THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
DEC - S2014- 023
Philip Jordan
versus
Millenium Café
File reference: ES/2012/0085
Date of issue: 16 December 2014
Keywords: Age –access to a service
1. Claim
1.1. The case concerns a claim by Mr Philip Jordan that the Millenium Café discriminated against him on the ground of age contrary to Sections 3(2)(f) the Equal Status Acts 2000 to 2011, when they refused to allow him a student discount when he was a customer at their café. The complainant also submitted that the treatment of him by the respondent amounted to victimisation under section 3 of the Acts. The complainant submitted that the respondent in providing services had failed to meet its obligations under the Acts.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 9 July 2012. On 10 November 2014, in accordance with his powers under S. 25 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 Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a hearing of the case on 14 November 2014.
2. Summary of the Complainant’s Submission
2.1. The complaint submits that he was a mature student at the relevant time. The complainant and his partner where passing through Moate on the Bank Holiday Monday, 7th May 2012, when they stopped for lunch at the respondent’s cafe. Neither are from the area and this was the only occasion they have ever entered the respondent s premises. The complainant submits that there was a sign displayed in the window of the café advertising a special deal for students in relation to a combination of items on the menu and it was primarily this sign that enticed him to enter the café.
2.2 The complainant submits that there were perhaps two or three other patrons in the café and that he and his partner sat in a corner apart from the other patrons. The complainant submits that a waitress approached them and they placed an order including the advertised special deal. The complainant says that as he was making his order that he produced his student I.D. but that the waitress told him “you are too old”
2.3 The complaint says that nothing else was said and that the waitress returned to the counter area of the café. The complainant says that he noticed the waitress and another member of staff “babbling on in their own language” followed by them looking in his direction and laughing. The complainant submits that it was clearly apparent that his age (55 years) was the subject of amusement.
2.4 The complainant submits that he but particularly his partner felt humiliated by the actions of the waitress and that the manner in which the respondent dealt with his complaint amounts to victimisation.
3. Summary of the Respondent’s Submission
3.1. The respondent denies discriminating against the complainant. The respondent agrees that the complainant entered their premises on the given date and that both he and his partner had been customers, but the respondent rejects the allegation that the waitress told him that he was too old or that any reference was made to the his age.
3.2 The respondent submits that the waitress recalls the incident involving the complainant due his unusually abrasive and rude manner but that she served him in a professional manner regardless. The respondent submits that the complainant was rude in how he expressed his difficulty with her control of the English language. The respondent submits that the other member of staff referred to by the complainant was Irish.
3.3 The respondent submits that the special deal to which the complainant is referring is offered to secondary school students as the café is adjacent to a community school.
3.4 The respondent submits that the complainant cannot be deemed to have reached the standard of proof required by simply stating that there was an implication he was to old.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against on the grounds of age within the meaning of the Acts when it is alleged the respondent failed to provide him with a discount and treated him in a demeaning manner.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. 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 him. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. In his written submission the complainant stated that the waitress had “implied” that he was to old, yet at hearing the complaint insisted that the waitress had used the exact words ”you are to old”. When given the opportunity at the hearing to explain this difference the complainant would not offer any comment. Therefore, I find that I cannot rely on the complainant’s evidence in this regard. The complainant’s partner, who would have been in a position to verify the complainant’s account, did not attend the hearing.
4.5 At hearing, the complainant gave evidence that the laughing complained of took place at least five minutes after his interaction with the waitress. The complainant by his own account could not understand what the staff were saying. Having heard all of the specifics in relation to the allegation of laughing and unwanted attention, I find no evidence to support the complainant's assertion that it was directed at him and I find that the complainant is speculating in this regard.
4.6 The waitress did not attend the hearing but in a written submission denies making any reference to the complainant’s age. I have in considering this matter attached greater weight to the verbal account given by the complainant. However, I find that the complainant has failed to establish facts that can be relied upon to assert that the prohibited conduct has occurred.
4.7 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 …”.
4.8 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am not satisfied that the complainant has established facts from which if can be shown that he was treated in a less favourable manner than others on grounds of age. Rather, I consider that all the complainant has put forward is mere speculation or assertions unsupported by evidence.
5 Decision
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has not been established and this complaint fails.
5.2 I find that that a prima facie case of victimisation has not been established and this element of the complaint fails.
______________________
Peter Healy
Equality Officer
16 December 2014