THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
Decision DEC-S2013-006
PARTIES
Karen Toner
and
Monart
(represented by Patrick O'Brien B.L. on the instructions of Peter J. Redmond Solicitor)
File Reference: ES/2011/181
Date of Issue: 18th July, 2013
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 14th December, 2011 under the Equal Status Acts, 2000 to 2008. On 1st October, 2012, in accordance with his powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 13th February, 2013.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Ms. Karen Toner, that she was discriminated against by the respondent on the grounds of her family status and gender in terms of sections 3(1)(a), 3(2)(a) and 3(2)(c) of the Equal Status Acts, 2000 to 2008 and contrary to section 5(1) of those Acts in terms of the respondent's refusal to allow her to make a reservation for a meal in its restaurant upon hearing that the complainant's child would be accompanying her on the particular occasion.
2. Summary of the Complainant's Case
2.1 The complainant contacted the respondent by telephone on 11th November, 2011 in order to make a reservation for lunch to celebrate the occasion of a family member's birthday. As the complainant was heavily pregnant at the time and had a one year old child she considered that it would be more suitable and convenient to dine somewhere local in order to accommodate the needs of all the members of her family for this occasion. The complainant decided that the respondent's restaurant would be the perfect venue to celebrate this special family occasion as it suited the travel requirements of other family members and she had also heard a lot of very favourable reports about the respondent's facilities. The complainant had suffered a family bereavement two years prior to this date and the celebration of this family occasion was the first time that her family had attempted to go out together as a family since their bereavement. When the complainant contacted the respondent by telephone on 11th November, 2011 and indicated during the course of making the reservation for lunch, that she would be accompanied by a child, she was informed by Ms. A that the respondent did not allow children to access its facilities.
2.2 The complainant claims that she was shocked by this response and questioned the legitimacy of this policy with Ms. A who informed her that the respondent's Manager, Mr. B, would revert to her in relation to the matter. The complainant subsequently spoke to Mr. B on the telephone and he reiterated the respondent's policy of not allowing children to access its facilities and he indicated that it would not be possible to accept her reservation under any circumstances. The complainant attempted to reassure Mr. B that her child would not cause any disturbance during the lunch and indicated to him that there was no other suitable establishment of that standard in her locality. However, despite the complainant's reassurances, Mr. B refused to allow her to make a reservation and he indicated that the respondent would not allow children to use its facilities under any circumstances. The complainant accepts that she declined the respondent's offer and recommendation to use the facilities of its sister hotel as an alternative venue for the lunch on the basis that the other hotel would not been a suitable venue for her family's requirements on that particular occasion. The complainant and her family had no option but to make a reservation at another hotel which required them to travel a long distance and which transpired to be extremely stressful for her child. The complainant claimed that this special family occasion was ruined as a result of the long distance that her family was forced to travel as a result of the respondent refusing to accept her request for a reservation.
2.3 The complainant claims that the respondent's refusal to accept her reservation for lunch upon hearing that she would be accompanied by her child on the particular occasion amounted to discrimination on the grounds of her family status contrary to the Equal Status Acts. The complainant also submitted that the respondent's refusal to accept her reservation amounted to discrimination on the grounds of her gender as she was pregnant at the time that she attempted to make the reservation. The complainant claims that because of the fact the respondent would not allow her one year old child access to its premises she also felt that her unborn child would not be welcome either. Accordingly, the complainant submitted that the respondent's refusal to accept her request for a reservation was also attributable to her pregnancy and she claims that this amounted to discrimination on the grounds of gender contrary to the Equal Status Acts.
2.4 The complainant submitted that the respondent is not entitled to rely upon the exemption provided for in section 5(2)(h) of the Equal Status Acts in support of its policy to exclude children from accessing its facilities i.e. that it is promoting a special interest to a category of people for a bona fide purpose and in a bona fide manner. The complainant submitted that the respondent is a registered hotel with a public licence and that it should be obliged to provide access to its facilities to all sectors of society. The complaint submitted that the exemption provided for in section 5(2)(h) of the Acts should only be invoked in exceptional circumstances and that the operation of a 'no children policy' by a facility such as a hotel, which is open to the general public, did not constitute exceptional circumstances within the meaning of the Acts.
2.5 The complainant submitted that the respondent was not entitled to avail of the statutory defence provided in section 15(1) of the Equal Status Acts as a defence against the alleged discrimination in the present case and in support of its policy to exclude children from accessing its facilities. The complainant submitted that this defence did not apply in the circumstances of the present case as the provision of access to children to the restaurant facilities on the respondent's premises could not in any way produce a substantial risk of criminal or disorderly conduct.
2.6 The complainant also submitted that the respondent was not entitled to rely upon the provisions of section 12 of the Health Safety and Welfare at Work Act 2005 as a defence against the alleged discrimination in the present case and in support of its policy to exclude children from accessing its facilities. The complainant argued that the admittance of her child, and children in general, did not pose any risk to either their health and safety or that of other users of the respondent's facilities.
3. Summary of the Respondent's Case
3.1 The respondent is a destination Spa retreat and has been in operation for approx. six years and its business objective is to provide a place for adult's to relax, rejuvenate and renew in a unique environment. The respondent's facilities are accessible only by way of prior booking either as a residential or restaurant guest and it is unlike a normal hotel or restaurant business, which has passers-by calling in for lunch, dinner and drinks. The respondent operates a small restaurant which caters for its residential guests along with adults that have a prior reservation and the restaurant accounts for less than 10% of its overall business. Further, unlike a conventional hotel or restaurant, guests at the respondent's facilities are encouraged to leave their mobile phone behind and to wear one of the bathrobes provided to them on arrival for the entirety of their stay, which means that a large number of residential guests would dine in the restaurant and lounge around the property in their bathrobes.
3.2 On the 11th November, 2011, the complainant contacted the respondent to request a reservation for a family lunch and spoke to Ms. A, Receptionist, who advised her that the respondent facility was an adult's only destination spa. When the complainant indicated that she wished to bring her child with her to the lunch, Ms. A then offered her the facilities of the respondent's sister hotel which is part of the group and is heavily family orientated. However, the complainant declined this offer. The respondent's Managing Director, Mr. B, subsequently contacted the complainant to discuss this matter and he explained that the respondent's facilities were an adult's only destination spa which is dedicated to the health and wellbeing of adults. Mr. B advised the complainant that the adult's only environment was appropriate to achieve this objective which was the purpose of its business and he informed her that this policy was well known and contained on all advertising, marketing and promotion materials in relation to the facilities. Again, the offer to use the facilities of the respondent's sister hotel was put to the complainant by Mr. B and this offer was again refused. By letter dated the 8th December, 2011, Mr. B also wrote to the complainant seeking to further explain the nature of the respondent's business and its unsuitability of the facilities for children.
3.3 The respondent denies that the complainant has been subjected to discrimination on the grounds of her family status or gender and it relies upon the exemption provided for in section 5(2)(h) of the Equal Status Acts in support of its policy to exclude children from accessing its facilities i.e. that it is promoting a special interest to a category of people for a bona fide purpose and in a bona fide manner. The respondent submitted that the services and facilities it offers are for the special interests of persons in that category, namely adults and that the difference in treatment in this case is reasonably necessary to promote those interests. The respondent submitted that the services and facilities which it offers are for the special interests of persons in that category, namely those who wish to attend at a property in a unique setting for the purpose of relaxing and getting away from everyday stress or attending spa for treatments. It was submitted that the word unique is important in this context because of the differences between the respondent's facilities and conventional hotels. The respondent submitted that these services are provided for a bona fide purpose to assist those who wish to attend at the property to obtain the use of the facilities and services. It was submitted that the services are being carried out in a bona fide manner and any difference in treatment is necessary to promote these special interests because the adult's only environment is appropriate to achieving these legitimate objectives when one considers the particular services which are offered by the respondent.
3.4 The respondent also relied upon the statutory defence provided in section 15(1) of the Equal Status Acts as a defence against the alleged discrimination in the present case and in support of its policy to exclude children from accessing its facilities. The respondent clarified at the oral hearing that it was relying upon the ''disorderly conduct" rather than the "criminal conduct" element of this defence in the circumstances of the present case. The respondent submitted that owing to the unique, tranquil and quiet environment at its facilities that the admittance of children would produce a substantial risk of disorderly conduct or damage to property. The respondent claimed that there are a large number of unsupervised pool areas, water features and a large pond at the property and it submitted that this risk is posed to the children themselves together with the property of the Spa facilities which it provides. The respondent submitted that it is the potential activities of unsupervised children that would pose the greatest risk in circumstances where children were to be afforded access to its facilities.
3.5 The respondent also relied upon section 12 of the Health Safety and Welfare at Work Act 2005 as a defence against the alleged discrimination in the present case and in support of its policy to exclude children from accessing its facilities. The respondent submitted that it is required to strike a balance between health and safety requirements and the requirements of the Equal Status legislation. The respondent submitted that it does not have the staff within its employ who are trained to deal with children in any situation that could potentially arise, for example, its property is set around woodland and lakes which are potential dangers to visitors to the property and would be even more so to children as such things may present an allurement to them. In circumstances where there are no suitable areas for children and where no suitable staff are employed on the property to deal with any situation that could arise concerning a child, the respondent submitted that it needs to strike a balance between its responsibilities under both pieces of legislation. The respondent claimed that it is obliged under health and safety legislation to all reasonable steps that it considers necessary to protect the health and safety of patrons that attend its premises and accordingly, it submitted that it has struck a reasonable balance in terms of its policy of not allowing children onto the premises.
4. Issues of Jurisdiction
4.1 There were a number of issues raised by the parties regarding the Tribunal's jurisdiction to investigate the present complaint under the Equal Status Acts which can be summarised as follows:
Issue regarding the correct name of the Complainant
4.2 The complainant submitted that the name of her husband should also be added as a complainant to the present complaint. The complainant accepts that the Form ES.1 (Notification Form) and Form ES.2 (Complainant Referral Form) were both completed in her name i.e. Ms. Karen Toner; however, she submitted that it was her understanding that the initial complaint which she referred to the Tribunal, constituted a 'new complaint' following the conclusion of the Tribunal's mediation process. The respondent submitted that the complainant was prohibited from amending the details contained in the complaint by adding the name of her husband on the basis that this would constitute a totally new complaint which did not comply with the time limit provisions for the notification and referral of a complaint as provided for in section 21 of the Equal Status Acts.
Issue regarding the correct name of the Respondent
4.3 The respondent submitted that the entity which the complainant has named as the respondent in these proceedings i.e. Monart does not exist as a legal entity in this jurisdiction or at all. The respondent submitted that Monart is commonly known as 'Monart Destination Spa' and that it does not exist as a legal entity in its own right. The respondent submitted that the complainant has named the incorrect respondent in these proceedings and that the time limits within which the complainant could bring a complaint against any other party has now expired by virtue of the time limits prescribed within section 21 of the Equal Status Acts.
Issue regarding the extension of the present complaint to cover the Gender ground
4.4 The complainant submitted that the scope of the present complaint also includes a claim of discriminatory treatment on the Gender ground (in addition to the Family Status ground). The complainant accepts that the Form ES.1 (Notification Form) and Form ES.2 (Complainant Referral Form) which she submitted to the Tribunal in relation to this complaint referred only to a claim of discriminatory treatment on the Family Status ground. However, the complainant submitted that her written submission to the Tribunal also clearly referred to a claim of discriminatory treatment on the Gender ground and she submitted that the Tribunal should have jurisdiction to consider the complaint on this additional ground. The respondent submitted that the complainant should not be permitted to include an additional claim on the Gender ground at this juncture as such a claim had not been included in the Form ES.1 (Notification Form) and Form ES.2 (Complainant Referral Form) which had been initially referred to the Tribunal. The respondent submitted that the inclusion of an additional ground of complaint at this juncture would extend the scope of the complaint as originally referred to the Tribunal and would be extremely prejudicial.
5. Conclusions of the Equality Officer in relation to issues of jurisdiction
Issue regarding the correct name of the Complainant
5.1 The complainant submitted that the name of her husband should also be added as a complainant to the present complaint. In considering this issue, I note that the Form ES.1 (Notification Form) and Form ES.2 (Complainant Referral Form) were both completed in the name of Ms. Karen Toner and that there was no reference whatsoever to her husband in either of these forms. In the circumstances, I am satisfied that the complainant is precluded from amending the claim at this juncture as to do so would constitute a totally new complaint which did not comply with the time limit provisions for the notification and referral of a complaint as provided for in section 21 of the Equal Status Acts.
Issue regarding the correct name of the Respondent
5.2 In the present case, the respondent has argued that the proper respondent had not been identified in this case on the basis that "Monart" is not a legal entity. Accordingly, the respondent maintains that the Tribunal has no power in law to investigate and hear the case. In considering this issue, I note that the Equal Status Act is a social and remedial statute which is designed to permit all persons to make complaints to the Tribunal. As a no-cost forum it was envisaged that there should be no need in many cases for barristers and solicitors to represent complainants and respondents, and thus the level of informality, or formality, must perforce be different to a courtroom in a formal legal proceeding. Also, in Equal Status cases, there is often no necessary prior relationship between the parties. These combined factors substantially increase the possibility of a complainant not knowing the exact legal name of a respondent. However, since these are inherent in the circumstances being legislated for in the manner as legislated, a refusal to hear a claim due to an inadvertent misnaming of a respondent, would, in my opinion, amount to a frustration of the aims of the statute. Accordingly, I consider that the Equal Status Acts cannot be interpreted in a fashion that would render them impotent and that requiring an exact identification of a respondent may well render the Acts unworkable.
5.3 There is also some existing authority that Tribunals may act in a more informal manner. In Sougrin v. Haringey H.A. [1992] 1 I.C.R. 650 Lord Donaldson MR said:-
"Industrial tribunals are "shop floor" courts whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched."
I am of the view that it would seem that this more flexible and purposive approach would also represent good law with regard to cases brought before the Equality Tribunal. I, therefore, consider that it would be unduly harsh to dismiss this complaint because of misnaming the respondent and that it would also constitute a possible breach of the rights of the complainant to have access to justice. Once there is a clear identification of a respondent by a claimant, it is my view that the complaint should proceed, once the Tribunal has clarified the precise respondent for the purposes of permitting that person to make representations and to defend the allegation made against them. In the circumstances, I am satisfied that the proprietors of 'Monart' are answerable under the Equal Status Acts for the allegation of discrimination in this case. Accordingly, I find that I have jurisdiction to investigate the present complaint.
Issue regarding the extension of the present complaint to cover the Gender ground
5.4 The complainant submitted that the scope of the present complaint also includes a claim of discriminatory treatment on the Gender ground (in addition to the Family Status ground). In considering this issue, I note that the Form ES.1 (Notification Form) and Form ES.2 (Complainant Referral Form) which the complainant submitted to the Tribunal in relation to this complaint referred only to a claim of discriminatory treatment on the Family Status ground. However, it is clear that the complainant's written submission to the Tribunal also clearly referred to a claim of discriminatory treatment on the Gender ground. The only additional information regarding the scope of the complaint that was included in the complainant's submission (and not in the Forms ES.1 or ES. 2) was that she was pregnant at the time she sought to make the reservation for lunch. She claims that because of the fact the respondent would not allow her one year old child access to its premises she also felt that her unborn child would not be welcome either. Accordingly, the complainant submitted that the respondent's refusal to accept her request for a reservation was also attributable to her pregnancy and she claims that this amounted to discrimination on the grounds of gender contrary to the Equal Status Acts.
5.5 In considering this issue, I note that the circumstances in which a complainant can subsequently amend an original claim were considered by the High Court in the case of County Louth Vocational Educational Committee -v- The Equality Tribunal1 . In this judgement McGovern J stated:
"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, then 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 (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."
5.6 It is clear from this judgement that a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. In the present case, it is clear that the extension of the complaint to include the gender ground is based on the same set of circumstances and facts as those which were outlined in the original complaint notification and referral forms i.e. a claim of discriminatory treatment on the basis of the respondent's refusal to accept the complainant's reservation for lunch because she wished to be accompanied by a child on the particular occasion. In the circumstances, I am satisfied that the complainant is not seeking to broaden or extend the general nature of the complaint. Accordingly, I find that I do have jurisdiction to investigate the present claim under the Equal Status Acts on the gender ground.
5.7 It should also be noted that the Tribunal copied the written submission in which the claim on the gender ground was outlined to the respondent and it was afforded an opportunity to respond to the claim at that juncture. I am satisfied that the respondent was put on notice of the claim on the gender ground and that it was afforded an opportunity to respond to the claim at that juncture. In the case of County Louth Vocational Educational Committee -v- The Equality Tribunal, McGovern J. accepted that the Tribunal was entitled to adopt relatively informal procedures regarding the manner in which investigations are conducted provided that the principles of natural and constitutional justice are adhered to. In the circumstances, I am satisfied that the respondent was not prejudiced in terms of the manner in which the investigation in relation to this matter was conducted.
6. Conclusions of the Equality Officer in relation to the substantive issues
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 can rely in asserting that prohibited conduct has occurred in relation to her. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Claim on the Family Status ground
6.2 I will first consider the claim of discriminatory treatment that the complainant has made on the Family Status ground. In the present case, the material facts in relation to the alleged discrimination were not in dispute between the parties. It was not in dispute that the respondent operates an 'adults only' policy in terms of access to its facilities and that the respondent refused to accept the complainant's reservation for lunch upon hearing that she would be accompanied by her child on the basis of the existence of this policy. In the circumstances, I am satisfied that the complainant has succeeded in establishing facts from which it may be inferred that she has been subjected to less favourable treatment on the grounds of her family status. Accordingly, I find that the complainant has established a prima facie case of discrimination on the grounds of her family status and the onus now shifts to the respondent to rebut the inference of discrimination.
6.3 The respondent has relied upon the exemption that is provided for in section 5(2)(h) of the Equal Status Acts in defence of the alleged discrimination in this case. Section 5(2)(h) of the Acts provides that:
"Subsection (1) does not apply in respect of -
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principle 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 interests."
In order to avail of the exemption provided for under section 5(2)(h) of the Acts as a defence against a claim of discriminatory treatment, I am of the view that the service provider in question must be able to demonstrate that:
(a) the particular services in question are being provided for the principle purpose of promoting the special interests of persons in that category;
(b) the services were promoting a bona fide purpose and undertaken in a bona fide manner, and;
(c) that the difference in treatment was reasonably necessary to promote those special interests.
6.4 In applying this reasoning to the circumstances of the present case, I am of the view that the respondent must be able to demonstrate that the difference in treatment afforded to the complainant on the grounds of her family status (i.e. the refusal to allow her access to its facilities because she wished to be accompanied by a child), was necessary for the principle purpose of promoting, for a bona fide purpose and in a bone fide manner, the special interests of persons who wish to attend an "adults only" Spa facility. In order to decide whether the respondent satisfies the requirements to avail of this exemption it will be necessary for me to consider the nature and type of the services that were being offered by the respondent.
6.5 The respondent gave evidence that the facilities it provides are not in the nature of a conventional style hotel or restaurant which has passers-by calling in for lunch, dinner or drinks but rather it is an exclusive five star destination Spa retreat that caters for those in a specialist market and that its main business objective is to provide a place for adult's to relax and rejuvenate in a unique and tranquil environment. The respondent provides a comprehensive range of spa therapies and treatments for those who wish to get away from the stresses of everyday life and it also caters for expectant mothers and persons recuperating from serious illness or those with medical conditions. The respondent's evidence was that it is necessary to restrict the use of its facilities to adults only in order to create the environment necessary to achieve its business objective. Indeed, I note that all of the advertising literature and material presented in evidence supports the respondent's contention that its primary business objective is to provide a luxury Spa retreat in an adult's only environment. Based on the evidence adduced, I am satisfied that the principle purpose of the services offered by the respondent is to provide a high class and exclusive Spa facility for a specific category of persons who wish to experience and avail of such services. Having regard to the objectives that the respondent strives to achieve and the nature of the business model that it operates, I am satisfied that it is reasonably necessary for the respondent to confine the use of its facilities to the adult sector of society and that the exclusion or prohibition upon children from accessing these facilities is appropriate and necessary to achieve these objectives.
6.6 I note that in the present case, the complainant did not wish to avail of the respondent's Spa facilities in their entirety but rather she attempted to make a reservation for a family lunch at the restaurant which the respondent operates as a part of its overall facility. However, based on the evidence adduced, it is clear that the restaurant and dining facilities provided by the respondent are not akin to those associated with a more conventional style hotel or restaurant and I note the respondent's contention that its restaurant facilities are not open to the public or at least not as one of its business objectives. I also note that these dining facilities are designed to cater predominantly for the respondent's residential guests and that it is normal practice for these guests to dine in the restaurant whilst attired in their bathrobes. In the circumstances, I am satisfied that the operation of an "adults only" policy by the respondent in relation to the entirety of its facilities, including the restaurant and dining area, is not unreasonable in terms of promoting the special interests of the category of persons to which its services are directed. I have also taken note of the fact that the respondent, as an alternative, offered the complainant the use of its restaurant facilities in its sister hotel and which is heavily family orientated; however, the complainant refused to accept the respondent's offer. Having regard to the foregoing, I find that the respondent is entitled to avail of the exemption provided for in section 5(2)(h) in rebutting the inference of discrimination in the circumstances of the present case. Accordingly, I find that the respondent has successfully rebutted the inference of discrimination on the grounds of family status.
Other defences put forward by the Respondent
6.7 The respondent has also submitted that it is entitled to rely upon the exemption provided for in section 5(2)(l) of the Equal Status Acts, the statutory defence provided in section 15(1) of the Equal Status Acts and the provisions of section 12 of the Health, Safety and Welfare at Work Act, 2005 in defence of the alleged discrimination in the present case. As I have already found that the respondent is entitled to rely upon the exemption provided for in section 5(2)(h) of the Acts to rebut the inference of discrimination on the grounds of family status in the present case, I am not obliged to consider the other defences put forward by the respondent.
Claim on the Gender ground
6.8 Finally, I will consider the claim of discriminatory treatment that the complainant has made on the Gender ground. The complainant claims that she was pregnant at the time she sought to make the reservation for lunch at the respondent's restaurant. She claims that because of the fact the respondent would not allow her one year old child access to its premises she also felt that her unborn child would not be welcome either. Accordingly, the complainant submitted that the respondent's refusal to accept her request for a reservation was also attributable to her pregnancy and she claims that this amounted to discrimination on the grounds of gender contrary to the Equal Status Acts.
6.9 In considering this issue, I note that the complainant's interaction with the respondent in terms of her attempt to make a reservation for lunch took place by way of a telephone call and I am satisfied that there was no evidence adduced to suggest that the complainant made the respondent aware of her pregnancy or that the respondent would have had any knowledge or inclination of this fact at the time of the alleged incident of discrimination. Notwithstanding the foregoing, it is clear from the evidence adduced by the respondent that it caters extensively for expectant mothers and that the extensive range of treatments and therapies provided in its Spa resort are widely available to expectant mothers. In the circumstances, I am satisfied that the respondent's decision to refuse the complainant's request for a lunch reservation was in no way attributable to the fact of her pregnancy. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of gender in the circumstances of the present case.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2011, I conclude this investigation and issue the following decision.
7.2 I find that the complainant has established a prima facie case of discrimination on the family status ground in terms of Sections 3(1) and 3(2)(c) of the Equal Status Acts and contrary to section 5(1) of those Acts. I find that the respondent is entitled to rely upon the exemption provided for in section 5(2)(h) of the Acts and that it has succeeded in rebutting the inference of discrimination on the grounds of family status in the circumstances of the present case.
7.3 I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of Sections 3(1) and 3(2)(a) of the Equal Status Acts and contrary to section 5(1) of those Acts.
Accordingly, I find in favour of the respondent in the present case.
Enda Murphy
Equality Officer
18th July, 2013
Footnotes:
1 [2009] IEHC 370