DEC-S2014-021

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 to 2011

DEC- S2014-021

Brendan Byrne

(represented by Brian O’Byrne)

versus

Greenhills Outdoor Bowls Club

(represented by Cullen and Co. Solicitors)

File reference: ES/2012/0119

Date of issue: 28 November 2014

Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation,

Dispute

1.1 The case concerns a claim by Mr Brendan O’Byrne, (deceased and hereinafter referred to as ‘the complainant’) that he was subject of discrimination by Greenhills Outdoor Bowls Club (hereinafter referred to as ‘the Respondent’) on the grounds of age and disability contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’) in its’ failure to provide him with reasonable accommodation, pursuant to Section 4 of the Acts when he was refused accesses to the respondent’s facilities. The complaint also submitted that the treatment of him by the respondent amounted to victimisation under section 3 of the Acts and of harassment contrary to Section 11 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 Acts to the Director of the Equality Tribunal on 11 September 2012. On 19 September 2014, in accordance with his powers under S. 75 of the Employment Equality Acts, and under the Equal Status 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. Submissions were received from both parties and a hearing was held on 8 October 2014 as required by Section 25(1) of the Acts. Final submissions were received from the complainant on 3 November 2014.

1.3 The complainant died in 2014 before the complaint came to hearing. The respondent has not contested that pursuant to the Civil Liability Act, the Equality Tribunal can proceed to investigate a complaint in event of the complainant being deceased, but did request sight of documentation to establish that the proposed representative had the proper status to proceed with the complaint. In the final submission the complainant’s representative has provided a copy of the complainant’s will and I am satisfied that Mr Brian O’Byrne is entitled to proceed with the complaint. While Mr Brian O’Byrne has acted as representative for the complainant in this matter he was not present during the incidents that led to this complaint. The complainant’s other son was present for both of the incidents under examination and he attended the hearing as the sole witness for the complainant. At hearing both parties were requested to comment on the normal procedure of the Tribunal to anonymise the names of witnesses in any published decision. The complainant insisted that the name of one particular witness for the respondent be included, but when asked to give reasons for this request, no reasons were given. I therefore find no reason to vary from the normal procedure of the Tribunal in this regard.

Summary of the complainant’s written submission and evidence presented on his behalf at the hearing.

2.1 The complainant submits that he and his son joined the bowling club in June 2011 for a fee of €50 each to cover the remaining months of the year. The complainant was issued with a key to access the grounds. A number of weeks later the complainant (who was eighty-five at that time) fell during a game and injured himself. He stated in his written submission that he had difficulty in participating in physical activities and had also lost the use of his left hand (which he used to bowl with) but had continued to bowl with his other hand. However the injury prevented the complainant from attending the club for some time.

Incident A

2.2 The complainant submits that in 2012 he felt some improvement in his condition and that in July 2012 the complainant and his son visited the club to play a game of bowls and to join up again for the rest of the year. The complainant submits that he identified a member of the committee (Ms A) but as she was involved in a competition game that he decided not to disturb her and began playing in the lane furthest away. In his written submission the complainant submits that just after he had set up his game he was approached by a man, Mr B who told him and his son that they could not play. The complainant stated that he and his son waited to talk to Ms A in order to express their annoyance at being asked to leave. It was submitted on behalf of the complainant that Ms A explained that the fee for 2012 was €100 euro and that the complainant’s son paid his full fee at this point. The complainant submits that Ms A confirmed that this was the fee up to September of the following year. In his written submission the complainant states that there were some comments by the other members present enquiring if he and his son were welcome at the club and that he was forced to leave in humiliating circumstances.

Incident B

2.3 The complainant submits the next day he and his son returned for a game when they met Ms A and her husband. The complainant submits that he was informed by Ms A and her husband that they both had to be members in order to play. The complainant was upset by this as he submitted he was allowed to bring guests on occasions. The complainant says that Ms A’s husband demanded his key back and he returned it. The complainant submits that Ms A assured him that his money would be refunded. The complainant submits that no refund was ever received.

Disability and age.

2.4. The complainant submits that from the outset of his joining the club he had difficulty walking for any period of time and had to sit down every 15 minutes. After a number of weeks the complainant informed the club that because of his age he would not be in a position to engage in the clubs activities as he had originally promised. The complainant alleges that due to his age and disability that Ms A decided that he was a burden and that she decided that the club would be better off to rescind his membership. The complainant alleges that this action constitutes discrimination on the age ground.

2.5 The complainant submits that as a result of the accident and injury that the complainant had sustained that the Club, that specifically Ms A had taken the decision that he was no longer desirable as a member as the injury might lead to an insurance claim if he aggravated it again while playing.

2.6 The complainant alleges that Incidents A and B amount to public humiliation culminating in a demand for return of his key.

Victimisation

2.7 The complainant argues that the refusal of the club to refund the subscription following the lodging of a complaint under the Acts amounts to victimisation.

Summary of the respondent’s submission

3.1 The respondent rejects all aspects of the complaint and emphasised the age profile of the clubs membership as evidence that they have accommodated members of all ages and abilities. Both Ms A and Mr B attended the hearing and gave direct evidence of both incidents in question.

Incident A

3.2 The respondent submits that incident A took place on 5 July 2012. Ms A submits that during her game she noticed the complainant and his son at the other end of the ground. She submitted that she was aware that the complainant was not a paid up member as the issue of lapsed membership had recently been discussed at the Club committee and a list of such individuals had been compiled. Ms A submitted that as she could not leave her game she asked another committee member Mr B to “have a word” with the complainant. Mr B submitted that he approached the complainant and inquired if he had paid his membership and was informed by the complaint and his son that they would talk to Ms A. Ms A submits the complainant’s son approached her during her game and gave her €50. Ms A submits that when the she informed the complainant and his son that the membership fee was €100, that the son became annoyed and aggressively “almost threw” some more money at her.

Incident B.

3.3 Ms A submits that she and her husband were at the bowling club when she was approached aggressively by the complainant’s son who demanded to know why the rules about membership had been changed. Ms A submits that due to the aggression of the complainant’s son she went to join her husband. Ms A submits that complainant’s son kept shouting at her about the annual subscription, culminating in a request for money back and that she explained that this would be a matter for the clubs treasurer. Ms A states that at this point the complainant’s son told the complainant “we are leaving”. Ms A gave evidence that the complainant was not asked to give back his key.

Conclusions of the Equality Officer

4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the age and disability grounds).... A person is treated less favourably than another person is, has been or would be treated.”

Section 3(2) provides that: as between any two persons, the discriminatory grounds are,

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”

4.2 Harassment is defined in section 11 of the Acts as "any form of unwanted conduct related to any of the discriminatory grounds" that has "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Furthermore, such unwanted conduct may consist of "acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

4.3 In regards to reasonable accommodation, Section 4 of the Acts provide:

4.(1) For the purposes of this Act discrimination includes a refusal or failure by

the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

4.4 Victimisation is defined in section 3(2),

(j) that one—

(i) has in good faith applied for any determination or redress provided for in

Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court

in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in

subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

4.5 Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, 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.

Disability

4.6 The complainant is deceased. In his written submission the complainant himself sets out a condition that clearly falls within the meaning of a disability under the Acts, i.e. the loss of the full use of his bowling arm. However at the hearing the complainant’s representative asserts that the disability affecting the complainant was hardened arteries which required him to sit down quite oftern during a game of bowls. There is no evidence that the complainant ever made the respondent aware that he suffered from any disability. Having heard direct evidence from Ms A, I accept her evidence that she had no significant relationship with the complainant, having met him in passing on a limited number of occasions. I accept that neither Ms A nor Mr B were aware of any issue regarding hardened arteries. In addition it is accepted that the complainant never made an issue of his accident or his requirements arising from same. I find that the complainant was suffering from a disability but that the respondent was never made aware of it or of the requirement for special facilities. It’s clear from the complainant’s submission that the issue of the provision of special facilities was never raised. Regardless, I find that it was reasonable for the Club to anticipate that it was not unduly difficult for a disabled person such as the complainant to access the services of the club. I find no evidence that the complainant was discouraged from involvement in Club activities or that the Club activities were structured in such a way to discourage the involvement of the complainant. Accordingly I find that the complainant was not subject to less favourable treatment on the grounds of his disability.

Incident A

4.7 The complaint contends that he was made to leave the club premises when it came to attention of Ms A that he did not have a current membership subscription. Three of the four people involved in this incident where at the hearing and gave evidence regarding what occurred. Both Ms A and Mr B gave evidence that Ms A who was involved in a game asked Mr B if he would “have a word”. Mr B then approached the complainant and his son and raised the issue of unpaid subs. All of this was done out of earshot and in a discrete manner. I find it was not an unreasonable course of action for an amateur volunteer club administrator to take. Ms A and Mr B gave evidence that it was never their intention to evict the complainant form the ground when Mr B went to “have a word”. Having heard the totality of evidence regarding this incident it’s clear that the complainant and his son took offence regarding the issue and by their own admission the decision to leave was their’s as they felt unwanted. I find that there is no evidence that the club or its officials were motivated by the complaint’s age or disability and I find the actions of Ms A and Ms B to be tactful and discrete when dealing with the issue of members who have not paid the required subscription.

4.8 Incident B. Having heard all of the evidence I accept the account put forward by the respondent. I am satisfied that there was some discussion about the amount of subs required for the year initiated by the complainant’s son and not by the complainant.

Harassment

4.9 The complainant has sought to establish that Ms A personally took a dislike to the complainant and that in it was mostly on her initiation that a number of actions were taken without the knowledge of the club committee to exclude the complainant form playing bowls. These actions include,

• Having the complainant evicted from the club premises
• Not refunding his club subscription.
• Deciding not to issue a renewal notice to the complainant which the complainant submits was a deliberate act of discrimination.
• The behaviour if Ms A in incidents A and B.

Having heard all of the evidence, I find that the complainant was not evicted from the premises and no evidence of harassment in incidents A and B. There is no evidence that the failure of the club not to issue a renewal notice was motivated by consideration of the grounds cited.

4.10 The representative for the complainant has argued that the complaint was not wanted at the club due to his age and disability. However, the evidence presented by both parties establishes that the complainant’s subscription was accepted by the club in what I find to be an accommodating manner. i.e. a member of the committee accepting cash during a game of bowls. I find no evidence of efforts to obstruct the complaint’s participation in the Clubs activities and no evidence of harassment.

Victimisation.

4.11 I note that the complainant’s son was not only present for incidents A and B but took the lead in most of the dialogue. Both parties gave evidence that they felt incidents A and B to be uncomfortable and confrontational. There is no evidence that the complainant himself requested a refund. When the complainant’s son made the request “for money back” (in the course of what was an interpersonal dispute) he was informed that this was a matter for the Treasurer. I find that it was a matter for the complainant, if he so wished, to pursue his request for a refund through the proper channels. I find that there is no evidence of victimisation in the clubs action of not issuing a refund as no proper request for same was made. Additionally, the issue of what the €100 already paid by the complainants son represented, was clearly in dispute. I find that the decision not to issue a refund was not motivated by the lodging of the complaint with this Tribunal.

Decision

5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 25 of the Equal Status Acts. I find that

(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the grounds of disability or age.

(ii) the complainant has failed to establish the facts from which it may be presumed that he was harassed by the respondent on the grounds of disability or age.

(iii) the complainant has failed to establish the facts from which it may be presumed that he was subjected to victimisation from the respondent as defined under the Acts.

______________

Peter Healy

Equality Officer

28 November 2014