THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2009-058
PARTIES
Mr. A
and
Mr. Y, a Solicitor
File Reference: ES/2006/0074
Date of Issue: 4th September, 2009
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) - Race Ground, Section 3(2)(h) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 11th July, 2006 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, 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 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 29th July, 2009. Final correspondence with the parties following the hearing took place on 4th August, 2009.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Mr. A, that he was discriminated against by the respondent, Mr. Y, Solicitor, on the grounds of his race in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.
2. Summary of the Complainant's Case
2.1 The complainant, Mr. A, was born in England and his mother was Irish and his father was a black African-American. He has resided in Ireland for the last number of years. The complainant had purchased window blinds from a company which subsequently transpired to be defective. He contacted the company which supplied the blinds on four separate occasions to complain about this matter and to seek a replacement of the blinds, however, the company ignored his requests and failed to deal with the matter to his satisfaction. The complainant decided that his only option to deal with this matter, in the circumstances, was to request a solicitor to write a letter to the company (which had supplied the blinds) requesting it either to replace the blinds, refund the money or to face litigation as he was of the opinion that the company was in breach of contract.
2.2 The complainant visited the respondent's solicitor's practice on 12th May, 2006 and requested him to write a letter in the aforementioned terms to the company on his behalf. The complainant claims that the respondent displayed hostility towards him from the moment he entered the room and he stated that the respondent was sniggering and making fun of him throughout the course of their meeting. The complainant claims that the respondent refused to write this letter and instead advised him to return to the company that had supplied the blinds in order to discuss the matter as he felt that the complainant had not exhausted all avenues in this regard. The complainant claims that the respondent also informed him that he was not prepared to write the letter in relation to this matter and he stated that the complainant should have returned to the solicitor who had acted on his behalf in relation to the conveyancing of his house. The complainant claims that the issue in relation to the conveyancing of his house was of no concern to the respondent and therefore, it should not have had any bearing or influence on his decision to refuse to write the letter.
2.3 The complainant stated that he did not contact the respondent in order to seek advice in relation to this matter but rather to request him to write a solicitor's letter to the company (from which he had purchased the blinds) as it was obvious that all other avenues had already been exhausted given that he had been back to the company on four separate occasions. The complainant submitted that the respondent clearly did not want to represent him in relation to this matter and he claims that, by refusing to write this letter, the respondent denied him access to a professional service which he had a right to avail of. The complainant stated the reason that the respondent treated him in such a hostile manner and refused to write the letter which he sought was directly attributable to his race and he claims that this treatment amounted to racial discrimination within the meaning of the Equal Status Acts.
3. Summary of the Respondent's Case
3.1 The respondent totally refutes the allegations that he discriminated against the complaint on the grounds of his race. The complainant visited the respondent's solicitor's practice on 12th May, 2006 and he informed the respondent that he had purchased blinds for his house and that these blinds had not been properly installed. The respondent advised the complainant that he should return to the company (where he had purchased the blinds) and explain clearly the nature of his difficulty with the blinds and request them on one final occasion to visit his home in order to rectify the matter. The complainant informed the respondent that he was not prepared to accept this advice and he requested the respondent to write a letter to the company threatening litigation if the matter was not resolved to his satisfaction. The respondent informed the complainant that he was not prepared to write this letter as he felt that the complainant had not exhausted all reasonable avenues to resolve the matter and he did not consider that it was necessary at that stage for a solicitor to be involved in the dispute.
3.2 The respondent submitted that, in his professional opinion, the complainant had a relatively straight forward consumer complaint and that it is not very cost effective for consumers to pursue such complaints by litigation. The respondent submitted that solicitors will often encourage people to deal with such matters themselves, directly with the supplier, after receiving details of their consumer rights. It was the respondent's professional view that this would ultimately be the most effective and cost efficient means of disposing of the matter to the complainant's satisfaction. The respondent stated that he gave this advice to the complainant and that he was not under any professional duty to act outside of his own advice. The respondent accepts that he made reference to the solicitor who had acted on behalf of the complainant in relation to the conveyancing of his house during the course of their meeting. However, the respondent submitted that such an enquiry is not unusual when a solicitor is faced with a new prospective client who is presenting with a small matter when that person would have carried out a much larger transaction with another firm of solicitors in the not too distant past. Indeed, it is often the case that a firm having carried out a transaction such as a house sale or purchase would be agreeable to carry out further small transactions for a client at a reduced cost or no cost whatsoever.
3.3 The respondent emphatically denies that he treated the complainant in a hostile or derogatory manner and he stated that the complainant was treated in the same courteous and professional manner in which all of his clients are treated. The respondent stated that he listened to the complainant's issues as presented in detail and then provided professional legal advice to him which the complainant rejected as he was perfectly entitled to do so. The respondent submitted that he provided the complainant with his legal services in a non-discriminatory manner. The respondent also adduced evidence at the hearing from a number of witnesses (of non-national origin) who gave evidence that they had been provided with legal services by the respondent in the past. The respondent submitted that the evidence of these witnesses demonstrates that it does not discriminate against clients on the grounds of their race.
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 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 In considering this issue, I am satisfied that the complainant is covered by the race ground within the meaning of section 3(2)(h) of the Equal Status Acts i.e. he was born in England and his father was a black African-American. I note that it was accepted by both parties that the complainant presented at the respondent's office on 12th May, 2006 (without an appointment) and that he requested the respondent to write a solicitor's letter to a company from which he had purchased blinds and which had subsequently transpired to be defective. It was also accepted by both parties that the respondent did not accede to the complainant's request to write this letter but instead he advised the complainant to return to the company in order to discuss the issue with a view to resolving the matter.
4.3 The complainant claims that the respondent treated him in a hostile and derogatory manner during the course of this meeting and he contends that the reason the respondent refused to write the letter was directly attributable to his race. The respondent denies that the complainant was treated in a hostile or derogatory manner and it claims that he was afforded the same level of professional services as any other client would have been in similar circumstances irrespective of his racial origins. Therefore, the question that I must decide in the present case is whether the complainant was subjected to less favourable treatment on the grounds of his race in terms of the manner in which he was dealt with by the respondent when he visited its solicitor's practice on 12th May, 2006 in order to avail of his professional legal services.
4.4 Having carefully considered the evidence of both parties, I have found the respondent's evidence to be more compelling and I am satisfied that it represents a more accurate and credible account of the meeting that occurred between the parties on 12th May, 2006. In the circumstances, I am satisfied that the respondent afforded the complainant the opportunity on this occasion to fully disclose the details regarding the issues in question, and that having done so, he then provided the complainant with his considered professional advice regarding the manner in which he thought that the matter could be most effectively resolved. It is clear that the complainant did not agree with the nature of the response that he received from the respondent regarding this matter, and as a prospective client, I fully accept that he was entitled to either accept or refuse the advice proffered. However, notwithstanding this, I am satisfied that the complainant was, in fact, afforded access to the respondent's professional services and also that the manner in which he was treated by the respondent on this occasion was in no way influenced by or attributable to his ethnic origins. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the respondent would have acted in a different or more favourable manner, in terms of the professional services that he provided or the manner in which these services were dispensed, if he had been dealing with a person of different ethnic origins to the complainant.
4.5 Having regard to the totality of the evidence adduced, I am satisfied that the complainant was not treated any less favourably than a person of a different race would have been treated, in similar circumstances, in terms of the manner in which he was dealt with by the respondent during the course of their meeting on 12th May, 2006. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground within the meaning of the Equal Status Acts.
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 the race ground in terms of Sections 3(1), 3(2)(h) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
4th September, 2009