THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
DEC-S2014-003
Mr Martin McDonagh
(represented by Mr Niall Dodd B.L.
instructed by Oliver Roche & Co Solicitors.)
versus
The Clanree Hotel
(represented by Mr Liam Carroll of Grant Thornton
instructed by William Fry solicitors.)
File reference: ES/2012/0042
Date of issue: 14 April 2014
Keywords: Equal Status Acts 2000 to 2011 – Discrimination, section 3(2)(i) – Travelling Community–provision of a service, section 5(1)
Delegation under the Equal Status Acts
The complainant referred his complaint under the Equal Status Acts 2000 to 2011 (hereinafter referred to as” the Acts”) to the Director of the Equality Tribunal on 5 April 2012. On 28 June 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Peter Healy, 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 this date my investigation commenced. As required by S. 25(1) of the Acts and as part of my investigation, I proceeded to hold a hearing of the case on 11 September 2013.
1. Dispute
1.1 The case concerns a claim by Mr Martin McDonagh (hereinafter referred to as” the complainant”) that the Clanree Hotel Ltd (hereinafter referred to as” the respondent”) discriminated against him on the ground of his membership of the Traveller community contrary to Section 3(2) (i) of the Equal Status Acts 2000 to 2011, in terms of refusal to provide a service within the meaning of S. 2 of the Acts.
2. Summary of the Complainant's Submission
2.1. The complainant submits that he was refused membership of a hotel health club, operated by the respondent. He submits that he was refused membership on many occasions over a number of years because he is a member of the Travelling community. The complainant gave oral and written evidence of two specific occasions on which he was refused membership.
2.2 The complainant submits that on 25 November 2011 he entered the health club with the intention of obtaining membership. The complainant provided the following account of his interaction on that occasion. He says he approached the counter and informed Staff Member A that he “wanted to become a member”. Staff Member A replied that there was “no room”. The complainant responded “ Can I have that in writing?” and without any further conversation Staff Member A provided the complainant with a written statement to that effect and the complainant then left the premises. A copy of this document was provided for the Tribunals consideration.
2.3 On the following day, the complainant submits that he arranged for a friend (Mr C) to apply for membership of the same health club, in the same manner, by providing him with the required fee. Mr C was admitted instantly. The complainant states that Mr C is not a member of the traveller community.
2.4 The following day the complainant again attempted to acquire membership in the same circumstances except with a different member of staff (Staff Member B) and was refused with the same reason. The complainants’ account of his interaction with Staff Member B matches exactly with his account of his interaction with staff Member A at 2.2 above.
2.5 The complainant submits that the reason given for refusal of membership was untrue given the admittance of Mr C. He also gave evidence that he believes that both staff members were aware that he was a member of the travelling community and that at all times when he entered the health club that he was made to feel unwelcome due to the general behaviour of staff and other members.
3. Summary of the Respondent's Submission
3.1 The respondent denies that they refused to allow the complainant to acquire membership on the basis that he is a member of the travelling community. They agree that he was denied membership but that the complainant was refused on both occasions as the health club membership was full. The respondent supplied some written evidence to this effect in the form of a copy of a hand written log of memberships. The respondent submits that two memberships expired on the 26th November 2011 and were not renewed. However, two new members joined on the 26th November 2011, one of whom was Mr C, before the complainant made his second query.
3.2 The respondent submits that the staff members who interacted with the complainant had no knowledge that he was a member of the travelling community.
3.3 The respondent agrees with the with complaints’ account of interactions with staff. The respondent accepts that Mr C acquired membership on the 26th November 2011.
3.4 The respondent submitted that there was no official process for selecting new members should vacancies arise.
3.5 When questioned in the hearing about what procedures existed to prioritise individuals to fill future vacancies that might arise, both staff members gave accounts of two different methods that were used. Staff member A said that he might write down the names and contact details on a list which was kept at the reception desk. Staff Member B said that prospective members would be asked to fill out an application form. These forms would be kept in a pile under the reception desk. When vacancies arose the top form on the pile would be selected for membership.
3.6 The respondent stated that the complainant was now welcome to join the club now as membership is not currently full.
4. Conclusions of the Equality Officer
4.1 The issues for decision in this case are whether the complainant was discriminated against within the meaning of the Acts.
4.2 The burden of proof is set out in Section 38A which provides that:
" 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."
Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. 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 …”.
4.3 The complainant is a member of the Travelling community and it is common case that he was denied access to a service twice. It is also common case that during the same period and in the same circumstances a person who is not a member of the Travelling community was able to access that service. Given the almost identical circumstances experienced by both the complainant and the comparator, and also the timing of the concerned events, I find sufficient evidence to establish a prima facia case of discrimination and it is a matter for the respondent to rebut the complaint.
4.4 There is no disagreement between the parties in regards to the events that took place. It is common case that the complainant was refused membership and Mr C was not. Both staff members agree with the account put forward by the complaint of his interaction with them.
4.5 It is clear from the uncontested account of the conversations between the complainant and the staff members that no effort was made to engage in conversation with the complainant. On both occasions the complaint made the unusual request for a written statement that membership was full and on both occasions two different staff members complied without any comment whatsoever. I find the failure of the respondent to alert the complaint that there were two different methods of getting onto a waiting list for future membership to be clear evidence of less favourable treatment and requires explanation by the respondent. However, when questioned directly on this the witness could give none.
4.6 During the hearing Staff Member A, who was a manager, gave evidence that there was no official procedure to select new members for the club to fill arising vacancies. This is at odds with the reality of two different methods as outlined at 3.5 above. I found Staff Member A to be inconsistent and evasive about the existence of a waiting list. When asked directly why he maintained a written list of contact names and numbers given it was not the policy to have waiting list he replied that he “did not know”. It is clear then that the selection of new members was left up to the arbitrary discretion of staff at the front desk.
4.7 The complainant maintains that the maximum membership of the club was 550 for insurance related reasons. Evidence was given that this figure could be checked at the front desk, however it became clear during the hearing that some of the staff were unaware of how to use the computer system in order to check this this figure. I therefore find that instant refusal of new members on the basis that staff knew the 550 figure had been reached, not to be credible.
4.8 The respondent submitted that there was one other traveller who was a member of the gym. While Staff Member A did not know this individual person he said he knew that he was a traveller based exclusively on that persons name and that people with that name were known to be travellers.
4.9 I found Mr McDonagh to be a credible witness and I believe his assertion that he was refused membership on multiple occasions in addition to the two occasions for which written evidence has been provided. It has not been contested that he was offered no engagement from staff as to how he might get membership. I am satisfied that the health club used the mechanism of waiting lists to exclude individuals from membership. The treatment he experienced at the respondent health club does constitute less favourable treatment because he is a member of the Traveller community, and this has not been rebutted. Accordingly, Mr McDonagh is entitled to succeed in his complaint.
5. Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
• That the complainant has established a prima facie case of direct discrimination on the ground of membership of the Travelling community and this has not been rebutted by the respondent.
5.2 Therefore, as per Section 27(1) (a) I order the respondent to pay to the complainant the sum of €1,800 in compensation for the effects of the prohibited conduct. In deciding on this amount I have taken into consideration the low cost of membership but the prolonged and repeated nature of the prohibited conduct.
______________________
Peter Healy
Equality Officer
14 April 2014.