The Equality Tribunal
Equal Status Acts 2000 to 2013
DECISION NO: DEC-S2013-011
Martin McDonagh
(Represented by Andrew d'Arcy & Co, Solicitors)
V
Flynn Brothers Rentacar Ballygar T/A Budget Car Rental
(Represented by MacSweeney & Company, Solicitors)
File No. ES/2012/0156
Date of Issue: 21 October 2013
Keywords: Equal Status Acts 2000 to 2013 - Discrimination, section 3 - disability ground, section 3(2)(i) - - Less favourable treatment, section 5(1) - Period of notification, section 21(2A) -
1 Delegation under the Equal Status Acts
1.1 The complainant referred his claim to the Director of the Equality Tribunal under the Equal Status Acts on 5 November 2012. In accordance with his powers under section 75 of the Employment Equality Acts, 1998 - 2011, 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 23 July 2013. A hearing was scheduled for 7 October 2013.
2 Dispute
2.1 The dispute concerns a complaint by the complainant that he was treated contrary to section 5(1) on the basis of the Traveller community ground.
3 Preliminary Issue - Notification under the Acts
3.1 As required by the Acts, the complainant sent notification to the respondent of his intention to take a claim under the Equal Status Acts.
3.2 The notification was sent by registered post and was received by the respondent at 8.54am on 17 September 2012. The respondent contends that this is out of time as the Acts require notification take place within 2 months of the date of the prohibited conduct. Their contention is that as the notification was received two months and one day later, it is out of time.
3.3 The complainant submitted that the notification is in time as the notification was sent within two months of the date of the prohibited conduct. In the alternative the complainant sought for the Equality Officer to consider that the delay in posting amounts to exceptional circumstances within the meaning of Section 21(3)(a)(ii) and thereby the two month timeframe envisaged under Section 21(2)(a) may be extended.
3.4 Section 21(2A) states "For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent".
3.5 Having considered the submissions of both parties and the delivery report showing that the notification was delivered by registered post at 8.54 on 17 September 2012, I am satisfied that the notification demonstrates that the notification was sent prior to 17 September 2012, was received by the respondent, and therefore the notification provisions of Section 21(2) are satisfied. Accordingly, I am satisfied that it is appropriate for me to consider the substantive elements of this complaint.
4. Complainant submissions
4.1 The complainant submitted that he was discriminated against when he went to rent a car from the respondent.
4.2 The complainants submitted that he booked a car rental on-line but that when he went to pick up the car he was informed that they had no cars available for rental.
4.3 The complainants submitted that the reason for this less favourable treatment was related to his membership of the Traveller community.
5 Respondent submissions
5.1 The respondent submitted that it had no knowledge that the complainant was a member of the traveller community and therefore could not have discriminated against him on that basis.
5.2 The respondent submitted that because of the complainant's demeanour and presentation and owning to the information tendered in the online booking system, the rental agent was uncomfortable renting the vehicle to the complainant and in the circumstances declined to do so.
5.3 The respondent submitted that its agent was not satisfied to rent the vehicle to the person who presented at its desk, for reasons unconnected with the complainants alleged membership of the Traveller community
6 Findings
6.1 Both the complainant and Mr X, the respondent's rental agent gave oral evidence to the Tribunal. From that evidence I am satisfied that the following has been established:
- The complainant made an online booking for rent a car prior to 17 September 2012
- The complainant arrived at the respondent's rental counter on 17 September 2012 with the reference number of the booking
- The complainant did not arrive at the rental desk from the arrivals hall area of the airport
- The respondent informed the complainant that there was no corresponding booking under that number even though such a booking was visible to the agent, and obliged him to obtain a printout of his booking confirmation before it would proceed further
- The complainant had to return to his parents house and although could not print out the booking confirmation, returned to the respondent's rental counter with his father's IPad with the booking confirmation on it.
- The respondent informed the complainant that his booking reservation was merely a query and did not constitute an actual reservation.
- Ultimately, the respondent informed the complainant that it had rented out all of its available cars earlier in the day and had no cars left to rent, even though this was not the case.
- The complainant is a member of the Traveller community
6.2 I found the complainant to be honest and forthright when giving his evidence. On the other hand, Mr X, the rental agent who appeared for the respondent gave some elements of his evidence with clarity but was particularly vague when recounting other elements of his evidence. For example, he confirmed that he noticed the complainant approaching the rental desk because he did not come in from the arrivals area, but could not remember who dealt with him initially, he could not remember how many times he dealt with the complainant but confirmed that he considered him to be aggressive.
6.3 Mr X conceded that he did not tell the complainant the truth that he was uncomfortable renting a car to him but instead initially indicated to the complainant that there was no booking and later on, after having made the complainant return home to produce the written booking confirmation, indicated to him that his booking was more of a query rather than a confirmed reservation before telling the complainant that he had no more cars to rent.
6.4 Mr X suggested that the non-indication of the complainant's postcode was a cause for concern, but also confirmed that a person could make a booking online without inputting a postcode (as the complainant had done). He also confirmed that he made up his mind not to rent a car the complainant as the complainant approached the respondent's rental counter.
6.5 The respondent stated that the complainant had not stated that he was a member of the Traveller community but did not suggest that he didn't fall with that ground. The respondent also stated that, at no stage in the interaction, did the complainant identify himself as a member of the Traveller community and therefore it couldn't have known that he was a member of the Traveller community.
6.6 Mr X, when asked to give the usual reasons for refusing a rental car to someone stated that the he would refuse someone on grounds of competency, age or whether they were under the influence of alcohol. He did not suggest that the complainant fell within any of these grounds. When asked why he refused to provide the complainant with a car, Mr X stated that he was "uncomfortable" doing so. He further stated that he found it "difficult to articulate" the reasons why he felt uncomfortable and despite being given opportunity to do so, did not elaborate upon this. Mr X indicated that he worked in a highly competitive business, that he was mindful that there could be accidents and that vigilance needs to be exercised when renting out a car. He indicated that he had twenty eight years experience and that his guiding principle was once you make a decision 'stick to your guns'.
6.7 The respondent submitted an equality policy for consideration that related to its employees but confirmed that it did not have a corresponding policy relating to persons who sought its services.
6.8 Having considered the evidence from both parties, I am satisfied that the complainant has raised facts from which discrimination may be inferred. Therefore I am satisfied that the burden of proof passes to the respondent in order to rebut the inference of discrimination raised by the complainant. The respondent has given no cogent reason why the complainant was not provided with a rental car despite being given a number of opportunities to do so. Accordingly I am satisfied that the complainant is entitled to succeed with this complaint.
7 Decision
7.1 I am satisfied that the complainant has established facts from which discrimination under Section 5(1) of the Acts may be inferred on the Traveller ground and that the respondent has not rebutted this inference.
7.2 Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
7.3 Under the above Section the maximum amount of compensation I can award is €6,348. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant. I order the respondent to pay to the complainant the sum of €3,500 (three thousand five hundred euro) to compensate him for the anxiety and distress experienced as a consequence of the discriminatory treatment.
7.4 In accordance with Section 27(1)(b) of the Equal Status Acts, I also order that the respondent, within 6 months of the date of this decision, carry out a review of their procedures in relation to the rental of vehicles and to devise, train staff in, and implement an equality policy relating to the provision of services to the public under the protected grounds outlined in the Equal Status Acts.
Conor Stokes
Equality Officer
21 October 2013