Equal Status Acts
Decision No. DEC-S2010-031
Andrew Ennis
-V-
Navan O'Mahony's Football and Hurling Club
Key words
Equal Status Acts - Section 3(2)(g), Disability ground - Section 3(2)(j), Victimisation - Section 11, harassment - Section 42, vicarious liability - Section 21(2), Notification - Section 21(3)(a)(ii) - Section 8 - Section 5(2)(b) - Section 5(2)(f) - Section 4(1), Reasonable Accommodation
1. Delegation under the relevant legislation
1.1. On 3rd October, 2006, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 26th September, 2008, in accordance with her powers under section 75 of the Employment Equality Act and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced. Submissions were sought from both parties, and time was provided to the complainant to obtain representation. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Thursday, 25th March, 2010. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(2)(g), and Section 4(1), and contrary to Section 5 of the Equal Status Acts, that he was victimised by the respondent in terms of Section 3(2)(j) of the Acts, and that he was harassed by the respondent in terms of Section 11 of the Acts. In that regard, the complainant submits that the respondent treated him less favourably, harassed him and failed to provide reasonable accommodation to him in relation to his use of car parking facilities made available by the respondent on 29th August, 2006, and that the respondent victimised him thereafter in its treatment of him and his son.
3. Summary of the Complainant's Case
General Background
3.1. The complainant stated that he has a chronic back problem for which pain management is required and has restricted mobility as a result. He stated that walking was a serious difficulty for him, although he did cycle on the advice of a physiotherapist. He said that he had to get a modified car, and that he is reliant on disabled parking primarily due to its proximity to relevant locations and, in that regard, has been eligible for a disabled parking ticket which he has had for over ten years. He accepted that there were no outward signs he had a disability, but he took issue with the respondent's questioning of his disability, saying that it was a well-known fact, certified by doctors. He added that he hadn't worked in years. He disagreed with the respondent's claim that he took advantage of his disability.
3.2. The complainant stated that he has been an associate member of the respondent club since 1997, but was a full member at the time in question. His wife was a full member since 1951 and his son was active in the club. He stated that even while an associate member he went to matches and supported the club but was never interested in being involved in the running of it.
Claim of Discrimination
3.3. He submitted that, on 29th August, 2006, he drove to the respondent's football ground to attend a match in the nearby Pairc Tailteann ("the stadium") between the respondent club and another, an event which was open to the public generally. He submitted that he was admitted by car at the front gate and proceeded towards the disabled parking. He stated that, before he could reach the disabled parking area, he was stopped by Mr. A, who hit his windscreen with his fist and proceeded to tell him in what he described as "a very rude manner" that he was not allowed to park in the disabled bays. The complainant then outlined the ensuing conversation. In summary, this was a heated argument during which he insisted that he had a right to park in the disabled parking spaces, while Mr A insisted that he could not do so. In the course of this conversation, the complainant stated that Mr A threatened to have the car towed away.
3.4. The complainant denied the respondent's allegation that, at this stage, he was blocking the entranceway causing congestion. In that regard, he noted that a car was able to pass them to the area reserved for bingo. He also denied that he was trying to bully his way in to where he wished to go. Although he did not specifically tell Mr A that he had a disability, the complainant said he did point to his disabled drivers parking ticket, but that Mr A told him it was useless. The complainant stated that Mr A also questioned his right to have a membership card. He agreed, however, that Mr A told him that the disabled bays to which he wished to proceed were reserved for use by patrons of the bingo that was held each Tuesday night on the respondent's premises.
3.5. The complainant stated that a Mr B, who had been a senior official with the respondent club, appeared while he and Mr A were arguing and asked what the problem was. The complainant said he explained the situation to Mr B, who then spoke to Mr A. He said that Mr B came back to the complainant to say that Mr A "wasn't for changing" but told him to pull in near where he was, which he agreed to do even though it still meant he had to walk a good bit. In that regard he denied that he was able to get what he wanted. The complainant stated that the incident was no more than ten minutes in duration. He added that Mr A told him his car would not be there when he came back and so watching the game caused him some anxiety as he didn't know if his car would still be there after the match, although it was.
3.6. The complainant explained that, at the time, to gain entry to the stadium, you had to go through the respondent's grounds. From early morning until 6.30 p.m., the grounds are let out for parking to the town council, after which time they revert back to the respondent's control. The complainant stated that this incident happened at 6.50 p.m. and, though he knew about the bingo, he did not know about the parking arrangements relating to it. In any event, he stated that the match would have been concluded at 8.15 p.m. and the bingo did not start until 8.30/9.00 p.m.. He added that, on the night in question, the parking at the car park owned by the stadium was not available to him as it was not then developed fully as a car park. He stated that neither Mr A nor the steward at the gate suggested he use it, in any event.
3.7. The complainant submitted that he was upset by the incident in question and, on 30th August, 2006, wrote two letters of complaint, one to the respondent and the other to the Meath County Board. By a letter of response dated 4th September 2006, the Meath County Board expressed regret for the treatment of the complainant as relayed in his letter and that it had requested the respondent to carry out an investigation. He further submitted that he did not know the outcome of any such investigation.
3.8. In general, through his representative, the complainant submitted that the actions of the respondent in not permitting him to park constituted less favourable treatment on the basis of his disability. He submitted that he was attempting to park in a disabled parking area when he was prevented from doing so by a servant/agent of the respondent. He submitted that this agent knew or ought to have known that he was disabled and he could have easily verified that was the case. He submitted that there was clear evidence that Mr A was told of the disabled drivers certificate and, in that regard, the respondent knew that the complainant was disabled. He stated that, in his view, the respondents defence that nobody was allowed to park because there was bingo going on was no defence.
3.9. The complainant further submitted that the actions of the respondent in this regard were also a breach of Section 4 of the Acts (in relation to reasonable accommodation). He submitted that the parking option suggested by Mr A was not suitable as he had an acute back problem, and his mobility was restricted so that he would not be able to walk on an uneven surface and walk back, particularly given the distance involved. He submitted that he finds attending matches to be impossible and/or unduly difficult without the special treatment of access to disabled parking. He submitted that the respondent had disabled parking spaces and so could have provided him with access to them without any cost. Therefore, he had not been provided with reasonable accommodation.
Claim of Harassment
3.10. The complainant further alleges that he was harassed by Mr A on the night of the incident and was made to suffer unwanted conduct as Mr A shouted abuse at him and banged on the car. He submitted that the respondent has not taken any steps to prevent the harassment in any way.
Claim of Victimisation
3.11. The complainant further submitted that he has been victimised by the respondent for making the claim. He submitted that because of the failure to reply by the respondent, he did not feel welcome to attend other matches. He stated that he paid his family membership soon after the incident, but that the cheque to pay for this was never cashed and he never got membership for that year. When asked, he stated that he did not have any documentary evidence to support this claim. He also stated that his son was playing minor hurling with the respondent club and when it came to the final, his son was the last man left on the sidelines and was never given a medal. He stated, however, that his son did play on other occasions with the respondent and was still involved in playing and training with the club. He disagreed with the respondent that his son was working part-time in the bar, but in cross-examination he recognised that his son had worked collecting glasses. He also stated that his son's friends had moved on to working behind the bar, whereas his son had not. In that regard, he stated that his son was 15 or 16, going on 17 or 18 at the time of the incident. He did not know whether minors under 18 were allowed to serve behind a bar.
3.12. The complainant also made a certain allegation against Mr A. In cross-examination, he accepted that this allegation may have been factually incorrect and that he had heard it from secondary sources.
Submissions in relation to preliminary jurisdictional matters
Notification requirements
3.13. The complainant responded to the respondent's submissions that he had not met the notification requirements under the Acts (see paras. 4.1 to 4.2 below). In that regard, he submitted that, in his letter to the respondent of 30th August, 2006, which he handed in to it personally, he referenced his disability and did intimate that he would take the matter further when he stated that "the question for O'Mahony's is: do ye do something or do I?". Not having received a reply to his letter to the respondent, the complainant submitted that he then issued a form ES.3 (complaint referral form) against Mr A on 2nd October, 2006, within two months of the alleged discriminatory incident. The complainant agreed that the letter of 30th August, 2006, did not strictly meet the notification requirement under the Acts as he did not specify that he intended to seek redress under the Acts.
3.14. However, the complainant submitted that the Tribunal should exercise its powers under Section 21(2) to dispense with the notification requirement. In that regard, it further submitted that, within two months of the incident (i.e. the time limit for the notification), the complainant referred the matter to the Tribunal and the respondent put in a full submission in February 2007. The complainant stated that it did not raise the issue of improper notification at that time, and it would not seem to have caused any prejudice in and of itself. Nor, the complainant submitted, would there seem to be any prejudice suffered by the respondent because of the technical failure to specify the nature of the action to be taken by the complainant in circumstances where he did not receive a proper response to his letter of 30th August, 2006, and he had notified the respondent of his general intent to take the matter further.
3.15. In addition, the complainant submitted that there were two exceptional circumstances which justified the granting of the exemption. Firstly, he submitted that it was unusual for claims to be referred within two months and so here the reference to the Tribunal within two months fulfilled the statutory purpose, viz. timely and early notification that the events in question had occurred. He stated that was done by referral rather than notification. However, the purpose had been served and the failure was purely technical. Secondly, on 30th August 2006, the complainant did make it clear he was disputing the events in question. Given the nature of the Acts as a remedial and social statute, he said that it is sufficient that the respondent is put on notice that there was a disgruntled person making a complaint.
3.16. The complainant further submits that the respondent was fully put on notice in early course of the factual allegations as made against it by the complainant. This can be seen in the comprehensive manner of the respondent's letter of 12th February 2007, including its submissions in relation to the Acts. It therefore submits that the respondent is not prejudiced by the use of Section 21(3) in the present claim.
Section 5 or Section 8?
3.17. The complainant also responded to the respondent's submission that the Acts did not apply as the respondent was a club and, as such, Section 5(2) of the Acts meant that, as a club under Section 8, it was exempted (see par. 4.3 below). The complainant submitted that he was attending a match in his capacity as a general supporter of the team and follower of football, and not in his capacity as a member of the club. He noted that the definition of "service" under Section 2 includes a service or facility that is provided by clubs to the public generally with or without payment and that this is proof the Oireachtas intended that actions against clubs in respect of services or facilities provided by a club to the public generally would fall within the ambit of Section 5.
3.18. He said that parking outside the venue was not restricted to members of the club. He said that the provision of such a service or facility could not be defined only as a service offered to the respondent's members. He said that, as a matter of interpretation, the matters covered by Section 8 are only those aspects of a club's activities that are restricted to members. He said that the benefits of membership do not extend or relate to parking facilities. As with all members of the public, the complainant had to pay for admission to the match. He said that there was no special area for members of the club to park and that the service of parking was generally available to all members of the public attending the match and not for club members as such. The direction given to him regarding parking was not restricted to his capacity as a club member; it was given because he was a member of the public attending the match and using a service or facility. Thus the provision of parking was not "a service offered to its members by a club in respect of which Section 8 applies". He added that the fact that a person is a member of the club for some purposes does not exclude him or her from being a member of the public for purposes where a club offers services/facilities to non-members so that they are available to the public generally.
4. Summary of the Respondent's Case
Submissions in relation to preliminary jurisdictional matters
Notification requirements
4.1. The respondent submitted that the complainant failed to comply with the notification requirements of the Acts in that he fails to warn it of his intention to refer the matter under the Equal Status Acts if the complainant is dissatisfied with the respondent's reply. It submits that the phrase "do ye do something or do I?" does not adequately satisfy the requirements of the Acts in this regard and that there was no mention at all of the Acts or the Tribunal in the letter. It submitted that the Tribunal cannot accept this letter as meeting the notification requirements and that it therefore does not have jurisdiction to investigate the matter. It further submits that the complainant was evasive in the form ES3 as to whether notification had been provided, and this was because he had failed to adequately warn the respondent of this. The respondent denied that it did not mention the issue in its correspondence, pointing out a letter of 12th February 2007 to the Tribunal in which it did so.
4.2. In relation to the exercise of my functions (as delegated by the Director) under Section 21(3), the respondent submitted that the complainant wrote to the respondent on 30th August 2006 and failed to illicit a warning at that stage that he might go to the Tribunal in relation to the matter. It further submitted that no exceptional circumstances exist in this case. It submitted that the complainant has failed to mention what these might be.
Invalid under Section 5(2)(b)
4.3. The respondent submitted that the complaint falls outside the jurisdiction of the Tribunal as it does not come under Section 5(1) of the Acts. It stated that under Section 5(2)(b), a complaint is not valid if it relates to a service provided under Section 8. In that context, it submitted that the respondent was a club under Section 8 and that the complainant was attending the match on the night in question as a member and was accessing parking facilities as such.
Section 5(2)(f)
4.4. The respondent submitted that, in any event, the exemption in the Acts provided in Section 5(2)(f) applies. This exemption states that differences in the treatment of persons on the grounds of disability in relation to the provision of a sporting facility or sporting event, to the extent that the differences are reasonably necessary having regard to the nature of the facility or event exclude it from being discrimination under Section 5(1)
Substantive Matters
Evidence of Mr A
4.5. Mr A gave evidence at the hearing that the stadium and the respondent's premises are two separate and independent grounds and that the only independent right of way to the stadium is through the turnstiles at the end of the ground. He explained that the car parking area on the respondent's premises is generally made available for parking for people who wish to go to the stadium unless a game is fixed to take place in the stadium on a Tuesday night, as that is bingo night. In this case, he said that the respondent has to man the gate to ensure nobody parks in the area in the front of the car park as this is reserved for bingo patrons only. Mr A stated that, on the night in question, there was one person on the gate who would ask if the person seeking to enter the car park was going to the match or to bingo. He said that 60-70% of bingo supporters would be elderly and have disabled passes.
4.6. Mr A confirmed that the Council rent the car park during the day and cars might still be parked there until 7.30 p.m, to 8 p.m., which is why they can't lock the gate. However, he stated most of the cars who parked there from before 6.30 p.m. would be cleared by the time the bingo would start. He stated that the arrangement with regard to bingo had been in place for 30/40 years and that all members as well as others who were not members of the club were aware of this arrangement.
4.7. In relation to the incident in question, Mr A stated that he stopped the complainant by putting his hand on his car but denied he hit the windscreen with his fist. He said that the complainant then stepped out of the car and said he was proceeding to park in the disabled spaces. Mr A said he didn't remember if the complainant produced a disability pass, but he said that more people with disabilities were coming to bingo than they had space for. He stated that the complainant was adamant that he was going to the car park or he said he was going to park the car where it was. Mr A said he may have made a reference that if the complainant left the car where it was it would be towed away, but did not get involved in any other conversation with the complainant. Mr A stated that the space in front of the gate became vacant and the complainant was told to drive into it by Mr B. Mr A said that, even at that, Mr B was wrong to have allowed that to happen as Mr B did not have the authority on the night to do that. At the same time, he had no great difficulty with this except that it took up a bingo car parking space.
4.8. Mr A stated that whether the complainant had a disabled disc or not was irrelevant as he was not going to be allowed to park in any event. He stated that there was no disabled parking space available in the area that was available for parking to stadium patrons that night and it was primarily a grass surface. Mr A stated that he did not know the complainant had a disability and had often seen him cycling the roads. In relation to a car being let through, Mr A stated that he didn't remember letting a car pass, though it is possible one did while he was not watching. In any event, he said the people who owned the relevant car were attending the bingo event. He added that club officials would have been allowed in as well. In that regard, he stated that the parking for bingo is organised by the bingo committee and as such they had to be sure that the committee received car parking. He said that this was custom and practice.
4.9. Mr A agreed that he did not receive any training as a car park steward, or training in the Equal Status Acts. He stated that his health and safety concerns related to ensuring that the bingo parking area was protected and to ensure control of the parking on the night in question. He stated, however, that he did not receive any specific instructions in relation to health and safety. He did not know whether the stadium car park referred to earlier was ready to be used as a car park and he could not say with certainty whether the person on the gate told the complainant about the other car park. In any event, he did not see why he should have suggested to the complainant that he go to this other car park, and so did not. He stated that the complainant was the only person to express dissatisfaction with the parking arrangements on the night in question.
4.10. Mr A responded to the complainant's allegation with regard to him referred to at 3.12 above. He denied those allegations, explaining that the complainant had misunderstood a particular newspaper report in relation to him.
Claim of Discrimination
4.11. The respondent, through its representative, did not deny that Mr A directed the complainant to park in the pitch area, as outlined by the evidence of Mr A. It did, however, deny that the complainant was discriminated against on the grounds of his disability by virtue of being refused permission to park in a designated disabled parking space. In that regard, it submitted that the complainant was not refused parking, but was provided with alternative parking. The event the complainant was attending was not taking place in the respondent club but in the stadium and there was pedestrian access only from the respondent's grounds. The respondent submitted that the complainant's actions were to hold the respondent to ransom, but the dispute was dealt with effectively by a club member. The complainant was not refused entry, nor was he ejected and his car was there when he came back.
4.12. The respondent stated that the reality was that it was custom and practice with it that Tuesday night was bingo night. On those nights, procedures were put in place that worked well for the club. 60-70% of those who arrived for bingo were elderly and the procedures ensured that members knew where to go and where they could park. It claimed that the complainant had been a member of the club since May 2006, three months prior to this incident, and to say he wasn't aware of this custom and practice is further undermined by his wife's involvement in the club, and his own involvement with the club in supporting his son.
4.13. The respondent also submits that it was not impossible or unduly difficult for the complainant to have parked in the pitch area as directed. It submitted that, in any event, it provided reasonable accommodation by way of parking closer to the gate, as directed by Mr B.
4.14. The respondent submitted that, even if I were to find discrimination, Mr A justifiably refused the complainant permission to park in the disabled parking places for the proper management of the car park, for good estate management reasons, for insurance purposes and for health and safety purposes. It submitted that all members of the club and users coming onto the premises are required to take instruction from the car parking attendant and to do otherwise is to render their presence unlawful. It submitted that a parking attendant is not obliged to give reasons for their directions to every member, as to do so would be impractical. In that regard, it noted that the complainant at one stage parked at the entranceway causing congestion. It further submitted that the complainant was hostile and that there may be some ill-feeling towards Mr A, providing documentary evidence which it submitted showed this. The respondent further submitted that the stadium car park was up and running at the time.
Claims of Discrimination and harassment
4.15. The respondent submitted that it did not unlawfully victimise and harass the complainant. Indeed, it submitted that, on the contrary, the complainant wrote defamatory innuendo (in relation to the allegation the complainant made against Mr A) to the extent that the respondent would be entitled to take proceedings against the complainant on that basis. It also submitted that I should ignore the letter of the Meath County Board as it had acted ultra vires in its reply to the complainant by pre-empting any adjudication process either before the Courts or the Tribunal and appearing to vindicate the complainant's case.
4.16. The respondent denied that the complainant's membership would have been refused and denied the submissions regarding the cheque. It stated that the relevant procedure is to fill out the form, pay the membership and get a membership card. For someone not to be allowed to continue as a member, there would have to be an executive decision by the Executive Committee and it would have to be recorded in the minutes and the application referred to by the complainant had not been recorded. It stated that the allegation of victimisation in relation to the complainant's son was a red herring as the complainant led us to believe there was no medal, when the son in fact did get a medal - it was handed to him by a club official.
4.17. The respondent submitted that the complaint related to an issue that got out of hand, that was not reasonably foreseeable, and for which there was a history and background. The argument between Mr A and the complainant went back to 1993 or beyond and brought about a further stand-off by the complainant on the night in question. It submitted that the complainant has tried to usurp the Acts to hurt the respondent and Mr A. (In that regard, the respondent raised an issue at the end of the hearing which it submitted was an illustration of this. However, in doing so, an allegation was made about the complainant in this regard, an allegation which was not put to him. In any event, it is of no relevance to my decision in the matter and has therefore been ignored.)
5. Conclusions of the Equality Officer
5.1. Section 38(A) 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/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. As Mr A, who was named in the original complaint form, was acting as agent of the respondent at the time, Section 42 of the Acts provides that the complaint is made against Navan O'Mahony's Football and Hurling Club. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Preliminary Matters
Notification
5.2. Section 21(2) of the Acts provides that:
"Before seeking redress under this section the complainant --
(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, ....notify the respondent in writing of --
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act."
5.3. The notification issued by the complainant was correct in every respect except that it failed to mention the Acts. Instead, the complainant stated "will ye do someting about this, or will I?" While it is clear from this statement that the complainant intended on taking the matter further, a viewpoint with which both parties agreed, nonetheless I am satisfied that it does not strictly meet the requirements of the Acts, as it does not make any reference to the Acts. As this notification is required before referral of the complaint, the referral, in that context, does not meet the requirements of the Acts and is therefore invalid.
Section 21(2)
5.4. However, the complainant submitted that I should dispense with the notification requirement in this case. Section 21(3)(a)(ii) of the Acts states that, on application by the complainant, and in accordance with the powers delegated to me by the Director, I may:
"exceptionally, where it is satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection 2 [the notification requirement] shall not apply in relation to the complainant to the extent specified in that direction"
It is the responsibility of the complainant, or their representative(s) as the case may be, to ensure that the requirements of the Acts are complied with and it is clear that this provision should only be applied exceptionally. I note in that regard the provisions of Section 21(3)(b) which outlines that in considering this matter I must take account of the extent to which the respondent is aware of the circumstances surrounding the matter and whether it is prejudiced by my granting the direction in question. This is not an exhaustive list and other circumstances may also need to be considered, depending on the circumstances of the case.
5.5. In all the circumstances of the present case, then, in order to consider the application of Section 21(3)(a)(ii), I must consider whether the respondent has been prejudiced by the failure to meet all the notification requirements. In my view, the purpose of the notification is two-fold: 1) to make the respondent aware that a complaint was pending and 2) providing it with an opportunity to respond to the allegations of the complainant. It requires four conditions:
1. That the respondent is notified of the nature of the allegation;
2. That the respondent is notified of this within two months of the alleged incident in question;
3. That the respondent is provided with at least a month to respond to the allegation;
4. That the complainant indicates to the respondent his intention of invoking the provision of the Acts with regard to the matter viz. bringing a complaint to the Tribunal.
5.6. I note the complainant's submission that the referral to the Tribunal within two months fulfilled the statutory purpose of the notification, viz. timely and early notification that the events in question had occurred. As this was done by referral rather than notification, he submitted that the failure was purely technical as the purpose of the notification had been served.
5.7. In considering this submission, it seems to me a prerequisite that I should consider the purpose of the requirement to refer to the Acts (or the Tribunal) in the notification letter, as this is at the heart of the complainant's failure to meet the notification requirements. In providing for this requirement, it appears to me that it was the intention of the Oireachtas to ensure that a potential complainant made a potential respondent aware of the seriousness with which (s)he took her/his allegation, to the extent that (s)he would make a complaint to the relevant legal forum if (s)he did not receive satisfaction in relation to it. The reasons for this could have included, inter alia, to protect a respondent, for example, from a situation where it was notified of what might seem a minor complaint that might not be treated with great urgency in the normal course of events.
5.8. I am satisfied, in light of the tone of the complainant's letter to the respondent of 30th August 2006, and given that it was written by a member of the respondent's club, that any reasonable person reading the relevant letter could only conclude that the writer took the subject matter very seriously indeed. Indeed, in its own submission that the phrase "will ye do something, or will I?" did not meet the notification requirements, the respondent agreed that this phrase did indicate the complainant intended taking the matter further. Furthermore, and while I note the respondent's submission that the Secretary of the County Board did not have any authority in relation to the subject matter of the letter, nonetheless the promptness and seriousness of his response indicates that the matter was one to be taken seriously by its intended recipient, even if judged only in the context of this person as a neutral observer. In all of the circumstances of the present complaint, then, I am satisfied that the respondent was under no illusion as to the strength of the complainant's concern about the matters raised and that it was on notice that he intended taking the matter further. I would add that, in that context, I believe that virtually the only conclusion the respondent could have drawn was that the complainant intended to take the matter to the Tribunal.
5.9. It is critical to note that a referral within two months cannot be considered to provide an absolution for a complainant from a failure to issue a notification. However, I note that in this case a notification letter had previously issued, even if it was not technically correct as outlined above. This letter was clear in outlining the nature of the allegations, and one month passed before the complaint was lodged, thus conditions 1 and 3 above have clearly been met. I also note that the respondent did not outline why it would be prejudiced were I to invoke Section 21(3)(a)(ii), submitting only that no exceptional circumstances existed that would warrant the invoking of that section. I also note that the Acts were amended in 2004 so that "referring the case under the Acts" replaced "referring the case to the Director" which, it seems to me, indicated the Oireachtas had a concern that the requirement was too stringent in the first place.
5.10. There is no doubt that if Section 21(3)(a)(ii) was not in the Acts, the complainant would not have complied with the notification requirements and I would have no jurisdiction to consider the matter any further. However, the exception provided by Section 21(3)(a)(ii), though one that should only be invoked in exceptional circumstances, is there for a reason. It is critical to note that, in considering these circumstances, account must be taken of whether and to what extent prejudice arises in relation to the respondent. However, I believe the exception is there to provide for a particular set of circumstances, that, inter alia, might flow from a technical failure to meet the notification requirements of the Acts in circumstances where, but for this technical breach, an unrepresented complainant would have clearly and unambiguously met the necessary notification requirements.
5.11. I believe this to be an apt description of the present complaint, as in all the circumstances outlined in the previous paragraphs, I do not see how the respondent would be prejudiced were I to invoke Section 21(3)(a)(ii). I also note that the complainant was unrepresented at the time he wrote the notification and referred the complaint. I am satisfied that a peculiar, almost unique, set of circumstances arise in this case, and that these circumstances, already outlined, meet the criteria of being exceptional. Therefore, I am dispensing with the requirement on the complainant to issue a notification, in accordance with the power delegated to me by the Director, and in accordance with Section 21(3)(a)(ii) of the Acts. Consequently, the Tribunal has jurisdiction in the matter as regards Section 21 and I will now proceed to deal with the other legal arguments made by the respondent.
Section 5(2)(f)
5.12. Irrespective of whether I were to accept the respondent's interpretation of the exemption provided in Section 5(2)(f), which I do not necessarily, I note the respondent argued that it had no obligation to provide parking facilities for the complainant, and was entitled to put its bingo customers ahead of those going to the stadium. In doing so, it submitted that the match being played had nothing to do with it. It has therefore itself defeated its own argument as it thereby submits that it had no responsibility in relation to the sporting event in question viz. the match being played in the neighbouring stadium. By its own admission, it was providing only parking facilities for those going to the match to facilitate the organisers of the match and cannot claim that it was providing the sporting facility or sporting event in question. The argument is therefore entirely specious and can be dismissed on that basis.
Section 8
5.13. The respondent submits that I do not have jurisdiction to consider the complaint as the facility provided in this case is a facility provided under Section 8. It submits that Section 5(1) does not apply as Section 5(2) excludes its application in relation to "a service offered to its members by a club in respect of which section 8 applies". The respondent argues that, as the complainant was a member of the respondent club, Section 8 applies irrespective of whether the facility was provided to the public in general or not.
5.14. It is clear that the alleged incident in question took place in relation to a facility that was provided by the respondent which was open to the public generally, whether they were members of the respondent club or not. Additionally, it is not disputed that, were the complainant not a member of the club in exactly the same set of circumstances, he would be entitled to make a complaint under Section 5(1). If the respondent's submission is correct, then, the complainant is set at a fundamental disadvantage vis-à-vis someone who was not a member of the respondent club because he cannot take a complaint under Section 5(1). It would seem, on this interpretation, that his only cause of action is under Section 8.
5.15. In that regard, I note the complainant's submission that "Section 8 is...limited in its application....on any reasonable construction (of it), the aspects of club membership covered must be services/facilities retained or reserved for the use and enjoyment of such members." While I note that Section 8(2) includes a provision that "a club shall be considered to be a discriminating club if (ii) a person involved in its management discriminates against a member or an applicant for membership in relation to the affairs of the club," it is at least questionable whether the actions of Mr A would fall under the definition of this provision. Therefore, the interpretation the respondent seeks to put on Section 5(2) gives rise to a situation where the complainant is certainly in a weaker position to make a complaint than someone who is not a member of the respondent club. In fact, in all likelihood, it would seem that, on that interpretation, he would have no redress available to him under the Acts. This is quite clearly absurd and I do not believe the Oireachtas intended that such a situation would arise.
5.16. Section 5 of the Interpretation Act states: "(1) In construing a provision of any Act......(b) that on a literal interpretation would be absurd.....the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole." Therefore, I am obliged to take a purposive approach to the interpretation of the relevant provision of Section 5(2) . In that light, I also note that the definition of service within the Acts includes "a...facility provided by a club....which is available to the public generally or a section of the public." It is clear from that definition that the Oireachtas intended including in the remit of the Acts any services or facilities provided by the club which were made available to the public generally, and that this definition contradicts the respondent's interpretation. Therefore, I am satisfied, in all the circumstances of the present case, that Section 5(2) must be interpreted in a way that includes the complainant under the provisions of Section 5(1) as it would be absurd not to do so.
Substantive issues
5.17. Section 38(A) of the Equal Status Acts, 2000 to 2004 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/she can rely in asserting that prohibited conduct has occurred in relation to him/her. Therefore, in deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.
5.18. As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant's case which I must consider. Firstly, whether the complainant has been discriminated against because of his disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 5(1) of the Acts. Secondly, I must look, in accordance with Section 4(1), at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Discrimination Claim
5.19. The complainant submits that he was treated less favourably than someone without a disability would have been treated in the same or similar circumstances. In that regard, a considerable amount of evidence was presented by both sides in relation to the dispute between Mr A and the complainant. However, none of this is relevant to this part of the complaint as I am satisfied that the reason the complainant was refused access to the disabled parking spaces and/or a parking space closer to the stadium was because these parking spaces were reserved for people attending the bingo event. In that context, he was not treated any less favourably than anyone else who was not attending the bingo event, whether such persons had a disability or not, or whether they had a different disability.
5.20. The complainant must show that the reason for his less favourable treatment, if such existed, was because of his disability. It was clearly not. His claim of discrimination on the disability ground therefore fails.
Reasonable Accommodation
5.21. In relation to its refusal to allow the complainant to avail of the disabled parking facilities that were available, the respondent submitted that they had to be reserved for those attending the bingo event as many of these persons were elderly and/or disabled. I accept this submission on the basis that not enough disabled spaces would have been available for the complainant as well as those wishing to attend the bingo event who needed to avail of such spaces. Additionally, I am satisfied that most of those attending the bingo event would have arrived before the end of the match and the complainant's suggestion that persons using the car park for the match would have left before the bingo event patrons arrived is incorrect.
5.22. I also note the complainant took issue that a vehicle had been allowed to pass through to this area and this vehicle was not one that needed to park in a disabled space. However, I am satisfied that, in all the circumstances of the present case, it was fair and reasonable for the respondent to prioritise all bingo event patrons over those parking in order to attend the match, including those who were disabled, provided that the patrons attending the match and who were disabled were facilitated with an alternative form of reasonable accommodation. Such alternative reasonable accommodation could have included provision being made for suitable temporary disabled spaces within the confines of the area that was made available for use by patrons of the stadium.
5.23. In that context, if the dispute between Mr A and the complainant had concluded in a different fashion, it might have been necessary for me to consider the parties submissions further with regard to reasonable accommodation in the context of this complaint. However, the fact is that, ultimately, and within a short space of time of him making the request for reasonable accommodation, the complainant was provided with a parking space which, in my view, was not unsuitable. In any event, it is clear that the use of this parking space did not make it impossible or unduly difficult for him to attend the match, as he did so and, aside from the incident involving Mr A, he did so without much bother. Therefore, I am satisfied that, in all the circumstances of the present case, the complainant was provided with reasonable accommodation by the respondent viz. the parking space ultimately made available to the complainant at the suggestion of Mr B.
Harassment
5.24. The complainant also alleged in his submissions that he was harassed by the respondent contrary to Section 11 of the Acts. Harassment in that context means "conduct which...has the purpose of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person." Such harassment must be related to a ground, in this case the ground of disability. It is clear to me that, for whatever reason, there was animosity between the complainant and Mr A long before the evening of the incident in question and that this animosity was at the heart of the altercation between these two individuals that evening. I am therefore satisfied that whatever took place between them, it had nothing to do with the complainant's disability. The claim of harassment on the ground of disability therefore fails.
Victimisation
5.25. The complainant's claim of victimisation centres around two allegations. Firstly, he alleges that a cheque he presented to the respondent in payment of his membership fees was never cashed, resulting in him not having his membership renewed and that this was related to his complaint and resulted in his being unable to obtain membership in the year after the incident in question. On the other hand, the respondent states it never received any cheque and the complainant did not seek to renew his membership for the year in question. On balance, I find the evidence of the respondent to be more compelling and that the complainant has failed to show he was victimised on this basis. In particular in that regard, I note that the complainant did not produce any documentary evidence to corroborate this claim.
5.26. Secondly, the complainant alleges that the respondent ensured that his son did not get to play in the final match of the season because the complainant had made his complaint to the Tribunal. However, the mere fact that a selection and/or substitution decision was made in relation to the complainant's son cannot on its own, by any stretch of the imagination, lead to a presumption of victimisation. I also note that the complainant's son did play in other games throughout the season. I also note that he was engaged in working for the respondent for a period of time. In that regard, it is clear that he was not allowed to work behind the bar because he was a minor and it would have been illegal for the respondent to allow him do so. The complainant's claim that he was not aware that this would have been the case is simply not credible. I also note that the complainant's son remains active in the respondent club. Finally, I note that it is clear from the evidence presented that the complainant's son did in fact get his medal, and I am satisfied that the complainant himself knew this. I therefore do not find the complainant's submissions in this regard to be at all credible and his claim of victimisation on this basis also fails.
5.27. As the complainant has failed to establish a prima facie case of either discrimination or victimisation, I do not need to consider the matter any further.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. In accordance with Section 21(3)(a)(ii), I direct that Section 21(2) shall not apply in relation to the present complaint.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a) , 3(2)(g), Section 4(1) and Section 5(1) of the Equal Status Acts.
6.4. I also find that the complainant has failed to establish a prima facie case of victimisation and harassment contrary to sections 3(2)(j) and Section 11 of the Equal Status Acts respectively.
6.5. Accordingly, the complainant's case fails.
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Gary O'Doherty
Equality Officer
16th June 2010