Ms. Sumara Kamal Khan V United Travel, Dublin
Ms. Khan 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, a Pakistani national, booked a holiday for herself and four members of her family to Dubai through the respondent with contacts continuing through June and July of 2001. She paid €180 at the outset which was to go towards obtaining the necessary visas for three of the party. She changed her date of departure twice. She was then told that the visas obtained were out of date as they are only valid for 14 days from the date of issue. The respondent requested further payment to obtain emergency visas for her and during the discussion of this and new dates of departure Ms. Khan feels that she was subjected to harassment based on her religion, or national or ethnic origins. She also feels that her treatment overall was less favourable on the same grounds. She admits to shouting on occasion while discussing these matters.
Summary of the Respondent's Case
Ms. Khan was not requested to pay a deposit by the agent she dealt with and was also not required to pay a cancellation fee on either occasion when she changed her date of departure. Normally the airlines impose a fee when seats booked are changed. Ms. Khan had not taken out any travel insurance. When the agent dealing with the booking changed it on each occasion, by mistake he neglected to review the visas applied for.When the tickets were issued to the complainant it became clear that the visas were out of date and that further action was required. When the complainant paid for the new visas, they were obtained and a new date of departure was ultimately set. The respondent stated that when Ms. Khan was discussing the issues during her various visits, the situation was very tense and the agent who dealt with her described it as throwing a fit or throwing a tantrum. He, an Indian national, was unable to deal with the situation and the Managing Director of the agency took over the case. Ms. Khan has already had a settlement of the case she took relating to this issue to the Small Claims Court.
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 and the grounds of ethnic or national origins).
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment another person received, or would have received, in similar circumstances, where that person is of a different ethnic or national origin and/or different religion or has a different religion.
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.
Ms. Khan is a Pakistani national and is of the Muslim faith satisfying (a) above. It is agreed that she used United Travel to make her travel arrangements for the trip to Dubai in 2001, satisfying (b) above.
Ms. Khan was allowed to make a booking for a package holiday without being required to pay a deposit. When she subsequently changed her travel plans, for what appear to be good reasons, she was not required to pay a cancellation fee on either occasion in the absence of losing whatever deposits should have been paid. She had no travel insurance to cover any difficulties arising from such changes of plans and became annoyed with the agency when they requested more money to rectify the situation. In my view it is difficult to see how less favourable treatment arises since in similar situations most people are required to pay a deposit, in the full knowledge that they will lose it if, through illness or other reasons, they must cancel their departure on a particular date. Travel insurance can mitigate such difficulties. In my view the complainant had unrealistically high expectations of the service she could reasonably expect. It also seems unreasonable to get annoyed when it became evident that the visas were out of date after receiving such favourable treatment, when it was the complainant herself, in response to other factors, who changed the date of departure. I am satisfied that the treatment received by the complainant was not less favourable than that received by most people in similar circumstances, and therefore I am not required to consider the situation on the grounds listed.
In respect of the harassment alleged by the complainant, it was clear from the evidence presented at hearing that the situation pertaining during the discussions was very tense. It was admitted that the complainant was shouting. It is possible that this was seen as unreasonable by the respondent in view of the overall treatment given to the complainant. During these tense discussions the complainant alleges unwelcome comments in respect of her race and religion being made by the respondent while the respondent alleges that similarly unwelcome comments were being made by the complainant and family members in her company in both English and Urdu (note that the respondent's staff included foreign nationals, with at least one individual from India). I am satisfied that the complainant has failed to establish, on the balance of probabilities, that she was harassed on the grounds of her religion or national or ethnic origins during these discussions. I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her religion or national or ethnic origins in relation to her dealings with the respondent while booking her holiday in 2001.
Decision, DEC-S2004-062
I find that the complainant, Ms. Khan, was not in receipt of less favourable treatment during her dealings with United Travel while booking her holiday in 2001, and she was not harassed on the grounds of her religion or ethnic or national origins during the discussions relating to that holiday.
Bernadette Treanor
Equality Officer
3 June 2004