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 Decision
DEC-S2011-001
Mr Paul Egan
-v-
Young Fine Gael
(represented by Kevin O' Higgins, Solicitor)
File Ref: ES/2007/71
Date of Issue: 5 January 2011
Keywords: Equal Status Acts 2000-2008 - Disposal of goods and provision of services, Section 3(2)(f), age ground, prima facie case, Section 5(2)(h)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 10 July 2007 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Valerie Murtagh, 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, 2000-2008. On 23 September 2010 my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 13 October 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr. Egan (hereafter "the complainant") that he was discriminated against by Young Fine Gael (hereafter "the respondent") on the grounds of age in terms of Section 3(2)(f) of the Equal Status Acts, 2000-2008 and contrary to section 5 of those Acts by its refusal to allow him access to join membership of the Young Fine Gael party.
2. Summary of the Complainant's Case
2.1 The complainant states that in or around January, 2007 there was a leadership heave against Mr. Enda Kenny, the leader of the Fine Gael party. The complainant was listening to a 'Morning Ireland' programme wherein there was a discussion about this issue with Mr. Damien English, TD who represented the Meath constituency where the complainant is also a constituent member in that area. The complainant states that there was a heave against Mr. Enda Kenny and while there had not been an election declared, the discussions were around a new leader for Fine Gael. The complainant further states that Mr. John Deasy was backing Mr. Simon Coveney for the role of leader. The complainant contends that Mr. English was asked who he would vote for and on at least three separate occasions, he stated on each occasion that that he would be voting for the younger man. It was put to him by the broadcaster of the programme that this comment could be viewed as ageist, however, according to the complainant he restated his mantra of 'he would always vote for the younger man who would have fresher ideas'. On listening to the broadcast, the complainant stated that he felt old and worthless and was very annoyed with what he heard. The complainant states that at this time, Mr. English was around 28/29 years of age and could possibly be the TD in Meath representing constituents for the next 30 years and the complainant was very concerned about this prospect given what he had heard on the 'Morning Ireland' programme.
2.2 The complainant states that because he was so outraged at what he heard, he wrote to Mr. Damien English and Mr. Enda Kenny about his concerns. After the third letter issuing to Mr. Kenny by the complainant and with no reply forthcoming, he attended a public meeting in order to speak to Mr. Kenny. He advised Mr. Kenny that he had written to him on a number of occasions but received no reply. Mr. Kenny stated that it was not like him not to reply to correspondence and would check out the position on his return to his office. The complainant sent a third letter to Mr. English but received no reply. At this stage, Mr. English was re-selected following a general election as local TD for the Meath constituency and the complainant felt very annoyed by the alleged ageist comments by Mr. English and the fact he was his local public representative. The complainant states that due to the fact that neither Mr. English nor Mr. Kenny would reply to his correspondence or engage in dialogue with him, he felt strongly about applying to join Young Fine Gael to change the system from within in a democratic way. He applied for membership of Young Fine Gael in or around March/April 2007 and states that his application and fee were accepted. He received a phone call from Ms. C, national youth officer with Young Fine Gael on 20 April 2007 stating that he was not eligible for membership because he was 20 years too old. Ms. C stated that the constitution and rules laid down by Young Fine Gael would not allow him access to membership as he was born in 1956 and the cut off date for joining at that time was 1976. Up to this point, he was of the understanding that he was a member of Young Fine Gael and had passed the selection procedure, he had been sent texts regarding party business, he was requested to go out and canvass for members and he was sent information regarding various events which were taking place. He states that due to the foregoing, he had assumed that he was a member until he received the phone call from Ms. C. The complainant took issue with what Ms. C had stated and wrote to her in this regard but he received no reply.
2.3 The complainant states that he wanted to join Young Fine Gael in order to effect change. He wanted to join to make a point. He felt old and worthless after the comments made by Mr. English on the 'Morning Ireland' programme. He was very annoyed that he received no replies to his correspondence from Mr. English and Mr. Kenny. He states that ''all he wanted was someone to talk to him regarding his concerns but instead he felt they were laughing at him and taught he was funny''. He states that ''he wanted to get in at the nursery stage in order to effect real change''. He contends that he was discriminated against on the grounds of age by the Young Fine Gael party in not been allowed to join the party.
3. Summary of the Respondent's Case
3.1 The respondent's representative states that, in the first instance, the respondent is incorrectly and unfairly cited, in that, the complainant named Ms. C as the respondent. He further states that under section 22 of the Equal Status Act, this complaint should have been dismissed on the grounds that it is was made in bad faith and is misconceived, frivolous and vexatious. The respondent contends that Young Fine Gael does not provide a service as defined in the equal status legislation, in that, it does not provide facilities for banking, entertainment, cultural activities or transport and travel. It further states that it is not a service or facility provided by a club and is not a professional or trade service. The respondent maintains that the Tribunal has no jurisdictional grounds in this matter.
3.2 The respondent states that the Young Fine Gael party was established in 1977. It was established as a forum for young people to engage together for political discourse, to speak freely. He further states that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds. He contends that the parent party can be stifling for younger people. He further asserts that most political parties have their own youth wing, including for example, Ogra Fianna Fail, Ogra Sinn Fein and young Labour. The respondent states that there is nothing unusual in this and that Young Fine Gael's constitution expressly restricts its membership to persons under the age of thirty one. The respondent's representative provided the Tribunal with a copy of the rules and constitution where it states that membership is restricted to persons 30 years of age and under. The respondent quoted the Preamble of its constitution;
"Young Fine Gael, the young United Irelanders is an Irish Nationalist Youth Movement that pledges allegiance and fidelity to the Irish Republic and derives its inspiration and endeavour from this bedrock. Young Fine Gael is an autonomous yet integral part of the Fine Gael party. It seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael."
3.3 The respondent states that the parent party has been helpful to Young Fine Gael, enabling it to play an important role in the main party. Its role is recognised in the constitution of the parent party. The respondent submits that there are circa 4000 members in Young Fine Gael and around 35,000 members in the parent party. The respondent states that in order to apply for membership, one can call headquarters and request an application form, through a branch or complete an application form on-line. Membership is for 1 year and to renew membership, a person contacts the local branch and pays the fee and is re-affiliated. The respondent states that the complainant submitted an application form for membership of Young Fine Gael on 30 March, 2007. On 19 April, 2007 Ms. C received the application form and presumed there was a mistake. She contacted the complainant by telephone and queried his date of birth. She states that she would not have used the term 20 years too old but instead advised him of the age limits as laid down in the constitution and rules of the Young Fine Gael party. She states that she advised him that he was ineligible to join Young Fine Gael on age grounds but advised him that he could join the parent party. She states that she does not recall any mention of Mr. Damien English or Mr. Enda Kenny during this conversation. She further states that the complainant stated that he was familiar with the age requirement to join but still wanted to join the Young Fine Gael party. She restated that she could only offer him membership of the Fine Gael party and ended the conversation.
3.4 The respondent states that when a member attains the age of 31, they cannot renew membership of Young Fine Gael and subsequently graduate for membership of the parent party. The respondent further contends that generally when persons reach their mid 20's, they migrate to the main party and some persons have dual membership of Young Fine Gael and the parent party. The respondent re-iterated that the age limit is in place so that the peer group have freedom of expression, can speak freely and openly. It may be more inspirational and radical than the elder party. It states that if it allowed older members to join, it may dampen down the discussion and the debate that takes place. The respondent states that there are no members 31 years of age or over in the Young Fine Gael party.
3.5 The respondent states that the complainant had a grievance with his local public representative, Mr. Damien English and was very annoyed and angry regarding the way he perceives that he was treated and alleged remarks made on the 'Morning Ireland' programme. It submits that this anger was not about joining Young Fine Gael but more about a grievance with his local representative and the fact that Mr. English and Mr. Kenny would not enter into dialogue with the complainant. The respondent asserts that the complainant had seen the Fine Gael website and was well aware of the age criteria in order to attain membership of the Young Fine Gael party. The respondent states that the complainant seeking to join the Young Fine Gael party was akin to an 18 year old wanting to join Age Action Ireland or an older persons bridge society, he stated that it was perverse and reiterated the point that the complainant's main grievance was with his local public representative, Mr. English and Mr. Kenny and their non-engagement with him. The respondent further states that the issue is not about the complainant seeking to join the Young Fine Gael party but more about seeking to embarrass and show up the Fine Gael party.
3.6 The respondent also argues section 5(2)(h) of the equal status legislation in support of its case, i.e. "differences in the treatment of persons in a category of persons in respect of services 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"
In this regard, the respondent re-iterated that the principal purpose of Young Fine Gael is to provide a forum for young people to express their views and be more inspirational and radical than the elder party. It also quotes the preamble of its constitution where it states 'Young Fine Gael seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael'. It also made the argument that if it allowed older persons to join, it could lead to a dampening down of the discussion and debate that takes place and may be stifling for the younger members.
The respondent also refers to the High Court and Supreme Court cases in relation to the Equality Authority v Partmarnock Golf Club [2005] IEHC 235 and [2009] IESC 73 enabling positive discrimination and this type of restriction where there are bona fide grounds. The respondent argues that it is entitled to rely on this exemption under the legislation.
4. Conclusions of Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the age ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3. -- (1) For the purposes of this Act, discrimination shall be taken to occur --
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ''discriminatory grounds)''
Section 38A (1) provides that the burden of proof is:
" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.2 In the Equal Status Acts under Section 2, "service" is defined as 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 use of any place
(b) facilities for -
(i) banking, insurance, grants, loans, credit or financing
(ii) entertainment, recreation or refreshment
(iii) cultural activities, or
(iv) transport or travel
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service
In examining the definition of service in the Act, it is very broad and includes a service or facility which is available to the public generally or a section of the public. I am of the view that the youth wing of a political party can be defined as a service to a certain section of the public and therefore it constitutes a service within the meaning of section 2 of the Equal Status Acts.
4.3 The respondent has argued that Young Fine Gael is incorrectly and unfairly cited in that Ms. C who is the national youth officer has been named as the respondent in the complaint form ES.3 instead of Young Fine Gael. I have noted this point, however, the complainant has given the correct address of Young Fine Gael in the address box of the form. Given the High Court judgment in the case of County Louth Vocational Education Committee v Equality Tribunal and Pearse Brannigan (Notice Party)[2009] IEH370, I note that McGovern J. stated at paragraph 6.2 "I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint...remains the same." I am satisfied that the ES3 form is an outline document and the complainant has given the correct address of the Young Fine Gael office in the form. I am further satisfied that this complaint is valid and admissible and that I have jurisdiction to hear the complaint. Accordingly, I do not accept the argument put forward by the respondent in this regard.
4.4 The respondent further argues that under section 22 of the Equal Status Act, this complaint should have been dismissed on the grounds that it is was made in bad faith and is misconceived, frivolous and vexatious. In examining section 22 of the Equal Status Acts, I am satisfied that the claim could not be dismissed as misconceived, vexatious and frivolous. A claim is misconceived if it is incorrectly based in law. I take cognisance of the Supreme Court case, Farley v Ireland, [1997] IESC 60 which referred to frivolous and vexatious and in the course of the judgement stated: "so far as the legality of the matter is concerned, frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that as far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendants to have to take steps to defend something which cannot succeed and the laws calls that vexatious."
The complainant's claim is not misconceived as it is directly related to his age and the refusal to accept him as a member. In addition, refusal of membership of a political party could not be regarded as trivial. I do not accept the argument put forward by the respondent in this regard.
4.5 The complainant gave evidence at the hearing in relation to the 'Morning Ireland' programme and the reasons he felt so aggrieved by what he perceives was said on that programme and following same, the non-engagement in dialogue by both Mr. English and Mr. Kenny with him. He states that this is the reason he wanted to make a point and join Young Fine Gael at 'the nursery level in order to change attitudes and effect real change from within'. When I questioned the complainant regarding whether he was aware of the age restriction (i.e. between the ages of 15 and 30) prior to applying to join the Young Fine Gael party, he stated that he was not sure and could not exactly remember but as the questioning continued, he stated that on a 60/40 percentage basis, he would have assumed at the time that he was aware that there was an age restriction in applying to join the party. The complainant also gave evidence in relation to Ms. C whom he spoke to when she contacted him querying his date of birth. He states that she spoke to him in a rude and offhand manner and advised him that he was 20 years too late to join the party. Ms. C rejects this allegation and states that she did query his date of birth and highlighted the age limit as laid down by the constitution and rules of the party. She further states that she advised him that he could join the parent party but states that she does not recall any mention of Mr. Damien English or Mr. Enda Kenny with regard to not replying to correspondence or non engagement in dialogue with him. While there is a conflict of evidence regarding this point, on hearing Ms. C's testimony, I find her to be a credible witness and find it plausible to accept her evidence in this regard. Also, given the complainant's evidence and the variation therein, in that, he firstly stated that he was unaware of the age restriction to apply to join the party but subsequently stated that on a 60/40 percentage basis he assumed at the time he was aware that an age restriction did apply. Taking the totality of evidence into account, I am satisfied that the complainant was aware of the age restriction at the material time based on the testimony he gave at the hearing and the fact he quoted a number of paragraphs from the website and appeared to be knowledgeable about the activities, social events, calendar etc. of Young Fine Gael. I am also satisfied that the complainant was offered the option of applying to join membership of the parent party by Ms. C but declined this offer on the basis that he wanted to get in 'at the nursery level' to use his own words 'to change attitudes and to effect change from within'.
4.6 The respondent states that Young Fine Gael was established as a forum for young people to engage together for political discourse, to speak freely. It further stated that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds. It contends that the parent party can be stifling for younger people. It further asserts that most political parties have their own youth wing, including for example, Ogra Fianna Fail, Ogra Sinn Fein and young Labour. The respondent states that there is nothing unusual in this and that Young Fine Gael's constitution expressly restricts its membership to persons 30 years of age and under. In this regard, the respondent has argued Section 5(2)(h) of the Equal Status Acts in support of their case that- " differences in the treatment of persons in a category or persons in respect of services 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,"
The respondent re-iterated that the principal purpose of Young Fine Gael is to provide a forum for young people to express their views and be more inspirational and radical than the elder party. It also quotes the preamble of its constitution where it states 'Young Fine Gael seeks to advance the political representation and objectives of the youth of Ireland through the vehicle of the Fine Gael party. Young Fine Gael is wholly committed to the development of young people at all levels of political life and in communion with the Fine Gael party seeks to maximise the electoral objectives of Fine Gael'. It also made the argument that if it allowed older persons to join, it could lead to a dampening down of the discussion and debate that takes place and may be stifling for the younger members.
The respondent cites the decisions of the High Court and the Supreme Court in relation to the Equality Authority v Portmarnock Golf Club in support of its case. The respondent argues that allowing a political party to have a specific section for those 30 years of age and under is a positive action measure and Young Fine Gael is entitled to have this type of restriction on the basis that Young Fine Gael's principal purpose is to promote, 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 and that this exemption is allowed under the legislation.
4.7 For completeness purposes, I questioned the respondent in relation to their procedure with regard to members of Young Fine Gael upon reaching the age of 31 and details of the age breakdown of members with names redacted. The respondent states that their membership database is not programmed to output this type of sensitive information. The respondent further states that while the information is captured when a member affiliates for the first time, the system is not configured to output reports of this nature. The respondent submits that their database will alert the user if they try to update a person who has reached the age of 31 by flagging that the person is no longer eligible for membership of Young Fine Gael and state that this rule is strictly enforced. The respondent also states that in addition to the flagging on the database, individual branch secretaries indicate to those seeking to renew membership that they cannot do so upon reaching the age of 31. The respondent re-iterates that there are no members 31 years of age or over in the Young Fine Gael party. It also has submitted documentation to the Tribunal by the General Secretary of Young Fine Gael stating that having examined their records and trawled through its database, the organisation is satisfied that no one over the age of 31 was a member of Young Fine Gael in 2007. I am satisfied on the basis of the information provided at the hearing and the documentation submitted to the Tribunal thereafter that there were no members over 31 years of age in the Young Fine Gael party in 2007.
4.8 Taking all the evidence into consideration, I am satisfied that Young Fine Gael is entitled to apply an age restriction where there are bona fide grounds for doing so, as outlined above at paragraph 4.6. The respondent operates from their rules and constitution, in that, in order to gain membership of Young Fine Gael, persons must be between the ages of 15 and 30. I accept the information put forward by the respondent, in that, Young Fine Gael was established as a forum for young people to engage together for political discourse, to speak freely, that it is an embryonic association for persons within their own peer group to not be shy about speaking their minds and that the parent party can be stifling for younger people. I also note that many political parties have their own youth wing where the same type of age requirements apply. While I take on board the hurt and annoyance of the complainant in relation to what he perceives was said by Mr. English and others on the 'Morning Ireland' programme and the subsequent alleged non- engagement in dialogue by members of the Fine Gael party with the complainant; the issue for decision in this claim is whether the complainant was discriminated against on the grounds of age. I have carefully examined the evidence presented by the complainant in the instant case and find that he has failed to establish a prima facie case of discrimination in relation to access to a service on grounds of age contrary to the Acts. I am satisfied that the respondent is entitled to rely on the exemption laid down in Section 5(2)(h) of the equal status legislation.
5. Decision
5.1 For the foregoing reasons, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in terms of Sections 3(1)(a), 3(2)(f), and contrary to Section 5 of the Equal Status Acts. Accordingly, I find in favour of the respondent in this matter.
_________________
Valerie Murtagh
Equality Officer
5 January, 2011