Mr. Stephen Curran (Represented by the Equality Authority) V Total Fitness, Dublin
(Represented by Ivor Fitzpatrick & Co., Solicitors)
Mr. Curran referred a claim of gender discrimination and victimisation to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of the Complainant's case
The complainant was a member of a gym, Total Fitness, and he had encouraged corporate membership with his colleagues. He enjoyed attending the gym and the most suitable time for him was early evening, a peak time. As membership of the club grew, Mr.
Curran found the increasing delays in getting to equipment irritating. He asked why there was a area of the gym reserved for women only, even though women could also use the equipment in the main gym. Mr. Curran indicated that he was told it was there to prevent embarrassment of women exercising in the same area as men, but that the ladies gym was in full view of all members, having a glass front and offering no privacy. Mr. Curran raised this issue with the respondent company on three occasions, culminating in a conversation with a director the company Mr. Willers. Mr. Curran is adamant that he never stated an intention to use the Ladies only areas. Some days after this conversation Mr. Curran's membership was unexpectedly terminated. Mr. Curran referred a claim of File Ref: ES/2001/735 DEC-S2004-164 discrimination on the gender ground and victimisation to the Tribunal. He subsequently withdrew the claim of gender discrimination.
3. Summary of the Respondent's Case
When the complainant contacted the director Mr. Willers, he stated an intention to use the Ladies Only Gym (LOG). Mr. Willers found this request very peculiar and asked if he wanted to use the ladies changing rooms and toilets also. Mr. Willers stated that he was unaware of the Equal Status Act, 2000 before this phone call. As the complainant had indicated that he intended to use the LOG, Mr. Willers decided to terminate his membership. Mr. Willers accepted that Mr. Curran referred to the Equal Status Act, 2000 and that when he, Mr. WIllers, confirmed that he would be restrained from using the LOG, Mr. Curran thanked him for confirming that. Mr. Willers stated that the idea for a LOG came from Market research in South Africa and that they employed it in all their gyms in the UK.
4. Prima Facie Case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. The criteria to be satisfied in order to establish a prima facie case of victimisation under the Equal Status Act, 2000 were set out in Equality Officer's decision DEC-S2003-071, Collins v Campion's Public House1, as follows: "The following elements must be established to show that a prima facie case exists. The complainant must show:
a) that she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied section 3(2)(j).
b) that she was subjected to specific acts of treatment by the respondent after she did so.
c) that this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at a) above."
1 See also Legal Review 2003, The Equality Tribunal, page 75
I am happy to endorse these criteria in respect of this case. If and when these criteria are satisfied, the complainant has established a prima facie case and the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
4.1. Section 3(2)(j) The victimisation ground
The Equal Status Act, 2000 provides for victimisation as follows: (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:......
(j) that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'').
The respondent argued that the victimisation ground did not apply to the complainant and that therefore this complaint was invalid. On the basis of arguments and evidence presented at the hearing, the victimisation subsections which may apply in this case are 3(2)(j)(iv) and 3(2)(j)(v).
4.2. Section 3(2)(j)(iv)
This section applies where a person has been treated less favourably than another because that person opposed by lawful means an act which is unlawful under the Equal Status Act, 2000. The section is clearly designed to protect those to whom it refers and the
section, as worded, was also included in the Employment Equality Act 1998 at Section 74(2). The ordinary meaning of the section is unclear in relation to what was intended by 'unlawful'. The respondent argued that the section means that the original act complained of must have been found to be unlawful by the Tribunal, the Courts, or other body. The section in the Act which refers to situations where a person has applied for a determination is 3(2)(j)(i). To insist that subsection (iv) can only refer to situations where the action by the service provider must have been decided to be unlawful is to suggest that subsection (iv) is only a logical subset of subsection(i) and yet 3(2)(j)(iv) is of equal standing to 3(2)(j)(i). Looking back at the inception of this wording in the Employment Equality Act, those whose protection may have been intended by this wording might include union representatives. If they, the union representatives, were to be afforded protection only when a case was decided in their client's favour, the operation of trade union business in respect of equality would be seriously hampered. Another example would be the victimisation of representatives assisting complainants under the Equal Status Act, 2000, particularly at local level. A respondent could resolve a complaint with the complainant, be they employee or person availing of a service, and then treat the representative less favourably with impunity because of the assistance rendered by them in opposing what was perceived to be an unlawful act. To suggest that these, and others, are only afforded protection when they have successfully represented a complainant in a case under either of the Acts is, in my view, an unacceptable diminution of the spirit of the Acts. I am satisfied, given the construction of the subsection, that the intention was not to restrict protection but to afford it and therefore that the act complained of need not be found unlawful for the subsection to apply. I am satisfied that it would apply in situations where a person, given the gender equality provisions, would reasonably consider the act unlawful. The respondent argued that Sections 5(2)(f) and 5(2)(g) provided protection for the provision of the LOG and therefore the act being complained of was not unlawful in any
event. The sections mentioned are defences under the Act and would be examined by an Equality Officer only where a prima facie of discrimination had been established. I am precluded from looking at these issues in respect of this case since the complaint of discrimination on the gender ground was withdrawn and therefore any defences relating to the gender issue in this case are not relevant. I am satisfied that these were not drawn to the attention of the complainant at any time during his verbal complaints and that he would not have been aware that the company might rely on them. Indeed since the company was of the opinion that the Equal Status Act, 2000 did not apply to them it is unlikely that they themselves were aware of any possible defences at the time of their interaction with Mr. Curran. Since it is moot whether these defences would have applied in this case and since there is no caselaw highlighting similar situations where such defences were successful, I am satisfied that it cannot be stated with any certainty that they would indeed apply or be successful as defences. Therefore, while it is moot whether the act complained of is, in fact, lawful or unlawful, I am satisfied that Mr. Curran believed it to be unlawful. In addition, while good faith is not required by the subsection, I am satisfied that this belief was held in good faith. Finally, did Mr. Curran use lawful means when opposing an act he considered to be unlawful? Both parties agree that no difficulties had arisen between them before the LOG was discussed. He raised the issue informally with a member of staff at the centre initially. He subsequently raised it more formally in a meeting with the manager of the centre, in the manager's office. The complainant stated that the manager's response was that if it is okay in the UK it is okay here, although he did provide the phone number of a director. Finally the complainant called this director of the company, Mr. Willers. The respondent alleges that during that phone call the complainant asserted that he was going to enter the LOG. He asked the complainant if he also wanted to use the ladies toilets and dressing rooms. Mr. Curran was upset and annoyed at this since it suggested to him that Mr. Willers considered him in that light. He indicated that he did not want to use these areas and asked for confirmation as to what would happen if he did attempt to use the LOG. The respondent confirmed to the complainant that the complainant could not use any of these and the complainant responded "Thank you very much for confirming that". I am satisfied that regardless of how Mr. Curran phrased his question about using the LOG, his intention was to establish the company's position in relation to men using the LOG to facilitate the pursuance of his complaint under the Equal Status Act, 2000. On the basis of the evidence presented, I am satisfied that the phone call was relatively short and tense, and that the director did not consider the complaint a valid or reasonable one and did not address it as such. The complainant attended the gym four more times before becoming aware that his membership had been terminated2. During these four visits he did not break any of the rules of the club. Therefore the complainant's membership was terminated on the basis of one person's assertion that the complainant had stated an intention to do something which that person considered would break one of the rules. I find the complainant's evidence more compelling and I find that he did not state an intention to use the LOG, but rather asked what would happen if he did.
Even where one accepts that the rules were still valid in the light of the Equal Status Act,
2000, the complainant did not actually break any. Therefore his actions were lawful.
In a case taken under the Employment Equality Act 1998 relating to a similar matter the
Equality Officer considered the matter as follows: "I must therefore consider whether the claimant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. Sexual harassment is expressly prohibited by section 23 of the Employment Equality Act, 1998. In making her complaint, the complainant was
seeking to oppose by lawful means something which is clearly unlawful under the 1998 Act. In the light of the manner in which the investigation was conducted as 2 The club allows a period of grace before refusing admission in order to ensure that the letter of termination reaches the member before an actual refusal takes place without warning. detailed at paragraphs 5.13 - 5.17 above, I find that the complainant was penalised by the manner in which the investigation was carried out and that the penalisation was solely or mainly occasioned by the complainant having in good faith opposed by lawful means an act which is unlawful under the Employment Equality Act, 1998. On the balance of probability, I find that the complainant has established a prima facie case of victimisation which the respondent has failed to rebut."3 In that case, the complainant also sought redress for sexual harassment and even though this was successful, this was not used by the Equality Officer to qualify the legality or otherwise of the act complained of. The victimisation complaint was based only on the lawful opposition of something which is unlawful in the Employment Equality Act. In the instant case, in summary, Mr. Curran lawfully opposed what he considered to be discrimination on the gender ground, which is clearly unlawful under the Act. I find that Section 3(2)(j)(iv) applies to the complainant in this case.
4.3. Section 3(2)(j)(v)
The complainant also raised his difficulties with the LOG with the respondent, both with the manager of the centre and with the Director, he maintains that he mentioned the Equal Status Act, 2000 and that the LOG was in breach of the Act. He asserts that he also mentioned that he intended to make a complaint in accordance with the Act and that he was in contact with the Equality Authority. He also asserts that the manager stated that he should contact the Director before going ahead with the complaint. The manager did not attend the hearing, but Mr. Willers agreed that Mr. Curran, while on the phone, mentioned the Act, that the LOG was in breach of the Act and that he was in contact with the Equality Authority. It is not accepted that the complainant informed Mr. Willers of his intention to make a complaint under the Equal Status Act, 2000, although it should be borne in mind that Mr. Willers was not aware of the Equal Status Act, 2000 and therefore may not have distinguished such an assertion. I am satisfied that the complainant mentioned his intention to make a complaint to the manager and I find his evidence 3 DEC-E2003-027 compelling that he mentioned it to Mr. Willers also. On the balance of probabilities, I am
satisfied that the complainant mentioned making a complaint under the Equal Status Act,
2000 twice to the respondent. Therefore I find that Section 3(2)(j)(v) also applies to the
complainant in this case.
4.4. Equality Officer's Conclusions
The findings that Sections 3(2)(j)(iv) and 3(2)(j)(v) apply in this case satisfy (a) above. It is common case that Mr. Curran was a member of the respondent's club and that his membership was terminated, satisfying (b) above. In respect of (c) above was Mr. Curran's membership terminated because he objected to the LOG or is there another reasonable explanation for the termination? The reason presented by the respondent was that the complainant's stated intention to use the LOG was something they took very seriously, something they felt would be difficult to police and that they felt would amount to disruptive behavior. The respondent company has on average from 70,000 to 150,000 members. Since 1996 there have been 30 terminations of membership in total in the UK and Ireland. In Ireland there were 8 terminations of membership in total resulting from abusive and/or threatening language or behaviour, inappropriate clothing, persistent refusal to leave at closing time and abuse of the use of the sauna. All but those relating to abusive or threatening language or behaviour received a warning about the behaviour. It is clear that, given the membership numbers, the company do not ordinarily terminate a membership lightly. In comparison to the 8 terminations described by the respondent, Mr. Curran's behaviour had been acceptable and he had not broken any rules. Therefore, in comparison with those whose membership had been terminated, he had not behaved in a manner that would have included him in that group. Alternatively, in comparison to those whose membership was not prematurely terminated, the only thing that singles Mr. Curran out from the members of that group is his complaint in respect of the LOG. This is so since Mr. Willers was unaware of the Equal Status Act, 2000 before his conversation with Mr. Curran and therefore no other member had raised it with him. In other words, but for his discussions relating to his complaint, Mr. Curran would not have had his membership terminated. Since Mr. Curran had not indulged in behaviour that would normally be associated with termination of membership, since there were no enquiries into his behaviour generally and since he was given no warning, I am satisfied that his treatment was unusual, and unreasonable, in the overall circumstances. In the absence of a reasonable explanation for the termination of his membership, I am satisfied that an inference of victimisation arises. I find that the complainant has established a prima facie case of victimisation.
4.5. Rebuttal
The respondent's arguments have focused entirely on the contention that a prima facie case could not be established in this case based on the circumstances. No defences were presented other than those already mentioned. I find that the respondent has failed to rebut the prima facie case of victimisation of the complainant.
5. Decision DEC-S2004-164
I find that the complainant, M. Curran, was victimised as a result of his complaint to the respondent when his membership to the respondent club was terminated.
6. Vicariously liability
The Equal Status Act, 2000, in section 42, provides that anything done by a person in the course of his or her employment shall be treated as done also by that person's employer. Therefore I find that the actions taken by Mr. Willers, the manager of the centre and others, in respect of the treatment of Mr. Curran's complaint and the termination of his membership were actions done also by their employer. I find that Centre Operators Limited, owned by Mardown Limited and trading as Total Fitness is vicariously liable for the victimisation of Mr. Curran.
7. Redress
I hereby order the respondent Total Fitness:
- To pay Mr. Curran €3000 for the effects of the victimisation.
- To review all of their Irish-based clubs, or other publicly used premises, and policies to ensure compliance with the Equal Status Act, 2000.
- To provide for comprehensive training of all staff in the Equal Status Act, 2000.
This should apply to any and all staff who will at any time work in an Irish based premises of the respondent, regardless of where that staff-member's primary work base is and should deal with all aspects of their operation as a service provider.
Bernadette Treanor
Equality Officer
5th November 2004