McCann, Collins and 31 others (represented by the Equality Authority) V Eircom Ltd
1 Dispute
This dispute concerns complaints by Mary McCann, Martin Collins and 31 other residents of Dunsink Lane that they were discriminated against, contrary to the Equal Status Act 2000, by Eircom Ltd. The complainants maintain that they were discriminated against on the Traveller community ground 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.
2 Summary of the Complainant's Case
The complainants state that on 6 December 2000, telephone service to a Traveller Group Housing Scheme, an official Traveller Halting Site and an unofficial Traveller Halting Site in Dunsink Lane was disconnected and that it was not reconnected until 14 months later, in early 2002. The complainants maintain that the delay constituted discrimination on the Traveller community ground as other non-Traveller residents in the area had their service reconnected within days.
3. Summary of Respondent's Case
The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the original disconnection was caused by vandalism to the telegraph poles serving Dunsink Lane and that, in order to provide a secure service to the residents of Dunsink Lane, it was necessary to provide an underground link which required planning permission followed by extensive cabling work in the area. This was the reason for the time differential between the disconnection and reconnection of service.
4 Delegation under the Equal Status Act, 2000
These complaints were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated these complaints to 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. Background Note
The Equality Tribunal received a total of 33 complaints against Eircom from members of the Traveller community who, in December 2000, were all living in Traveller accommodation on Dunsink Lane, Finglas, Dublin. All these complaints alleged discrimination by Eircom over the fact that it took 14 months to reconnect service to the residents. A full list of the 33 complainants is at Appendix A. There are three Traveller accommodation sites located in Dunsink Lane. St Mary's Park, a Traveller Group Housing Scheme, and St Josephs Halting Site are official accommodation provided by Dublin City Council. The third site is an unofficial Traveller Halting Site located on the opposite side of Dunsink Lane (hereinafter referred to as the unofficial site). Prior to the Hearing of this case on 23 May 2003, a meeting of the parties representatives wasconvened to clarify the issues to be addressed at the Hearing, how the Hearing would be conducted and to decide who should be present at the Hearing. At this meeting, there was consensus that it would be too cumbersome and awkward to have all the complainants in attendance and it was agreed that 3 or 4 complainants would attend to represent the group as a whole.
Such an arrangement has for many years been the practice in equality cases and particularly in equal pay cases where very large groups may share an identical pay structure. The practice has been to allow grouped claims in the interests of effective investigation and to avoid unnecessary and time-consuming repetitive evidence.
5.1 Evidence of Complainants
- St Joseph's Park dates back to the early 1970s and St Mary's back to the early 1980s. The unofficial site has been in use for 20 years approx.
- All those who lodged complaints were living on these sites for at least 2 years prior to the disconnection in December 2000. Some have since moved on.
- The two official sites have an electricity supply while the unofficial site has not.
- All three sites have Eircom supplies since the 1980s
- Residents of the three sites would normally receive individual telephone bills from Eircom every 2 months
- None of the three sites have suffered long-term disconnections prior to December 2000
- On 6 December 2000, all three sites on Dunsink Lane were deprived of a telephone service
- Residents contacted Eircom to report the matter but were "fobbed off" on asking when service would be reconnected
- For up to a year after 6 December 2000, residents of Dunsink Lane continued to receive bills from Eircom for rental on their phones. Some residents even received solicitors' letters threatening legal proceedings against them.
Evidence of Mr Martin Collins
- Mr Collins was living in St Mary's Park in December 2000
- Mr Martin Collins said that he personally phoned the local Eircom Office 5 or 6 times when service was disconnected but was given no information about the problem nor any assurances about reconnection. He cannot recall who exactly he spoke to
- Mr Collins visited a local shop in Deanstown around that time and discovered that the shop also had been deprived of a telephone service. The shop was in a non-Traveller estate.
- When he returned to the shop two weeks later, he found that its telephone service had been restored.
- This indicated to him that the non-Traveller estate had received more favourable treatment than the Traveller sites which, in his opinion, constituted discrimination.
- Several residents of the three sites phoned and wrote to Eircom around this time to complain, but none received a positive response. Some letters received no reply whatsoever.
- When Eircom were ready to reconnect service in February 2002, Mr Collins received a letter form the Customer Services Manager requesting his presence when the new service was being connected. Mr Collins said the letter implied that Eircom staff would not be safe and that he was needed to "stand guard". Mr Collins regarded this letter as very offensive.
Evidence of Respondents
- St Josephs and St Marys sites have been provided with an Eircom service for over twenty years
- Unlike most normal estates, these sites were connected via overhead cables carried along telegraph poles
- Other estates are connected using a combination of underground and overhead cabling
- When service was originally considered for St Josephs and St Marys, there was uncertainty as to the potential up-take. As a result, it was decided that an overground service, which was half the cost of an underground service, would be provided.
- After service had been provided to the two sites, Eircom received applications for service from a number of residents on the unofficial site on the other side of Dunsink Lane.
- In response to these requests, service was provided to this site from the main overground cables serving St Josephs and St Marys.
- Over the first number of years since service was provided to Dunsink Lane, only minor isolated faults required the attention of Eircom staff.
- However in 1998, an incident occurred where an Eircom employee was seriously hurt when he was electrocuted having touched a live electricity cable which had been illegally attached to an Eircom telegraph pole.
- On examination, it was found that the electricity cable had been illegally connected to the local street lighting system and was providing service, via the Eircom telegraph poles, to the unofficial halting site in Dunsink Lane, which had no official electricity supply. The ESB were notified immediately and the cable was removed.
- In March 2000, a similar incident occurred when another Eircom was seriously injured when he was electrocuted while carrying out maintenance work on the overhead lines on Dunsink Lane. Again, an illegal electricity cable was discovered attached to Eircom telegraph poles, supplying electricity from the street lighting system to the unofficial halting site on Dunsink Lane. The ESB were again called and the cable removed
- In both cases, the Gardai were called in but Eircom do not know whether any prosecutions followed as a result of these incidents.
- In support of their case, Eircom produced a series of photos allegedly showing situations where non-Eircom cables had been attached to telegraph poles along Dunsink Lane. Photos were also produced showing satellite dishes illegally affixed to telegraph poles.
- In the months that followed the March incident, Eircom staff reported that, while traveling along Dunsink Lane, stones were thrown at their vans and they were constantly being intimidated and threatened by individuals who seemed to be from the unofficial site and who were apparently blaming Eircom staff for the disconnection
- Because of their increasing concern for their personal health and safety, Eircom staff informed management in November 2000 that they would no longer carry out work along Dunsink Lane until such time as their concerns were addressed.
- Dunsink Lane has always been supplied with service through its own separate overhead connection to the main Eircom network at the start of Dunsink Lane. Neighbouring estates rely on separate underground links for service. A map of the Eircom network in the area was produced at the Hearing to illustrate this point.
- In order to provide service to Dunsink Lane, it was necessary to run special dedicated overhead lines across a green space at the start of Dunsink Lane. These lines were supported by two telegraph poles situated on the green space.
- On 6 December 2000, persons unknown cut down the two telegraph poles on the green patch, under the cover of darkness, with chainsaws and removed £2500 worth of Eircom cable which was providing service to Dunsink Lane.
- Eircom state that they believe they know who was involved and that residents of Dunsink Lane itself were not suspected
- As a result of this act, service to Dunsink Lane ceased.
- Because it was a stand-alone dedicated service for Dunsink Lane, the cutting down of the telegraph poles had no effect on service to other neighbouring estates
- As a result of the disconnection, Eircom was inundated with telephone complaints and staff were kept very busy dealing with these.
- Some letters of complaint may also have been received. Eircom expressed surprise and concern at the Hearing when told that some letters has not been answered and apologised if this was the case
- Eircom acknowledge that bills probably continued to issue to Dunsink Lane customers for a period after 6 December 2000. They were sorry that this occurred but explained that, because of the cumbersome administrative procedures involved, it took some time to resolve these matters.
- With regard to the letter sent to Mr Collins in February 2002, Eircom explained that his presence was requested because Eircom staff had previously tried to reconnect the new service but had to withdraw from Dunsink Lane following intimidation from residents.
Evidence of Fergus Gallagher, Eircom
- Fergus Gallagher, Senior Manager for the Area at the time, said that he immediately set about trying to restore service after the incident on 6 December 2000. However, he was met with a refusal by staff to carry out repairs because of previous incidents.
- Mr Gallagher said that, as a result, he found himself in a very difficult position and he knew that he would have to resolve the many industrial relations and health and safety issues before service could be reconnected.
- He immediately commenced a series of talks with staff, unions, management and safety personnel with a view to resolving the impasse. These talks continued over the coming months.
- In the meantime, he met with Martin Collins, who had approached Eircom as the residents' representative, in early January 2001 to update him on developments and to outline the problems involved.
- They met again in February when Mr Gallagher told him that he was seeking management approval for an underground link to the two official sites on Dunsink Lane. Mr Collins was not happy with this proposal as he wanted all three sites to be served in this manner. Mr Gallagher explained that because of the lack of a footpath on the left side of the road, the non-availability of ducts and planning by-law considerations, it was not possible to cable the unofficial site at that point in time.
- In May 2001, senior management approved the investment in underground cabling to Dunsink Lane. As soon as that decision was made, Eircom set about applying for the necessary planning permission.
- Mr Gallagher continued to pursue the issue with staff and unions over the coming months until he finally got agreement from the unions in August/September 2001 to carry out the necessary work.
- As soon as the planning permission was obtained work began on the underground routing of cables along Dunsink Lane. Service was eventually restored in February 2002 to the two official sites
- On being asked whether the work would have been carried out quicker in non- Traveller estates, Mr Gallagher replied that the same infrastructure issues were causing delays everywhere and that all areas were similarly affected
Evidence of Fred Kiernan, Eircom Repair Service Manager.
- Mr Kiernan recalls receiving a number of telephone complaints from Dunsink Lane residents following the 6 December disconnection
- In all cases, he explained what had happened and indicated that Eircom were doing their best to restore service
- Mr Kiernan distinctly recalls speaking on the telephone to Mr Martin Collins a few days after the incident and informing him of the health and safety issues that had arisen from the two electrocution incidents.
Note On hearing the evidence of Mr Kiernan towards the latter end of the Hearing, Mr Collins said that he was not saying that Mr Kiernan was lying but that he simply could not recall talking to him. Mr Collins said that his recollection was that he first heard about the health and safety issues from Mr Gallagher in January 2001.
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 complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in not being reconnected promptly to the Eircom network following the disconnection on 6 December 2000.
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.
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 complainants has satisfied me that they are members of the Traveller community. In relation to (b), the respondents acknowledge that the complainants were deprived of service from 6 December 2000 and not reconnected until February 2002. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants was less favourable than the treatment non- Travellers would have received, in similar circumstances.
Key Points and Factors
7.4 In deliberating on the case be before me, I consider the following factors to be the most compelling and persuasive:
- The complainants claim that both Dunsink Lane and other neighbouring estates were all deprived of service around 6 December 2000 but that the other estates were reconnected within weeks while Dunsink Lane took 14 months. On this basis, they claim that the residents of Dunsink Lane were discriminated against because they were Travellers.
- Eircom for their part, deny that any other estate was affected by the pole-cutting incident on 6 December 2000 and have produced maps and technical experts to confirm that Dunsink Lane was on a separate "spur" from other local estates and was, therefore, the only area affected.
- Eircom maintain that there was no undue delay in reconnecting service and say that the reason it took 14 months was because of the complicated industrial relations issues involved, the need to seek approval to invest in an underground service and the fact that planning permission was required.
7.5 In this instance, I consider that the primary issue to be decided is whether the residents of Dunsink Lane were treated less favourably than the way residents of other estates would have been treated in similar circumstances where service was disconnected and staff refused to restore service because of risks to their health and safety. Firstly, from the evidence before me, I must say that I have formed the opinion that Dunsink Lane was the only area directly affected by the 6 December 2000 vandalism. While other local areas may have suffered some isolated faults around that time, I am satisfied from the maps and technical information provided that Dunsink Lane was the only area directly affected. The evidence before me also suggests that Eircom staff had serious and genuine concerns about working along Dunsink Lane and I consider that, based on the evidence before me regarding the electrocution incidents and the illegal use of telegraph poles, that their concerns were justified. Accordingly, I am prepared to accept that the company's hands were tied in December 2000 when technical staff refused to cooperate with regard to the reconnection of service and that the only road open to Eircom was to negotiate with staff. I am also prepared to accept the company's claim that the only feasible way of resolving the industrial relations issue was to propose that the service be provided via an underground trunk line, leading to financial decisions and planning permissions being required. I am, therefore, prepared to accept the company's claim that the full 14 months was required to fully conclude the process.
7.6 This case also raises the question as to the treatment afforded the complainants subsequent to 6 December 2000, in regard to how complaints were handled and how bills and solicitors letters continued to issue. The evidence before me suggests that the vast majority, if not all, of the complainants, are honest law-abiding citizens who paid their Eircom bills on time prior to December 2000. It is also clear that these people were in no way responsible for the vandalism that resulted in the disconnection of service. I can, therefore, fully understand the annoyance felt by the complainants in not being reconnected promptly and in continuing to receive bills and, in some cases, solicitors letters. I consider that the situation could have been handled a lot better by Eircom. However, having deliberated on the matter, I consider that, on the balance of probabilities, that the company's actions were attributable more to poor customer service and administrative procedures rather than to any deliberate discriminatory practices.
7.7 As stated earlier, the onus is on the complainants to make a prima facie case and to show that that the treatment received by them was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances. Firstly, in this case, I consider that the complainants have not produced an acceptable comparator as I have found that the evidence suggests that the other estate referred to by the complainants was not in fact affected by the 6 December 2000 vandalism. Secondly, I consider that, even if a hypothetical comparator was used and the same situation arose in a non-Traveller estate, that the company would probably have experienced the same industrial relations and time delay problems that it experienced in Dunsink Lane. Accordingly, I find that the complainants have not established a prima facie case of discrimination on the Traveller community ground.
8 Decision
8.1 I find that a prima facie case of discrimination has not been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
8.2 As stated earlier, I consider that the manner in which Eircom dealt with its customers after 6 December 2000 leaves a lot to be desired and I note that the company have accepted this, in acknowledging at the Hearing that some customer service and administrative practices need to be reviewed. In light of this, the company might like to consider whether a "goodwill gesture" is appropriate in this case and perhaps some consideration could be given to offering some form of rebate to those customers in Dunsink Lane who were affected by the loss of service but who still remain customers of Eircom.
Brian O'Byrne
Equality Officer
12 September 2003
Appendix A
Full List of Complainants
Decision No Case Ref No Name Address
DEC-S2003-076 ES/2001/109 Mary McCann 23 St Joseph's Park
DEC-S2003-077 ES/2001/110 Martin Collins 9 St. Mary's Park,
DEC-S2003-078 ES/2001/251 Brigid McDonagh 7 St. Mary's Park,
DEC-S2003-079 ES/2001/266 Nellie Joyce 10 St. Mary's Park,
DEC-S2003-080 ES/2001/267 Brian Joyce 8 St. Mary's Park,
DEC-S2003-081 ES/2001/264 Kathleen McDonagh 4 St. Mary's Park,
DEC-S2003-082 ES/2001/111 Caroline Laurence 12 St Joseph's Park
DEC-S2003-083 ES/2001/112 Kathleen Stokes 14 St Joseph's Park
DEC-S2003-084 ES/2001/113 Winnie Kerrigan 26 St Joseph's Park
DEC-S2003-085 ES/2001/250 David Collins 17 St Joseph's Park
DEC-S2003-086 ES/2001/252 Patrick Collins 15 St. Joseph's Park,
DEC-S2003-087 ES/2001/253 John Collins 16 St. Joseph's Park,
DEC-S2003-088 ES/2001/265 Catriona McDonagh 11 St. Joseph's Park,
DEC-S2003-089 ES/2001/268 Christy McDonagh 12 St. Joseph's Park,.
DEC-S2003-090 ES/2001/863 Theresa McDonagh 12 St. Joseph's Park,.
DEC-S2003-091 ES/2001/269 Michael McDonnell 25 St. Joseph's Park,
DEC-S2003-092 ES/2001/864 Kathleen McDonnell 25 St. Joseph's Park,
DEC-S2003-093 ES/2001/254 Michael Joyce Unofficial halting site
DEC-S2003-094 ES/2001/859 Kathleen Joyce Unofficial halting site
DEC-S2003-095 ES/2001/255 Mary Ward Unofficial halting site
DEC-S2003-096 ES/2001/256 Martin Joyce Unofficial halting site
DEC-S2003-097 ES/2001/ 860 Mary Lou Joyce Unofficial halting site
DEC-S2003-098 ES/2001/257 Martin Joyce Unofficial halting site
DEC-S2003-099 ES/2001/861 Ann Joyce Unofficial halting site
DEC-S2003-100 ES/2001/258 David Joyce Unofficial halting site
DEC-S2003-101 ES/2001/862 Ann Joyce Unofficial halting site
DEC-S2003-102 ES/2001/259 David Joyce Unofficial halting site
DEC-S2003-103 ES/2001/260 Maud Joyce Unofficial halting site
DEC-S2003-104 ES/2001/261 Francie Ward Unofficial halting site
DEC-S2003-105 ES/2001/262 Charlie Ward Unofficial halting site
DEC-S2003-106 ES/2001/263 Sabrina Joyce Unofficial halting site
DEC-S2003-107 ES/2001/270 Alan Joyce Unofficial halting site
DEC-S2003-108 ES/2001/865 Helen Joyce Unofficial halting site