr Danson did not become aware of the incident involving Mr Sajjadi until some months
after the incident
5.3 Incident Reports and Door Policy documents
In support of their case, the respondents produced copies of Incident Reports dated 25
September 2001 from three members of staff, including Mr X, which had been forwarded to the
complainant’s representative shortly after the complaint was made. Accompanying these incident
reports was a document headed “Turks Head Door Policy” which identified the nine grounds
under the Equal Status Act 2000 under which entry could not be refused.
The Incident Report in the name of Mr Rory Keogh reflected his evidence at the Hearing. Two
other incident reports were submitted. Both of these, although written in separate handwriting,
bore two signatures, purportedly the signatures of the two doormen on duty that night. It is,
therefore, unclear as to which report belongs to which doorman. There is conflict, however,
between these reports and the evidence given at the Hearing, with regard to the door at which the
incident took place.
When challenged at the Hearing about the authenticity of the Incident Reports, the respondents
admitted that they had not been written contemporaneously but some weeks after the incident.
In support of their claim that staff have been made aware of the provisions of the Equal Status
Act 2000, the respondents also stated that they have posters located throughout all staff areas
explaining the Equal Status Act 2000. A copy of this poster headed “Equal Status Act 2002” was
submitted by the respondents in evidence.
5.4 Evidence of Complainants witnesses
Mr John Healy and Mr William Clancy appeared as witnesses for the complainant
Both men travelled from Wales to attend the Hearing
10
They attend Bolton Street Technical College with Mr Sajjadi and have known him for a
number of years
Both were in the Turks Head on the night of the incident.
No ID was sought from them on the night by the doorman (not Mr X) despite the fact that
one of them was only 21 years old at the time.
Mr Healy recalls seeing the complainant waiting at the door of the Turks Head, which
prompted him to approach Mr Keogh with regard to affording him admission.
Mr Healy remarked to Mr Keogh that it appeared that Mr Sajjadi was being discriminated
against.
Mr Keogh went to the door and after some discussion, indicated that Mr Sajjadi could be
admitted.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably than
another person is, has been or would be treated. Section 3(2)(h) of the Act specifies the race
ground as one of the grounds covered by the Act and defines the race ground as follows: “ As
between any two persons, the discriminatory grounds are ….. that they are of different race,
colour, nationality or ethnic or national origins (the “ground of race”)”
In this particular instance, the complainant claims that he was discriminated against on the
grounds of his race contrary to Sections 3(1)(a) and 3(2)(h) of the Equal Status Act, 2000 in
being denied admission to the Turks Head on 25 September 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to
demonstrate that a prima facie case of discrimination exists. If established, the burden of proof
then shifts to the respondent who, in order to successfully defend his case, must show that his
actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof,
I have been guided by the manner in which this issue has been dealt with previously at High
Court and Supreme Court level.
In this regard, it is important to note that a shift in the burden of proof was applied as a
matter of law in Irish discrimination cases long before European Community law
developed the idea, so this practice is not dependent on EC discrimination law applying
in the context of the Equal Status Act 2000.
6.4 Both the Labour Court and Equality Officers applied the practice of shifting the
burden of proof in discrimination cases, long before any European Community caselaw
11
required them to do so. This practice was adopted as far back as 1983 (Bailieborough
Community School v Carroll, DEE 4/1983 Labour Court) and 1986 ( Dublin
Corporation v Gibney, EE 5/1986 Equality Officer), and was a consistent practice
across a spectrum of cases (see Curtin, Irish Employment Equality Law, 1989 p. 222
et seq.)
European Court of Justice caselaw did not address the issue of the shift in the burden of
proof for the first time till Danfoss (Case no C-109/88, 1989 ) and Enderby (Enderby
v Frenchay Health Authority and Sec of State for Health, C-127/92, 1993 ). The shift
in the burden of proof would, therefore, seem to have been an indigenous development
in Irish discrimination law, which was in advance of Community law.
6.5 The practice of shifting the burden of proof in discrimination cases, although this
time following European Community caselaw, was also applied in very clear terms by
the Supreme Court in Nathan v Bailey Gibson 1998 2 IR 162 and by the High Court
in Conlon v University of Limerick 1999 2 ILRM 131. . While these were both indirect
discrimination cases, it seems that the principle should by logical extension apply to
direct discrimination cases if it applies to indirect discrimination cases.
It was also very clearly stated by the Northern Ireland Court of Appeal, again as a
matter of first principles in discrimination cases, in Wallace v SE Education and
Library Board, 1980 NI 38, as far back as 1980. That case was not following EC law.
On the basis of the foregoing, I can see no obvious reason why the principle of shifting
the burden of proof should be limited to employment discrimination or to the gender
ground.
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 complainant.
There are three key elements which need to be established to show that a prima facie
case exists. These are:
(a) Membership of a discriminatory ground (e.g. the race ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less
favourable than the treatment someone, not covered by that ground, would have
received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such
cases the claimant does not need to prove that there is a link between the difference
and the membership of the ground, instead the respondent has to prove that there is
not.
12
In considering what constitutes a prima facie case, I have followed the same principles
outlined in previous decisions such as Sweeney v Equinox Nightclub (DEC-S2002-
031).
7.2 With regard to (a) above, I am satisfied that anyone meeting and speaking with the
complainant would immediately recognise him as being of different race, colour, nationality or
national origin and that, therefore, he is covered by the race ground under the Equal Status Act
2000.
To determine whether a prima facie case exists, I must, therefore, consider whether the treatment
afforded the complainant on 25 September 2001 was less favourable than the treatment a person
of apparent Irish origin would have received, in similar circumstances.
7.3 In their defence, the respondents have stated that ID is normally sought where there is a
doubt as to whether the customer is under-age and occasionally a request for ID is made to afford
the doorman an opportunity to assess the customers demeanour, where there is a doubt as to
whether the customer may already be under the influence of drink or had caused trouble in the
pub before.
If it can be shown, on the balance of probabilities, that the doorman on the night, Mr X, had a
genuine reason for thinking that Mr Sajjadi was either under-age, under the influence of drink or
had caused trouble previously, then I consider that he would have been within his rights to refuse
admission to Mr Sajjadi without fear of being accused of discrimination, provided that other
people were treated similarly.
In so doing, Mr X’s actions would have been in accordance with Section 15(2) of the Equal
Status Act 2000 which states that action taken in good faith for the sole purpose of ensuring
compliance with the Licensing Acts 1833 – 1999, shall not constitute discrimination.
In order to decide whether discrimination occurred, I must, therefore, examine the evidence
before me to determine whether Mr X appeared to have a genuine reason for refusing Mr Sajjadi
admission. .
7.4 The principal pieces of evidence before me are as follows:
Mr Sajjadi was 33 years of age when he sought admission to the Turks Head on 25
September 2001. He was, therefore, 15 years above the legal drinking age at the time.
The respondents all agreed at the Hearing that the complainant looked well over 18.
Mr Sajjadi claims that he was sober on the night and the respondents have, at no time,
disputed this claim.
The respondents have not accused Mr Sajjadi of ever having caused trouble in the pub.
13
For some reason, Mr X chose to ask Mr Sajjadi for ID and, despite having produced a
student card and several other items of identification, he was still refused admission by Mr X.
The respondents have stated that student cards have been accepted previously as ID
where the question of a person’s age was not in dispute.
On inspecting the same items of identification later, Mr Keogh was happy to admit Mr
Sajjadi.
Despite Mr X reporting that Mr Sajjadi had become abusive to him (which is often
sufficient reason in itself for refusing admission), Mr Keogh chose to over-rule Mr X’s
decision and to grant Mr Sajjadi admission.
Incident reports purportedly written on the night of the incident were in fact written some
time later.
7.5 In the absence of Mr X at the Hearing, I find that I must draw my own conclusions with
regard to what prompted his actions on 25 September 2001.
In their defence, the respondents make the point that ID is sometimes sought to enable the
doorman to assess a person’s demeanour where that person was unfamiliar to them. If this had
been the reason for asking for ID in this instance, I consider that, in the time it took for Mr
Sajjadi to produce his student card and for Mr X to examine it, Mr X, should have had sufficient
time to deduce that Mr Sajjadi was not drunk, was not under-age and was unlikely to pose a
threat to other customers on admission.
For some reason, however, Mr X, an experienced doorman by all accounts, chose not to make a
decision based on his initial impression of the complainant.
7.6 At the Hearing, reference was made to the fact that Mr Sajjadi’s refusal by Mr X
occurred two weeks after the September 11 attack in New York and it was suggested that it was
possible that this event may have had an influence on Mr X’s decision, who may have
consciously or sub-consciously associated the complainant with Middle East terrorists.
Apart from the above reason, which could in itself be construed as being racist, I can think of no
other non-discriminatory reason why Mr Sajjadi was not admitted to the Turk’s Head by Mr X
on 25 September 2001. The facts clearly show that a sober, 33 year old man carrying I.D. was
refused entry to a pub at 8.30 pm on a Tuesday night. In addition, there is uncontested evidence
before me to show that two younger Irish males gained admission to the Turks Head that night
without having to present ID.
Based on all the evidence before me, the only conclusion I can arrive at is that Mr Sajjadi, on
being identified as being of non-Irish extraction, was subjected to a tougher screening process at
the door of the Turks Head than is normal. To me this action constituted discrimination on the
race ground under the Equal Status Act 2000.
14
7.7 This case also raises the question as to whether the Turks Head were vicariously liable
for Mr X’s actions.
Section 42(2) of the Equal Status Act 2000 states that “Anything done by or person as agent for
another person, with the authority ( whether express or implied and whether precedent or
subsequent) of that person shall, in any proceedings brought under this Act, be treated for the
purposes of this Act as done also by that other person”.
I, therefore, need to consider whether there is sufficient evidence to show that Mr X had been
made aware by management of the provisions of the Equal Status Act 2000, prior to 25
September 2001. In considering this point, I have examined the evidence before me relating to
this issue.
Firstly, the respondents submitted a document headed “Turks Head Door Policy” with the
incident reports dated 25 September 2001. This document, purportedly prepared for the benefit
of staff, identified the nine grounds under the Equal Status Act 2000 under which entry could not
be refused.
When challenged at the Hearing about the authenticity of the incident reports, the respondents
admitted that they had not been written contemporaneously but some weeks after the incident.
Based on this admission, I have formed the opinion that, in all probability, the “Turks Head Door
Policy” document was also drafted after the incident on 25 September 2001. The respondents
have also failed to provide me with any evidence that Mr X had received any instructions
regarding the provisions of the Equal Status Act 2000, prior to 25 September 2001.
Secondly, the respondents state that they have posters located throughout all staff areas
explaining the Equal Status Act 2000. A copy of this poster headed “Equal Status Act 2002” was
submitted by the respondents in March 2002 . The fact that this poster misquotes the year of the
Equal Status Act certainly undermines their claim that they were knowledgeable of the Act in
2001 and leads me to believe that this document was also not in existence on 25 September
2001.
Based on the above, I find that the Turks Head have failed to satisfy me that they had a genuine
written policy on the Equal Status Act 2000 in place for staff in September 2001 nor have they
satisfied me that Mr X had been made aware of this policy prior to the incident on 25 September
2001.
I, therefore, cannot accept any possible argument that Mr X had acted without authority, with
regard to the provisions of the Equal Status Act 2000, when refusing admission to the
complainant on 25 September 2001. As a result, I find that the management of the Turks Head
were vicariously liable for Mr X’s actions on 25 September 2001.
8 Decision
8.1 Having fully considered all aspects of this case relating to the alleged act of
discrimination, I find that the complainant has established a prima facie case and that the
15
respondents have not provided sufficient evidence to rebut the claim that, on the night of 25
September 2001, the complainant was discriminated against on the grounds of his race.
8.2 I, therefore, find that the respondents did discriminate against Mr Sajjadi on the grounds
of his race contrary to sections 3(1)(a) and 3(2)(h) of the Equal Status Act 2000.
In considering the level of redress to award, I have taken on board the fact that this appears to
have been a once-off incident and that the owners and management of the Turk’s Head appear to
be genuine in their efforts to ensure that the premises are now run in a non-discriminatory
manner in accordance with the provisions of the Equal Status Act 2000. Unfortunately on the
night in question, it seems that the doorman on duty did not comply with the provisions of the
Act resulting in the complainant suffering distress and humiliation as a consequence of the
discrimination suffered..
8.3 I, therefore, find in favour of the complainant and order that the respondents pay Mr
Sajjadi the sum of €1500 for the distress, humiliation, loss of amenity and other effects of
the discrimination, suffered by him on 25 September 2001.
Brian O’Byrne
Equality Officer
31 July 2002
DEC-S2007-050 – Full Case Report
Decision DEC-S2007-050
Baziz v HSE
Equal Status Acts 2000 – 2004 – Direct discrimination, section 3(1)(a) – Race ground, section 3(2)(h) -Supply of goods and services, section 5(1) – Application for Rent Supplement
Delegation under the Equal Status Acts, 2000 – 2004
This complaint was referred to the Director of Equality Investigations under the Equal Status Acts 2000-2004. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts 2000 – 2004.
Dispute
This dispute concerns a complaint by Mr Mahieddine Baziz that he was discriminated against by The Health Service Executive in the manner in which his application for Rent Supplement was assessed. Mr Baziz, who is originally from Algeria but now holds an Irish passport, claimed that he was less favourably treated on the grounds of race.
Evidence of Parties
Note Although some confusion exists as to the precise dates on which the alleged incidents occurred, I am of the opinion that both sides have displayed adequate recollection of the alleged incidents to enable me to proceed with my deliberations without having to make a definite finding as to the exact dates involved.
Mr Baziz, who is originally from Algeria, came to Ireland in 1997 and worked occasionally as a translator since then. He married an Irish national in 1998 and subsequently obtained Irish citizenship.
In 2003, his wife and himself moved to a new apartment in Dublin and they claimed a Rent Supplement from the HSE – Community Welfare Services in Dublin 7. Such applications are assessed by a Community Welfare Officer who would normally pay a visit to the applicant as part of his/her duties.
The information before me suggests that the complainant’s wife discussed the application initially with a Community Welfare Officer, Ms Cathy Carty in the HSE Offices in early April 2003 at which point a query arose about Mr Baziz’s nationality and Ms Carty crossed out “Irish” and inserted “Algerian” on the application form.
At the Hearing on 27 March 2007, the HSE acknowledged that Ms Carty had done so and accepted that it was inappropriate for her to have amended the application form as it was a legal document. The HSE also stated that a person’s nationality would not normally have a bearing on their eligibility for a Rent Supplement Allowance as the information was only used for statistical purposes. Ms Carty explained that she had changed the entry on the form as it was normal practice to enter an applicant’s original nationality on to their computer system.
Both parties agree that Ms Carty called to the apartment before lunch on a day when only Mr Baziz was present. Mr Baziz said that he offered her a seat when she arrived but she declined. He said that she then asked for his passport which he showed her. At that point, Mr Baziz said that Ms Carty started waving and shaking the passport and asking “Who gave you that?” He told her “the Department of Justice”. He said that she then asked how he had acquired citizenship and he explained that it was through marriage. He then produced his marriage cert for Ms Carty as evidence.
Ms Carty gave evidence that she had only sought “ID” from Mr Baziz when she called as it was a standard requirement before approving a Rent Allowance supplement. She said that a passport was acceptable as ID in such circumstances and that it was not normal practice to raise further questions after being shown a passport. Ms Carty accepted, however, that she may have asked him how he had obtained citizenship but said that she did not specifically ask to see his marriage certificate although she says she recalls that Mr Baziz did show her his marriage certificate on the day.
Ms Carty said that she did not think that Mr Baziz was upset on the day of her visit although she did feel that he was somewhat “defensive” in dealing with her. Ms Carty insisted that Mr Baziz was not less favourably treated than other applicants and pointed to the fact that she approved his application for a Rent Supplement later that same day.
Conclusions
In my opinion, there are two incidents here that require consideration in order to decide whether there was any discriminatory element to Ms Carty’s actions. The first is where Ms Carty amended the nationality on Mr Baziz’s application form and the second is where he was asked for ID in his apartment.
In the first instance, while Ms Carty may have been somewhat presumptuous in altering the nationality on the form, I am prepared to accept, on the balance of probability, that she did so for statistical purposes rather than for a racially motivated reason.
I find it more difficult to accept, however, that there was no racial motivation involved in Ms Carty’s dealings with Mr Baziz in his apartment. Ms Carty herself has said that it was normal practice to accept a passport as ID and not to raise further questions. However, in this instance, Ms Carty accepts that she may have asked Mr Baziz how he obtained Irish citizenship and the evidence before me suggests that she did in fact do so as she herself admits that Mr Baziz did show her his marriage certificate on the day.
Having considered the above, I have formed the opinion, on the balance of probability, that Ms Carty did ask Mr Baziz about his citizenship when she visited his apartment. I also consider that, in doing so, Ms Carty did treat Mr Baziz less favourably because of his race on the day in question and that her actions constituted discrimination on the race ground contrary to the provisions of the Equal Status Acts 2000 – 2004.
Decision
I find that a prima facie case has been established on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Acts 2000 – 2004 and that the respondents have failed to rebut the allegation.
In considering the level of redress to award in this instance, I am mindful of the fact that Ms Carty had a very heavy workload at the time which may have distracted her from her obligations under equality legislation. I am also cognizant of the fact that there was no delay in approving Mr Baziz’s application and that payment was made promptly.
For the above reasons, I do not consider that a heavy penalty is warranted and order that the Health Service Executive pay the complainant the sum of €200 for the hurt and humiliation experienced.
Brian O’Byrne
Equality Officer
14 May 2007
DEC-S2008-003-Full Case Report
F v A Financial Institution
(Represented by Mr. David Keane B.L. acting on instructions
from Mr. M, Chief Legal Officer )
1. Summary of the Complainant’s Case
1.1 The complainant who is originally from Nigeria has resided in Ireland since 1998 and has since attained Irish citizenship. The complainant was an existing customer of Branch X at the time of the alleged incident of discrimination as he had opened a savings account with it in February, 1998. Having read some promotional literature belonging to the respondent the complainant presented at Branch X on 8th September, 2003 in order to open a Loyalty Current Account. The complainant wished to open this account so that his wages could be paid into it and by doing so to avail of the free banking service offered by this type of account. When the complainant presented his full Irish driving licence and an authentic current household bill, i.e. the requirements for opening a Loyalty Current Account that had been identified in the respondent’s promotional literature, to the female bank official in Branch X, he was informed that it would also be necessary to provide six months bank statements from a previous bank account. The complainant questioned the need for this additional information and was informed by another bank official, Ms. B, that this requirement was necessary in order to establish the type of facilities that he would be entitled to avail of on the account. The complainant informed the bank official that he wished to avail of the free banking service offered by a Loyalty Current Account and he made it clear that he did not wish to avail of credit card or loan facilities. The complainant claims that he was told in a derogatory manner by Ms. B that it would be more appropriate to have his salary paid into his savings account and that it would not be necessary to open a Loyalty Current Account. The complainant expressed his dissatisfaction to Ms. B regarding her failure to open the account on this occasion and after acquiring a copy of the respondent’s Personal Banking Guide Booklet he then left the premises.
1.2 Following this incident the complainant carefully studied the requirements for opening a Loyalty Current Account that were detailed in this booklet and returned to Branch X on 9th September, 2003 and presented his driving licence, a household bill and one year’s bank statements from another financial institution to a male bank official that was on duty. This bank official informed the complainant that as his savings account was less than eight years old it would be necessary to provide his passport instead of his driver’s licence in order to open a Loyalty Current Account. The complainant informed the bank official that this requirement was not consistent with the information outlined in the respondent’s promotional literature. The complainant stated that Ms. B, the official with whom he had dealt with the previous day, intervened at this stage and again told him to get his salary paid into his savings account. The complainant contends that the Loyalty Current Account should have been opened by the respondent on both of the aforementioned occasions as he had provided the necessary information in accordance with the respondent’s established requirements. The complainant further contended that the respondent was making it unnecessarily difficult for him to open this account.
1.3 The complainant made a complaint to the respondent’s telephone banking service later that day on the basis that the Loyalty Current Account should have been opened on his first visit to the bank and that on his second visit his driving licence should have been accepted as proof of identification. The complainant received a telephone call from Ms. R, Assistant Manager, Branch X on 11th September, 2003 regarding this complaint and he stated that the main content of this discussion focused on whether or not the driving licence as opposed to his passport was acceptable as proof of identification. He contends that Ms. R attempted to justify the actions that had been taken by her colleagues. The complainant referred Ms. R to the respondent’s promotional literature and to the relevant legislation and it was agreed that if he returned to the branch that she would accept his driving licence as proof of identification provided that it was in good condition. The complainant denied that Ms. R informed him during the course of this telephone conversation that Branch X of the respondent implemented stricter than normal requirements regarding proof of identification as a result of difficulties in that branch with fraudulent driving licences. The complainant acknowledged that Ms. R may have mentioned something about the requirement for a letter from his employer. However, he disputed that she informed him that this letter would have to state that his wages would be paid into the Loyalty Current Account.
1.4 The complainant returned to Branch X on 11th September, 2003 in a further attempt to open the Loyalty Current Account and on this occasion was in possession of his Irish and Nigerian passports, driving licence, one year’s bank statements from another financial institution, a household bill, a recent pay-slip and work identity card. When he presented these documents to Ms. R, she informed him that he would also require a letter from his employer confirming that his salary would be paid into the account. The complainant argued that his employer’s name was already on the bank statements and offered Ms. R his pay-slip and staff identification card. He also invited Ms. R to telephone his employer to confirm the required information and requested her to put the account number on a direct salary lodgment form so that he could get the required letter from his employer, however, Ms. R refused to comply with this request. The complainant requested Ms. R to outline the requirements for opening an account in writing, however she refused and indicated that the respondent did not provide written explanations. The complainant did not succeed in opening the account on this occasion and having expressed his dissatisfaction to Ms. R, indicated that he felt he was being discriminated against by the respondent. The complainant vehemently denied that he was abusive at any stage or that he had used the word “racist” during the course of his interaction with members of the respondent’s staff. He then left Branch X and went to another branch of the respondent within a 500m radius where he succeeded in opening a Loyalty Current Account without experiencing any difficulties whatsoever. The only documentation that he was required to produce when opening the account in the latter branch was his passport and a utility bill. He was not requested to provide a letter from his employer and he contended that the information required by this branch for the opening of a Loyalty Current Account appeared to be consistent with the requirements that were advertised in the respondent’s promotional literature.
1.5 The complainant claims that at no stage during the course of his dealings with officials at Branch X was he informed that this branch was implementing stricter than normal criteria for opening accounts as a result of fraudulent activity. The complainant contends that the account should have been opened on his first visit to Branch X as he had complied with the necessary requirements and he alleged that the additional requirements of a passport and a letter from his employer were requested purely because of his racial origin. He subsequently pursued a complaint with the Customer Relations Department of the respondent but he was not satisfied with the outcome of the investigation and referred further complaints to the Ombudsman for Credit Institutions and the Director of Equality Investigations.
2. Summary of Respondent’s Case
2.1 The respondent denies any discrimination towards the complainant and claims that it is entitled, and indeed obliged, to take reasonable steps to ensure that it is compliant with its obligations under the Criminal Justice Act, 1994 with regard to procedures for the identification of customers when opening new accounts. It is further obliged to ensure that procedures are followed which guarantee the bank’s own interests, particularly in circumstances where a specific branch has experienced fraudulent activity of any kind. The respondent’s Branch X had experienced a very high level of fraudulent activity, especially with the presentation of fake and forged driving licences around September, 2003 and as a result imposed extra requirements internally at branch level for opening new accounts. Mr. S, Manager of Branch X in September, 2003, gave evidence regarding the difficulties that the branch had been experiencing with fraudulent activity at that particular time. Mr. S stated that Branch X is the respondent’s busiest branch and that it experienced an inordinate amount of fraudulent activity compared to other branches and consequently, it was necessary to put additional measures in place to protect the interests of the bank and to comply with its obligations under the Criminal Justice Act, 1994. As a result of the difficulties with fraudulent activity the branch endeavoured to tighten up its procedures in relation to the opening of new accounts. Accordingly, the requirements that were imposed by Branch X in order to open a Loyalty Current Account that would entitle the customer to avail of free banking were passport identification, a recent utility household bill as proof of address, six months bank statements from a previous bank account and a letter from the customer’s employer to confirm that the salary would be mandated to the new account. Mr. S stated that a passport was considered to be the primary form of identification and in light of the difficulties with fraudulent activity, members of staff working at Branch X, were instructed by management to request a passport as proof of identity wherever possible.
2.2 The respondent accepts that the complainant presented at Branch X on a number of different occasions in September, 2003 in an attempt to open a Loyalty Current Account in order to avail of free banking, however, it contends that on each of these occasions he did not have the required documentation to satisfy the branch’s internal requirements and it was therefore not possible to open the account. The respondent accepted that the complainant was an existing customer of the bank and was the holder of two savings accounts which had been opened in 1998 and 1999, respectively. However, the respondent contends that the information and documentation that the complainant provided on opening these accounts was not sufficient to open a Loyalty Current Account as this information was in excess of five years old and did not comply with the money laundering requirements under the Criminal Justice Act, 1994. The respondent contended that a Loyalty Current Account offers a greater range of services than a savings account and it is also a money transmission account. These additional services include overdraft facilities, direct debits, laser cards, cheque books and cheque cards which may result in credit implications in the future for the financial institution concerned.
2.3 Ms. B, Senior Customer Adviser stated that she had a recollection of attending the complainant on one of the occasions that he attended Branch X in order to open the Loyalty Current Account. The complainant indicated that his reason for opening this account was to avail of free banking. However, he did not have all of the required documentation that was necessary to comply with the branch’s internal requirements in order to open this account. In keeping with her normal practice in such situations, Ms. B attempted to explain to the complainant the branch’s requirements for opening a Loyalty Current Account, namely that it was necessary for a customer to provide a passport, a utility household bill as proof of address, six months previous bank statements and a letter from an employer stating that the salary would be mandated to the account. The complainant became extremely irate and aggressive when Ms. B attempted to explain these requirements to him and he then left the branch. Ms. B stated that she was satisfied that she had clearly identified the necessary requirements to the complainant during the course of their conversation.
2.4 The complainant contacted the respondent’s telephone account opening service and made a complaint about Branch X’s requirement for a passport instead of a driving licence and he claimed that the account should have opened on his first visit to the Branch. When Branch X was made aware of this complaint on 11th September, 2003, Ms. R, Assistant Manager at Branch X, immediately contacted the complainant by telephone and explained that it was normal practice for staff within the branch to request a passport when opening new accounts for customers. Ms. R informed the complainant that the respondent would waive the requirement for a passport in this instance and informed him that the branch would accept his driving licence as a form of identification in order to open the Loyalty Current Account. During this telephone conversation Ms. R clearly outlined to the complainant the other requirements that were necessary in order to open the account and she specifically referred to the requirement for a letter from the employer as the complainant had indicated that he wished to avail of free banking. The complainant did not question the requirement for a letter from his employer at any stage during this conversation with Ms. R.
2.5 The complainant called to Branch X shortly after this telephone call with Ms. R on 11th September, 2003 and sought to open the account but he failed to produce the letter from his employer stating that his salary would be mandated to this account. Ms. R offered to take a photocopy of all of the documentation provided by the complainant at this meeting and to hold the documents on file until he obtained the letter from his employer, which would allow the respondent at that stage to open the new account. The complainant declined this offer and having indicated to Ms. R that staff members of the branch were racist, he left the premises and took all of the documentation away with him. The respondent accepts that the complainant subsequently went to another of its nearby branches and opened a Loyalty Current Account, however it submitted that on this occasion the complainant presented his passport as proof of identity. The respondent contends that the complainant was at all times treated in a professional and fair manner by its branch staff and denies that it acted in a discriminatory manner towards the complainant.
3. Preliminary Issue
3.1 The complainant in the present case also referred a complaint to the Ombudsman for Credit Institutions arising from his alleged treatment by the respondent. Both parties made submissions to the Tribunal, both in writing and at the hearing of this complaint, regarding the investigation that was carried out by the Ombudsman in this matter. I informed the parties that I would consider their respective submissions on this issue, however, I also indicated that the investigation I am carrying out on behalf of the Director in the present case is a totally separate and independent investigation from that carried out by the Ombudsman for Credit Institutions, and accordingly, that I am not bound by its findings.
4. Conclusions of the Equality Officer
4.1 I must first consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that he is covered by the relevant discriminatory ground i.e. in this case the race ground. (2) It must also be established that the specific treatment alleged by the complainant actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not covered by the discriminatory grounds referred to above. He must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainant if it is to fail.
4.2 With regard to the first of the criteria, evidence was adduced which confirmed that the complainant is originally from Nigeria and I am therefore satisfied that he is covered by the race ground. In relation to the second of the criteria outlined above, it is common case that the Loyalty Current Account was not opened for the complainant by Branch X, although the reasons propounded by the respective parties as to why the account was not opened are in dispute. Accordingly, I am satisfied that the complainant has satisfied the second of the criteria outlined above. In order to determine whether a prima facie case of discrimination exists, I must, therefore, consider whether there is evidence that the treatment afforded the complainant was less favourable than the treatment a person not covered by the race ground would have received in similar circumstances.
4.3 At the outset of my deliberations, I consider that it is important to note that the primary reason the complainant sought to open a Loyalty Current Account with Branch X of the respondent in September, 2003 was in order to avail of exemptions from bank charges i.e. “free banking”. In this regard, I note that the holder of a Loyalty Current Account with the respondent is entitled to avail of “free banking” subject to meeting certain qualifying criteria. For example, customers with an average cleared credit balance of more than €1000, customers that hold a mortgage with the respondent, customers with savings of €100k or more in the account or customers that have their salary mandated directly into the account are entitled to free banking. I am satisfied that in the present case the only means by which the complainant could qualify for free banking, when he initially presented at Branch X in September, 2003, was by virtue of having his salary mandated to the Loyalty Current Account. The complainant contends that the Loyalty Current Account should have been opened by Branch X on each of the three occasions that he presented there and he claims that the excessive demands made on him to produce additional documentation and identification were motivated by virtue of his racial origin.
4.4 I have taken note of the requirements to open a Loyalty Current Account that are documented at page 5 of the respondent’s “Personal Banking – Making life easier, all day, every day” information leaflet (dated 10 July, 2003). These requirements are outlined as follows:
“To comply with legislation, customers who wish to open new accounts with …… should provide
– A current passport or full driving licence, and
– A recent household bill, such as electricity, gas or telephone”
The complainant contends that the respondent refused to accept his driving licence as proof of identification and instead requested that he provide a valid passport, when the advertising leaflet clearly indicated that either of these documents would suffice. He also contends that in addition to the requirements outlined in the aforementioned information leaflet, that he was also requested to provide six months bank statements from a previous bank account and a letter from his employer confirming that his wages would be mandated to the account. The complainant further contends that the female bank official that attended him tried to dissuade him from opening the Loyalty Current Account and advised him to have his salary paid into his existing savings account.
4.5 It is not disputed by the respondent that the complainant was requested to provide his passport as proof of identification or that he was also requested to provide the aforementioned additional items of documentation. However, the respondent contends that the requirement for additional documentation arose as a result of a high level of fraudulent activity within Branch X and as a result of which it was necessary to implement standard additional requirements in that particular branch, over and above those outlined in its advertising literature, when opening new accounts for customers. The respondent has emphatically denied that the complainant was subjected to discriminatory treatment and contends that all of its customers, regardless of their racial origin, were obliged to comply with these requirements. Furthermore, the respondent contends that it was necessary to implement these additional measures in relation to the opening of new accounts within Branch X in order to protect its own interests and to comply with its obligations under the Criminal Justice Act, 1994. I consider that it is important to note at this stage that the respondent has not alleged or adduced any evidence whatsoever to suggest that the complainant was endeavouring to engage in fraudulent activity.
4.6 It is clear from the provisions of the Criminal Justice Act, 1994 that there is a strict obligation on financial institutions to take reasonable measures to establish the identity of persons for whom it proposes to provide a service in order to prevent and assist in the detection of money laundering. The Act also makes provision for the imposition of significant penalties, including a fine and/or imprisonment, on persons or financial institutions that are found to be in breach of its obligations in this regard. This legislation does not, however, explicitly state what may or may not represent reasonable measures to establish identity. In this regard, I have taken cognisance of the document entitled “The Criminal Justice Act, 1994 – Money Laundering – Guidance Notes to Credit Institutions” (May 2003 version) which is a publication from the Money Laundering Steering Committee (comprising of representation from various Government Departments and the Central Bank amongst others). At Section IV – paragraph 31 of this publication it is stated that “The best identification should be obtained from the person i.e. those that have been issued by reputable sources and that are the most difficult to obtain illicitly”. At paragraph 45 it is stated that “The true name used should be verified by reference to a document obtained from a reputable source which bears a photograph and signature. Wherever possible a current valid full passport should be requested and copied”. It is clear from these guidelines that a passport is considered to be the primary form of identification and that financial institutions are entitled to seek the provision of this document when opening a new account for a customer in order to comply with their obligations under the Criminal Justice Act, 1994.
4.7 The respondent has adduced evidence that staff working in Branch X were instructed wherever possible to obtain passport identification from customers when opening new accounts. This instruction was issued to staff as a result of the difficulties that Branch X had been experiencing with fraudulent activity within the branch. I find the evidence of Mr. S and Ms. R regarding these difficulties and the resultant internal initiatives introduced by Branch X when opening new accounts to be reliable and credible. Having regard to the aforementioned difficulties with fraudulent activity, I am satisfied that it was not unreasonable for the respondent in such circumstances to be extra vigilant and to implement additional measures in order to safeguard its own commercial interests and to facilitate compliance with its obligations under the Criminal Justice Act, 1994. I accept that the complainant was an existing customer and had established a commercial relationship with the respondent by virtue of the savings accounts that he already held. However, his personal circumstances had changed since these accounts were opened in 1998 and 1999, respectively. I note that the complainant furnished an asylum card issued by the Dept. of Justice, Equality and Law Reform as photographic identification when opening the savings account in 1998 and that the respondent had not previously been presented with either his passport or driving licence prior to his attempt to open the Loyalty Current Account in September, 2003. I am therefore satisfied that the respondent was entitled, and indeed obliged, in accordance with the provisions of Section 32(3)(a) of the Criminal Justice Act, 1994, to take appropriate measures to establish the identity of the complainant when he sought to open the Loyalty Current Account in September, 2003.
4.8 In view of the strict obligations that are placed upon financial institutions to comply with money laundering procedures under the Criminal Justice Act, 1994 and in light of the difficulties that Branch X was experiencing with fraudulent activity, I am satisfied that the initial request to the complainant to provide a passport was not motivated by his race or ethnic origin but was a standard requirement, routinely implemented by Branch X, that was applied to all customers regardless of their race, nationality or ethnic origins. I note from the evidence adduced that when the complainant made a complaint to the respondent regarding this requirement, that management within Branch X decided to waive the requirement for a passport. The complainant was subsequently informed of this decision by Ms. R, Assistant Manager, on 11th September, 2003 and was advised that the branch would make an exception to its established practice, in this case, and accept his driving licence as a means of identification. I consider that had the respondent wished to discriminate against the complainant on the grounds of his race, that it would not have subsequently waived the request for passport identification. I therefore find that the complainant was not subjected to less favourable treatment on the grounds of his race or ethnic origin as a result of the respondent’s initial request to provide his passport in order to open the Loyalty Current Account.
4.9 I also note that the complainant contends that when he visited Branch X on 9th September, 2003 he was informed by the male official that attended him that it would be necessary to provide a passport as his savings account was less than eight years old. This male member of staff did not attend the hearing to give evidence regarding this issue and the respondent contends that, despite its best efforts, it was unable to successfully identify the name of the official that attended the complainant on this occasion. The respondent does not dispute the complainant’s evidence on this issue and it submitted that there is a perfectly rational explanation as to why a member of staff may have made such a request of the complainant. It submitted that the Criminal Justice Act, 1994 came into effect in May, 1995 and that prior to this date there existed a group of account holders’ in respect of whom the obligations to establish identity in accordance with the provisions of the Criminal Justice Act, 1994 would not have applied. The respondent submitted that a credit institution was not obliged to retrospectively establish the identity of persons that were already customers at this juncture, and given that the savings accounts which the complainant held with the respondent were less than eight years old in September, 2003 (i.e. they were opened in 1998 and 1999, respectively), the respondent was obliged to take appropriate measures to establish his identity in accordance with its obligations under the Criminal Justice Act, 1994. I am satisfied that the explanation offered by the respondent in this regard is plausible and that the request made by the male member of staff on 9th September, 2003 was consistent with the internal policy that Branch X was implementing at that particular time with regard to the identification of customers and was also in compliance with its obligations under the Criminal Justice Act, 1994.
4.10 I will now deal with the other requirements, namely the request for a letter from his employer and six months bank statements, that the complainant contends should not have been requested from him in order to open the Loyalty Current account. The respondent contends that a person who wished to avail of free banking by virtue of having their salary mandated to the account was required by Branch X to provide four items of information, namely a passport, a utility household bill, six months bank statements from a previous bank account and a letter from an employer confirming that the salary would be mandated to the account. The complainant contends that he should not have been requested to provide a letter from his employer or six months bank statements from a previous account as the requirement for these documents was not included in the respondent’s advertising literature. I note that there is a clear conflict of evidence between the parties regarding the date on which the complainant was informed by staff within Branch X about the requirement to provide the letter from his employer. The complainant, on the one hand, contends that he was not informed of this requirement until his meeting with Ms. R at Branch X on 11th September, 2003 whereas the respondent, on the other hand, contends that the complainant was made aware of this requirement during his initial meeting at the branch with Ms. B on 8th September, 2003. Having carefully considered the evidence of both parties in this regard, I am satisfied, on the balance of probabilities, that the complainant was initially made aware of this requirement by Ms. B during their initial conversation at the branch on 8th September, 2003 and again by Ms. R during their telephone conversation on 11th September, 2003.
4.11 I am satisfied from the evidence adduced that the complainant did not have an established credit history with the respondent prior to September, 2003. I note that the complainant held two separate savings accounts with the respondent at this time, however his salary was being mandated into an account which he held with a different financial institution. I am satisfied that in such circumstances, the only means by which the complainant could qualify for free banking at that particular juncture on the Loyalty Current Account that he sought to open at Branch X, was by virtue of having his salary mandated to this account. The respondent contends that Branch X required all customers in such circumstances to provide a letter from their employer confirming that their salary would be mandated to the account and six months bank statements from a previous account. Having considered the evidence presented, I am satisfied that the requirements imposed upon the complainant were standard requirements which were routinely imposed by Branch X on all prospective customers that were in the same circumstances as the complainant and who sought to avail of free banking on a Loyalty Current Account.
4.12 I note that the complainant was successful in opening a Loyalty Current Account at another nearby branch of the respondent and also that the internal requirements imposed by Branch X for opening a Loyalty Current Account were not consistent with the requirements contained in the respondent’s advertising brochure. It is therefore understandable how the complainant interpreted the request for additional information as an attempt by the bank to make it unduly difficult for him to open the account. In this regard, I am of the opinion that it would have been desirable had Branch X displayed information signs or some other form of notification within the branch to inform customers that it was implementing different account opening procedures than that outlined in its advertising literature. It would also have been of benefit if the respondent had included a warning in its advertising literature to alert potential customers that the requirements for opening a new account may differ from branch to branch.
4.13 However, notwithstanding the aforementioned observations, I accept that the requirements for opening new accounts that are outlined by any financial institution in its advertising literature are the basic minimum requirements to which a customer must comply in order to open an account. I am satisfied that the circumstances were different when the complainant opened the account with another of the respondent’s branches, given that he provided his passport as a means of photographic identification when opening the account at this branch, and also in light of the fact that Branch X was implementing stricter than normal criteria for the opening of new accounts. I am satisfied that individual branches within a financial institution are not precluded from applying additional or more stringent criteria from each other or from the criteria outlined in their advertising literature when opening new accounts for customers, especially in circumstances where these additional measures are introduced in order to comply with the provisions of the Criminal Justice Act, 1994 and also as a means of safeguarding the commercial interests of a particular branch. The imposition of any such additional requirements by an individual branch cannot be construed in a discriminatory manner if they are applied uniformly to all customers that are in similar circumstances. I am satisfied in the present case that Branch X had legitimate reasons for imposing stricter than normal criteria for the opening of new accounts and that these criteria were applied to all customers irrespective of their race or ethnic origins.
4.14 On conclusion, having deliberated on the totality of the evidence before me, I am satisfied that a person of a different race, who was in the same circumstances as the complainant, and who was seeking to open a Loyalty Current Account in order to avail of free banking with Branch X of the respondent would also have been subjected to the same documentary requirements as the complainant. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground.
5. Decision
5.1 The complainant, having failed to establish a prima facie case of discrimination on the race ground cannot succeed in his complaint and accordingly my finding is for the respondent in this case.
________________
Enda Murphy
Equality Officer
7th January, 2008
DEC-S2004-015 Full Case Report
Sheeran, Dublin v Office of Public Works
Headnotes
Equal Status Act, 2000 – Direct Discrimination, Section 3(1)(a) – The Religion ground,
Section 3(2)(e) – Provision of services, Section 5(1) – Obligations under the Constitution
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, the Director then delegated the case to me, Bernadette
Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise
of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainant’s case
The complainant objects to the ringing of the Angelus bells by the Chapel Royal as it is
an inappropriate use of public property since the ringing of the bells is a call to prayer.
He is a Humanist but was a former Roman Catholic (RC). He believes he lives in a
republic that has no official religion. He believes that Church and State should be entirely separate. The RC Church has historically dominated this State and has been seen as oppressive. By ringing the bell in this manner the State is saying some people are welcome and others are not. The complainant stated that he admired the work done
generally by the OPW. He is not against such bells being rung by religious groups generally.
Background, submitted by Respondent
The Chapel Royal was constructed in or about 1807-1814 and is, apart from anything
else, a historic building of very considerable value and interest. In its earliest centuries
the Chapel was used for worship by members of the Church of Ireland. It was taken over
by the State in 1922 and was furnished for Catholic worship in 1943. The Head Chaplain
to the Defence Forces was responsible for the religious aspects of the administration of
the church and up until the time of the closure of the church for major renovations in
1983 the Department of Defence employed a sacristan/caretaker for the church. Insofar
as the respondent can ascertain it is believed that the Angelus was sounded by the
sacristan/caretaker up until 1983 and thereafter the bell has been run by an electric timer
since 1989. The Chapel has never been officially deconsecrated but it has not been used
for active religious services since its closure for renovation.
Summary of the Respondent’s Case
It was submitted that the complainant fundamentally misunderstands the nature of the
State’s position and obligations under the Constitution with regard to religion and
referred to Article 44.1 and Article 44.2.1. It was accepted that the OPW provides a
service to the public, or part of the public, within the meaning of the Act, by making the
Chapel Royal available for visitation by members of the public at certain times. That
“service” is provided in an entirely non-discriminatory way and does not make differences in the treatment of any persons on the religion ground. It is not accepted that the ringing of the Angelus bell amounts on its own to the provision of a service. It was also submitted that while it is not the purpose of the respondent in the ordinary course to provide facilities for a religious purpose many of its buildings in fact do have a religious purpose or have distinct religious connotations, and the exemption in Section 5(2)(e) is wide enough to be availed of by the respondent particularly when the Constitutional
provisions are considered.
Conclusions of the Equality Officer
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 Religion ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable.
If and when those elements are established, the complainant has established a prima facie
case and the burden of proof shifts, meaning that the difference in treatment is assumed to
be discriminatory on the relevant ground. In such cases the claimant does not need to
prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
It is not clear whether the complainant’s beliefs fall into the humanist orthodoxy. Nor is
it clear that humanism can be counted as a religion. Therefore, since the practice complained of has Catholic associations, it appears appropriate to consider this claim in
terms of less favourable treatment where “one [person] has a [Catholic] religious belief
and the other has not”. This satisfies (a) above. In respect of (b) it is clear that the respondent is responsible for the ringing of the bell and the complainant claims that he hears the bell. In respect of (c) above the following issues are relevant. The respondent in this case is a service provider responsible for, among other things the maintenance and preservation of buildings in public ownership, including many which form part of our national architectural and historic heritage. It is reasonable for it to maintain traditions associated with such buildings. The building in question in the instant case is the Chapel Royal in Dublin Castle. The Chapel was latterly used for Catholic worship and the ringing of the Angelus bells in the present day by the respondent appears to be the performance of a minor tradition that has religious associations. It appears to be part of the overall
maintenance of the building and its traditions. The State is not obliged to adopt a secularist approach. On the contrary, the constitution requires it to “respect and honour religion”. In the Quinn’s Supermarket case, the Supreme Court held that when the Constitution states at article 44.3 that “the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status”, this must be considered in harmony with article 44.2.1, which provides that “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen”. I do not have jurisdiction to interpret the Constitution, but in considering whether an organ of the State is acting correctly I am entitled to have regard to their constitutional obligations. The complainant’s main difficulty was not with the Angelus bell being rung, but with who was ringing it. His argument was vehemently for the separation of Church and State. In this regard, the Equal Status Act, 2000 relates to services which may be discriminatory. It does not provide for services which are perceived to be discriminatory only when offered by a particular service provider. The complainant is arguing that public bodies, as emanations of the State, must adopt a strictly secular approach. This would preclude the respondent from being involved in any traditions connected with the buildings in its charge where those traditions had even remote religious associations. This could be perceived as directly contrary to its constitutional obligation to honour religion. This obligation must be understood as requiring the State to respect and honour a diversity of religious viewpoints. The complainant has not shown that the respondent treats some religious traditions less favourably than others in this context. Nor has he shown that the ringing of the Angelus bell represents anything other than a minimal intervention, if any, into his own lack of religious belief. As such, consideration of this claim under Section 22 of the Equal Status Act, relating to the dismissal of claims that are considered to be in bad faith, frivolous, vexatious or relating to a trivial matter, might have been appropriate in this case. This is particularly the case since others with a noncatholic though tolerant religious belief would not have similar difficulties and in addition, the central difficulty for the complainant is not one of discrimination but the more political desire to separate Church and State. However, in my opinion, consideration in a published decision of the issues involved in this case may prove to be of use.
I am not satisfied that one can decide a service is discriminatory on the basis of who is
providing the service, in terms of the Equal Status Act, 2000. That position in itself may,
in some circumstances, be discriminatory. Neither am I satisfied that the complainant has
established that in ringing the Angelus bell the respondent discriminates against him. I
find that the complainant has failed to establish a prima facie case of discrimination.
Decision DEC-S2004-015
I find that the complainant was not discriminated against by the respondent, the Office of
Public Works and accordingly this decision is in favour of the respondent.
Bernadette Treanor
Equality Officer
30 January 2004
Cases Travelling Community
DeC-S2008-119 – Full Case Report
Ward v Keane, Auctioneer and Valuer
File ref: ES/2005/0118
Date of Issue: 23rd December, 2008
Key words
Equal Status Acts 2000 to 2008 – Direct discrimination, section 3(1)(a) – Membership of the Traveller community, section 3(2)(i) – Supply of goods and services, section 5(1) – providing accommodation, section 6(1)(c).
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 12th May 2005. On the 23rd June 2008 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to 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 which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on the 10th December, 2008.
2. Summary of claim
2.1 This dispute concerns a complaint by Mr. Collum Ward that he was discriminated against by Paddy Keane, Auctioneer and Valuer by being refused access to information and service on numerous dates between the 14th and the 21st January 2005 because of his membership of the Traveller community contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Acts 2000 to 2004.
3. Complainant’s Case
3.1 The complainant claims that between the dates of the 14th January 2005 and the 21st January 2005 he made contact with the respondent by telephone and by email with regard to potential properties for rent in the Ballinasloe area, in particular in relation to a property in the Derrymullen area, which had been advertised by the respondent as being available for rent. The initial contact was by telephone where the complainant maintains that the respondent freely discussed property options that were without doubt available, however when the complainant gave his name and contact details this is where he felt there was a change in the attitude towards him. Mr. Ward received no follow up contact about the property he had expressed an interest in and subsequently attempted to make contact with the respondent on a number of occasions both by email and by telephone, but to no avail. The respondent did not reply to any of his emails and when the complainant finally managed to speak to the respondent by telephone on the 21st January 2005 the respondent said that he had no property available for rent in the Ballinasloe area.
3.2 The complainant claims that he became frustrated and somewhat suspicious as to why he was not getting any reply from the respondent. Accordingly, he approached a family friend, Mr. A, and asked him to contact the respondent and to request information about properties for rent in the Ballinasloe area. Mr. A, who was presented as a witness at the hearing, claims that he made contact with the respondent on two occasions via email and received a prompt reply by email from the respondent, on both occasions, with information about a variety of houses for rent in and around the Ballinasloe area and this included houses for rent in the Derrymullen area. Copies of these emails between Mr. A and the respondent were presented to me as evidence.
3.3 The complainant claims that after his telephone conversation with the respondent on the 21st January 2005 he felt that he was not getting the truth and asked his sister Ms. B, who has a different surname to the complainant, to telephone the respondent and ask if he had property to rent in the area. Ms. B was presented as a witness at the hearing and she states that she telephoned the respondent shortly after the complainant’s conversation with the respondent; she claims she spoke directly with Mr. Keane and he provided her with information about a variety of housing options available to rent in the Ballinasloe area at that time.
4. Respondent’s Case
4.1 Neither the respondent nor a legal representative on its behalf attended the oral hearing. The respondent did send a fax to the Tribunal on the eve of the hearing indicating that due to ill health that he, Mr. Paddy Keane, was unable to attend the oral hearing. The Tribunal Secretariat staff made contact with Mr. Keane at his office telephone number that evening and outlined the formal procedure for requesting an adjournment of the hearing. On the day of the hearing, five minutes before the scheduled start time, the respondent faxed a covering letter and a copy of a doctor’s note to the Tribunal’s office. However, having examined the documents furnished I am satisfied that that respondent did not request an adjournment of the hearing. I am also satisfied that the documents submitted do not constitute a request for an adjournment of the hearing to a later date nor does the doctor’s note certify that Mr. Keane was unfit to attend the scheduled hearing due to his ill health. Accordingly, the hearing proceeded.
5. Conclusions of the Equality Officer
5.1 In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 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.
5.2 The complainant claims that both he and his family are settled members of the Traveller community, and that the surname ‘Ward’ is commonly recognised as a Traveller name particularly in the Ballinasloe locality. I am therefore satisfied that the complainant is covered by a discriminatory ground under section 3(2) of the Equal Status Acts, namely the Traveller community ground. Mr. Ward claims to have been treated less favourably in the provision of a service, on account of his membership of the Traveller community.Therefore, the question that I must decide, in the present case, is whether the complainant was treated less favourably and denied access to information in relation to the rental of property by the respondent on the grounds of his membership of the Traveller community.
5.3 I am satisfied that the complainant presented his case at the oral hearing in a balanced and credible manner and I accept the version of events that he alleged took place on the dates in question. I have also taken cognisance of the evidence presented by the complainant’s witnesses at the hearing, both of whom claim they were immediately successful in obtaining information from the respondent in relation to properties that the complainant was refused, all in and around the same dates and times.
5.4 Therefore I am satisfied that on the balance of probabilities from the evidence presented that the complainant has established a prima facie case of discrimination on the basis that the respondent refused to provide him with a service based on his membership of the Traveller community. As the respondent was not present to offer a rebuttal of the inference of discrimination in relation to the claim, I find in favour of the complainant.
6. Decision
6.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Acts 2000 – 2008 and I also find that the respondent has not attempted to rebut the allegation of discrimination.
In considering the issue of redress I am mindful of the need to ensure that it is effective, proportionate and dissuasive. Therefore, in accordance with section 27(a) of the Equal Status Acts, I award the complainant the sum of €850 in compensation for the discrimination and embarrassment experienced, and for the loss of amenity suffered.
Further, in accordance with section 27(b) of the Acts, I order the respondent to immediately review all customer service practices and ensure that they are fully compliant with the obligations set out in the Equal Status Acts.
______________________
James Kelly
Equality Officer
The Equality Tribunal
23rd December 2008
DEC-S2008-040 – Full Case Report
Complaint under the Equal Status Act 2000
DEC – S2008 – 040
Sweeney & Others v Digger Jay’s Pub
Background
This case was assigned to me on 8th June 2007. The case was scheduled for hearing on 6th September 2007 and the parties were informed by letter dated 9th August 2007. The respondent wrote on 14th August 2007 informing the Tribunal that he would be unavailable for the scheduled hearing because of prepaid holidays already scheduled. An adjournment was granted. There followed some correspondence between the Tribunal and the complainants’ representative clarifying whether or not all complainants were represented by him.
The parties were informed by letter dated 10th January that the hearing was rescheduled to take place on 7th February 2008 at 2:30pm. Before the hearing the complainants’ representative indicated that one of his witnesses was not available to attend due to work commitments. Rather than grant an adjournment on that basis I directed the witness to attend the hearing. The witness’s availability or otherwise did not, therefore, impact on the hearing’s taking place. On 7th February both parties attended. The respondent made a second application for an adjournment as his Solicitor had been involved in High Court proceedings taken by the Law Society during the days before the hearing. The complainants’ representative indicated that as a professional courtesy no objection would be raised to the granting of an adjournment in the circumstances. The respondent indicated that any time in April would be acceptable for the resetting of the hearing and this is noted on the Tribunal’s case file.
The hearing was again rescheduled to Tuesday 8th April 2008 at 10:30am. The parties were informed by letter dated 4th March 2008. On 28th March the respondent telephoned the Tribunal indicating that he would not be able to make the hearing as he had difficulties in getting witnesses to attend. In accordance with Tribunal procedures he was asked to submit a request for an adjournment to the Director. This third request for an adjournment was received at 16:41 on Thursday 3rd April. Having considered all of the circumstances known to her the Director refused the request for an adjournment and the respondent was informed of this on Friday 4th April. On Monday 7th April the respondent contacted the Tribunal indicating that he had further documents to submit and that he wanted to discuss the matter with someone. He was told that he could submit the documents and they would be considered. He was advised that the hearing was still scheduled to go ahead at that time and he indicated that it would have to do so without him. No reference was made to any legal advisor at that time.
On Tuesday 8th April at 10:30am, the complainants, with the exception of Kathleen Cleary, attended the hearing with their representative. The respondent did not attend. As I was satisfied that he was aware of the hearing and his obligation to attend I opened the hearing. The hearing was complete before 1pm. Apparently, at 2:30pm, Mr. Shaughnessy arrived at the hotel with his witnesses. A member of hotel staff contacted the Tribunal on his behalf, indicating that his party was there and that I had not yet arrived! Mr. O’Shaughnessy has indicated that he requested the hotel to take a note of their presence and this note apparently remains in the hands of the hotel.
Summary of the Complainant’s case
There are twelve complainants in this case. As already indicated, Ms Kathleen Cleary did not attend the hearing for personal reasons. She had been informed on 7th February that her attendance would be necessary. I find that she has failed to establish a prima facie case of discrimination on the Traveller ground.
The complainants indicated, on request, that all complaints related to the same incident. On that basis I took evidence individually from a selected 25% and from the witnesses presented as follows.
Ms. Margaret Sweeney, Complainant
The group had just finished exams following tuition at St. Catherine’s Traveller centre. This is a senior Traveller training centre funded by Mayo VEC. The group met in Ballinrobe on 17th July 2007 and travelled by bus to Digger Jays pub in Aughagower outside Westport to see the singer performing that night. When they arrived Ms. Sweeney went to the main door. As she approached she heard the door lock. When she knocked on the door Mr. Shaughnessy answered and said that it was a private function. She indicated that it had been advertised in the local newspapers, on the radio and that there was a sign outside indicating the entrance fee. He insisted it was a private function. A non-Traveller couple arrived at the door and the lady had a ticket. Mr. Shaughnessy took €10 of them and allowed them to enter. Ms. Sweeney knocked a second time and Mr. Shaughnessy opened it and called her in. She asked him why they were being refused and again he indicated that it was a private function. She again indicated that it had been advertised. He asked her if a group of men were coming down later to join them. When she replied no and asked him why he just closed the door. She moved away and subsequently noticed Mr. Thomas Maughan call Mr. Shaughnessy over and talk to him. They waited until the teachers arrived who also spoke to Mr. Shaughnessy. Subsequently they all got back on the bus and went on to Claremorris for the rest of the evening.
Ms. Ellen Conroy, Complainant
Ms Conroy explained that the group were on a night out. When they arrived she got off the bus and approached the door in time to hear Mr. Shaughnessy speak to Margaret Sweeney the second time telling her that there was no way that the group was getting in. She got back on the bus and noticed Tom Maughan speaking to Mr. Shaughnessy outside the bus. They all eventually got back on the bus and went to Claremorris.
Ms. Thomas Maughan, Complainant
Mr. Maughan was the office administrator with St. Catherine’s. He remained on the bus to make arrangements with the driver as to the time they should be picked up. When he looked up he saw the door being closed. He saw Mr. Shaughnessy talk to one of the ladies. He called him over to the bus and asked why himself and the ladies from St. Catherine’s were not allowed in. Mr. Shaughnessy replied that it was a private function. When Mr. Maughan pointed out the €10 admission sign Mr. Shaughnessy replied “You’re not getting in”. Mr. Maughan then contacted the teachers Ms. Morrissey and Ms. Robertson. When the teachers arrived they spoke to Mr. Shaughnessy but Mr. Maughan could not hear what was said.
Ms. Mary Morrissey
Ms. Morrissey is the co-ordinator at St. Catherine’s Centre which is a senior Traveller training centre. It provides second chance training and is funded by Mayo VEC. Ms. Morrissey explained that they offer Junior Certificate subjects and cultural subjects and are hoping to offer a Leaving Certificate Applied course in the future. When the examinations were finished each year they normally organised a night out for the students.
In 2003 the ladies indicated that they would prefer a night out outside of Ballinrobe. On the afternoon of 17th July 2003 Ms. Morrissey contacted Digger Jays to enquire if tickets were necessary for that night and she was told that they were not required and could be purchased on arrival. The ladies travelled by bus and she and Ms. Robertson went by car. They were dropping off their luggage when they received word of the difficulties. They got in the car and went to Digger Jays. She found Mr. Shaughnessy in the bar and suggested they meet. He met them at the door and Ms. Morrissey asked why they were not being allowed in. He replied that it was a private function. She explained who they were. As a native, she explained the nature of the village where the pub is located and indicated that Travellers were always welcome. He said that they could come in and sit in the corner. When Ms. Morrissey spoke to the ladies they were quite upset and said that they did not want to go in at that stage and that they were embarrassed and ashamed by the whole incident. The group went on to Claremorris and had a reasonable night considering what had happened. Ms. Morrissey indicated that there were only six or seven cars in the car park at that time but there were people on duty helping people park. Some of these indicated that they had nothing to do with the refusal. She also indicated that these “are a great bunch of ladies who spent most of the day getting their hair done and getting ready for the night”. In the past she has travelled with some of them, to Paris for example.
Ms. Deirdre Robertson, Teacher
Ms. Robertson teaches Computers, Mathematics, and Irish Cultural Studies. She and Ms. Morrissey arrived and Mr. Shaughnessy was not at the door. Ms. Morrissey located him and when he came out she asked him why they could not get in. She knows Mr. Shaughnessy from her home town where her family runs a bar and restaurant. He turned to her and asked “what would your father or brother do if a crowd like this showed up at their door?” She replied “they would have to have a very valid reason to refuse them because nowadays it can’t be just because of who they are”. He asked why did they not ring to say they were coming and the reply was that they should not have to. He said he would let them in but put them in a corner. Ms. Robertson stated that they said no as the ladies did not want to go in at that stage.
Mr. John Joe Walsh, Bus Driver
Mr. Walsh picked up the ladies in the bus in Ballinrobe and when they arrived at Digger Jays they all got out and Mr. Shaughnessy spoke to them. After 10 or 15 minutes they got back on the bus. He then took them to Claremorris and eventually to Ballinrobe again.
Conclusions of the Equality Officer
I am satisfied, based on the evidence presented,
· that all of the complainants are members of the Traveller community
· that they were refused access to Digger Jay’s pub on 17th July 2003
· that there was a show on in the pub on that night
· that a call was made to confirm that tickets were not required in advance and
· that the pub was gearing up for a big night as staff and/or locals were helping with parking etc.
What remains to be decided is whether or not non-Travellers would have been refused in similar circumstances. It is well known that some establishments do not like the arrival of large groups unannounced. This is normally for logistical reasons such as having adequate staff on duty, having adequate food prepared and other such reasons. However, in this situation, the pub was prepared for a large attendance because of the show that was on that night. It is clear that bookings were not necessary and it is also clear that there was more than adequate space for the group.
The group was informed that it was a private function which was clearly untrue as the event had been advertised. Then indication was given that they were allowed in to sit in a corner.
I am satisfied that had a group of non-Travellers arrived they would have been admitted. Therefore I find that the complainants were less favourably treated than non-Travellers would have been in similar circumstances. This establishes a prima facie case of discrimination on the Traveller ground. The burden of proof therefore shifts to the respondent to present evidence to rebut the prima facie case of discrimination
As the respondent failed to appear at the hearing he has failed to present any such evidence which would rebut the prima facie case.
Decision DEC-S2008-040
I find that the respondent has failed to rebut the prima facie case of discrimination and this decision is therefore in favour of the complainants.
I hereby order the respondent to pay each of the 11 complainants €700 each for the effects of the discrimination. Those complainants are:
Mary Sweeney, Ellen Sweeney, Ellen Conroy, Bridget Ward, Eileen Tighe, Kate Conroy, Margaret Sweeney, Breda Sweeney, Mary Teresa Sweeney, Mary Maughan, and Thomas Maughan.
Bernadette Treanor
Equality Officer
20th June 2008
DEC-S2003-029 Full Case Report
O’Brien v Iarnród Eireann/Irish Rail
1. Dispute
This dispute concerns a complaint by Ms Bridget O’Brien that she was discriminated against, contrary to the Equal Status Act 2000, by Iarnród Eireann. The complainant maintains that she was discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000.
2. Summary of the Complainant’s Case
This dispute concerns a complaint by Bridget O’Brien that, while travelling on an Iarnrod Eireann service from Tralee to Dublin on 26 July 2001, she was accused of complicity in the theft of another passenger’s luggage. She says that, without any prior notification of the allegation, she was removed from the train at Portlaoise where a Garda subjected her luggage to a search on the platform. Ms O’Brien believes that she was treated in this manner because she was recognised as a member of the Traveller community.
3. Summary of Respondent’s Case
3.1 The respondents reject that they discriminated against the complainant and maintained that she was treated the same way as anyone else would have been treated in similar circumstances.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5.1 Evidence of Complainant, Bridget O’Brien
Mrs O’Brien travels from Tralee to Dublin several times each year to visit relatives.
On 26 July 2001, she boarded the train in Tralee after 6 pm and was accompanied by her son (9) and her daughter (8).
Mrs O’Brien had some clothes and personal items with her in a black plastic sack.
They changed trains at Mallow around 8 pm where she sat in a smoking carriage
Shortly after the train left Mallow, there was an announcement about a passenger having lost some luggage
During the early part of the journey, her children left her carriage to go to the shop a few carriages away
Some time after the announcement, the Ticket Collector came into her carriage and starting searching the luggage compartment over her head and the space under her seat.
He did not search the area around other passengers as thoroughly.
The Ticket Collector did not speak to her while he was conducting his search.
As the train was pulling into Portlaoise station,, she heard the Ticket Collector roaring
” Where’s the bag?” at her son who was returning from the toilet
She immediately asked the Ticket Collector why he was accusing her son but got no reply
The Ticket Collector made no reference to the fact that an allegation had been made against her and her children, nor was she told that the Gardai had been summoned
There was no doubt in her mind, from the Ticket Collector’s attitude and the manner in which he dealt with her children, that he recognised them as Travellers
The Ticket Collector then left her and went to talk to some Gardai who were on the platform
Two of the Gardai then boarded the train and asked her to step onto the platform with her luggage (a black sack containing mainly clothes).
On the platform, the Gardai told her an allegation of larceny had been made against her and asked her to empty her black sack. A Garda then went through her belongings .
The Garda then told her everything was in order and that she could put everything back in her bag and reboard the train.
She was highly embarrassed as the search on the platform was conducted in full view of other passengers sitting on the train.
This search was overseen by the Ticket Collector. Also present was the passenger whose luggage had been stolen. This was the first time that she had seen this gentleman on the train.
She said to the Garda that she had been discriminated against and victimised. In response, the Garda told her she “had nothing to be ashamed of”.
She asked the Garda for his name and got back on the train
The Ticket Collector did not speak to her after that.
She received no apology from the Ticket Collector nor anyone else, nor has anyone from CIE contacted her since about the incident.
Mrs O’Brien has travelled on the Tralee to Dublin service a few times since
Evidence of Respondents – Michael Anderson, District Manager
Iarnród Eireann, normally have a Driver, Ticket Collector and a Train Guard on board the Mallow to Dublin train
In situations where incidents occur (thefts, trouble etc) the Ticket Collector or Guard call the Driver and ask him to arrange for the Gardai to meet the train at the next convenient station.
In such situations, the driver usually contacts the Central Traffic Control Office in Dublin who make the necessary arrangements with the Gardai. Every effort is made to keep the train running on schedule
The Company have built up a good working relationship with the Gardai, in relation to these incidents, over the years.
All front line staff have now received training in the provisions of the Equal Status Act 2000.
In 2002, the company developed an awareness training program on cultural diversity for all front-line staff. These courses are held in Inchicore and presented by the company’s equality officer. This training had not commenced at the time of this complaint in July 2001.
Evidence of Respondent – Gareth Nolan, Ticket Collector
Mr Nolan was on duty on the Mallow to Dublin evening train on Thursday 26 July 2001
He recalls that the service was running behind schedule that night. The train was waiting in Mallow for about 15 minutes before departing
41 passengers (including Mrs O’Brien and her children) transferred from the Tralee train at Mallow while 60 others boarded at Mallow itself.
Several minutes before the train left Mallow station, a male passenger reported to Mr Nolan that his luggage had been stolen. The passenger described it as a black shoulder bag
The passenger said that he had left it on the train and that it had gone missing while he was in the toilet.
When Mr Nolan suggested that perhaps he had left it on the platform, they both alighted from the train, checked the platform but found nothing.
They both then reboarded the train and Mr Nolan told the passenger that he would help him search for his luggage after he had finished checking tickets.
While checking tickets, Mr Nolan recalls seeing Mrs O’Brien and her children.
He specifically remembers the children running around and recalls asking the girl to sit down as she was barefoot and he was concerned that she might cut her feet.
He did not recognise the family as Travellers at the time and did not discover this until the Gardai were speaking to Mrs O’Brien on the platform
When he was finished checking tickets, he spoke again to the passenger who had lost his luggage and asked him whether he suspected anyone in particular
The passenger said that he himself had not seen anyone near his luggage but had a suspicion that Mrs O’Brien and her children may have had some involvement.
The passenger then told Mr Nolan that he had spoken to two other passengers who were sitting near him who had told him they were suspicious of two children they had seen going up and down the carriage. The two passengers had admitted to the passenger, however, that they had not seen the children go near his luggage.
When Mr Nolan asked the passenger how sure he was about the accusation, the passenger replied that it was “50/50”
The passenger did not identify the two passenger witnesses to Mr Nolan nor did Mr Nolan ask who they were.
On the basis of this information, the passenger insisted that Mr Nolan should check to see if there was any evidence that the children, who Mr Nolan had identified as belonging to Mrs O’Brien, had taken his luggage.
Mr Nolan informed the passenger that “the law is very tricky” with regard to this type of situation and asked him whether he had any hard evidence. The passenger repeated that he was going on the word of the two passengers who had “surmised” that the children had been involved
Mr Nolan then undertook a thorough search of the train, including Mrs O’Brien’s carriage. He checked all the luggage racks in Mrs O’Brien’s carriage and did not treat her any differently than other passengers.
Mr Nolan gave Mrs O’Brien no indication that any allegation had been made against her or her children
Having failed to locate the luggage, the passenger insisted that the Gardai be called to search Mrs O’Brien
Mr Nolan again warned the passenger that he should be careful, unless he had any hard evidence, as “the law was tricky” but the passenger insisted that he wanted the Gardai.
Mr Nolan said that he was reluctant to ask for a specific search of one passenger and suggested that the Gardai be asked to carry out a full search of the train. The passenger, however, insisted that the Gardai should concentrate on Mrs O’Brien as, in his opinion, she was the prime suspect. On account of the passenger’s insistence, Mr Nolan felt that he was obliged to act on the passenger’s request.
Mr Nolan then asked the Train Guard to radio for the Gardai to meet the train in Portlaoise.
As they were pulling into Portlaoise, Mr Nolan said that Mrs O’Brien’s son made a comment to him in the carriage. Mr Nolan thought the boy said that “he had found the bag” and asked him where it was. At that point Mrs O’Brien interjected and said “Don’t accuse my son” .
He then went out onto the platform to speak to the two Gardai who were waiting
Mr Nolan informed the Gardai that a passenger had asked for the Gardai to be called as he suspected a lady of stealing his luggage
Mr Nolan explained to the Gardai that he himself would prefer if the Gardai searched the whole train
He then identified Mrs O’Brien to the Gardai and they asked her to step off the train with her luggage which was in a black plastic bag
The Gardai searched Mrs O’Brien’s bag but found nothing
The passenger whose luggage was missing watched proceedings but made no comment
Mr Nolan did not take the passenger’s name or details
He did not make a written record of the incident
Mr Nolan did not speak to Mrs O’Brien after the Garda search
Mr Nolan is not aware of anyone from CIE having contacted or apologised to Mrs O’Brien since the incident.
To Mr Nolan’s knowledge the luggage was never found
At the Hearing, the respondents could not produce the name of the passenger who made the allegation against Mrs O’Brien
Evidence of Respondents Mark Phelan, Station Guard, Portlaoise
On foot of a call from the Central Control Office, Mr Phelan arranged for the Gardai to come to the station
He had been told that a passenger had had his luggage stolen and that he knew who had taken it and wanted the Gardai to search the lady in question
At the station, the Gardai first spoke to the passenger concerned before boarding the train and asking Mrs O’Brien to get off the train
The train was delayed for about 15 minutes while the Gardai searched Mrs O’Brien’s luggage and took the names of those involved
Evidence of Garda Liam Campbell
At 9.45 pm on Thursday 26 July 2001, Garda Campbell received instructions to go to Portlaoise Station to investigate an allegation involving larceny of items and money on the Cork to Dublin train
At the station, Mr Nolan met him and told him that a passport and some Irish and German money had been taken from a male passenger’s luggage
The passenger, whose name Garda Campbell was able to produce at the Hearing, spoke to him and told him that the items had been taken at Mallow station
Garda Campbell recalls the passenger showing him a luggage bag from which the items were taken
The passenger identified Mrs O’Brien as the suspect and referred to her two children who had been running around
When Garda Campbell asked whether there were any witnesses, the passenger told him that there were two clear witnesses to support the allegation. Garda Campbell got the impression that one of them was a CIE employee
Garda Campbell asked to speak to the witnesses but neither could be located
While the non-production of the witnesses gave him some cause for concern, he was persuaded from the evidence of the passenger and Mr Nolan, that Mrs O’Brien was a realistic suspect
Mr Nolan then led Garda Campbell to Ms O’Brien on the train.
Garda Campbell asked Ms O’Brien if he could speak to her on the platform, as other passengers were within earshot
On the platform Garda Campbell outlined the complaint to her and told her that he had been told that there were two independent witnesses to support the allegation
Mrs O’Brien immediately denied the allegation
Garda Campbell said that the allegation took her by surprise and that she was seriously embarrassed by it
Mrs O’Brien said to him that she believed she was being victimised because she was a Traveller
She told him she had never been in trouble before and that the Gardai in Killarney would confirm this
He told her that she was not under arrest and that there was no obligation on her to let her belongings be searched
Mrs O’Brien freely offered her handbag to be searched. Garda Campbell recalls her showing him a large handbag and not a black sack
She opened her bag for Garda Campbell to search and he found nothing suspicious inside
Garda Campbell again asked for the two witnesses but they were not produced.
On foot of this, Garda Campbell told Mrs O’Brien that the Gardai would not be taking any further action and that she was free to get back on the train
Garda Campbell said that he had no reason to be suspicious of Mrs O’Brien and that he had felt some sympathy for her because of the situation she had found herself in
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment she received on the Cork to Dublin train on Thursday 26 July 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes “prima facie evidence’ and how a “prima facie case” is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondents accept that an allegation of larceny was made against the complainant and that the Gardai were called to carry out a search of her belongings. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 26 July 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In this particular case, I have not been provided with any comparable situation where a non-Traveller was accused of larceny while a passenger on an Iarnrod Eireann service. I, therefore, find that I am unable to compare this case with another “real-life” situation which has occurred in the past. In order to properly evaluate the complainants’ case, I believe, therefore, that it is necessary to introduce a hypothetical comparator at this point. The Equal Status Act 2000 provides for the use of a hypothetical comparator in Section 3(1)(a) where it states that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated.
7.5 Hypothetical comparators have been introduced in a number of other Equal Status cases in recent years where an actual comparator did not exist. For example, in the case of McDonagh v Tesco (DEC-S2001-016), the Equality Officer found that a member of the Traveller community, who was forcibly removed from a supermarket, was less favourably treated than a non-Traveller would have been treated in similar circumstances. Similarly, in the case of O’Brien v The Canada House (DEC-S2002-002/003), where two female members of the Traveller community were approached by staff on arrival in a shop, the Equality Officer found that a non-Traveller would not have received the same treatment.
A hypothetical comparator was also introduced in a recent case under the Employment Equality Act 1998. In Minaguchi v Wineport Lakeshore Restaurant (DEC-E2002-020) a trainee chef, who had been placed for work experience with a restaurant, was asked to work a trial period before taking up her placement. She argued that the difference in treatment was discriminatory based on her older age and marital and family status. In that case, the Equality Officer found that the appropriate comparator was a hypothetical student from the complainant’s class who was of different age or of different marital or family status. The construction of a hypothetical comparator has also been a feature of recent UK equality caselaw. In Balamoody v UK Central Council for Nursing, 2002 IRLR 288 (Court of Appeal), the Court of Appeal found that the Employment Appeals Tribunal had erred in not having regard to any hypothetical comparator.
More recently, the House of Lords, in its decision in a race discrimination case, Shamoon v Chief Constable of RUC, ( 2003 UK HL 11 ), has stated the principle that it is correct and appropriate for a tribunal to construct a hypothetical comparator , where no actual comparator is available, in order to make the necessary comparison with someone in similar relevant circumstances.
Although the above UK precedents are not binding, I consider them persuasive as the wording of the relevant provisions in the Race Relations Act 1976 are extremely similar to the definition contained in Section 3(1)(a) of the Equal Status Act 2000.
7.6 As stated earlier, no reference has been made to previous situations where a non-Traveller has been accused of larceny on a train. I believe, therefore, that it is necessary to introduce a hypothetical comparator at this point and ask the question as to whether the respondents would have adopted a different stance if the incident on 26 July 2001 had involved a non-Traveller woman with two children.
7.7 In considering the evidence before me, I note that there is some contradiction as to whether a full luggage bag was stolen or just some items from the luggage bag. On this point,
I note that both parties agree that a full luggage bag was reported missing and, therefore, I am prepared to accept that this was the case.
7.8 To me, the key pieces of evidence in this case are as follows:
The Ticket Collector, Mr Nolan, says that he distinctly remembers noticing Mrs O’Brien and her children from the fact that her children were running around the train and that one of them was barefoot.
Mr Nolan was prepared to accept the word of a passenger that Mrs O’Brien was the prime suspect on the basis that two other passengers had “surmised” that the two children had been involved
Mr Nolan made no attempt to identify or interview the alleged witnesses himself before calling the Gardai
Mr Nolan chose not to inform Mrs O’Brien that an allegation of theft had been made against her and her children
Mr Nolan has stated that he knew that “the law was tricky” and that he asked the Gardai at Portlaoise to search the whole train. The Garda witness, however, states that it was the passenger and Mr Nolan that had actually persuaded him that Bridget O’Brien was the prime suspect and that it was Mr Nolan himself who led him to Ms O’Brien.
Mr Nolan has admitted that he did not speak to Mrs O’Brien after the incident and has acknowledged that neither he nor anyone from CIE has ever apologised to her for the incident
Mr Nolan never asked the passenger in question for his name during the course of the incident nor does it appear that Mr Nolan obtained Mrs O’Brien’s name on the day in question
Mr Nolan himself did not make a written report of the incident
7.9 On the basis of the above pieces of evidence, I simply cannot accept that Mr Nolan would have acted in a similar manner if a non-Traveller woman with two children had been accused of larceny.
I believe that, if a non-Traveller had been involved, it is reasonable to expect that the Ticket Collector would have at least asked to speak to the two witnesses who had been identified before agreeing to call the Gardai. Yet, despite the fact that the passenger had said that it was only “50/50” that Mrs O’Brien’s children had been involved, Mr Nolan chose not to seek out the two witnesses to confirm their reports. More importantly, Mr Nolan chose not to inform Mrs O’Brien of the allegation against her, which I find hard to believe is standard practice, especially where an unfounded allegation has been made against a passenger.
I also cannot accept that Mr Nolan was following standard procedures in not speaking to Mrs O’Brien afterwards or offering her some form of apology. It also appears that Mrs O’Brien was never offered an apology from anyone in Iarnrod Eireann over the incident.
7.10 Mr Nolan has stated that he did not suspect that Mrs O’Brien was a member of the Traveller community until she made the point to the Garda in Portlaoise. I have serious difficulty in accepting this statement as I consider that it would have been obvious to Mr Nolan
(1) from talking with Mrs O’Brien about her son,
(2) from the fact that one of her children was barefoot, and
(3) from the fact that she had her luggage in a black sack,
that she was a member of the Traveller community. I also find it hard to believe that the family’s suspected Traveller identity would not have been communicated to Mr Nolan by the passenger who made the accusation.
7.11 Having considered all the evidence before me, I have reached the conclusion that on 26 July 2001, Mr Nolan did recognise Mrs O’Brien as a Traveller and, in choosing to act on an unsubstantiated allegation against her, treated her less favourably than he would have treated a non-Traveller in similar circumstances.
I am, therefore satisfied that the actions of Mr Nolan on 26 July 2001 constituted discrimination on the Traveller community ground contrary to the provisions of the Equal Status Act 2000.
8 Decision
8.1 In this particular situation, I consider that the complainant were clearly identifiable as a member of the Traveller community when she travelled on the Tralee to Dublin rail service on 26 July 2001 and that this led to her receiving less favourable treatment than a non-Traveller would have received in similar circumstances. I, therefore, find that a prima facie case of discrimination has been established and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainant was discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the respondents on the grounds of her membership of the Traveller community.
8.2 In considering the level of redress to award, I note that Iarnrod Eireann have since put in place staff training on the provisions of the Equal Status Act 2000 and have developed an awareness training program on cultural diversity for all front-line staff.
8.3 In the case before me, however, I consider that the complainant suffered serious distress and humiliation on 26 July 2001 and I order that the respondents pay Mrs O’Brien the sum of €2500 in compensation.
Brian O’ Byrne
Equality Officer
7 May 2003
DEC-S2006-037 – Full Case Report
Faulkner v St Ita’s & St Joseph’s School, Tralee
Key words
Equal Status Act 2000 – Direct discrimination, section 3(1)(a) – Traveller community ground, section 3(2)(i) – Supply of goods and services, section 5(1) – Admission of child to a Special Needs School
Delegation under the Equal Status Act, 2000
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
Dispute
This dispute concerns a complaint by Nora Faulkner that she was discriminated against, contrary to the Equal Status Act 2000, by the then Principal of St Ita’s & St Joseph’s School, Tralee on the Traveller community ground in the manner in which she was dealt with when she contacted him to discuss the admission of her child to his school in November 2002.
The complainant maintains that she was discriminated against in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
Summary of the Complainant’s Case
At the Hearing on 8 March 2006, the complainant explained that her son, who is now 16, had been experiencing learning difficulties ever since he first started attending school. Over the years, Ms Faulkner had spoken to both the Sisters and Brothers who had taught her son and all had agreed that he needed to attend a “special needs” school.
fter primary school, the son attended Tralee Community College where it was suggested to Mrs Faulkner that she should consider having her son psychologically assessed with a view to having him enrolled in a special school like St Ita’s & St Joseph’s School in Tralee.
On 4 November 2002, Mrs Faulkner had her son assessed by Mr Brendan Connolly, Psychologist with the National Education Psychological Service who found that the son needed to be educated in a Special School. Mr Connolly told her he would send a letter of recommendation to the Principal of St Ita’s & St Joseph’s School asking that he arrange to meet her and her son.
Having heard nothing from the school in the ensuing weeks, Mrs Faulkner decided to contact the School Principal, Mr Oliver O’Connor, herself. She says that she phoned him on 20 November 2002 and explained to him that she was a Traveller whose son had been psychologically assessed and that a report to this effect had already been sent to the school recommending him for admission to St Ita’s & St Joseph’s School. In response, she says that Mr O’Connor started “roaring” down the phone at her stating that he would not be taking her son in. She says that the verbal abuse she received from Mr O’Connor was such that she was too upset to pursue the matter further with him at the time. Some months later, at the request of her son, she says that she tried to contact Mr O’Connor again but was told that he was not available to talk to her.
Towards the end of 2003, she raised the matter with the Deputy Principal, Mr T. J. Barry, who said that he could not take the son in at the time but that he would contact her again when he took over as Principal in January 2004. She said that she never heard from him again.
Mrs Faulkner said at the Hearing that her son has been out of school since 2002 on account of his failure to gain admission to St Ita’s & St Joseph’s School.
Summary of Respondent’s Case
At the Hearing, the former Principal, Mr Oliver O’Connor, said that the school had catered for many Traveller children over the years and that all parents were treated equally. He also said that he had a record in his diary for 21 November 2002 of a phone call from Mrs Faulkner regarding having her son admitted to the school. He states that his recollection is that Mrs Faulkner referred in the telephone conversation to having obtained a “GP’s letter” and not a psychologist’s assessment. In support of this, he pointed to the fact that the ODEI 5 notification form from Mrs Faulkner mentions a letter from her GP. (In response, Mrs Faulkner denied that she had mentioned a “GP’s letter” in their conversation and explained that the reference in the ODEI 5 form to a GP’s letter was a mistake by the Traveller’s representative who filled in the form for her).
Mr O’Connor said that he then went on to explain the full procedures to Mrs Faulkner with regard to the need to have her son psychologically assessed before a decision was taken as to his admission. He said that he was not sure from their conversation, however, if she fully understood what was involved. He described their conversation as “polite” and said that Mrs Faulkner gave no indication that she was upset. Mr O’Connor said that he was aware at the time that Mrs Faulkner was a Traveller from the address she was residing at. He said that he had no recollection of having seen the son’s psychological assessment in 2002.
he current Principal, Mr T.J. Barry, also gave evidence at the Hearing. He recalls having an “amiable conversation” with Ms Faulkner towards the end of 2003 in relation to her son. His recollection is that she was to get a psychologist’s report and come back to him after Christmas which she never did. He has no recollection of her saying that a report had already been submitted. He did not make any notes of their conversation at the time.
At the Hearing, the respondents indicated that they had only become aware of Mr Connolly’s assessment when a copy was supplied to them by the Tribunal in 2005. Mr Barry explained that when psychological assessments are received for prospective students, they are put on a special file until an application for admission is received. Mr Barry undertook to check this file on his return to the school after the Hearing to establish whether their was any record of receipt of the psychological assessment for Mrs Faulkner’s son
Note
Subsequent to the Hearing, correspondence was received from Mr T.J. Barry stating that the report from Mr Connolly had been located on another school file. This correspondence included a copy of Mr Connolly’s assessment of Mrs Faulkner’s son dated 5 November 2002 and was attached to a covering letter from Mr Connolly to Mr O’Connor also dated 5 November 2002. The covering letter, which was personally addressed (“Dear Oliver”) to Mr O’Connor referred to the assessment of Mrs Faulkner’s son and said:
“I am recommending that you give him a place in St Ita’s and St Joseph’s. I believe that the environment that you provide is the best possible one for him.
I ask that you contact his mother, Mrs Nora Faulkner, 28 Mitchell’s Crescent, Tralee and arrange to meet her”.
Conclusions of the Equality Officer
At the Hearing, Mrs Faulkner came across as a very intelligent and caring parent who had the best interests of her child at heart. She also impressed me as someone who had a full understanding of her son’s special needs and who also fully appreciated the procedures involved in getting her son admitted to a special school, including the requirement for a psychological assessment. This is supported in evidence by the fact that she did follow the required procedures and obtained the psychological assessment two weeks before she contacted the school.
I, therefore, find it very difficult to accept Mr O’Connor’s account of the “polite” conversation he had with Mrs Faulkner in which he claims that he had a discussion with her in relation to the difference between a GP’s note and a psychological assessment.
Another aspect of the case which, in my opinion, calls into question Mr O’Connor’s commitment to Ms Faulkner’s cause at the time, is the recent discovery of the 2002 psychological assessment on one of the schools files. The covering letter attached to the assessment indicates that the assessment was sent for the specific attention of Mr O’Connor and, indeed, asked him to personally contact Mrs Faulkner to discuss her son’s admission to the school. While Mr O’Connor says that he does not recall seeing the assessment in 2002, I must presume, based on the correspondence referred to above, that Mr O’Connor did, on the balance of probability, receive the assessment but chose to ignore the request that he contact Mrs Faulkner.
In considering why Mr O’Connor would have ignored Mr Connolly’s request, I am drawn to Mr O’Connor’s statement at the Hearing that he would have known Mrs Faulkner to be a member of the Traveller community from her address in Mitchell’s Terrace. Having fully considered the evidence before me and in the absence of any other credible reason, I consider that it was probably Mrs Faulkner’s Traveller identity that prompted Mr O’Connor not to make contact with Mrs Faulkner, contrary to the psychologist’s recommendation.
As a consequence of Mr O’Connor not acceding to Mr Connolly’s request, it was Mrs Faulkner who contacted Mr O’Connor two weeks later and it is that telephone conversation that is the subject of the complaint before me.
In considering Mr O’Connor’s account of the conversation, I find that I have difficulty in accepting it for the following reason. If, in her conversation with Mr O’Connor, Mrs Faulkner had genuinely confused the psychological assessment with a GP’s letter, and had accepted his word that her son still needed to see a psychologist, I believe that her natural reaction would have been to revisit the psychologist, Mr Connolly, to establish what still needed to be done. On learning at that point that the psychological assessment required had already been submitted, I consider that the next obvious step for Mrs Faulkner would have been to revert back to Mr O’Connor with this information. As this clearly did not happen, I find that I have a serious difficulty in accepting Mr O’Connor’s account of what he says he told Mrs Faulkner to do.
In contrast, I find that I have little difficulty in accepting Mrs Faulkner’s account of what transpired during the telephone conversation, as I found her to be a very credible witness. Accordingly, I am not prepared to accept that, in her conversation with Mr O’Connor, Mrs Faulkner got confused between a GP’s note and the psychological assessment that was carried out on her son two weeks earlier.
I have, therefore, formed the opinion that Mrs Faulkner did refer on the telephone to the psychological assessment submitted in respect of her son and that Mr O’Connor, for the same reason that I consider he did not contact Mrs Faulkner two weeks earlier, chose to dismiss Mrs Faulkner rather than deal with her request to have her son admitted to the school.
Accordingly, I find, on the balance of probability, that Mr O’Connor did discriminate against Mrs Faulkner in his dealings with her in November 2002 and that this discrimination arose from the fact that he knew her to be a member of the Traveller community.
I, therefore, find that the complainant has established a prima facie case of discrimination on the Traveller community ground and that the respondent has failed to rebut the allegation..
Decision
I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000-2004.
n considering the circumstances of this case, I believe that Mrs Faulkner and her son have suffered a serious injustice at the hands of St Ita’s & St Joseph’s School, Tralee and that a major opportunity to cater for her son’s special educational needs has been lost.
In the circumstances, I consider that it is appropriate to award sizable compensation in this case and I order that the respondents pay the sum of €4000 to the complainant for the suffering and hardship experienced.
Brian O’Byrne
Equality Officer
24 May 2006
DEC-S2011-003- Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 – 2008
Decision DEC-S2011-003
PARTIES
K v A Primary School
(represented by Hassett Considine Solicitors)
File Reference: ES/2008/197
Date of Issue: 18th January, 2011
Keywords
Equal Status Acts, 2000-2008 – Direct discrimination, Section 3(1)(a) – Family Status Ground, Section 3(2)(c) – Race Ground, section 3(2)(h) – Traveller community Ground, Section 3(2)(i) – Victimization, section 3(2)(j) – Access to Education, Section 7(2) – Harassment, section 11
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 7th October, 2008 under the Equal Status Acts, 2000 to 2008. On 12th March, 2010, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 24th November, 2010.
Dispute
1.1 Mrs. K claims that both she and her son were discriminated against by the respondent on the grounds of their family status, race and membership of the Traveller community in terms of sections 3(1), 3(2)(c), 3(2)(h), 3(2)(i) of the Equal Status Acts, 2000 to 2008 and contrary to section 7(2) of the Equal Status Acts, 2000 to 2008 in terms of the manner in which it dealt with her son’s application for enrolment at the respondent’s primary school during the academic year 2007/2008. Mrs. K also claimed that she was subjected to victimisation and harassment contrary to sections 3(2)(j) and 11(1) of the Equal Status Acts.
Summary of the Complainant’s Case
2.1 The complainants, Mrs. K and her son returned to live in the town where the respondent is located after having previously resided in England and Dublin for a period of time. Mrs. K stated that she made contact with the respondent in September, 2007 (through her sister-in-law) with the intention of having her son enrolled at the school for the school year 2007/2008. Mrs. K stated that the School Secretary, Ms. C, arranged an appointment for her to meet with the School Principal; however, she claims that she received a telephone call from the School Secretary, Ms. C, three days later to say that the appointment was cancelled and that her son could not be enrolled because the school was full. Mrs. K subsequently contacted Ms. A, Visiting Teacher for Travellers (VTT), and it was decided to send a letter to the respondent on 16th November, 2007 making a formal application for the enrolment of her son at the school. Mrs. K received a reply to this letter from the respondent on 11th December, 2007 requesting confirmation that the application for enrolment was, in fact, from them as their letter initially had not been signed.
2.2 The VTT, Ms. A, sent a further letter to the respondent (on behalf of the complainants) on 19th December, 2007 seeking a formal reply to their application for enrolment. Mrs. K referred the respondent to the provisions of the Educational Welfare Act, 2000 in this letter which provides that a written request for enrolment must be responded to within a period of 21 days. The VTT, Ms. A, had a meeting with the School Principal, Mr. B, in February, 2008 in order to discuss Mrs. K’s application for enrolment of her son; however, there was no agreement reached following this meeting regarding their application. Mrs. K decided to refer an appeal under section 29 of the Education Act, 1998 to the Secretary General of the Department of Education and Science in relation to the respondent’s refusal to grant their son’s application for enrolment at the school. This appeal was scheduled to take place on 8th April, 2008. However, Mrs. K stated that she received a visit from one of the respondent’s teachers on 2nd April, 2008 and she was informed by this teacher that her son would be enrolled at the school if she agreed to withdraw the appeal under section 29 of the Education Act, 1998. Mrs. K stated that she signed a waiver to withdraw the appeal on the basis that her son could commence at the school the following week.
2.3 Mrs. K stated that she went to the school the following day to make the relevant arrangements for her son to be enrolled. Mrs. K stated that she met with Mr. B, School Principal, for the first time on this occasion and he gave her an enrolment form to complete and other documentation including the school’s regulations and a book list for her son. Mrs. K stated that she informed Mr. B that she would need a bit of time to get the books and uniform for her son because she was on social welfare benefits and she requested if he could start without the books and uniform. However, she claims that Mr. B refused to accede to this request and he insisted that her son would have to have a uniform and the books before he could attend the school. Mrs. K stated that she contacted the local Community Welfare Officer to see if she could obtain financial assistance to acquire the books and uniform and she was informed that she would need a letter from the school to confirm that her son was attending the school. Mrs. K stated that she went to the school and requested this letter from the School Secretary, Ms. C, but was informed that such a letter could not be issued as her son was not actually attending the school at that juncture. Mrs. K stated that she approached Mr. B, who was standing at the gate, as she left the school premises and attempted to talk to him about this issue but that he completely ignored her and indicated that she would need to make an appointment. Mrs. K denied that she became verbally abusive towards either the School Secretary or Mr. B during the course of her conversations with them on this date.
2.4 Mrs. K stated that she subsequently contacted the VTT who managed to arrange for financial assistance to be provided by the Community Welfare Officer so that she could obtain the school uniform for her son. Mrs. K stated that she brought her son to the school the following Monday wearing the proper uniform and that she met Mr. B in the school corridor. Mrs. K stated that Mr. B requested her to apologise for the way that she had spoken to him and the School Secretary on the previous occasion. Mrs. K stated that she apologised to Mr. B even-though she had not been abusive on the previous occasion. She stated that Mr. B informed her that he would not admit her son to the school until he had the proper books and he indicated that she would have to take her son home from school again that day. Mrs. K contacted the VTT again and she was able to source financial assistance from the St. Vincent de Paul with the cost of obtaining the books for her son.
2.5 Mrs. K stated that she returned to the school with her son on 21st April, 2008, who now had the appropriate books and uniform, and spoke to Mr. B upon her arrival at the school. Mrs. K stated that Mr. B spoke to her in a degrading manner and referred to a number of errors that she had made in completing the enrolment form. Mrs. K stated that Mr. B also informed her that her son could not commence at the school that day unless she produced a copy of his birth certificate. Mrs. K stated that she felt the respondent was attempting to place one obstacle after another in her way in order to prevent her son from starting at the school. Mrs. K stated that her son became very upset at this stage and informed her that he did not want to go to the school. Mrs. K stated that she also became very upset because of the way she was being treated by Mr. B and she accepts that she called him a “racist b…..d” purely out of frustration at the manner in which she had been treated by him. Mrs. K stated that she decided not to continue to pursue the enrolment at that juncture as she felt that her son would not be treated properly in the school. Mrs. K stated that she did not have any further contact with the school following this meeting with Mr. B and she sought a placement for him in another school where he commenced in September, 2008.
2.6 Mrs. K claims that the respondent sought to exclude her son from the school because of his Traveller identity. Mrs. K also claimed that she was subjected to harassment and victimisation in terms of the manner in which the application for the enrolment of her son was dealt with by the respondent.
Summary of the Respondent’s Case
3.1 The respondent denies that it discriminated against the complainants on any of the grounds claimed. The respondent is a national school and it catered for approx. 570 pupils during the school year 2007/2008. The respondent submitted that it has an open enrolment policy regardless of the background of the child and the fact that a child is a member of the Traveller community or a non-Irish national is not a factor that is taken into consideration when deciding upon applications for enrolment. The respondent submitted that there were 27 members of the Traveller community enrolled at the school during the school year 2007/08 and that currently 25% of the students come from a non-Irish background. The respondent also submitted that it has enrolled a total of 19 children with the same surname as the complainants between 1997 and 2009 including two of the complainants other sons.
3.2 The respondent stated that the School Secretary, Ms. C, received a telephone call from an unidentified person during September, 2007 after the school year had commenced. Mrs. C stated that the caller made enquiries about the possibility of enrolling a child in fifth class; however, she informed the caller that both of the classes in that particular year were full as there were thirty three students in each class. Mrs. C stated that the caller did not indicate whether or not she was a member of the Traveller community nor did she express any dissatisfaction in relation to the information that had been conveyed to her. Mrs. C stated that she did not have any recollection of telephoning the complainant in September, 2007 to say that an appointment with the School Principal had been cancelled. The respondent stated it did not receive any formal contact from the Mrs. K regarding the enrolment of her son at the school until it received an unsigned letter from her (and her husband) on 26th November, 2007 which was addressed to the Chairman of the Board of Management (this letter was dated 16th November, 2007 by the complainants). The respondent stated that it replied to Mrs. K’s letter on 11th December, 2007 and requested confirmation that it had, in fact, been sent by them as their initial letter had not been signed.
3.3 The respondent stated that it received a further letter from Mrs. K on 16th January, 2008 which formally requested the enrolment of her son at the school. The respondent wrote to the VTT, Ms. A, on 4th February, 2008 and requested her to make contact with the school in order to discuss this matter and Mr. B, School Principal, met with the VTT on 20th February, 2008 (at the request of the BOM) in relation to this issue. The respondent stated that the issue regarding the enrolment of Mrs. K’s son was discussed regularly at Board of Management meetings and that it actively sought to achieve a resolution to the matter. The respondent submitted that the VTT should have contacted the School Principal directly in order to discuss the issue regarding the enrolment of Mrs. K’s son, but instead of adopting an informal approach, she advised her to proceed with an appeal under section 29 of the Education Act, 1998.
3.4 The respondent stated that it was notified by the Department of Education & Science on 7th March, 2008 that Mrs. K had referred an appeal under section 29. The respondent stated that it had never dealt with a section 29 appeal prior to the present case and Mr. B stated that he sought to achieve a resolution to the matter. The respondent stated that it arranged for a teacher to call to Mrs. K’s house on 2nd April, 2008 and she was informed that her son would be offered a place at the school on the condition that she withdrew the appeal under section 29. The respondent stated that it made arrangements to have Mrs. K’s son enrolled in fifth class despite the fact that there was already thirty three students in each of the classes in that year. The respondent stated that it was necessary for Mrs. K’s son to comply with the normal procedures such as the completion of an enrolment form, acquire a school uniform and books and provide a copy of his birth certificate before he could commence at the school. The respondent submitted that these basic requirements were applied to all students who wished to enrol at the school regardless of their nationality or whether they are from the Traveller or settled communities. The respondent stated that Mrs. K attended the school on 3rd April, 2008 and she was informed about the necessary requirements for enrolment. The respondent stated that Mrs. K attended the school with her son on two occasions after 3rd April, 2008 and sought to have her son attend class even-though he did not have a school uniform, the required books or a copy of his birth certificate.
3.5 The respondent accepts that, on one such occasion, Mrs. K sought a letter from the School Secretary, Ms. C, to state that her son was attending the school so that she could obtain financial assistance for the purchase of a school uniform from the Community Welfare Officer; however, it submitted that the School Secretary could not provide such a letter as Mrs. K’s son was not attending the school at that juncture. The respondent stated that Mrs. K became verbally abusive towards Mr. B on this occasion and accused the school of being racist. The respondent stated that Mrs. K attended the school with her son a number of days later and on this occasion Mr. B requested that she apologise for her abusive behaviour on the previous occasion. The respondent stated that when Mr. B informed Mrs. K that the enrolment form had been incorrectly completed and that she would require a copy of his birth certificate she again became verbally abusive and called him “a dirty racist b……” . The respondent stated that it did not have any further contact with the complainant following this incident.
3.6 The respondent denies the allegation that it sought to put obstacles in the way of the complainants in terms of their attempt to have their son enrolled at the school. The respondent submitted that the reason why he ultimately was not enrolled was as a result of Mrs. K’s failure to co-operate with the school and to comply with the standard requirements for enrolment that are applied to all students. The respondent also denies that it subjected Mrs. K to harassment or victimisation.
Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/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 The respondent is an educational institution which, inter alia, provides primary education to students and, as such, it is an educational institution within the meaning of Section 7(1) of the Acts and is therefore subject to Section 7(2) of the Equal Status Acts, 2000 to 2008 which states that:
“7.- (2) An educational establishment shall not discriminate in relation to –
(a) the admission or the terms or conditions of admission of a person as a student to the establishment
(b) the access of a student to any course, facility or benefit provided by the establishment.
(c) any other term or condition of participation in the establishment by a student
(d) the expulsion of a student from the establishment or any other sanction against the student”
I will now proceed to examine the complaint on each of the grounds claimed i.e. the Traveller community, family status, race and victimisation grounds.
Traveller community ground
4.3 It was not in dispute between the parties that the complainants are members of the Traveller community. Mrs. K claims that her son was subjected to discrimination on the grounds of his membership of the Traveller community in terms of the manner in which the respondent dealt with his application for enrolment at its school. The question that I must decide in relation to this issue is whether Mrs. K’s son was treated less favourably than another student would have been, in similar circumstances, on the grounds of his membership of the Traveller community in terms of the manner in which the respondent dealt with his application for enrolment at the school.
4.4 Firstly, I note that there was a conflict in the evidence of the parties as to when Mrs. K actually made the application for the enrolment of her son at the respondent’s school. Mrs. K claims that she sought the enrolment of her son in early September, 2007 (by way of a telephone call to the school) and she claims that she was informed by the respondent at that juncture that there was no place available as the school was full. The respondent disputes that a formal application for enrolment was made by Mrs. K at that juncture. The respondent accepts that the School Secretary received a telephone enquiry from an unidentified person after the school year had commenced in September, 2007 regarding the possibility of enrolling a student in fifth class; however, it disputes that this contact constituted a formal application for enrolment and it claims that the first correspondence it received from Mrs. K regarding the enrolment of her son was an unsigned letter on 26th November, 2007. On balance, I have found the respondent’s evidence regarding the circumstances surrounding the telephone call in September, 2007 to be more compelling and I accept that the first formal communication between the parties regarding the enrolment of Mrs. K’s son was effected when the respondent received this letter on 26th November, 2007.
4.5 I note that the respondent’s Enrolment Policy makes provision for the enrolment of pupils during the school year where it states: “Applications for enrolment during the school year will be considered subject to school policy, available space and the provision of information concerning the child’s educational progress. Such applications will be considered on a case by case basis and will normally only be considered for admission on the first day of each new term unless the applicant is newly resident in the area”. The respondent also disputes that the letter which it received from Mrs. K on 26th November, 2007 constituted a formal application for enrolment on behalf of her son on the basis that the letter had not been signed. However, I do not concur with the respondent’s contention in this regard and I am satisfied that Mrs. K, in this letter, clearly conveyed the request that her son be considered for enrolment at the school. I accept that the letter did not contain Mrs. K’s original signature; however, her name and address were clearly identified in typed format in this letter. In the circumstances, I am satisfied that the respondent was formally notified by Mrs. K on 26th November, 2007 that she wished to have her son enrolled at the school.
4.6 I am of the view that it is important to consider the chronology of events that occurred after the respondent had received this letter in terms of my deliberations in relation to the issues to be decided in this case under the Equal Status Acts. It was accepted that there was an exchange of correspondence between the parties regarding the enrolment application during the period of time following the respondent’s receipt of the letter on 26th November, 2007. There was also a meeting between the VTT and Mr. B on 20th February, 2008 during the course of which the issue of the enrolment application was discussed. It is clear from the evidence of both Mr. B and the VTT that no decision regarding the application for enrolment was reached arising from the discussions at this meeting. Mrs. K subsequently referred an appeal to the Department of Education & Science under section 29 of the Education Act, 1998 on the basis that she had not received a decision from the respondent in relation to her application for the enrolment of her son (the respondent was notified by the Department on 25th February, 2008 that the section 29 appeal had been referred). This appeal was scheduled to take place on 8th April, 2008; however, it was accepted that Mrs. K decided to withdraw the appeal after the respondent had contacted her on 2nd April, 2008 and offered to make a place available for her son at the school.
4.7 Having regard to the foregoing, it is clear that a period of time, in excess of four months, had elapsed from when Mrs. K made the initial application for enrolment (i.e. 26th November, 2007) of her son until the respondent informed her that there was a place available for him in the school (i.e. 2nd April, 2008). The question that I must decide in considering the alleged discrimination in the present case is whether or not the inordinate length of time that it took the respondent to make a decision in relation to the application for enrolment was attributable in any way to the complainants’ membership of the Traveller community. In considering this issue, I have taken note of the provisions of section 19(3) of the Education (Welfare) Act, 2000 which provides that the Board of Management of a school is obliged to make a decision in relation to a request for enrolment within 21 days and inform the parent in writing thereof. The obligations that are placed upon a school by this legislation are clear and unambiguous in terms of the manner in which it is obliged to respond to applications for enrolment. Based on the facts in the present case, the respondent clearly failed to comply with its obligations under that legislation in terms of Mrs. K’s application for the enrolment of her son at the school. The respondent submitted that it was trying to achieve a resolution to the matter during this four month period; however, I am satisfied that it has not put forward any plausible reason to explain why it took a period of four months to put such measures in place to achieve this resolution.
4.8 In this regard, I accept that there was a certain amount of interaction between the parties during this period (i.e. through correspondence and the meeting between Mr. B and the VTT) and that the matter had been discussed at various meetings by the respondent’s Board of Management. It is clear from the evidence adduced that there wasn’t a good working relationship between Mr. B and the VTT (who acted on behalf of the complainants in relation to the application for enrolment) and it would appear that this may have been contributory factor in terms of why Mrs. K’s son was not offered a place at the school until 2nd April, 2008. I note that Mr. B stated in his direct evidence that he was dissatisfied with the manner in which the VTT had approached the issue and it is clear that he would have preferred both the VTT and Mrs. K to have pursued an informal route rather than having referred an appeal under section 29 of the Education Act, 1998. However, it should be borne in mind that the only reason the VTT was acting on behalf of Mrs. K in relation to the application for enrolment was because of the fact that she was member of the Traveller community.
4.9 Based on evidence adduced, the respondent has failed to provide any reason as to why it took a period of four months to make a decision in relation to Mrs. K’s application for the enrolment of her son at the school or why it failed to comply with its statutory obligations under the Education (Welfare) Act, 2000 in this regard. In the circumstances, I can only conclude that the reason why the respondent failed to make a decision in relation to Mrs. K’s application for the enrolment of her son for a period in excess of four months was attributable to his membership of the Traveller community. I do not accept that it would have taken the respondent such a period of time to make a decision on an application for enrolment, in similar circumstances, from a member of the settled community. Accordingly, I find that Mrs. K has succeeded in establishing a prima facie case of discrimination on the Traveller community ground in terms of her application for the enrolment of her son at the respondent’s school. I also find that the respondent has failed to rebut the inference of discrimination in relation to this aspect of their complaint.
4.10 I must also consider Mrs. K’s claim that both she and her son were subjected to discriminatory treatment on the grounds of their Traveller identity in terms of the manner in which they were treated after the respondent had indicated on 2nd April, 2008 that there would be a place available for her son at the school. Mrs. K claimed that the respondent attempted to put a number of obstacles in her way after it had agreed to offer her son a place at the school on 2nd April, 2008. The respondent denies that it attempted to put any obstacles in the way of Mrs. K’s son and it claims that there were a number of standard requirements to which all students were obliged to adhere before he/she would be allowed to commence class at the school. The respondent claims that these requirements were clearly outlined to Mrs. K but that she failed to comply with them when she brought her son to the school.
4.11 In considering this issue, I note that Mrs. K was afforded an appointment to meet with Mr. B on 3rd April, 2008 in order to discuss the procedures for the enrolment of her son at the school. It was accepted by Mrs. K that she was informed by Mr. B at this meeting of the standard requirements that were necessary in order to complete the enrolment i.e. the school uniform, completion of the enrolment form, school books and birth certificate. It was not disputed between the parties that Mrs. K and her son presented at the school following this meeting and that he was not allowed to commence class because he did not meet the aforementioned requirements. However, based on the evidence adduced I do not accept that the reason he was not allowed to commence at that juncture was in any way attributable to his Traveller identity but rather it was because he clearly did not meet the requirements for enrolment that had been notified to Mrs. K during the course of her meeting with Mr. B.
4.12 In coming to this conclusion, I have taken into consideration that there were a number of inconsistencies in Mrs. K’s evidence in terms of her interaction with the respondent after she had been informed of the standard requirements for the enrolment of her son. These inconsistencies include conflicting information in her written statement and oral evidence regarding the actual number of occasions that she presented at the school after she had been informed by the respondent that there would be a place available for her son at the school. There was also a conflict in the evidence between the parties regarding the incident that occurred on the occasion that Mrs. K attended the school in order to acquire a letter to submit to the Community Welfare Officer for the purpose of obtaining financial assistance to purchase a school uniform for her son. The respondent claims that Mrs. K became verbally abusive towards the School Secretary, Ms. C, and Mr. B (both of whom gave corroboratory evidence in relation to this incident at the oral hearing) on this occasion whereas Mrs. K denies that she engaged in any abusive behaviour on this occasion.
4.13 Having regard to the evidence adduced, I have found the respondent’s evidence to be more credible regarding the events that occurred during the course of this meeting. I have also taken into consideration the undisputed evidence that Mrs. K called Mr. B “a racist b…..d” during the course of their final meeting at the school. Having regard to the foregoing, I do not accept Mrs. K’s contention that the respondent attempted to obstruct her attempts to enrol her son in the school after it had agreed to offer him a place on 2nd April, 2008. I am satisfied that the reason why Mrs. K’s son was unable to start school in the period following the meeting on 3rd April, 2008 was because of the fact that he did not meet the standard requirements to which all students were obliged to adhere to. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground in relation to this element of their complaint.
Family Status Ground
4.14 I am satisfied that Mrs. K has failed to adduce any evidence to support the claim that she was subjected to discrimination on the grounds of her family status in terms of the manner in which the respondent dealt with her application for the enrolment of her son. Accordingly, I find that Mrs. K has failed to establish a prima facie case of discrimination on the family status ground.
Race Ground
4.15 The complainants have also claimed that they were subjected to discrimination on the grounds of their race in terms of the manner in which the application for enrolment was dealt with by the respondent. It was submitted that the complainants, as members of the Traveller community, are members of an ethnic minority which resides within the State and accordingly, they are covered by the definition of race within the Equal Status Acts. I am satisfied that the complainants have failed to adduce any evidence to support the claim that they are covered by the race ground within the meaning of the Equal Status Acts. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the race ground.
Harassment
4.16 I am satisfied that the complainant, Mrs. K, has failed to establish any facts from which it could be inferred that she was subjected to harassment within the meaning of section 11 of the Equal Status Acts in terms of her application for the enrolment of her son at the respondent’s school. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment contrary to the Equal Status Acts.
Victimisation
4.17 I am satisfied that the complainant, Mrs. K, has failed to establish any facts from which it could be inferred that she was subjected to victimisation within the meaning of section 3(2)(j) of the Equal Status Acts in terms of her application for the enrolment of her son at the respondent’s school. Accordingly, I find that the complainant has failed to establish a prima facie case of victimisation contrary to the Equal Status Acts.
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 complainants have failed to establish a prima facie case of discrimination on family status, race and victimisation grounds in terms of sections 3(2)(c), 3(2)(h), 3(2)(j) and contrary to section 7(2) of the Equal Status Acts. I also find that the complainants have failed to establish a prima facie case of harassment contrary to section 11 of the Equal Status Acts.
5.2 I also find that the respondent has discriminated against the complainants on the Traveller community ground in terms of section 3(2)(i) and contrary to section 7(2) of the Equal Status Acts in terms of the manner in which it dealt with their application for enrolment i.e. between the date that the formal application was made until it agreed on 2nd April, 2008 to make a place available for him at the school. Accordingly, I find in favour of the complainants in relation to this element of their complaint.
5.3 Under Section 27(2) of the Equal Status Acts the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award in this case, I have taken into consideration the respondent’s evidence that it has, heretofore, had a good track record in providing education to members of the Traveller community. However, notwithstanding the foregoing, I have also taken into account the fact that Mrs. K’s son missed out on a year of his education as a result of the respondent’s failure to deal with his application for enrolment in an appropriate manner during the school year 2007/08. In accordance with section 27(1)(a) of the Acts, I award the complainants the sum of €3,500 in totality as redress for the effects of the discrimination.
5.4 I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent put in place a system that will facilitate the timely compliance with its statutory obligations under the Education (Welfare) Act, 2000 in terms of the manner in which it deals with applications for enrolment of pupils at the school.
Enda Murphy
Equality Officer
18th January, 2011
DEC-S2007-059 – Full Case Report
Reilly v HSE
1. Dispute
1.1 This dispute concerns claims by Edward Reilly that in May 2003, he was treated in a discriminatory manner by the respondent. 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 this and other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of Complainants’ Case
2.1 The complainant states that, following termination of employment, he attended at his local Health Centre on 28 April 2003 to apply for payment of Supplementary Welfare Allowance (SWA). His claim was processed and a cheque issued to him by post.
2.2 In May 2003 the complainant again attended at his local Health Centre, initially to query the amount paid to him and subsequently to query non-receipt of a cheque. On this latter occasion, when the complainant indicated where he resided i.e. in a bungalow in front of a caravan site, he was referred by the Community Welfare Officer (CWO) to a central unit in Dublin city which deals specifically with SWA payments to Travellers. It was explained to the complainant that this is Health Board policy.
2.3 The complainant explained to the CWO that he lives in a house and expressed his preference to have his claim handled locally. The Community Welfare Officer stated that he could not process the complainant’s claim locally.
2.4 The complainant’s claim was subsequently dealt with at the central unit in Castle Street, in the city centre. The complainant and his family regularly have to attend at the central unit for the payment of SWA payments. The condition of the central unit is poor and access is difficult for the complainant and his family, particularly given their specific circumstances (details provided).
2.5 The complainant considers that the segregation of him as a Traveller from other members of the community, which is without any factual need or basis, marks him and his family out as different and is discriminatory.
3 Prima Facie Case
3.1. I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A (1) of the Equal Status Acts 2000 – 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”.
4. Prima Facie Case – Complainant
4.1 The complainant is a Traveller. He sought payment of SWA at his local Health Centre. His claim was processed and initially paid by the Health Centre. He was subsequently informed that he had been dealt with, and paid SWA, by the Health Centre in error and he was referred to the central unit in Castle Street, Dublin which deals with claims from Travellers for SWA.
4.2 No other clear identifiable group of persons in the non-Traveller community are required to attend at a central unit to claim SWA and can have their claims processed and paid at local Health Centres or alternative venues.
4.3 I am satisfied that the complainant has established a prima facie case of discrimination on the Traveller ground.
5. Summary of Respondent’s Case
5.1 In response to the complainant’s notification the respondent stated that:-
? Events as outlined by the complainant did take place
? The Community Welfare Officer who processed the complainant’s initial application for SWA was a locum and was not aware that the address supplied by the complainant was within a Halting Site and failed to apply current Health Board policy in relation to applications from the Travelling community.
? Subsequently Health Board policy was applied to the complainant’s application i.e in relation to applications from the Traveller community a centralised service is available at Castle Street, Dublin.
? In 1984 a decision was taken to transfer the delivery of Community Welfare services to the Traveller community from local CWO areas to a central unit in Dublin. The decision was taken for two reasons. Firstly it was felt that a specialised team of CWO’s could provide a service that was better focussed on the particular needs of Travellers. Secondly, at the time the payments function and the records were not computerised. Due to the mobility of Travellers many CWO’s felt that they did not have effective control over payments being made to Travellers.
? Many Travellers felt that the new centralised service discriminated against them as a result of which a number of highly publicised protests were conducted outside the Castle Street premises.
? In 1994 a decision in principle was taken by the respondent that the service should revert back to local areas.
? Over the following years consultations and meetings took place to consider how this could best be achieved. On foot of such meetings a decision was made to provide a localised service to Travellers who held tenancies with Local Authorities while the remaining members of the Traveller community would continue to be dealt with by the centralised unit.
? In October 1999 the issue was revisited as the context had changed for a number of reasons, i.e. the SWA system was now computerised, the Eastern Health Board was in the process of being divided into three new Health Board regions and the Equal Status Bill was being drafted.
? In consultation with a number of interested groups it was decided that there was no reason why the decision taken in 1994 could not be implemented in full. A Working Group was established in November 1999 to progress the matter and to deal with a number of concerns that had been raised.
? The Working Group identified a number of practical and policy issues that needed to be addressed (details provided).
? To date the service has not been decentralised but some progress has been made in that a pilot scheme is currently set to be introduced in two areas. Payments are made locally to Travellers who have Local Authority tenancies. However, residents on dedicated Halting Sites and housing developments for Travellers are still being dealt with centrally.
? Mr. Reilly, the complainant, accessed the service at a time when Travellers on dedicated Halting Sites, on one of which Mr. Reilly resided, were being dealt with in a central unit. The initial decision to centralise was not intended to discriminate or marginalise the Traveller community. It was merely a logistical response to mobility and cultural issues affecting control of payments and effective service delivery at a time when payments were not computerised.
6 Conclusions of the Equality Officer
6.1 Having carefully considered all of the evidence presented in this case I am satisfied that the respondent has failed to rebut the inference of discrimination for the following reasons:-
Evidence presented at Hearing by the respondent indicates that;
? The centralisation of payment of SWA to Travellers was based on anecdotal evidence of fraud exchanged between Community Welfare Officers (CWO’s) at the time.
? No in-depth research or analysis was conducted into the alleged fraud.
? It took a few months to centralise the service.
? The centralisation of the service was not discussed with Traveller representative bodies nor was the Traveller community consulted in the matter. The service has met with very strong opposition from the Traveller community from the outset. The respondent’s position that the service has evolved to cater specifically for the needs of the Traveller community is simply not borne out by the evidence presented.
? The stated logistical and practical reasons for retaining a centralised service for Travellers have not existed for many years and, in any event, were/are not exclusive to the Traveller community.
? In 1999 the respondent was aware that equality legislation was being introduced and that the central provision of service to Travellers should be reviewed in light of same. While a Working Group was established in 1999 to carry out such a review no real progress has been made to date with regard to decentralising the service.
I would emphasise that the respondent’s actions in establishing the central unit predated the introduction of the Equal Status Act 2000 and as such were not open to challenge under that Act at the time of establishment. However, from the date of introduction of the legislation and despite awareness on the respondent’s part that the unit’s existence might contravene the Equal Status Act, no real progress was made with decentralising the unit’s services.
6.2 The respondent states that Travellers holding a local authority, or other, tenancy which is not Traveller dedicated, can now avail of SWA payments at local Health Centres. This approach indicates that the tenancies as described are seen by the respondent to confer a permanence on them that eliminates the problems which the respondent claims arise on foot of the mobility of Travellers who do not hold such tenancies. However, no evidence has been presented to show why this is the case. In the instant case, for example, the complainant resides in a bungalow on a halting site and neither he nor his family are mobile/nomadic. The pursuit of a nomadic lifestyle by some Travellers as against those who chose a non-nomadic lifestyle was never taken into consideration by the respondent when establishing the central unit in Castle Street. In any event, the computerisation of the payments system eliminates many of the problems which the respondent perceived to exist when the service was initially centralised.
6.3 I note the respondent’s submissions with regard to the practical difficulties of decentralising the SWA service but I also note that, despite the lapse of a period of some 14 years since the initial decision was taken, in principle, to decentralise the service little progress has been made. I note further that services other than SWA payments are available to the wider Traveller community at local Health Centres and that any related practical issues have either been resolved or did not arise with regard to those other services. Furthermore, the practical and logistical difficulties which must have attached to the centralisation of the SWA service for Travellers were overcome in a matter of some few months.
6.4 The respondent referred to Travellers being dealt with at the “Homeless Persons Unit”, with reference to the Castle Street unit. However, when questioned, the respondent indicated that non-Traveller homeless persons can in fact provide the address of a hostel for the purposes of payments from the unit and can have payment made to them at any post office. This contrasts starkly with the requirement that the complainant, because he is a member of the Traveller community, must attend at the central unit for SWA payment. No evidence was presented as to why Travellers, as a community, are regarded as being “homeless”.
6.5 Material was submitted on behalf of the complainant in relation to the wider issue of segregation, citing in particular Brown et al v. Board of Education of Topeka et al. While this case raises a number of interesting issues in relation to general segregation and policy issues in this matter I am satisfied that the instant complaint turns on those facts which have established that the complainant was treated in a manner such that the treatment constitutes less favourable treatment than that which is afforded by the respondent to members of the non-Traveller community in the provision of a service, namely the payment of SWA. Specifically, the complainant must travel to the central unit for payment while all non-Traveller recipients of SWA can elect to have it paid locally or via a number of alternative outlets.
7 Decision
7.1 I find that the respondent has directly discriminated against the complainant on the Traveller ground contrary to Section 5 and in terms of Section 3 (1) and 3(2) (g) of the Equal Status Acts 2000-2004.
8 Redress
8.1 In accordance with Section 27(1)(a) of the Equal Status Acts 2000-2004 I hereby order the respondent to pay to the complainant the amount of €6,350 for the effects of the discrimination. In making this award I have taken into account the specific hardships imposed on the complainant by the requirement for him to attend at the central unit for payment of the SWA.
8.2 In accordance with Section 27(1)(b) of the Equal Status Acts I hereby order the respondent to make arrangements for the payment to the complainant, with immediate effect, of Supplementary Welfare Payments at his local Health Centre and any further alternative venue at which payment of the allowance is available to non-Travellers.
8.3 In accordance with Section 27(1)(b) of the Equal Status Acts 2000-2004 I further order that the respondent, with immediate effect, arrange for payment of Supplementary Welfare Allowance to Travellers at all outlets at which payment is available to non-Travellers.
_________________________
Dolores Kavanagh
Equality Officer
25 July, 2007
Decision Number
DEC-S2012-006
Parties
A Complainant v Dublin City Council
Case refs: ES/2011/0015 to 0017
Issued: 20 February 2012
Keywords:
Equal Status Acts 2000 to 2004 – Discrimination – Disposal of Premises and provision of Accommodation Traveller Community ground – Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Three local authority residents referred claims to the Director of the Equality Tribunal under the Equal Status Acts on 26 January 2011. The respondent was notified of these complaints in accordance with the Acts on 11 November 2010. The complainants received no reply. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Acts on 17 November 2011. An oral hearing, as part of the investigation was held in Dublin on 24 January 2012. The complaints by the first and second complainants were withdrawn at the hearing as it became apparent that they were not official tenants of the local authority. The investigation thus proceeded in relation to complaint ES/2011/0017 only. It was agreed to keep the identity of the complainant anonymous.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the Traveller status ground. The complainant submitted that Dublin City Council (hereafter “the respondent”) discriminated and continues to discriminate against her by providing a centralised housing support service to residents living in Traveller specific housing. The complainant maintained that the service that she receives is inferior to that received by persons residing in standard local authority housing. In any case, it was submitted, the provision of a segregated service is discriminatory.
3. Case for the complainant
3.1. The complainant is a Traveller who has lived in a Traveller specific site since 2004. She submitted that she wishes to avail of the respondent’s service in her local area. Maintenance is currently contracted out by the respondent to a private maintenance company. However, the administration of rent payments and maintenance requests is done by the Traveller Unit in the respondent head office or on site through the caretaker service.
3.2. The complainant submitted that should she require repairs or maintenance in her home she must contact the respondent Traveller unit in the city centre. She is unable to avail of the localised service in the manner that her neighbours who live in standard local authority housing. She submitted that in order to avail of the service she has to travel past the local community centre to reach the Traveller unit in the Dublin City Council.
3.3. The complainant objected to the respondent’s submission concerning the difficulties of providing services in halting sites due to the anti-social behaviour of some residents. It was submitted that in standard local authority housing problem tenants are deal with individually while in Traveller specific housing all families are tarnished with the same brush.
3.4. The complainant relied on Reilly v HSE DEC-S2007-059. This decision found that the refusal to pay Supplementary Social Welfare Allowance to Travellers from local centres was discriminatory.
4. Case for the respondent
4.1. The respondent is the largest local authority in Ireland. It provides a number of services to the area including housing, waste and water management, culture, business and community services. The respondent works to meet the accommodation needs of the Traveller Community as well as other issues, such as community development. Since 1968, Traveller specific accommodation has available and the respondent currently manages five Traveller specific sites in the local authority area.
4.2. The respondent rejected the complainant’s claim and submitted that the service provided to the Traveller community is superior to that available for persons living in standard local authority housing. It was submitted that there is no need for any tenant to travel to the Traveller unit in Wood Quay. A call can be lodged with the unit and a contractor with a responsibility for maintenance on Traveller sites will be informed of the request within minutes (pens and magnets with these details were distributed to the tenants). It was submitted that the standard turn around for maintenance calls is in the region of 48 hours. It was submitted that this is much faster than it is in standard local authority housing.
4.3. In relation to concerns about refuge collection in the area it was submitted that these are affecting everyone regardless of housing type.
4.4. Furthermore, it was submitted that Traveller specific housing benefits from:
1. A caretaker service that is not available in standard local authority housing estates;
2. There are 5 Social workers providing services for Travellers who chose to live in Traveller specific housing. The rest of the local authority’s tenants – over 20000 of them – are served by 16 social workers. The Traveller specific social workers work from the community centres in a similar manner as other social workers; and
3. It was argued that as the work was contracted out to a private business the work was completed more efficiently and any individual difficulties that could emerge between some families and service providers would not have the same impact as they would if the same issue arouse with local authority staff.
4.5. The respondent refuted the claim that the complainant has to pay her rent in a different manner than other tenants. It was accepted however that it is possible that people residing in Traveller specific housing may not be informed of water, etc disruptions in the same manner as people living in standard local authority houses.
4.6. It was submitted that the Traveller unit has more favourable terms for Travellers who behind on their rent payments than exist for all persons residing in standard local authority housing. For example, a person who is behind on their rent payments for a period of six week cannot avail of the maintenance services while the same applies to Travellers living in Traveller specific accommodation only after 10 weeks. It was submitted that the service is at rather substantial additional cost to the local authority for providing this 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 he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. It is clear that the Travellers who reside in standard local authority housing must avail of the service as provided by the local offices. Therefore, I find that it is only Travellers who avail of Traveller specific housing who are affected by the service complained of. It is clear that it is the type of housing availed of that dictates the nature of the service. Traveller specific housing, by its very nature, is separate and different from the standard local authority housing.
5.3. Section 6(6) of these Acts provides that Local Authorities, such as the respondent, are allowed to provide different treatment to persons based on the membership of Traveller community. Section 6(6) has been consistently been interpreted by this Tribunal as giving the respondent discretion – provided that such discretion is systematic and transparent – in the manner in which it manages its housing stock. This means that a local authority is entitled by law to manage its housing stock as efficiently as possible while allowing the respondent the discretion to treat some groups differently (emphasis mine) from others. This means that in certain circumstances there may be an onus on the local authority to adapt some of its policies when addressing different need arising from an existing or prospective tenant’s family size, family status, marital status, disability, age or membership of the Traveller community. Such need could justify the use of preferential treatment.
5.4. It is clear that the current case is very different from Reilly. In Reilly it was clearly established that the service complained of was inferior than that provided to the settled community; a decision in principle had been made some 14 years earlier to revert the service back to local areas; and the transition was approved by all stakeholder groups. I also find that community welfare services are services that persons must attend in person in order to avail of such services. This is not necessarily the case in relation when making maintenance requests. It is also clear that the complainant is able to pay her rent in the same manner as a tenant residing in standard local authority housing.
5.5. While it is clear that the complainant would prefer to avail of the services in the manner that her neighbours living in standard local authority housing do, and that she considers the service to be inferior to that that is received by the settled community, it is equally clear that the facts do not support the perception that the service – while different – is inferior or less favourable to Travellers. I note that the complainant claimed that she had to wait longer than 48 hours to have maintenance work done in her home but admitted that she could not remember the details of this incident and could not say whether she had been in rent arrears at time.
5.6. The issue of whether having separate service provision – in relation to any of the protected grounds – is in itself discriminatory is an interesting question. It is generally acknowledged that equality of opportunity cannot be achieved in circumstances where every person is treated the same and the legislation itself provides for a number of exemptions in relation to the right to maintain separate services in appropriate circumstances. I am satisfied that the service complained of is separate to best accommodate a distinct housing policy designed for Travellers. The Traveller Housing Act, 1998, necessitates the existence of such programmes and gives legal recognition to different housing needs of Travellers.
5.7. In the circumstances, I cannot deem the maintenance service of Traveller specific accommodation to be less favourable treatment. I would however encourage the respondent to engage in a proactive manner with the Traveller community in relation to the nature of a service that the community would prefer. I note that the complainant acknowledged that an immediate transition to receiving the same service provided to the standard local authority housing would be problematic for some members of the community. The Traveller Housing Act 1998 provides for mechanisms by which the community must be consulted and involved in decision making concerning Traveller housing issues (including maintenance of sites). The respondent must be open to the possibility that some time in the future there will be no need for such separate service.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. I find that the complainant has not established a prima facie case of discrimination on the Traveller status ground. Therefore, this complaint fails.
____________
Tara Coogan
Equality Officer
20 February 2012
DEC-S2008-004-Full Case Report
McCann v Dun Laoghaire – Rathdown County Council
1. Delegation under the Equal Status Act 2000
1.1. Mr Michael McCann referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Act.
2. Dispute
2.1. The dispute concerns a complaint by Mr McCann that Dun Laoghaire-Rathdown County Council (hereafter the Council) treated him contrary to the Equal Status Acts 2000 to 2004 on the Traveller ground. Mr McCann maintains that the Council’s Traveller Unit treated him less favourably than a non-Traveller would have been treated in a similar situation on 8 December 2004 by turning down his request for a key to a barrier restricting access to a halting site, his primary residence. Mr McCann needed a key to get in and out of the site after he purchased a van that, due to its height, could not pass the barrier.
3. Case for the Complainant
3.1. Mr McCann, a Traveller, resides on a halting site with his mother, an older person who has health related problems. Mr McCann is a carer. Mr McCann and his extended family have been living in the Dun Laoghaire-Rathdown Council area for over 15 years. He has lived in his current location since the halting site was constructed in 2002.
3.2. A halting site is similar to a small housing scheme. This particular one has four individual bays, each intended for a family unit. Every bay has an allocated space for a large caravan/mobile home, a small caravan and a self-contained unit (permanent structures) for cooking and washing facilities. All bays have space for parking. Each bay is walled and has an entry to a small communal area. The halting site itself is also surrounded by a wall and has a barrier at the entry point to the halting site.
3.3. As the site was built with the McCann family in mind, Mr McCann and others participated in a consultation meeting with the Council’s architects to discuss the site’s design and specifications. Mr McCann agrees with the Council’s statement that the families had wanted a barrier at the entrance. He states that while some disagreement existed around the barrier’s aesthetics, the future tenants of the site had wanted a barrier but that they had naturally presumed that they would get a key to it.
3.4. Mr McCann states that he obtained a key from a source he does not want to disclose (not the Council) some years ago while the circus were using the field next to the site. This key enabled him to open and close the barrier whenever he needed to. With this in mind, the complainant purchased a camper van. Mr McCann maintains that he always locked the barrier after him. However, after a time, the lock in the barrier was changed and when Mr McCann approached the Traveller unit for a new key he was told he could not have one.
3.5. The Council informed Mr McCann that if he needed to get his van out of the site he would have to give the Council 24 hours notice. As the barrier would be locked after Mr McCann’s departure, he would have to give another 24 hours notice to ensure that he would get back in. As a result, the camper van was no longer a realistic means for transportation and Mr McCann was left with no other alternative than to sell his van.
3.6. There are no parking facilities anywhere adjacent to the halting site. Mr McCann has to park his vehicle(s) in his bay. He states that there is ample room in his bay for a camper van but due to the barrier he could not get in or out. This type of a situation, he maintains, would not occur if he chose to live in standard local authority housing where he could just park in the driveway to his house.
3.7. Mr McCann argues that he can prove that non-Travellers have been given a key to the barrier. The halting site in question is adjacent to a field that is locally known as the ‘circus field’. The same barrier restricts entry to this field (you need to pass under the barrier before you get to the gateway located at the side of the driveway into the halting site). Mr McCann contends that when the circus is in town the barrier is often left unlocked and people working for the circus come and go as they please. To prove his point, Mr McCann submitted photographs of the barrier at the hearing. The photographs showed the barrier being left open with a number of circus vehicles parked nearby.
3.8. Mr McCann had to sell his camper van because he was not able to get in and out of his place of residence. He maintains that the only reason the Council has not given him a key is because the Council do not trust him. He says the Council is trying to restrict his freedom and is preventing him from having a van of his choice. Mr McCann also pointed out that the Council would not give him (or any other Traveller for that matter) a key to the service unit on the bays because ‘they think we would steal the copper’. He argues that persons living in non-Traveller specific accommodation would routinely have keys to any types of barriers or locks governing their properties.
3.9. Mr McCann acknowledges that he himself has been a victim of anti-social behaviour during his tenancy. There have been problems with some of his neighbours. He does not, however, accept that his problems with anti-social behaviour have anything to do with the issue of him having a key to the barrier.
3.10. Mr McCann disagrees with the Council’s statement that emergency services have a master key to open halting site barriers when needed. He reported an incident from the recent past where an ambulance attending to a person could not get under the barrier.
3.11. When questioned Mr McCann did not accept that should he have a key to the halting site it would subject him to intimidation from other members of the Traveller community. He stated that he considers himself to be perfectly capable of keeping the barrier locked and maintains that he used to do so when he had the key. Mr McCann further states that only Traveller sites have barriers restricting access to them while non-Traveller housing areas do not. This, he argues, is less favourable treatment.
3.12. Mr McCann further argues that in any other housing situation where barriers such as gates exist residents are always given a key.
4. Case for the Respondent
4.1. The Housing (Traveller Accommodation) Act 1998 places a statutory obligation on Local Authorities to meet the accommodation needs of Travellers . The Traveller unit of the Council is responsible for all Traveller specific housing issues within the Council’s area. Keys for halting site barriers are held by staff working for the Council’s Parks’ Department.
4.2. Traveller specific accommodation includes serviced halting sites (such as the one Mr McCann resides on), groups housing schemes and transient sites. These are usually built in consultation with the local Traveller community.
4.3. The Council maintains that the barrier was in place when Mr McCann purchased the camper van. A copy of Guidelines – Residential Caravan Parks for Travellers was submitted at the hearing to support the Council’s argument that the site was constructed in adherence to the requirements set out in the said document. Any vehicle up to 2.1 meters in height can travel freely under the barrier. The Council submits that no key has ever been provided by them to Mr McCann or any other person living on the halting site he resides on.
4.4. All Traveller halting sites have barriers governing access. The council submits that the families residing in Mr McCann’s halting site had been involved in a consultation with architects when the site was under construction. A copy of a letter from the Architects dated 27 July 2001 submitted at the hearing by the Council. It outlines the points raised by members of the McCann’s extended family in relation to the site’s design and that “they accept that a barrier must be provided at the entrance”.
4.5. The keys to the barrier are not held with the Traveller unit. The Council’s Parks’ Department staff have keys to the barrier and regulate access to the neighbouring circus field. If a resident of the halting site needs, for example, to move a new caravan in then the Traveller Unit will arrange with the Parks’ Department staff to have someone open the barrier and monitor the movement in and/or out.
4.6. The Traveller Unit had responded to Mr McCann’s request for a key by promising that it would take every effort to accommodate the opening of the barrier provided that appropriate notice is given. The Council points out that Mr McCann was not entitled to the key he had somehow obtained and that the person who had given it to him was equally not entitled to do so.
4.7. In relation to Mr McCann’s photographs presented at the hearing, the respondents acknowledge that the barrier in the photographs is indeed from Mr McCann’s halting site. No explanation could be given as to why the barrier would have been left open. The Council indicated that such an act was a breach of the Council’s protocol and would have to be investigated. The respondents maintain, however, that this could only have been a once-off incident as leaving a barrier unopened is a serious matter.
4.8. The Council pointed out that Mr McCann has himself been a victim of anti-social behaviour and that he has first hand knowledge of the difficulties involved in managing problematic situations that sometimes occur between Traveller families. The Council maintains that the barriers are there as a preventative measure and to ensure that families that do not have the right to reside in a particular halting sites do not attempt to intimidate legal tenants out.
4.9. The Council named a few pilot programmes where Travellers had been issued with keys to barriers. During one of these pilots a caretaker residing on a halting site had asked the Council to take the key back as he had been subjected to enormous pressure to open the barrier to members of his own community. Another situation was mentioned where a wall of a halting site was knocked down and some families trespassed onto a field behind a legal site causing serious damage to the environment and to the relationship between non-Travellers and Travellers.
4.10. The Council maintains, in a response to the notification form dated 21 January 2005, that Mr McCann was “not treated any less favourably than any other person who is so associated has or would be treated as no tenant of halting sites are given keys of the access barriers”. The reason why no Traveller is given a key was explained as a way of protecting the sites and the residents living in them. The Council submits that it has never turned down a request to open the barrier in relation to a legal tenant’s request for them to do so.
4.11. Unlawful encampments are, at least in part, a direct result of a shortage of Traveller specific accommodation. Unlawful encampments usually consist of new family formations, Travellers who follow a more traditional nomadic lifestyle and families who have been living in the area but are still waiting for the full implementation of the Local Traveller Accommodation Plan. This shortage of Traveller specific accommodation has resulted in families having to live on the side of the road or in similar locations where no services are available. As a result, some extended families have felt the pressure to double up in bays while appropriate accommodation becomes available.
4.12. The Council could not name any other non-Traveller housing scheme where tenants do not have unlimited access into the area. It was mentioned that the Council is considering erecting barriers at the entrances of some standard local authority housing estates in the future. Some apartment complexes with underground car parks have restricted access to them but no comparator could be given to a situation where unlimited access could only be achieved with the Council’s involvement.
5. Conclusions of the Equality Officer
5.1. In a complaint of discrimination the burden of proof to establish a prima facie case rests with the complainant. In order for Mr McCann to establish a prima facie case of discrimination he must satisfy the Tribunal that 1) he is a member of the Traveller community; 2) that the actions complained of actually took place; and 3) Mr McCann must show that the treatment was less favourable than the treatment offered to a person who is not a Traveller in similar circumstances.
5.2. It is important to highlight that the issue here is not necessarily about the barrier itself. It is about a legal tenant having a key to the barrier. It seems that barriers have been historically used at the entry of all halting sites and that both Travellers and the Council see it as a standard structure part and parcel of a halting site. The Department of Environment, Heritage and Local Government (DEHLG) Guidelines on halting sites refer to a need to consider entrance control . It is essential to note that Traveller specific accommodation is allowed under section 6(6) of the Equal Status Acts:
Nothing in subsection (1) shall be construed as prohibiting –
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992,
from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.
5.3. The above exemption for differential treatment cannot be construed as legitimising less favourable treatment. Section 6(6) is intended as a positive action measure allowing for the inclusion of categories of people who may otherwise be disadvantaged in relation to their housing needs. In this particular case, the above exemption cannot be used to justify the fact that only Travellers living in Traveller specific accommodation are the only category of people living in local authority housing who are not given keys to have full access to their common areas despite having exactly the same contractual obligations as any other tenant living in standard local authority housing.
5.4. The Council submitted a copy of Mr McCann’s tenancy agreement at the hearing. I note that Mr McCann has signed it (with the words ‘signed under duress’ added after his name). The agreement makes no specific mention of types of vehicles residents are allowed to park within their residential areas nor that residents would have restricted access. The agreement appears to be a standard one issued to all tenants of the Council. I take this to indicate that the council views Traveller specific accommodation as being parallel to that of standard local authority housing. Paragraph 17 of the agreement clearly outlines the tenants’ responsibilities in relation to “nuisance, annoyance and disturbance”. Part vi of paragraph 17 would appear to cover the tenant’s responsibilities in relation to ensuring that all security measures are adhered to:
“Any act or omission which creates a danger to the well-being of any neighbour or to his/her belongings”.
I interpret the above to mean that should a tenant fail to take appropriate care to ensure that collective entry points are properly secured then they are in breach of their agreement with the Council. Therefore, Mr McCann is aware he has a responsibility in this matter. It is perfectly logical for Mr McCann to presume that he would be given a chance to comply with such a matter.
5.5. While the issue of anti-social behaviour on halting sites is a real one, I note that Mr McCann had been on the receiving end of it. The Council stated at the hearing that they viewed Mr McCann as a good tenant. I do not see how the issue of anti-social behaviour in Mr McCann’s site is relevant to this particular issue, as it would appear that the problem occurred without anyone on the site having an ability to open the barrier and was an issue between neighbours living on the site. It seems that another family living on the site may have wanted Mr McCann to move out. This incident only illustrates that barriers are not entirely successful in preventing anti-social behaviour from occurring.
5.6. The Council stated that Mr McCann has not been treated any less favourably than any other Traveller would be treated as no Traveller has a key to a barrier. However, the Equal Status Acts 2000 to 2004 prohibits less favourable treatment between any two persons who differ on the basis of any of the discriminatory grounds. For the purposes of this investigation, this means that the comparator on a Traveller ground complaint must be “that one is a member of the Traveller community and the other is not”.
5.7. The Council could not provide any evidence of any mainstream housing situation where barriers are used to govern access to a housing area. The Council submitted that group-housing schemes built specifically for the Traveller community have barriers at the entrance. From the evidence presented to me at the hearing I must conclude that only Traveller specific accommodation in the Council’s area has protective barriers at the entry point(s). Even Traveller housing schemes have a barrier .
5.8. While no evidence has been submitted of any non-Traveller specific residential area where barriers are used at entry point, similar situations do exist. Gates are used to protect most apartment complexes and some residential housing estates are known as ‘gated communities’. A person living in any of these types of housing situations must accept the security measures imposed. Car parks may have high restrictions. Always, however, where gates exist, keys are provided to residents. Alternatively, a caretaker is always present to ensure the free movement of those who have the right to do so.
5.9. The Council could not explain the reason why Traveller halting sites have barriers in the first place. Words like ‘control’, ‘duty of care’ and ‘security’ were used a lot at the hearing by the Council staff and the health and safety aspects of building regulations were also referred to. Overcrowding of bays seemed to be a particular concern. It is no secret that Local Authorities across the country are struggling to implement the Local Traveller Accommodation Plans in a timely manner and that, consequently, delays have occurred in relation to Traveller families being offered appropriate housing options. Similarly, illegal Traveller encampments have caused problems and local upset. Some families may have engaged in illegal trespass for criminal reasons or simply because they had nowhere else to go. Some individuals may have intimidated other members of the Traveller community in order to get a place to live. The Council presented anecdotal evidence of these types of problems at the hearing but I was not presented with any direct evidence from a Traveller who has been subjected to such harassment or intimidation. While the above issues may be important when looking at the situation and experience of the Traveller community in Ireland, it is crucial to note that none of the above problems mentioned are, however, Mr McCann’s personal responsibility and there is no evidence to indicate that giving Mr McCann a key would increase the likelihood. Instead, the contrary is evident as Mr McCann was in possession of the key for a considerable time and no issue of harassment or intimidation in relation to the key did arise.
5.10. The fact that Mr McCann was able to show photographic evidence that the barrier could be left opened for non-Travellers creates an inference of discrimination. It appears that the staff of the circus were trusted enough to leave the barrier open while the staff moved their equipment in/out of the “circus field”. It appears that the Council officials dealing with this matter were relaxed enough to a) give the circus staff a key and/or b) have enough trust in them to leave the barrier open for a considerable period of time. I do not accept that this was the only time this has happened. While Mr McCann was reluctant to name the person who gave him the key to the barrier it is obvious that someone else outside the Council had a key to it or that a person working for the Council failed to follow his/her employer’s guidelines. This premise is further supported by the fact that at no point did the Council deny that Mr McCann was for some time in possession of a key that, according to the Council’s own evidence, was for Council staff use only.
5.11. It is clear from the evidence presented to me that Mr McCann has not been given a key because he is a Traveller living in a residential halting site. If Mr McCann lived in standard local authority housing his movements would not be restricted in a similar manner. Firstly, there would be no barrier at the entrance and secondly, if there was some type of a protective measure in place, he would be given a key. I am certain that the reason why Mr McCann is not trusted with a key has nothing to do with his personal traits. I am satisfied that the treatment he received was entirely based on his membership of the Traveller community and a direct result of him choosing to live in Traveller specific accommodation.
5.12. The Council maintains that all Traveller specific accommodation has barriers at the entrance points. This is in accordance with national guidelines and accepted as a standard feature of a halting site. The Council argues that the barriers are there to ensure that health and safety requirements are complied with. The barrier is a design feature of any Traveller specific housing and any person choosing to live in such accommodation must accept the barrier as such. While this may be the case, it still does explain why tenants who have entered a legally binding contract with the council are not allowed free access to the barrier.
5.13. I find that this design feature is creating a situation where a Traveller choosing to live in Traveller specific housing is at a particular disadvantage compared with a non-Traveller living in standard local authority housing. This is direct discrimination contrary to section 3(1) of the acts. The fact that residents of residential halting sites are not given keys to the barrier could been seen as an indicator that the Council does not trust the residents living in Traveller specific housing to use them appropriately. This could be because the Council may fear that residents would be intimidated into letting others into the sites or simply because a family might invite another to join them in a bay. To prevent this, barriers have been erected at entry points and emergency services are expected to carry and locate keys in situations where time is of the essence.
5.14. The Council’s reasons for why persons living on halting sites are not given keys to the entrance barriers of their homes does not justify the less favourable treatment experienced by Mr McCann. It is because of this failure to accept a Traveller as a responsible person that the Council is treating any person choosing to live in Traveller specific accommodation in a less favourable manner than a person who resides in standard non-Traveller specific accommodation.
6. Decision
6.1. The complainant has established a prima facie case of discrimination. I order the respondent to pay him €2000 as redress for the effects of the discrimination.
6.2. Further, in accordance with section 27(b) of the Acts, I order the respondent to issue the complainant a key to the said barrier immediately.
6.3. I also recommend that the Council carry out an urgent review to examine whether there is still a continued need for a site entrance barrier as recommended in Guidelines – Residential Caravan Parks for Travellers paragraph 6.4.
_____________
Tara Coogan
Equality Officer
29 January 2008
DEC-S2009-009 – Full Case Report
Complaint under the Equal Status Act 2000-2004. 2
Background.. 2
Summary of the Complainant’s case.. 3
Summary of the Respondent’s Case.. 4
Conclusions of the Equality Officer.. 5
Harassment. 6
Victimisation.. 9
Discrimination.. 9
Effects of Requirement to Use TLO.. 10
Comparison with Treatment of non-Travellers – Prima Facie Case. 12
Rebuttal by Respondent 14
Vicarious Liability.. 16
Decision DEC-S2009-009. 16
Complaint under the Equal Status Act 2000-2004
DEC – S2009 – 009
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-S2010-018 – Full Case Report
THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2010-018
PARTIES
O’Reilly & Others v Waterford City Council
File Reference: ES/2007/0170
Date of Issue: 26th March, 2010
Keywords
Equal Status Acts, 2000 to 2008 – Section 3(1) – Direct discrimination, Section 3(2)(i) – Traveller community – Disposal of premises and provision of accommodation, Section 6(1).
1. Delegation under the Equal Status Acts, 2000-2008
1.1 These complaints were referred to the Director of the Equality Tribunal on the 20th December, 2007 under the Equal Status Acts. On 11th December, 2008, 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, 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 the 22nd October, 2009. Final correspondence with the parties concluded on the 20th November, 2009.
2.Dispute
2.1 This dispute concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of their membership of the Traveller community, or their association thereto, in terms of Sections 3(1)(a), 3(1)(b) and 3(2)(i) of the Equal Status Acts and in not being provided with a service contrary to Section 6(1) of the Equal Status Acts.
3. Summary of the Complainants’ Case
3.1 In September 2007, the complainants were living in caravans on the Kilbarry halting site in Waterford City. All of the complainants are members of the Traveller community, with the exception of Ms. Dawn Burt. Ms Burt’s partner is a Traveller. The complainants claim they were served noticed on the 6th September 2007 to vacate the Kilbarry site by the following day. They claim that Waterford City Council had provided them with water, electricity and toilet facilities on the site up to that juncture. They claim that they had met with the person(s) responsible for housing/accommodation on many occasions prior to the 6th September 2007 to discuss their accommodation needs. On the 7th September 2007 they claim that they were forcibly removed from the halting site by a private company on behalf of the respondent. They claim that they were discriminated against by the respondent in how they were treated and that this would not happen to members of the settled community. The complainants’ individual evidence can be summarised as follows:
o Michael and Nora O’Reilly
Michael and Nora O’Reilly were living at the Kilbarry halting site for over a year before they were evicted in September 2007. They were aware that the respondent was responsible for the site however, they did not seek prior permission to live there before moving in. They claim that they met with a named official from Waterford City Council about one week after moving to the site and outlined their specific needs. They claim that the respondent provided them with access to toilet, water and electricity facilities soon after this first meeting. They claim that they presumed they were on Waterford City Council’s housing list, however no formal housing application form was filled out until after they were evicted. They stated that after the eviction they were informed that they were not on Waterford City Council’s housing list for accommodation. They claim that they moved to the side of a public road as they had no where else to go.
The complainants stated that they were aware that there was serious trouble and violence on the Kilbarry site however, they were not involved in any of the trouble. They also admit they were granted permission by the respondent to move back into one of the housing bays on the Kilbarry site in October 2007 with their extended family until a more permanent arrangement was found. However, they claim that the temporary arrangement lasted over a year and the conditions they had to endure were far worse than the condition in place prior to the eviction where, they claim, three families were expected to share the facilities at one of the bays, which was overcrowded and that they did not have their own toilet facilities. They stated that they were allocated their own housing bay on the site in the last quarter of 2008.
o Dawn Burt
Dawn Burt claims that she moved with her young family to the Kilbarry halting site less than a year before she was evicted in September 2007. She was aware that the respondent was in charge of the site however, she did not seek prior permission to live there before moving in. She claims that she met with a Waterford City Council official a few weeks after moving to the site, so as to inform it that they had moved there and to outline her needs. She claims that the respondent provided her with access to electricity and running water, and it also levelled out an area to accommodate her caravan. Ms. Burt claims that she had met with a named Waterford City Council officer on a number of occasions prior to the eviction and she always presumed that she was on the housing list, and she claims that the official said that she “would look after them”. She stated that after the eviction she was shocked to be informed that she was not on the Waterford City Council housing list for accommodation. She claims that no formal housing application form was filled out until after they were evicted.
The complainant stated that she was aware that there was serious trouble and violence on the Kilbarry site however, she stated that she was not involved in any of the trouble. Ms. Burt claims that she was given permission to move her caravan to where an extended family member was living as a short term measure however, this arrangement was not suitable as it was badly overcrowded, so she moved away to England and on her return she moved back to the same address. Ms. Burt states that she was offered accommodation by the respondent, however it was not suitable as she had requested Traveller type accommodation for herself and her caravan and she was offered non-Traveller specific housing 3 to 4 miles away from her extended family.
The complainant maintains that the respondent discriminated against her and her family because of her association with the Traveller community. She claims that after the eviction she had no where to go so she moved her caravan to the side of the road. She claims that the respondent subsequently sought to remove her from the side of the road by means of a court order, which she claims amounts to harassment. She claims that a member of the settled community in a local authority house would never be treated like she was nor would they be asked to share with another family like she was forced to do.
o Patrick O’Reilly
Patrick O’Reilly did not attend on the day of the hearing to give evidence. He was represented at the hearing by his daughter Kathleen O’Reilly who stated that her father was diabetic and was not well at that time. She claimed that her father had poor literacy skills and accordingly she had dealt with the respondent in relation to his accommodation needs on his behalf. She claimed that her father had moved to the Kilbarry site some eighteen months before the eviction in September 2007, she claims that he did not seek prior permission from the respondent to move there. Ms. O’Reilly claims that she went down to the respondent and met with a Waterford City Council Official and sought services of behalf of her father.
On the day of the eviction Ms. O’Reilly claims that the men with responsibility for carrying out the eviction on behalf of the respondent were exceptionally aggressive towards her and her father. She claims that the complainant moved his caravan to the side of the road for five months and then moved in with a family member in cramped and overcrowded conditions. Ms. O’Reilly said that she had understood that the family were on the housing list however, they were told that they were not on the list at the time of the eviction.
o Terrance and Nora O’Reilly
Terrance and Nora O’Reilly were living at the Kilbarry halting site for over a year before they were evicted in September 2007. They too were aware that Waterford City Council was in charge of the site however, they did not seek prior permission to live there. They claim that they met with an official of the respondent six to seven months after moving to the site and they explained what their needs were. They claim that they did not fill out a formal application for housing with the official at the time, however, they presumed that they were on Waterford City Council’s housing list as they regularly met and discussed their needs with a named official of the respondent. They claim that after the eviction they moved to the side of a public road as they had no where else to go.
The complainants stated that they were aware that there was serious trouble and violence on the Kilbarry site however, they stated that they were not involved in any of the trouble. They also agree they were allocated permanent tenancy of bay No. 1 on the Kilbarry site in December 2007. However, they claim that following the eviction they had no where to live for 2 months as no temporary arrangement was provided for them.
3.2 The complainants also questioned whether the legislation that the respondent relied upon to evict them was lawful.
3.3 The complainants also contend that the aggressive nature and behaviour of the people who carried out the eviction on behalf of the respondent, coupled with the respondent’s decision to force some of those families who set up caravans at the side of the road to move on by court order could be seen as harassment under the Acts.
4 Summary of the Respondent’s Case
4.1 The respondent denies that it discriminated against the complainants on the grounds of their membership of the Traveller community. The respondent presented a detailed submission outlining the situation at the Kilbarry halting site prior to the eviction of the complainants in September 2007. The respondent highlighted the importance of understanding the background to the Kilbarry site so as to understand the decision to remove the families at that time. It can be summarised as follows:
o The halting site at Kilbarry is designed to house twelve Traveller families and in the months leading up to September 2007 the respondent claims that there was a rapid build up in the amount of illegally parked caravans on the site – up to 30 caravans at one point. This lead to a serious difficulty for Waterford City Council in the management of the site. It claims that many of their staff and agents working on/with the site were threatened and at times physically assaulted, resulting in the respondent’s withdrawal of its employees in the interests of their health and safety.
o It was reported that the site had become known to the Gardaí due to the amount of criminal activity ongoing there, including a substantial orchestrated illegal dumping operation. The behaviour of certain individuals on the site forced the Criminal Assets Bureau, backed up by the Garda helicopter, to raid the site and seize goods alleged to be the proceeds of crime.
o In August 2007 the Gardaí had to mount a major security operation on the Kilbarry site following serious feuding among certain members of the Traveller community in Waterford City. During this time it claims that one man was shot and two others were injured with slash hooks on the site. It claims that 3 caravans were targeted by arson and a house being built by the City Council for a family living on the Kilbarry site was also “burned to the ground”. It claims that Gardaí, including armed members of the Emergency Response Unit mounted a search of the site for weapons. It claims that at the time representatives of the Local Traveller groups were asking the respondent to take action and remove the “illegal squatters”.
o It claims that the site and surrounding environs were in an appalling state with mounds of rubbish, including the gutted caravans, and even the remains of rotting animals were strewn all around the site. It claims that following a meeting with Gardaí and Waterford City Council officials, the respondent decided that in order to “clean-up” and “resume control” of the site, all occupiers other than those assigned to the 12 permanent bays were to be removed.
o On the removal of the families from the site Waterford City Council undertook a comprehensive clean-up, which included the removal of 60 tonnes of rubbish, unauthorised structures and scrap. The respondent claims that once it had regained control of the site it was able to re-establish normal services, such as the weekly refuse collection.
4.2 The respondent stated that as far as it was concerned none of the families relating to this complaint were involved in the trouble on the Kilbarry site.
4.3 The respondent stated that it had allowed the complainants to remain on the Kilbarry Halting site and although they were illegally parked, it did provide them with access to water, electricity and toilet facilities on a temporary basis, pending the availability of more permanent arrangements, – such as, certain bays becoming free at the site and the completion of a group Traveller housing scheme later in 2007. It claims that the respondent had no option but to ask the families not assigned to a parking bay to vacate the halting site in the interest of their own safety and to allow it to “take back control of the site”. It claims that once it was able to this, following the eviction, it was in a better position to make an assessment of the needs of the complainants in line with the resources available to it. It claims that it did not discriminate against the complainant on the Traveller community ground.
4.4 It summarised its position in relation to the individual complainants as follows;
o Michael & Nora O’Reilly
Following the eviction in September 2007, this couple asked for permission to move their caravan back to the Kilbarry site to move in with extended family on a temporary basis, while Waterford City Council sought to arrange a more permanent solution to their accommodation needs. They were subsequently allocated bay 7 in the Kilbarry site in October 2008 and are still living there.
o Dawn Burt
The respondent claims that Ms. Burt had asked for her application for accommodation to be dealt as a joint application with her father-in-law, Patrick O’Reilly, as her partner was not living with her at the time. Accordingly, she was jointly offered accommodation along with Partick O’Reilly at no. 6 Closegate, Waterford which was refused. It claims that it also offered her a house in Ferrybank, Waterford, which was also refused. The respondent claims that Ms. Burt moved her caravan, along with Patrick O’Reilly’s caravan, adjacent to his daughter’s house. It claims that Ms. Burt had left the country and had only returned to Waterford city recently.
o Patrick O’Reilly
The respondent claims that Mr. O’Reilly surrendered a Waterford City tenancy in March 2005, when he moved away from Waterford. It claims that his family returned in October 2006 and they were offered a four bed roomed house at Closegate, Waterford in December 2007, which was turned down. It claims that he was living with family until recently when he again moved to the side of the road. It claims that it has offered him and his family Traveller specific accommodation in a service halting site in Bilberry, which was again refused.
o Terence & Nora O’Reilly
This couple and their family were offered and accepted tenancy at bay 1 Kilbarry site, which consists of a 3 bed roomed house on the 31 October 2007, and they are still living there at present.
5. Issue of jurisdiction
5.1 The complainants questioned whether the eviction carried out by a private firm on behalf of the respondent under the Criminal Justice (Public Order Act) 1994 as amended by section 24 of the housing (Miscellaneous Provisions) Act 2002, was lawful. They called a Garda witness who was present at the eviction to give evidence of the Gardaí’s role on the day. I note the evidence presented by the witness at the hearing and I particularly note where he states that the Gardaí were present to ensure there was no breach of the peace and there were no records of any breach.
5.2 I should state at this juncture that the question with regard to the legal basis of the provision in which the respondent carried out the eviction is not a matter which falls within the jurisdiction of this Tribunal to determine. I am satisfied that any questions in relation to these issues are entirely outside the scope of the present complaint under the Equal Status Acts. The only question that is within my jurisdiction to decide under the Equal Status Acts is whether the treatment the complainants received was less favourable treatment because of their membership of, or association to, the Traveller community under the Acts.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. 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.
6.2 Having regard to the circumstances of this case, the key question which I must address in considering whether a prima facie case of discrimination has been established by the complainants is whether they were treated less favourably than another person would have been in a comparable situation because they are members of the Traveller community or were associated with members of the Traveller community. In considering this question and based on the evidence presented, I am satisfied that all of the complainants are covered by the specific ground under the Equal Status Acts.
Patrick O’Reilly’s case
6.3 In relation to case brought by Mr. Patrick O’Reilly, I am satisfied that the complainant was provided with ample notice in relation to the investigation and the proceedings. As part of my investigation under Section 25 of the Act, I am obliged to hold a hearing. I note the evidence from Mr. O’Reilly’s daughter that he was ill and he would not be attending and she would be giving evidence on his behalf. However, as no application for an adjournment was filed with the Tribunal or documentary evidence provided to state that he was medically unfit to attend, I find that the complainant’s failure to attend the hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. I have considered the evidence presented by the complainant’s daughter and I have weighted it accordingly, however as no direct evidence was presented by the complainant to establish a prima facie case, I conclude the investigation in relation to his case and find against the complainant.
The remaining complainants’ cases
6.4 In considering whether or not the other complainants have been subjected to discrimination in this case, I note three important pieces of evidence that were not disputed by either party which are hugely important in terms of the core issue to be decided in the present cases. Firstly, I note that the complainants were living on the Kilbarry site for a period of time, without prior permission sought or granted by the respondent however, they were serviced with facilities to allow them live there more comfortably up until their eviction on the 7th September 2007. Secondly, I note that following the eviction the respondent made offers of accommodation to all of the complainants, within varying timescales, some of which were accepted and others were refused, and finally that prior to the eviction of the complainants in September 2007, the Kilbarry site was in a compromised position and that the respondent had accepted that it had lost control of the situation on the site and it was required to take emergency measures to regain control.
6.5 Based on the evidence presented, I am satisfied that the complainants had met with and informed the respondent that they had taken up residence at the Kilbarry site at different stages in 2006 and 2007, and they had requested that the respondent provide facilities to allow them to stay there. I note from the evidence presented that the complainants did not fill out an application form for local authority housing at that juncture. However, I am satisfied that they were provided with permission to stay on the site and I am also satisfied that the respondent provided them with the facilities that they required to make their stay more comfortable. I also note from the respondent’s evidence that at the time it was waiting for the completion of Traveller specific group housing, which was to become available later in 2007 and would be used to house families from the Kilbarry site, which it had admitted had become overcrowded.
6.6 I am satisfied that in 2007 the respondent was presented with a huge challenge in relation to issues unfolding at the Kilbarry site – the evidence in relation to this has been documented above at paragraph 4.1. I note that it chose to take decisive action and remove all families not permanently allocated to one of the bays on the site. The evidence presented suggests that the eviction was carried out on a halting site which housed members of the Traveller community. I note that the families evicted were members of the Traveller community and there is no evidence presented to suggest that the families allowed to remain on the Kilbarry site were other than members of the Traveller community. I am satisfied that up to the point of the eviction that there was an amicable relationship between the complainants and the respondent however, this changed once the families were displaced by the eviction. I am satisfied that the families involved in this complaint were not less favourably treated by the respondent prior to the eviction. The evidence at hand would suggest that when the complainants arrived on the Kilbarry site, the provisions they required were put in place to allow them stay indefinitely on the site, close to their extended families. I note that due to the trouble on the site, the conditions allowing the complainants stay on the site changed.
6.7 I note that the complainants have claimed that the eviction was unlawful and as I have already stated I have no jurisdiction to adjudicate on that aspect of the grievance, which the complainants have with the respondent. Notwithstanding this, I am satisfied from the evidence presented that the eviction was not motivated out of some trivial or frivolous action by the respondent. On the contrary, I believe it sought to correct an appalling and serious situation on the site, which had become overcrowded, dangerous and unmanageable. Having regard to the totality of the evidence adduced, I am of the view that on the balance of probabilities the reason the complainants were evicted from the Kilbarry site was that they were not assigned to a permanent bay on the site and that all those asked to leave were asked because the respondent wished to regain control of the site and not because of their membership of the Traveller community.
6.8 I will now address the claim by the complainants that the actions of the people who carried out the eviction could be conceived as harassment under Section 11 of the Acts. Having considered the evidence of all the witnesses presenting at the hearing in relation to the matter, I note that the complainants have stated that the eviction was carried out in an aggressive manner and that people were very distressed and upset on the morning of the eviction. I have also noted that the Gardaí were present in order to prevent a breach of the peace on the day and there is no record of any breach of peace. The evidence adduced presents a situation of a very stressful, tense atmosphere which I can only imagine was very difficult for the families concerned. However, I have not been presented with any evidence from which I could conclude that the complainants were subjected to harassment within the meaning of Section 11 of the Equal Status Acts, on the grounds of their membership of the Traveller community or association thereto.
6.9 Similarly, in relation to the complainants claim that the respondents action of invoking a court order on some of the complainants while illegally parked on the side of the road, as no evidence what so ever has been presented to support the claim that this action was an act of harassment within the meaning of Section 11 of the Equal Status Acts on the basis that it relates to the discriminatory ground i.e. the complainant membership of the Traveller community or association thereto. Accordingly, I am satisfied that there is no case for the respondent to answer in relation to this allegation of harassment.
6.10 In considering whether discrimination has occurred in relation to Section 6 of the Acts, I am obliged to have regard to the exemption that is provided for in Section 6(6), which states that:
“Nothing in subsection (1) shall be construed as prohibiting –
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing Miscellaneous Provisions) Act, 1992,
from providing in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.”
6.11 In accordance with its obligations under the Housing Acts , a housing authority is required to make a scheme determining the order of priority to be accorded in the letting of dwellings and in doing so it may specify certain categories of persons to which priority is to be accorded such as, applicants living in dwellings deemed to be unfit or dangerous, applicants living in overcrowded conditions and applicants who lack suitable or adequate accommodation. I am satisfied that the respondent has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. The issue regarding the scope and the manner in which the exemption provided for in Section 6(6) should be interpreted has been addressed in a number of previous decisions under this legislation , which I have taken into consideration. I have also taken cognisance of the Circuit Court judgement delivered by Hunt J. in the case of Dublin City Council -v- Grace Deans where it is stated that:
“I cannot construe subsection 6 of that section as exempting a housing authority in its entirety from all application of the equality legislation. It appears to me simply to provide that a housing authority is entitled to base its priorities and its housing plan on different treatment to persons based on family size, family status and the other considerations set out in the subsection”.
Accordingly, having considered this issue fully and in light of previous case law, I am satisfied that the exemption provided for in Section 6(6) of the Acts does not allow a housing authority to discriminate against the category of persons outlined therein, but rather that it facilitates the housing authority to prioritise its resources in favour of those persons in greatest need.
6.12 I note that in the days following the eviction in September 2007 the complainants filled out separate applications seeking Local Authority Housing and filed them with Waterford City Council. I also note that the respondent wrote to each of the complainants on the 3rd December 2007 and offered each of them either a temporary or a permanent housing/ accommodation arrangement while it attempted to find a permanent solution to all of their housing needs. I note and understand the frustration of the complainants in not being provided with permanent accommodation immediately however, I am conscious that the respondent is limited by the resources available to it at any particular point in time. The respondent provided the Tribunal with statistical information in relation to the Local Authority accommodation within its remit. I also note that the average waiting time for Local Authority housing in Waterford at present is over three years and I am satisfied that this identifies that the need for housing from the respondent is far greater than the resources available to it. The statistical evidence shows that the number of Traveller specific housing units available to it between 2006 and 2009 was 17 and that within that period 25 Traveller families were offered housing by the respondent. I am satisfied from the respondents evidence that all of the complainants were offered accommodation within that time. Having considered each of the offers separately, in their own right, I am satisfied that they constitute legitimate offers with genuine attempts by the respondent to provide for the complainants within the confines of the resources available. Accordingly, I find that these complainants have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller community in terms of the manner in which the respondent dealt with their applications for Local Authority housing.
7. Decision
7.1 I find that a prima facie case of discrimination and harassment has not been established by the complainants on the Traveller community ground in terms of sections 3(1), 3(1)(b), 3(2)(i) and section 11(5), of the Equal Status Acts and accordingly, I find in favour of the respondent in the matter.
______________________
James Kelly
Equality Officer
The Equality Tribunal
26th March, 2010
DEC-S2009-066 – Full Case Report
Equal Status Acts 2000 – 2008
Equality Officer Decision
DEC-S2009-066
A Traveller v A Local Authority
Date of Issue 23 September 2009
Key words
Equal Status Acts – Direct discrimination, section 3(1)(a) – Traveller Community ground, section 3(2)(i) – Supply of goods and services, section 5(1) – Application for a Housing Transfer
1 Delegation under the Equal Status Acts
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 – 2007. On 19 December 2008, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 – 2007.
The Hearing of this complaint was held on 17 June 2009 with further correspondence continuing until 17 July 2009.
2 Dispute
This dispute concerns a complaint by a female member of the Traveller community that she was discriminated against on the Traveller community ground in not being granted a housing transfer by a Local Authority when she applied in 2006.
3 Summary of Hearing
3.1 The Hearing of this complaint was held on 17 June 2009. The Hearing was attended by the complainant, her representative and members of the Local Authority.
The complainant described how she had lived in the Local Authority area for many years with her husband and how they had been provided with several houses by the Local Authority over the years to accommodate their growing family needs. They were provided with their current house in 2001 to cater for themselves and 8 children.
At the Hearing, the complainant gave evidence about the marital problems that had arisen between herself and her husband since 2000 leading to her seeking shelter in the Women’s Refuge on many occasions since 2002 eventually leading to her having to obtain a barring order against him in the courts in 2006. She said that the barring order did little to alleviate her position as her husband had many relatives in the estate and constantly visited them, during which time he continued to bother and intimidate her. She said that her health started to deteriorate around that time resulting in her developing a heart condition and glaucoma.
In an effort to resolve the problems she was having, she applied for a housing transfer in 2006 claiming that her children were being bullied and that drinking and drug dealing were going on outside her house. She made no reference to her domestic situation in the application which she submitted in the names of both herself and her husband.
The Local Authority gave evidence that they always adhere to a specific Scheme of Letting Priorities drawn up in accordance with the Housing Acts when considering transfer requests. The three main criteria are overcrowding, medical grounds and compassionate grounds. As the family did not qualify on any of these grounds, based on the information supplied at the time, the application was refused in 2006.
In May 2007, the complainant states that, in an attempt to reactivate her transfer application, she met with a Council Official and explained to him about her domestic situation. The official told her that the barring order was a “civil matter” for the Gardai and that, even if she got a transfer within the Local Authority area, that experience has shown that it was unlikely to improve her domestic situation. At the Hearing, the official concerned explained that in 2007 the complainant’s family was already housed in the largest accommodation available in the area and that there was no viable alternative property available at the time.
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
4.2 In the case before me, the complainant maintains that she was discriminated against by the Local Authority when she was refused a housing transfer in 2006 and again in 2007 when she approached the Local Authority official regarding the matter.
In considering the evidence before me, I note that the Local Authority says that it adheres to a strict Scheme of Letting Priorities drawn up in accordance with the Housing Acts when considering transfer requests. The three main criteria are overcrowding, medical grounds and compassionate grounds. For her part, the complainant has confirmed that she did not make reference to her medical or domestic problems in submitting her application.
Based on the above, I am satisfied that in 2006 the Local Authority acted in accordance with its stated criteria in finding that the complainant’s circumstances, as outlined on the application form, did not warrant a transfer under their Scheme of Letting Priorities. With regard to the meeting with Local Authority officials in May 2007, while discussions did take place with regard to the complainant’s changed family circumstances, I note that no fresh written application was made in the complainant’s own name at that point to warrant a re-evaluation of her situation.
Accordingly, while the complainant’s current circumstances may warrant a reappraisal of her housing needs, I consider that in 2006 and 2007 the Local Authority acted fairly in basing their deliberations on the information contained in the original transfer application and did not discriminate against the complainant in considering that application.
5 Decision
I find that a prima facie case has not been established on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000 – 2008. Accordingly, I find in favour of the respondents in the matter.
Brian O’Byrne
Equality Officer
23 September 2009
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