Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2012-044
A Complainant
(Represented by her father)
V
A National Sporting Organisation
File No. ES/2011/0074
Date of Issue: 18 December 2012
Keywords
Equal Status Acts 2000 to 2011 - Discrimination, section 3 - disability ground, section 3(2)(g) - Less favourable treatment, section 5(1)
1. Delegation under the Equal Status Acts 2000 to 2004
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 9 February 2010. In accordance with his powers under section 75 of the Employment Equality Acts, 1998 - 2011 (hereafter referred to as "the Acts"), the Director then delegated the case to me, Conor Stokes, 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. The investigation under section 25 commenced on 28 May 2012. A hearing was took place on 21 June 2012 and the final date for submissions was 28 September 2012.
2. Dispute
2.1 The dispute concerns a complaint by the complainant that she was treated contrary to section 5(1) of the Acts. The respondent was notified in January 2011 in accordance with the provisions of the Acts.
3. Complainant submissions
3.1 The complainant submitted that she was discriminated against when the respondent limited the number of tickets made available for wheelchair users for an International game in 2009. Because of this restriction, the complainant was unable to obtain a ticket to attend the game.
3.2 The complainant submitted that the stadium where the International was held was designed to have a particular number of accessible seats for wheelchair users along with their carers, and the respondent limited the number available to half that amount.
4 Respondent submissions
4.1 The respondent submitted that the tickets for disabled users attending the International were made available free of charge to the regular pool of wheelchair users for the match. At that time, the respondent relied on the fact that they have a regular pool of wheelchair user who are aware of the ticketing policy and also the respondent was in contact with a number of organisations for persons with disabilities who are aware of their ticketing policies. If anyone contacted the respondent, they were put in contact with a designated staff member who would notify them of the arrangements.
4.2 The respondent usually works off an estimated figure and then provides the access details to match-goers prior to the fixture.
5 Findings
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(g) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
5.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(1) provides that: as between any two persons, the discriminatory grounds ... are ... (g) that one is a person with a disability and the other either is not or is a person with a different disability ("the disability ground"),"
5.3 Section 5(1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
5.4 The burden of proof is set out in Section 38A which provides: 38A. -- (1)" 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."
5.4 Therefore, in accordance with the foregoing, a person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that she was discriminated against because of her disability. Once that prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
5.5 I note that in examining the circumstances in which the probative burden of proof applies in employment equality cases, the Labour court in the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.6 Oral evidence was presented to the Tribunal by both parties. From that evidence and the documentary evidence presented prior to the hearing, I am satisfied that the following has been established as being the relevant facts at the time of the complaint:
- The respondent estimates the number of wheelchair users expected to attend a given fixture
- On the basis of that estimate the number of stewarding staff is estimated
- On the basis of this estimate a number of tickets are printed
- Only those areas that are fully staffed are open to match goers
- Those areas that are wheelchair accessible are not given over to other match-goers in an effort to maximise income
- The respondent made its ticketing policy available to its regular cohort of wheelchair users and to organisations representing people with disabilities
- The respondent allocates wheelchair-user tickets four weeks before the fixture
- When the complainant contacted the respondent, the complainant was informed that the allocation of tickets was already given out but was informed that tickets to the next fixture could be arranged
- Tickets to matches are given out on a first-come, first-served basis
5.7 Having regard to the foregoing, I am not satisfied that the complainant has established that she was treated any differently to any other prospective match-goer in that once a ticket allocation has been distributed, the match is then considered 'sold out'.
5.8 Having regard to all of the foregoing, I am not satisfied that the complainant has established facts from which it may be presumed that prohibited conduct has occurred and therefore this complaint must fail.
6 Findings
6.1 I find that the complainant was not discriminated against on the disability ground contrary to the Equal Status Acts
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Conor Stokes
Equality Officer
18 December 2012