The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-061
Wood
(Née O'Brien)
(Represented by Mr. Kieron Wood BL)
v.
Aer Lingus
(Represented by Arthur Cox Solicitors)
File No. ES/2007/0152
Date of Issue: 9 September 2009
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) - Family status ground, section 3(2)(c) - Disposal of goods and provision of services, section 5(1) - notification requirements, section 21
1. Delegation under the Equal Status Acts
Mrs. Catherine Wood (then Ms. O'Brien) referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 12 November 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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 on 12 December 2008. A hearing, in accordance with the acts, was held on 1 July 2009. The respondent indicated that it did not wish to avail of an opportunity to make an additional submission to material presented at the hearing on 8 July 2009.
2. Dispute
2.1. The dispute concerns a complaint by Mrs. Catherine Wood ("the complainant") that she was treated less favourably in relation to the provision of goods and services on the ground of her family status contrary to section 3 of the Equal Status Acts on 4 September 2007 by Aer Lingus ("the respondent"). The complainant submitted that she was told by the respondent that she would not be able to avail of a return flight from her holidays due to the fact that she would be 35 weeks pregnant. The complainant submitted that the respondent failed to inform her that a subsequent pregnancy could affect her right to fly and that the respondent imposed more onerous conditions than other airlines would have on women who are at the late stages of their pregnancies in similar circumstances. The respondent was notified in accordance with section 21(2) on 7 October 2007.
3. Notification
3.1. The respondent submitted that the complainant had identified the first alleged discriminatory act took place on 18 January 2007 and then referred to the fact that there was more than one discriminatory act by stating that "discrimination against pregnant women is ongoing". The respondent noted that the claim was lodged with the Tribunal on 12 November 2007, thus outside the 6 month time limit set out in section 21(6)(a). The respondent further submitted that the claimant's claim in relation to notifying the respondent is outside the time limits of two months, in accordance with section 21(2)(a) and therefore statute barred.
3.2. The complainant submitted that the act was on-going in that the airline still operates a policy that restricts women who are over 34 weeks pregnant from flying with them to European and long-haul destinations. It is important to note that the jurisdiction of this Tribunal only extends to the alleged discrimination against the complainant in the circumstances of her case, not at pregnant women generally.
3.3. I note that the complainant booked flights on 18 January 2007. At this time the complainant submitted that she was not pregnant. Therefore, I find that this date cannot be the date when an alleged unlawful act took place. Having heard the full facts of the case I am satisfied that the complainant herself became aware of what she considers discriminatory policy when she contacted the respondent on 17 July 2007 and discovered that the policy restricts flights from Ireland to Europe/long-haul destinations from 34 weeks on. I am satisfied that the complainant was pregnant at this time and I accept that it is perfectly reasonable that only a person who is pregnant would familiarise herself with the respondent's policy regarding pregnant passengers. According to the complainant's own evidence, she only became cognisant of possible flight restrictions after a conversation she had with a friend. She then, on her own submission, contacted the respondent and asked a person over the phone what the situation would be in relation to the flights she and her family had booked for August/September 2007. Based on the information she was given over the phone, I am satisfied that the complainant herself identified herself to be over 34 weeks and cancelled those flights.
3.4. I note that the complainant and her family were due to fly to their holiday destination on 14 August 2007 and were to return on 4 September 2007. However, the complainant had at this time cancelled her flights. The question of whether the fact that the respondent had and continues to have a policy restricting women who are at the late stages of their pregnancy is enough to warrant a claim of on-going discrimination needs to be addressed. I note that it was submitted that on 24 July 2007 the complainant's representative (and partner, now husband) received a sum purporting to be the taxes paid for the flights. This payment was made by the respondent. The complainant's representative submitted that - after these monies were received from the respondent - he contacted the respondent via telephone and was informed of the terms and conditions that restricted the complainant's ability to fly on the pre-booked dates. This date, I find, is at the very latest the date on alleged unlawful conduct that I can consider for the purposes of this complaint.
3.5. I note that the respondent sent a letter notifying the respondent of the complainant's intention to seek redress under these acts on 7 October 2007. This is outside the time limits set out in the relevant legislation. I find that I cannot consider any subsequent date for any alleged unlawful conduct, as it is clear that by this time, the legal relationship between the complainant and the respondent had ceased to exist. The complainant does not have any right to seek redress for a policy that no longer applied to her as she had on her own volition ceased to be a service user under these acts.
3.6. Therefore, based on the facts of the case, I am satisfied that the complainant did not notify the respondent within the required time limit set out in section 21. I am also mindful that the complainant had the benefit of legal advice. In addition, I was presented with no reasonable cause as to why the time limits had not been complied with and am satisfied that the Director has not been approached nor granted any extension of time under section 21(3)(a)
4. Decision
4.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
4.2. The complainant has failed to comply with the statutory time limits set out in section 21 (2). Therefore, I have no jurisdiction to proceed.
________________
Tara Coogan
Equality Officer
9 September 2009