THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 to 2011

PARTIES

Joe Keane

-v-

World Travel Centre

File Reference: ES/2009/089

Date of Issue: 15^th August,  2011

Equal Status Acts, 2000-2011

Decision No. DEC-S2011-035

Key words

Equal Status Acts – Section 3(1)(a), Section 3(2)(h), race ground – Reduced fare for Filipino nationals only – positive discrimination – commercial considerations - Section 5(2)(h) exemption

1.     Delegation under the relevant legislation

1.1.     On 5^th August, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On 18^th November, 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts (hereinafter referred to as “the 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 Acts, on which date my investigation commenced.

1.2.     Written submissions were received from both parties. A hearing of the complaint was held on 17^th May, 2011.

2.     Dispute

2.1.     The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the race ground contrary to the Acts in terms of Sections 3(1)(a) and Section 3(2)(h) of the Acts and contrary to Section 5(1) of the Acts in that the respondent treated him less favourably by not allowing him avail of a reduced fare on a flight to Manila.       

3.     Summary of the Complainant’s Case

3.1.     The complainant, an Irish national, submitted that he rang the respondent on 29^th June, 2009 on foot of an advertisement which he had read which offered travel to Manila for €649 including tax. He submitted that he was informed by two separate representatives of the respondent, one of whom, he said, did not sound Irish, that this fare was for Filipino travellers only and that, as an Irish passport holder, the price would be over €800. He submitted that he was told that, as it was the policy of the airline, Z Air, it was in order for World Travel to promote such a policy.  He submitted that he “could not believe what (he) was hearing” and felt that, as an Irish person, he was clearly being treated less favourably.

3.2.     The complainant said that he was also told that there was a two-tiered pricing system in Ireland, in particular in some restaurants, and that travellers from other countries were charged more than Irish customers. He contested the respondent’s evidence that this comment related to different prices at different times.  He submitted that he worked in the restaurant business and he knew the comment in this respect was entirely incorrect. He added that the person who said this had not been appropriately trained and should have been very familiar with not upsetting an ethnic group (i.e. Irish people). He disagreed that his experience with the respondent’s assistants was professional in this context, though acknowledging that it was polite.

3.3.     The complainant submitted that he was later informed that it was Z Air that had devised the promotion in question and that the airline had ceased that promotion in April 2009 but had not informed the respondent of this.  He submitted that he was then offered a ticket at the advertised rate, but declined the offer as other arrangements for his travel were already in place at that stage. He submitted that, in contrast, he later received an e-mail dated 20^th August, 2009 from the respondent stating that it had sought this concession for Filipinos from Z Air and did not mention that Z Air had withdrawn the offer. He submitted that, in light of these contrasting statements, it was unclear to him as to whether it was Z Air or the respondent that took this initiative.

3.4.     The complainant stated that the different fares offered by another named airline as described by the respondent (see par. 4.2 below) are not based on ethnicity. He stated that he had no difficulty with special fares being offered to missionaries and students but that was a different matter. He stated that his wife was Filipino and he knew that community well. In that context, he submitted that they are a very resilient and hardworking race and stated that, in his experience, the members of that community were “doing well for themselves” and did not need special treatment. He submitted that it was the strength of competition rather than sentimental fervour that prompted the respondent to adopt this type of “offensive sales offer”.

4.     Summary of the Respondent’s Case

4.1.     The respondent did not dispute most of the factual evidence of the complainant, except to say that the reference to two-tier pricing was in the sense of different prices being offered by restaurants at different times of the day rather than to different prices for different ethnic groups. It expressed its surprise “that the majority” (i.e. Irish people, and the complainant in particular) “felt that they could have something that the minority had in that respect” (i.e. the special fare for Filipinos).  It submitted that the complainant was the first customer to bring to its attention that the fares in question may be in breach of the Equality legislation. It said it ceased offering these fares in that context. It also submitted that it offered the flight in question to the complainant at the price advertised and also gave a written apology to him.

4.2.     The respondent stated that it was technically correct that the fares in question were provided by the airline but that they arose from direct negotiations it had with them. However, it stated that it had not been informed by Z Air of the change in the relevant fare. It added that the fare was not withdrawn, rather that the “ethnic fare” had been replaced by a new type of fare which was being offered to all nationalities and passport holders and would have been available to the complainant if it had been in place at the time in question. It added that “ethnic fares” were standard in the airline industry and the segmentation of fares was common practice in that industry (citing the policy of another named airline in that respect).

4.3.     The respondent submitted that it has been in the forefront of arranging flights for the various ethnic communities living in Ireland for the past ten years. It stated that the fares and conditions that it offered to members of the Filipino community, as well as other ethnic communities such as the Nigerian community, were pivotal to those communities. It then outlined why it considered them to be so. In particular, it said it carried the largest proportion of the members of those communities and its product would fail if it did not get their support.

4.4.     In that regard, the respondent submitted that it had negotiated special fares with airlines over the years to try and ease their burden of travel and reflect their special needs and had thus engaged in “positive discrimination”. It added that it had been “dealing with nuns and priests” for years and that named charities and voluntary bodies had their corporate accounts with it. It stated that it doubted the complainant’s sphere of Filipinos living in Ireland was typical.

4.5.     The respondentsubmitted that the complainant’s argument was that a Filipino person “working in our hospitals” cannot have a cheaper fare to return home to visit family and friends unless the same fare is offered to an Irish national for leisure or business travel. It submitted that the complainant was using the Tribunal to look to be personally compensated for alleged insult and injury. It stated that it had not looked in detail at the Acts as its focus had been on dealing with the complainant on a one-to-one basis. It agreed that it did well commercially but stated that there was a moral as well as commercial undertone to the service it provided. It added that, while its market share from ethnic groups had not reduced since it discontinued its “ethnic fares”, that market had shrunk. It emphatically denied that its policy in question was related to competition from another airline.

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.  In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.

5.2.     The respondent required the complainant to pay a higher fare on the same flight than a person of a different nationality solely on the basis of his nationality. In doing so, the respondent clearly discriminated against him and the complainant has established a prima facie case in that respect. I note that the respondent essentially conceded this point. Its defence was primarily that the Tribunal should take into account that the complainant was an avaricious person who is seeking to take advantage of it when it sought only to provide a service which was critical to those members of the Filipino community living in Ireland who wished to return to their homeland.

5.3.     Section 5(2)(h) provides an exemption from the application of the Acts to service providers with respect to “differences in the treatment of persons….that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests.” While the respondent stated that it did not seek to rely on this provision, it spoke about its altruistic purpose of engaging in what it termed “positive discrimination.”

5.4.     It is clear that members of ethnic communities, including the Filipino community, who availed of the respondent’s services did so because the fare it was offering to those customers was considerably lower than any competing non-discriminatory fare. Furthermore, I am entirely satisfied that the fare in question was offered by the respondent, following negotiations with Z Air, for the sole purpose of attracting members of these ethnic communities, including the Filipino community, to avail of its services. It did so not only in relation to the particular fares in question but also in order to gain their loyalty as customers with a view to retaining their custom in the future. I am satisfied that its sole purpose in doing so was to gain a competitive commercial advantage over other tour operators who were unable to offer a similar fare to such customers without acting in a discriminatory manner.

5.5.     None of the strict and comprehensive criteria required by Section 5(2)(h) have been met by the respondent. The sole purpose of offering the discriminatory fares in question was commercial and I do not accept its bona fides with respect to the purpose or manner in which it sought to achieve its alleged altruistic goal. Its principal evidence that the special interests of the Filipino community justified such a blatantly discriminatory policy was that the high market share of members of the Filipino community returning home that it obtained illustrated how important its service was to that community. However, it is clear that the reason why the particular Filipinos concerned availed of its service was a monetary one: it offered the cheapest fares. Nor can such evidence be considered to be proof that “the differences in treatment are reasonably necessary to promote those special interests”.

5.6.     Furthermore, I am satisfied that, if the complainant had not made the present complaint, the respondent would have continued to apply this discriminatory policy. In that context, I am satisfied that the cessation of the policy was caused more by the discomfort of Z Air with that policy than any desire on the part of the respondent to terminate it. On the other hand, I note that the respondent offered an apology to the complainant and I note its offer to provide him with the reduced fare. That said, I also note that the apology was far from fulsome. Indeed, it gave the appearance of one given for the sole purpose of persuading the complainant to withdraw his complaint to the Tribunal rather than one that displayed a sense of genuine remorse for the respondent’s discriminatory behaviour.

5.7.     In short, I am satisfied that, not only was the respondent fully aware that the manner in which it behaved was unlawful, but in portraying itself as “positively discriminating” it sought to use the protection of the Acts to carry out an action which it knew to be contrary to those Acts.  For the avoidance of any doubt, let me clearly state that the pursuit of commercial advantage by service providers in a non-discriminatory fashion is their perfectly legitimate occupation. There may even be circumstances where a service provider may lawfully carry out a practice or policy which would appear to discriminate, even if it turns a profit, but only if it meets the strict and comprehensive criteria laid out in s.5(2)(h). Of course, that would also depend on the other circumstances of such a case.

5.8.     However, it cannot be considered acceptable for a service provider to deliberately and consciously use the Acts as a cloak to carry out a pricing policy that is flagrantly in breach of the Acts for the sole purpose of gaining a commercial advantage and increasing its profit at the expense of the Acts. Yet that is exactly what the respondent did in the context of this complaint.

5.9.     Therefore, while I am conscious that the effects of the discrimination on the complainant in this case were relatively minor, I also consider that my award in this case must be dissuasive. On the other hand, it must also be acknowledged that it would appear that the respondent has discontinued the discriminatory policy at issue in this case. I also note the apology offered by the respondent for its behaviour in this respect, and its offer to the complainant to provide him with the reduced fare in question, though also noting what I have already stated with respect to that apology (at par. 5.6 above). The award I am making in this case is reflective of these considerations.

6.     Decision

6.1.     Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:

6.2.     I find that the respondent discriminated against the complainant on the race ground in terms of Sections 3(1)(a), 3(2)(h) and Section 5(1) of the Equal Status Acts.   

6.3.     Accordingly, I order the respondent to pay to the complainant the sum of €1,750 for the effects of the discrimination.

_____________

Gary O’Doherty

Equality Officer

15^th August, 2011