THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2012
Decision No. DEC-S2015-009
Anne Palmer
-v-
Connacht Hospitality (Group) Ltd. aka Connacht Accommodation Ltd t/a Active Fitness Leisure Club at the Connacht Hotel
File Reference: ES/2012/0167
Date of Issue: 29th June 2015
Key words: Equal Status Acts, Civil Status, Victimisation, Discrimination by association, Galway
1.1 This case concerns a complaint by Ms Palmer that she was discriminated against by Active Fitness Leisure Club on the grounds of civil status (formerly marital status) and victimisation. On 21st November 2012, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 -2012 [hereinafter referred to as ‘the Acts’]. All notification requirements were met. On 5th December 2014, in accordance with his powers under section 75 of the Employment Equality Acts 1998-2012 and under the Acts the Director delegated the case to me, Orlaith Mannion, 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. My investigation commenced on this date.
1.2 As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 15th January 2015.
2 Summary of the Complainant’s Case
2.1 Ms Palmer was a member of the Active Fitness Leisure Club for 17 years. In recent years, they enjoyed a preferential rate as her husband, John was Head of Maintenance of the Connacht hotel (formerly Days Hotel, Carlton Hotel and Galway Ryan Hotel) where the gym is located. Her husband was involved in an employment dispute with his employer and his membership was cancelled in June 2012.
2.2 Therefore, on 7th September 2012 Ms Palmer was not very surprised to receive a letter from Ms O’M, Manager of Active Fitness stating she could no longer avail of her staff-link membership (i.e. preferential rate for family of employees):
6th September 2012
Dear Ann,
I would like to advise you that the membership you held under the staff link benefit at Active Fitness and Leisure Club is no longer valid.
I would be happy to speak to you about your options should you wish to continue your membership with us.
__________
Ms O’M
Club Manager
2.3 Ms Palmer rang the Sales Department, took out a six-month membership, and paid the full membership fee for herself by credit card. The following Monday Ms Palmer went to use the Leisure Club as normal. She spoke to F (employee) and Ms O’M at the reception desk and proceeded upstairs to the gym. After her workout F approached Ms Palmer and told her Ms O’M wanted to speak to her. She submits that Ms O’M, in an embarrassed, sheepish tone, said that Mr L (Managing Director of the Connacht hotel) told Ms O’M to refund Ms Palmer’s membership fee to her. Ms Palmer submits she was shocked as she always had an amicable relationship with Mr L and with all other colleagues of her husband. When she pointed this out to Ms O’M, she submits that the leisure club manager said to her ‘Anne, they just don’t want you in the building’. The complainant submits that she fully understands how she could not benefit from the staff rate when her husband is no longer an employee. Ms Palmer states that she remains baffled at how she is barred from the gym. She has never been disruptive and conducts herself as a responsible adult.
2.4 She submits that this ongoing discrimination has had a negative impact on her and her family. She was a member of that gym before her husband became an employee of the respondent. It is the most convenient gym to her and also one of the few in Galway to contain a swimming pool. Both her daughters are involved in Karate and functions in relation to same take place in the Connacht hotel. Neither Ms Palmer nor her husband attends these functions as Ms O’M said that the Connacht hotel management do not want her in the building. Ms Palmer submits that she would not risk attending these karate events in case it would cause embarrassment to her daughters and other members of the karate club. She submits that it is humiliating to be excluded from a service when she did nothing wrong.
Summary of the Respondent’s Case
3.1 The respondent did not provide a submission and did not attend the hearing. As per all Equality Tribunal hearings, notice was sent by registered post. The letter was signed for.
Conclusions of the Equality Officer
4.1 Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which s(he) can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
4.2 Section 5 (1) of the Equal Status Acts 2000 - 2012:
A person shall not discriminate in disposing of goods to the public generally, or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise, and whether the service provided can be availed of only by a section of the public.
Active Fitness Leisure Club clearly is providing a service to the public.
4.3 Section 3 (1)(a) provides that for the purposes of the Equal Status Acts, discrimination shall be taken to occur where:
On any of the grounds referred to in sub-section (2) in this act refer to as (“the discriminatory grounds”) which exists at present, or previously existed but no longer exists, or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated.
4.4 Victimisation in the Equal Status Acts (under which this case falls) differs from the victimisation under the Employment Equality Acts in that it is actually a discriminatory ground. Victimisation is defined in Section 3(2)(j) of the Equal Status Acts:
(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’’). [my emphasis]
Mr Palmer gave direct evidence that he told his employer that he intended initiating proceedings under the Employment Equality Acts and, more importantly for this case, the Equal Status Acts (because his gym membership was terminated). Mr Palmer subsequently decided not to take a case to the Equality Tribunal but to focus his complaints to the Employment Appeals Tribunal However he is still covered by the victimisation ground as he told the service provider of his intention to pursue a case under the Equal Status Acts. Ms Palmer has claimed, inter alia, that she was discriminated on the civil status ground - by virtue of her being married vis-à-vis somebody else with a different civil status e.g. single, married, divorced, separated, widowed or in a civil partnership or being a former civil partner that has ended by death or been dissolved. I find that this is not why Ms Palmer was discriminated against. It is not because she was married per se; it was because she was married to Mr Palmer. Therefore, I find that Ms Palmer was discriminated by association as defined in 3(1)(b):
(b) where a person who is associated with another person—
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,
4.9 Other than for a discriminatory reason, there was no reason to exclude Ms Palmer from the Connacht hotel’s leisure club. She had been a member for 17 years without any issue arising. I find that Ms Palmer has established a prima facie case of discrimination by association with her husband who has alleged victimisation under the Equal Status Acts. The respondent has utterly failed to rebut it
4.10 The complainant has also claimed victimisation in her own right. However, prior to being barred from Active Fitness, she did not initiate any of the actions in the definition of victimisation (see Paragraph 4.4). In fact, it is because she did not antagonise the service-provider in any way to justify her membership being withdrawn that she feels aggrieved. Therefore she has failed to establish a prima facie case of victimisation
4.15 I found both Mr Palmer and Mrs Palmer to be credible and compelling witnesses. I have no doubt that the respondent intentionally embarrassed Ms Palmer by dissolving her membership as a way of retaliating against her husband. Retaliation by the respondent in this way is legally naive. I fully accept her evidence that this has disrupted her leisure time and family life (when she feels that she cannot attend functions connected to her daughters’ karate classes) at the Connacht hotel through no fault of her own. These are factors I must bear in mind when considering redress. As the case was lodged before 3rd February 2014, the maximum redress that I am allowed to award under Section 27(2) of the Acts, which is €6,349[1]. I find that €4000 is an appropriate award.
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 discrimination by association as her husband alleged victimisation and the respondent has failed to rebut it
· the complainant has not been discriminated on the grounds of civil status
· the complainant has not been victimised in her own right within the meaning of the Acts
5.2 Therefore, as per Section 27(1)(a), I award the complainant €4,000 in compensation for the effects of the prohibited conduct.
_________________
Orlaith Mannion
Equality Officer
Footnotes
[1] Section 15 of Courts & Civil Law (Miscellaneous Provisions) Act 2013 increase the monetary jurisdiction is increased to €15,000 for cases lodged subsequent to 3rd February 2014