DEC-S2005-161 Ms. Kathleen McDonagh
DEC-S2005-162 Mr. Thomas McDonagh,
DEC-S2005-163 Ms. Sandra McDonagh
DEC-S2005-164 Mr. Eamon McDonagh
(Represented by Tullamore Travellers Movement)
V
Thomas O’Keeffe Ocean View Park
(Represented by Desmond J Houlihan & Company Solicitors)
Key words
Equal Status Acts, 2000 –2004 - Direct discrimination, Section 3(1) – Traveller community, Section 3(2)(i) – discrimination by association, section 3(1)(b) - provision of accommodation or services or amenities, Section 6(1)(c) – cancellation of mobile home booking for a holiday, were complainats referred within the 6 month statutory period, section 21(6) – correct respondent - prima facie case – vicarious liability – agent section 42(1)(2).
Summary of the case.
The dispute concerns claims by the complainants that they were discriminated against on the Traveller Community ground by Thomas O’Keeffe of Ocean View Park in that their bookings to hire accommodation in the mobile home park for a family holiday were cancelled. The complainants alleged that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000-2004, contrary to Section 6(1)(c) of that Act.
The respondent denied that he operates a discriminatory policy in relation to admitting members of the Traveller community to the mobile home park. He said that, while he was the owner of the park, he was not the correct respondent in that he did not hire out mobile homes. He provided facilities and rented out spaces to mobile home owners. Ms. O’Brien the owner of a mobile home in the park organised the renting of mobile homes on behalf of a number of mobile home owners.
Conclusions of the Equality Officer
The Equality Officer found that the complainants lodged their complaints with the Tribunal within the statutory six months time limit. She found that Ms. Sandra McDonagh, who is married to a Traveller, is covered by the Traveller community ground under the Act by virtue of that association. She held that respondent provided services and amenities relating to the accommodation and was therefore a respondent in accordance with section 6(1)(c) of the Act.
The Equality Officer held that the complainants established prima facie cases of discriminatory treatment in that their booking deposits were not accepted following Ms. O’Brien becoming aware that the complainants were members of the Traveller community. She also concluded that Ms. O’Brien acted as an agent of the respondent and in the circumstances the respondent was vicariously liable for the actions of Ms.O’Brien. Mr. Eamon McDoangh did not attend the hearings arranged and the Equality Officer found that he failed to establish a prima facie case.
Decision
The Equality Officer held that the respondent discriminated against Ms. Kathleen McDonagh, Ms. Sandra McDonagh and Mr. Thomas McDonagh on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 6(1)(c) of that Act. Mr. Eamonn McDonagh did not establish a prima facie case of discriminatory treatment and accordingly his case was dismissed.
The Equality Officer awarded the three of the complainants the sum of €1000 each as redress for the distress, inconvenience and disappointment caused to them by the effects of the discriminatory treatment. She also ordered the respondent to put procedures in place to ensure that the terms of the Equal Status Acts 2000-2004 are complied with in the future and to put a notice in the office of Ocean View Park to that effect and also ordered that this notice to be inserted in the Rules and Regulations of the Park.
Decision DEC-S2005-161-164
DEC-S2005-161 Ms. Kathleen McDonagh
DEC-S2005-162 Mr. Thomas McDonagh,
DEC-S2005-163 Ms. Sandra McDonagh
DEC-S2005-164 Mr. Eamon McDonagh
(Represented by Tullamore Travellers Movement)
V
Thomas O’Keeffe Ocean View Park
(Represented by Desmond J Houlihan & Company Solicitors)
Delegation under Equal Status Acts, 2000-2004
The complainants referred a claim under the Equal Status Acts, 2000 – 2004 to the Director of Equality Investigations on 9th October, 2001. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and 2004 and under the Equal Status Acts, 2000 - 2004, the Director then delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 - 2004. Hearings took place on 10th February 2005 and 8th September 2005.
1. Dispute
1.1 The dispute concerns claims by Ms. Kathleen McDonagh Mr. Thomas McDonagh, Ms. Sandra McDonagh & Mr. Eamon McDonagh that they were discriminated against on the Traveller Community ground by Thomas O’Keeffe of Ocean View Park in that their bookings to hire accommodation in the mobile home park were cancelled. The complainants alleged that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000-2004, contrary to Section 6(1)(c) of that Act.
2 Summary of the Case
2.1 The complainants’ case is that they had booked two mobile homes in the respondent’s mobile home park for two separate weeks in August 2001and their booking was cancelled when the respondent discovered that they were members of the Traveller community.
Evidence of Mr. Thomas McDonagh
2.2 Mr. Thomas McDonagh said that he is a member of the Traveller community. He lives in settled accommodation and has never travelled. He was planning a family holiday and Mr. Liam Hanrahan who worked with him recommended Lahinch as a good holiday destination. Mr. McDonagh asked Mr. Hanrahan to recommend accommodation in a suitable mobile home park near the town of Lahinch and Mr. Hanrahan gave him the telephone number of Ocean View Park. He telephoned the number and was informed that Ms. Agnes O’ Brien rented the homes and he was given her mobile telephone number. Mr. McDonagh said that he then telephoned Ms. O’Brien and told her that he wished to rent two mobile homes one for himself and the other for his brother, Mr. Eamon McDonagh for the week of the 4th to the 11th of August 2001. Mr. McDonagh said that the booking was for 2 mobile homes to accommodate four adults and 6 children. Ms. O’Brien told him that the mobiles were available on the dates requested. Mr. McDonagh said that he told Ms. O’Brien that he would send the deposit of £50 via Mr. Liam Hanrahan, his colleague, who lived in Lahinch. The remainder of the money was to be paid at the time of the holiday.
2.3 As Mr. Hanrahan was going to Lahinch for the June Bank Holiday weekend Mr. McDonagh gave the deposit to him to give to Ms. O’Brien. Mr. McDonagh said that he later learned from Mr. Hanrahan that Ms. O’Brien would not take the deposit and that she enquired if Mr. McDonagh was a Traveller and that she told Mr. Hanrahan that the proprietor of the park had a no Traveller policy. Mr. Hanrahan returned the deposit to Mr. McDonagh. Mr McDonagh said that he telephoned to office on several occasions to speak to Mr. O’Keeffe and left his telephone number but his calls were not returned.
2.4 Evidence of Ms. Sandra McDonagh
Ms. Sandra McDonagh said that she is not a Traveller but she is married to a Traveller. Mr. Thomas McDonagh gave her details about Ocean View Park as she wished to rent a mobile home for a family holiday. Ms. McDonagh also telephoned Ms. Agnes O’Brien and booked two mobile homes, one for her own family and the other for Mrs Kathleen McDonagh, for a week’s holiday from 28th July 2001 to 4th August 2001. She made an arrangement with Ms O’Brien to send a deposit by post and to pay the remainder on arrival. Ms. McDonagh said she understood that Ms O’Brien had accepted their booking. She telephoned two days later and told Ms. O’Brien that they had sent the deposits by post.
Ms. McDonagh later heard from Mr. Thomas McDonagh that Ms. O’Brien was sending back her deposit as the proprietor of the park did not allow Travellers on the site. About two weeks later she received her deposit back. Ms. O’Brien returned the deposits apologised saying that the mobiles were unavailable as the owners of the mobiles had already booked them.
2.5 Ms Kathleen McDonagh, who said that she was present when the bookings were made, supported the evidence given by Ms. Sandra McDonagh
Evidence of Mr. Liam Hanrahan
2.6 Mr. Hanrahan is not a member of the Traveller community but said that he worked with the Tullamore Traveller Movement for 3 years and he knows Mr. Thomas McDonagh who also works there. Mr. Hanrahan said that Mr. McDonagh spoke to him about going on holidays and he recommended Lahinch as he is a native of there. He made some enquires about mobile home parks and he gave the number of Ocean View Park to Mr. McDonagh. After Mr. McDonagh made the booking he was given the booking deposit to give to Ms. O’Brien.
2.7 Mr. Hanrahan said that he made an arrangement to meet Ms. O’Brien at Ocean View Park. After speaking to Ms. O’Brien Mr. Hanrahan said that she refused the deposit. She had enquired if the McDonaghs were members of the Traveller community as the owner of the park had received information that they were. Mr. Hanrahan said that he confirmed that the McDonaghs are Travellers. Mr. Hanrahan said that Ms. O’Brien told him that the owner had a policy of not allowing members of the Traveller community into the Ocean View Park because if one Traveller was let on site other Travellers would come up from Ennis and other places. He said that Ms. O’Brien also mentioned trouble with 3 young people who had burned down a caravan in the park.
2.8 He said that Ms O’Brien asked him to take back the deposit that she had received from Sandra and Kathleen McDonagh but he refused. Ms. O’Brien then suggested they should try and find the owner of the park, Mr. Thomas O’Keeffe, and talk to him about renting the mobiles. They went to the Office where they met a Mr. Shane O’Rourke at reception. Mr. Hanrahan left his telephone number with Mr. O’Rourke for Mr. O’Keeffe to telephone him. He got no telephone call and despite leaving a message at reception a number of times Mr. O’Keeffe did not return his call.
3. Summary of the Respondent’s Evidence
3.1 Mr. Thomas O’Keeffe said that he is the owner of Ocean View Park. He manages the park and provides all the facilities. He also runs a shop and restaurant and provides entertainment facilities for the users of the park. He charges a yearly ground rent to the mobile home owners to park. He said that Ms. Agnes O’Brien is not an employee of his nor has he any contractual relationship with her. She owns a mobile home in the park. Some mobile home owners rent them out during the Summer months and Ms. O’Brien is the contact person. Her mobile telephone is in the office and if an enquiry is received about renting a mobile home the person is referred to Ms. O’Brien.
3.2 Mr. O’Keeffe said that he has rules and regulations which must be observed by each owner. He said that individual owners of mobile homes may rent them out to other people as long as they abide by the rules and regulations. He said that owners are not required to seek his permission before they rent out their mobile home, but if their mobile is in bad condition the owner is not allowed to rent it out. He said that he has no rule which prohibits Travellers from renting mobile homes. He said that he did not know where Ms. O’Brien heard of the policy about no Travellers on the site as he never had such a rule. He said there would be no reason to have such a rule as no member of the Traveller community has ever rented mobile homes in the park. However four to five years ago he rented a site for 2 weeks to some Travellers to park their touring van.
Mr. O’Keeffe submitted that he does not operate a discriminatory policy in relation to members of the Traveller community.
Evidence of Ms Agnes O’Brien
3.3 Ms. O’Brien said that she owns a mobile home in Ocean View Park and while she does not rent it she arranges on behalf of her friends to rent out their mobile homes when they are not using them. The office in Ocean View Park has her mobile telephone number and they put people who wish to hire a mobile home for holidays in contact with her. She was given the rules and regulations of the park by Mr. O’Keeffe. She agreed that she is obliged under these rules to seek the permission of the owner of the park Mr. O’Keeffe before she rents out. She said that the owners of the mobile homes do this themselves. She denied that there was any restriction placed on people she may rent to but there are restrictions on the number of people who can be accommodated in each mobile home.
3.4 Ms. O’Brien said that she recalled getting a telephone call from Ms. Sandra McDonagh about renting a mobile for herself and Ms. Kathleen McDonagh for a summer holiday. Her usual practice is to get a deposit and then to check with the owners the availability of the mobile home for the dates specified. When the McDonaghs deposit came in she checked with owners and they were using the mobile home on the dates they required it. Ms. O’Brien returned the deposit by post and explained in a letter the mobiles homes were not available on the dates specified.
3.5 Ms. O’Brien said that she also remembered getting a telephone call from Mr. Thomas McDonagh who booked one mobile home for a family holiday. She said that she checked out the availability and the mobile home was free. Mr. Liam Hanrahan arrived with the deposit and he had a letter stating that the booking was for 2 adults and 7 children. Ms. O’Brien said that she told Mr. Hanrahan that the mobile home could not take 9 people for insurance purposes and she did not accept the deposit. She said that they drove around the park looking for the proprietor of the park, Mr. O’Keeffe, to see if they could accommodate 9 people in the mobile home.
3.6 Ms. O’Brien denied that she said that the proprietor had a policy which did not allow her to rent to Travellers. She did ask Mr. Hanrahan if the McDonaghs were Travellers and Mr. Hanrahan confirmed that they were. She said the reason she asked the question was because of the number of children in the party. She said that she could not recollect telling Mr. Hanrahan that there was trouble on the site when three young people burned down a caravan. She confirmed that there was a fire in mobile home but stated it was not too bad.
4 Other Matters arising
4.1 The respondent’s solicitor submitted: (i) that the case of Mr. Eamon McDonagh should be dismissed as he did not attend the hearing (ii) that Ms. Sandra McDonagh is not a Traveller and therefore cannot take a complaint under the Equal Status Act; (iii) the complainants lodged their complaints with the Director of the Tribunal outside the 6 month time limit; (iv) that correct respondent has not been named by the complainants, i.e. that Mr. O’Keeffe is not involved in the renting of mobile homes and that the correct respondent is Ms. O’Brien and the owners of the mobile homes.
5. Matters for Consideration and Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 6 (1)(c) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
A number of issues were raised by the respondent’s solicitor and I will consider each of them in turn.
5.2 The first matter I have to consider is the respondent’s application for the dismissal of the complaint lodged by Mr. Eamon McDonagh. Mr. McDonagh did not attend on either of the two dates the hearing took place. I am satisfied therefore he has failed to establish a prima facie case of discrimination and accordingly his case is dismissed.
5.3 The second matter for consideration is whether Ms Sandra McDonagh can pursue a case under the Equal Status ActThe respondent’s solicitor submitted that as she is not a member of the Traveller community she was excluded from the protection of the legislation. In considering this point I have taken into account section 3(1)(b) of the Act which provides:
“For the purposes of this Act, discrimination shall be taken to occur where-
(b)(i) a person who is associated with another person is treated, by virtue of that association less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,”
Although Ms. Sandra McDonagh is not a member of the Traveller community she is married to a Traveller. Ms. McDonagh is therefore associated with the Traveller community and I find that she comes with the definition of Section 3(1)(b)(i) & (ii) and is covered by the Traveller community ground by virtue of that association.
5.4 The third matter for consideration is whether the complainants referred their claims to the Director of the Equality Tribunal within the statutory 6 months of the alleged act of discrimination. Section 21(6) of the Equal Status Act provides:
“Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.”
The complainants notified the respondent, Mr. Thomas O’Keeffe of Ocean View Park¸ of the alleged act of discrimination in accordance with Section 21(2)(a) of the Equal Status Act, 2000 on 13th July 2001. This notification was by form ODEI 5 and the Tullamore Traveller Movement, on behalf of the complainants, sent the forms ODEI 5 to the Tribunal and they were received on 9th October 2001 together with a note asking if the Tribunal required any more information about the case and a copy of a response from Mr. O’Keeffe. The Equality Tribunal acknowledged receipt of the correspondence and for the purposes of completeness of the process sent a copy of form ODEI 2 to the complainants to complete if they wished to provide further information about their complaints. These forms (ODEI 2), which are not prescribed forms, were completed by the complainants and returned to the Tribunal and received on 13th December 2001.
5.5 In the case of Mr. Thomas McDonagh the date of the alleged act of discrimination is the 2nd of June 2001 and in the case of Sandra and Kathleen McDonagh it is about two weeks later when their deposits were returned to them by Ms. O’Brien together with an undated letter. The best evidence I have in relation to this date is the evidence of Sandra and Kathleen McDonagh as Ms. O’Brien was unable to recollect when she returned the deposits.
In relation to Mr. Thomas McDonagh’s case I find that the ODEI 5 and the enclosed note lodged with the Tribunal on 9th October 2001complied with the statutory 6 month time limit for referring a complaint to the Director. In the case of Sandra and Kathleen McDonagh I find that their complaints were referred, by form ODEI 5 on 9th October 2001 or alternatively by ODEI 2 on 13 December 2001, both dates were within the statutory 6 months time limit as I have found the date of the alleged discrimination in their case was 16th June 2001.
5.6 The next matter for consideration is whether Mr. O’Keeffe of Ocean View Park is the correct respondent. Section 6(1)(c) provides that:
“A person shall not discriminate in-
Providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or amenities.”
Section 2(1) states that “service ”means a service or facility of any nature which is available to the public generally or a section of the public, and, without prejudice to the generality of the foregoing, includes-
(a) access to and the use of any place,”
Mr. O’Keeffe said that he has no responsibility for renting out mobile homes. He said that he owns the Ocean View Park and he provides facilities to mobile home owners to park their mobiles on the site and he charges each owner an annual rent. He also employs security on the site and there is a shop, leisure and bar and restaurant facilities on site. He went on to say that the renting out of the mobile home by the owners is not his responsibility and is a private matter between the owners and Ms. O’Brien and the persons wishing to rent. In correspondence with the Tribunal Mr. O’Keeffe stated that all mobile homes rented out by owners are subject to conditions and the rules and regulations of the Park. A copy of the Rules and Regulations are given to each owner renting a space. Ms. O Brien said that she assists some owners to rent their mobiles and for this purpose her telephone number is in the Office at Ocean View Park. If an enquiry is made to the office the person is referred to Ms. O’Brien as happened in these cases.
I note that Mr. O’Keeffe provides access to the park and “services” and “amenities relating to the accommodation” in that he rents out the actual site with facilities and there is a shop, leisure bar and restaurant facilities also on the site. I find for the foregoing reasons that Mr. O’Keeffe is a respondent in accordance with the Act.
5.7 The next question for consideration is whether the complainants have established discriminatory treatment under Section 3(1)(a) of the Act which provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, thediscriminatory grounds ... are ...
that one is a member of the Traveller community and the other is not”.
Section 6(1)(c) provides that:
“A person shall not discriminate in-
Providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or amenities.”
A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
5.8 I have identified the key issues to establish a prima facie case as follows:
(i) Are the complainants covered by the discriminatory ground? (in this case are they members or of the Traveller community?)
(ii) Were the complainants subjected to specific treatment?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
5.9 I am satisfied that Ms. Kathleen McDonagh and Mr. Thomas McDonagh are members of the Traveller community as defined by the Act and Ms. Sandra McDonagh is associated with members of the Traveller community, so the first element of the test has been established.
5.10 It was accepted by both the complainants and Ms. O’Brien that the complainants’ were asked for bookings deposits to rent mobile homes for their holidays. It was also accepted that the booking deposits were not accepted in the case of Mr. Thomas McDonagh, and returned by post in the case of Kathleen and Sandra McDonagh and consequently the bookings were cancelled so the second element of the test has been established.
5.11 I am now going to examine the third element of the test to see if the complainants have produced sufficient evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that discrimination had occurred. The complainants case is that having taken a booking for the mobile homes for their Summer holiday Ms Agnes O’Brien returned their deposits when she found out they were members of the Traveller community. The respondent’s case is that in the case of Ms. Sandra and Ms. Kathleen Mc Donagh the mobile homes they had booked were not available for the specified dates and this was the reason for the return of the deposits. In the case of Mr Thomas McDonagh it was stated that the mobile home booked could not accommodate two adults and 7 children. The respondent denied that Mr. McDonagh had booked two mobile homes. Mr. McDonagh said that he booked 2 mobiles one for himself and his wife and 3 children and the other for his brother wife and three children. Ms. O’Brien did not, however, produce any record of the original telephone bookings to support her contention that only one mobile was booked by Mr. Thomas McDonagh.
5.12 In coming to my decision in this case I have carefully examined the evidence of both Ms. O’Brien and Mr. Hanrahan. While there was a conflict of evidence, between Ms. O’Brien and Mr. Hanrahan in relation to why she refused to accept the deposit from Mr. Thomas McDonagh, it was agreed that Ms. O’Brien enquired if the complainants were Travellers. I note that at that stage Ms. O’Brien had already accepted a booking and a deposit sent by post from two of the complainants. It is significant in my view that it was only on learning of their membership of the Traveller community that Ms. O’Brien informed Kathleen and Sandra McDonagh that the mobile homes were already booked by the owners. I note that Ms Sandra McDonagh had been speaking with Ms. O’Brien on two occasions about the booking prior to Mr. Hanrahan’s visit and she was not informed about the problem with the booking. Likewise I note that Mr. Thomas McDonagh’s deposit was not accepted even though he had already made a booking which had been accepted by Ms. O’Brien over the telephone. I found the evidence of Mr. Hanrahan in relation to his conversation with Ms. O’Brien to be convincing. Overall the evidence leads me to the conclusion, on the balance of probabilities, that membership of the Traveller community was the significant reason for refusing to rent the mobile homes to the complainants. I am satisfied the complainants were treated less favourably than non-Travellers would have been treated in similar circumstances. I find therefore, that the complainants have established prima facie cases of discriminatory treatment. I also find that the prima facie cases raised by the complainants have not been rebutted.
5.13 The next question for decision is whether Mr. O’Keeffe the named respondent is vicariously liable for the actions of Ms. O’Brien, who is the person who dealt with the complainants directly.
Section 42(2) of the Equal Status Act provides that:
“Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”
In considering whether an agency relationship existed between the parties I have considered Mr. McDermott’s text on Contract Law1 where he states at page 933 forward “The relationship of principal and agent may arise in one of the following ways………(ii) By estoppel If the result of A’s conduct is that B appears to be his or her agent and B makes a contract with C who relies on that appearance, then A may be estopped from denying the existence of B’s authority”.
I have also noted Mr. Bennion’s text on Statutory Interpretation2 where he states at page 983 forward “ Unless the contrary intention appears, an enactment by implication imports the principle of the maxim qui facit per alium facit per se(who acts through another acts himself or herself).”
5.14 It is clear from the evidence that the office of Ocean View Park was the contact point for a person seeking to rent a mobile home. Those contacting the office were referred to Ms. O’Brien and her contact details were kept at the office of the park for that purpose. The complainants made contact with Ms. O’Brien and made the agreement to rent the mobile homes. This has convinced me that, on the balance of probabilities, Ms. O’Brien was in effect an agent of the Park in that she had an implied authority from Mr. O’Keeffe to admit people to holiday in Ocean View Park and to use all the facilities provided. The fact that Mr. O’Keeffe’s Rule and Regulations of the Park (attached at Appendix A) state at Number 4 “that:
“Renting is prohibited without the permission of the proprietors. If without the knowledge of the proprietors a mobile is rented or even loaned to friends and these people cause any disturbance or inconvenience as outlined in condition 3, the proprietor of the van will be deemed responsible and will be removed from the park.”
It is clear to me that by applying these rules and regulations that Mr. O’Keeffe imposes control over the renting of mobiles and by implication over the owners of mobile homes in who they may admit to the park. My conclusion is that Mr. O’Keeffe was in effect, acting through Ms. O’Brien in controlling who may or may not be admitted to the park. The fact that mobiles homes could not be let without the authority of the proprietor (i.e. Mr. O’Keeffe) supports in my view the existence of an agency relationship and this leads me to the conclusion that Mr. O’Keeffe can be assumed to be vicariously liable for any actions taken by Ms. O’Brien in relation to admitting holiday makers to stay at Ocean View Park. My view on this has been reinforced by the fact that when an apparent difficulty with the bookings arose it was Mr. O’Keeffe that Ms. O’Brien sought out to clarify matters although he was unavailable at the time this happened. In evidence both Ms. O’Brien and Mr. Hanrahan concurred on this point.
5.15 Under the Equal Status Act all that is required for discrimination to occur is that a person is treated less favourably than another person would be treated where the only difference between them is their inclusion under one of the discriminatory grounds specified in the Act, in this case membership of the Traveller community. Proof of intention to discriminate is not a requirement of the legislation. I conclude that Mr. O’Keeffe of Ocean View Park is vicariously liable for the actions Ms. O’Brien when she refused to accept the booking deposit in the case of Mr. Thomas McDonagh and when she returned the booking deposit in the case of Ms. Sandra McDonagh and Ms. Kathleen McDonagh
6. Decision
6.1 I find on the basis of the foregoing that that the respondent Ocean View Park discriminated against Ms. Kathleen McDonagh, Ms. Sandra McDonagh and Mr. Thomas McDonagh on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 6(1)(c) of that Act. I find that Mr. Eamonn McDonagh did not establish a prima facie case of discriminatory treatment and accordingly his case is dismissed.
6.2 I order the respondent, Ocean View Park to pay the complainants, Ms. Kathleen McDonagh (DEC-S2005-161), Ms. Sandra McDonagh (DEC-S2005-162), and Mr. Thomas McDonagh (DEC-S2005-163, the sum of €1000 each as redress for the distress, inconvenience and disappointment caused to them by the effects of the discriminatory treatment. In making the order I have taken into account the fact that the complainants and their children did not go on any family holiday that year as a result of this experience.
6.3 I also order the respondent to put procedures in place to ensure that the terms of the Equal Status Acts 2000-2004 are complied with in the future and to put a notice in the office of Ocean View Park to that effect and also that this notice is inserted in the Rules and Regulations of the Park.
__________________
Marian Duffy
Equality Officer
28th October 2005
1Contract Law, Paul A. McDermott, Butterworths (Ireland) 2001
2Statutory Interpretation Fourth edition Butterworths Lexis Nexis UK 2002