The Equality Tribunal
Equal Status Acts, 2000 to 2013
Equality Officer Decision
DEC-S2014-028
A Complainant
-v-
A Leisure Centre
File Ref: ES/2012/0057
Date of Issue: 30 December 2014
Keywords: Equal Status Acts 2000-2013 – access to a service – sexual orientation ground - Section 3 (1)(a) - Section 3(2)(d)
1. This complaint was referred to the Director of the Equality Tribunal on 17 May 2012 under the Equal Status Acts, 2000 – 2012 (hereinafter “the Acts”). In accordance with his powers under Section 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the complaint to me, Valerie Murtagh, 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. On 6 August 2014, my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 22 October 2014.
2. This dispute concerns a claim by the complainant that he was discriminated against on the sexual orientation ground in terms of section 3 (2) (d) of the Acts in relation to being refused renewal of membership of the respondent leisure centre.
3. Summary of the Complainant’s case
3.1 The complainant submits that the respondent refused to renew his membership on account of him being gay. The complainant and his partner had been members of the leisure centre the previous year but when it came to renewal of membership, the complainant was told that his membership was not being renewed. The complainant submits that when he requested a reason for refusal, he was advised by the manager that the company has a right to refuse and he should contact the owner. The complainant states that the following day he went to the hotel with his partner and asked the manager did he do anything wrong and was he being refused because he was gay to which the manager said no comment. Then the complainant states that he asked him had it anything to do with him slipping in the toilets on 30th October and the manager said that it had nothing to do with that incident. The complainant put it to him was it because the father of one of the employees knocked him off his bicycle and the owner said it was nothing to do with it. The complainant states that he got no adequate explanation for his refusal of renewal of membership. He submits that he is of the view that he was refused renewal of membership because he is an openly gay man and did express himself a couple of times in the pool area by kissing his partner. The complainant also submits that the respondent gave his partner a reduced membership fee so as to avoid any legal comeback and to discredit his case of discrimination. The complainant submits that he has been discriminated against by the respondent on grounds of his sexual orientation contrary to the Equal Status Acts.
4. Submission on behalf of respondent
4.1 The respondent refutes the allegation of discrimination. The manager on duty states that on January 6th, the complainant came to the hotel requesting to speak to the general manager J. The general manager was away on leave so the manager on duty P dealt with him. P states that the complainant said that J had given out to him and shown CCTV footage of the complainant to a local taxi driver. He told P that he had said this to his solicitor and threatened to take J to court. P states that the complainant told him directly that he had a recording of J saying this to him. P replied that this was unlikely and that he would have needed J’s explicit permission to record that conversation. Then, P indicated to the complainant that J would be back in work on January 13th and the complainant could make an appointment to see him then. P claims that the complainant accepted this but upon leaving, he said J is going to be in very big trouble and he would make sure of it.
4.2 The general manager J stated that the complainant went to the hotel porter on the night of 30 October 2011 stating that he slipped and fell on a wet floor in the toilets at circa 12.30 and that he had a bad pain in his back and went into the local hospital and was there until 6 am. J submits that the complainant said to him that he did not want to go to his solicitor about the matter but would like compensation and renewal of his membership for free. J said to the complainant to bring him in the medical report from the hospital and he would cover any medical bills. J said that two weeks passed and the complainant came to meet him and said the hospital would not give him any documentation. J states that around 3 weeks later on 10th December, a father of one of his employees Mr. P who is a taxi driver said to J that he had taken a fare around 3.00 am on the night the complainant alleges he was in the hospital following a fall on a wet floor at the respondent’s premises. Mr. P stated that he was dropping the person home when the complainant waddled out in front of him on the bicycle and he knocked him off his bicycle. J asked the taxi driver was the complainant hurt and the taxi driver said “no, no he went off again and seemed fine”.
4.3 When J returned from leave in mid-January, he said to his staff that he was barring the complainant from the hotel. The leisure centre manager explained that the complainant had only 4/6 weeks left on his membership and J said let him finish it out but that his membership was not to be renewed. The general manager submitted that this decision was nothing whatsoever to do with the complainant’s sexual orientation but due to a threat to him that he was in big trouble and would take the respondent to court. The general manager stated that it has a policy that any individual who threatens a staff member will be barred from the premises. The respondent states that there is no issue with the complainant’s partner who is gay and that his membership was renewed. The respondent contends that he gets a discounted rate and did so the previous year based on his mother contacting the leisure centre manager stating that he was not working and requesting a discount on that basis and the fact he was a member there for a few years. The respondent states that only one week prior to the hearing, the complainant advised the general manager that if he was given a year’s free membership, he would drop the equality claim. The respondent states that this is further vindication of its position and refutes the claim of discrimination stating there is no basis to the claim.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation was whether or not the complainant was discriminated against on the sexual orientation ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions and oral testimony made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3.- (1) For the purposes of this Act, discrimination shall be taken to occur—
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’
The complainant is required to establish facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of section 2 of the Equal Status Acts.
5.2 In the instant case, the issue for decision is whether or not the complainant was discriminated against on the sexual orientation ground by the respondent’s refusal to renew his membership. Having carefully considered all the evidence in the case, I find the testimony of the complainant unconvincing and lacking in credibility. On the other hand, the respondent’s evidence in its submissions and in its testimony on the day of the hearing is consistent with the events as outlined. I find that the complainant was caught out in a lie, in that, he advised initially that he slipped on a wet toilet floor and injured his back and was in the local hospital until 6 am but subsequently a local taxi driver stated to the manager of the hotel that he had cycled out in front of him circa 3 am and that he was knocked off the bicycle in the incident but the taxi driver said that the complainant indicated he was fine and got back on his bicycle and went home. I also find it telling that the complainant, when requested by the general manager to provide medical certificate/bill regarding the admission to hospital following the slip on the wet floor, said the hospital authorities refused to give him any documentation regarding same. I find this statement unreliable and do not accept the complainant’s argument in this regard.
5.3 Overall, following consideration of the submissions and witness testimony, on balance, I find the respondent’s version of events more compelling and I find that its witnesses gave cogent and credible evidence. I am satisfied that the complainant’s membership of the respondent leisure centre was not renewed due to serious threats on behalf of the complainant to the general manager. I am satisfied that this refusal was completely unrelated to the complainant’s sexual orientation. The respondent gave evidence stating its membership comprised of quite a number of persons who were gay including the complainant’s partner and that it did not pose any issue for them. The complainant has also argued that his partner was given a discounted rate when renewing his membership so as to discredit the complainant’s case. Having examined the documentation, I find that the complainant’s partner had got discounts in the previous two years on the basis of representations by his mother as he was out of work and because he was a member of the leisure centre for a few years at that stage. I also find it lacking in credibility that if the complainant was so treated because of his sexual orientation why his partner would want to continue being a member of the respondent leisure centre. Overall, I find that the complainant has not demonstrated prima facie evidence of discrimination on grounds of his sexual orientation and his complaint fails.
6. Decision
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the respondent did not discriminate against the complainant on grounds of sexual orientation contrary to the Equal Status Acts.
Valerie Murtagh
Equality Officer
30 December 2014