ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002799

Complaint for Resolution:

Date of Adjudication Hearing: 11/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The case relates to the proposed purchase of a motor vehicle. The complainant was the intended purchaser.

Her husband, from whom she is estranged plays a part in the matter (hereafter referred to as Mr A).

He became aware of the complainant’s intention to purchase the vehicle, possibly from their children. It appears from the evidence of the respondent that Mr A visited the respondent garage on September 8^th 2015 and said he was looking for a car for his wife. The Salesman showed him a number of cars and he identified one which he said might be of interest.

In due course, and unaware of Mr A’s intervention, on September 15^th the complainant then visited the respondent, and asked for a specific salesperson. He told her that her husband had been in and in due course she identified a car in which she was interested, and paid a deposit. Because it was a demonstration model it was not to become available for sale until December 10^th.

There is some conflict in the evidence as to whether the complainant said she was buying her first car (her version) or her first new car (the respondent’s witness version).

Sometime later the Mr A visited the respondent again and raised a series of objections to the purchase on the grounds of cost, and also to some of it features etc.

Unaware of this development the complainant contacted the respondent around the time the car had been due to be come available for sale to be told that it had already been sold, following the intervention of Mr A.

She was offered an apology and some alternatives which were not acceptable to her.

Complainant’s Submission and Presentation:

The above facts were largely accepted.

The complainant said that she made it clear that this was an independent purchase and that the willingness of the respondent to accept the cancellation of the purchase on the word of Mr A would not have happened had the gender roles been reversed.

The actions of the respondent had put her to considerable inconvenience and caused her embarrassment.

She insists that on her first visit she made it clear that this was an independent purchase and said nothing nor gave any indication that a third party might play any role in the purchase. There was some onus on the dealership to confirm the matter with the complainant before cancelling the deal.

She says she is entitled to infer that the car dealership believed she required the approval of her former husband to enter into a contract with them, and that had she been a man she would not have been treated in this way.

In legal submissions the complainant referred to the irrelevance of the respondent’s intentions, and submitted that a discriminatory act may not be the subject of a conscious intention, but can be discriminatory nonetheless. (E) v Governing Body of the Jews Free School [2008]EWHC 135 [2008]All ER per Lady Hale J.

The complainant says that a presumption of unlawful discrimination has been raised and the respondent had not given a fair and reasonable explanation for its behaviour that its actions represent an act of discrimination.

She says it is not credible that a man who originated a transaction in similar circumstances would have been treated the same as the complainant had the roles been reversed.

Respondent’s Submission and Presentation:

The respondent largely accepted the facts as set out. The salesperson who was involved gave direct evidence to the hearing of the first engagement with Mr A, who was known to him.

When the complainant came to see him she asked for him by name. The salesperson told her that Mr A had been in and so she was aware of this.

He outlined in detail the exchange with Mr A in the course of hus second visit. He said he did not like the car, mentioned that it had no sunroof and said; ‘it’s not a good deal, the deal is off, we’ll be in touch soon’.

When the complainant came to the dealership, as she thought, to complete the purchase in due course the salesperson explained what had happened and was very apologetic. He made an offer of alternative cars, one at the same price and one somewhat more expensive, neither of which was acceptable to the complainant.

In his evidence to the hearing he said that he was a salesman remunerated on the basis of commission and the loss of a sale is not something he would allow to happen easily. But as far as he was concerned Mr A was ‘clearly acting on behalf of his wife’. The witness was not aware of the complainant’s then marital status.  

The business owner gave evidence. He said that it was not uncommon for one spouse to challenge a possible purchase being undertaken by the other and that it does not matter to him whether it is the husband or the wife the respondent said he will deal with the matter the same way. He gave an example of a recent case where a sale was cancelled following the intervention of the wife involved.

Findings and Conclusions

The nub of the matter is whether the complainant was treated less favourably than (in this case) men have been, or a man might have been, and therefore in breach of the Equal Status Act.

The facts are unusual.

The purchase of a car is colloquially regarded as the second most significant purchase a person makes in terms of value after their home. It is unlikely that there is a statistical basis for the frequency with which this is done as a joint enterprise by those in a relationship but it is reasonable to assume that it is not uncommon for both parties to be involved in some way in the selection, and purchase of the vehicle.

In any event, it seems clear that the respondent believed that was the nature of this transaction i.e. a joint enterprise and the facts go to support this.

The complainant referred to Garret Lee v Ashers Baking Company Ltd, Colin McArthur and Karen McArthur, the so-called ‘Gay cake’ case, where the court cited a passage from Brownlie J in Gill v Northern Ireland Council for Ethnic Minorities [2001] NIJB 289 in support of the view that;

The crucial question in a case of any alleged discrimination is to ask why the claimant received less favourable treatment….The reason why the discriminator acted on those grounds is irrelevant.

The same learned judge was further referred to where he commented on the dicta of Nicholls J in Nagarajan v London Transport [1998] IRLR 73, again on the issue of intention where it is held, in this case in relation to an employment claim;

…an employment tribunal may decide that the proper inference to be drawn from the evidence is that,whether the employer realised it at the time or not race was the reason why he acted as he did

This addresses the issue of intent, or motive and that is well established law.

But more fundamentally the question is (and is framed in a dissenting judgement in the Naranjan case relied on by the complainant) and it is as follows;

‘Would the complainant have received the same treatment from the respondent but for his or her gender. Central to the protection of the act is the principle of less favourable treatment.

The evidence of the respondent was not only would a customer not be treated less favourably, but in the past when roles were reversed they acted precisely as they did in this case and acted on the basis of the wishes of the ‘intervening’ party where that was a woman.

I am being invited to take two ‘hypothesis-related’ steps; one is to consider the position of a hypothetical male purchaser and the second is to conclude that that male purchaser would have been treated more favourably.

I have no doubt that the attitude which the complainant alleges lies behind the respondent’s actions was not just widespread, but almost universal in this country. It may well still be widespread, or in any event not uncommon.

However, each particular respondent is entitled to have his case considered on the evidence and merits of that case. Neither this, nor any respondent may not, willy nilly be lumbered with having a sexist and discriminatory attitude simply because such attitudes may be prevalent.

There are some differences between the current case and the employment cases opened to me.

Generally speaking the recruitment of employees is a ‘buyers’ market’. By this I mean an employer has much greater discretion in the recruitment of employees and may, in doing so apply discriminatory criteria even without intending to do so.

The respondent quoted from (E) v Governing Body of the Jews Free School [2008] EWHC 135 [2008]All ER per Lady Hale J.

….the discriminator may consciously or unconsciously be making his selections on the basis of race or sex. He may not realise he is doing so, but that in fact is what he is doing.

That of course is true in the context of recruiting employees. Some different factors are at play in a commercial context where the respondent is in the business of selling cars and would be taking commercial risks were he to start deciding who he would sell to on the basis of gender, or one of the other prohibited grounds.

That is not to say that it could not happen, and there are examples of such discrimination against the traveller community, in particular, even where there may be commercial loss to the discriminator. Also one of the cases relied in the Asher’s case provides another example; that of Bull and another v Hall and another [2013] UKSC 73. In that case a gay couple was refused a room in a hotel because they were gay and the discrimination was quite clear and did not have to be inferred.

I must take account of the evidence of the respondent’s salesperson that he is in the business of actually selling cars and would not lightly pass up on a sale. He is remunerated on the basis of the sales he makes.

I must also take account of the evidence of the business owner that he does not hold such attitudes and would have acted exactly the same had the intervention come from a female partner of a potential purchaser.

Is this credible? Would the respondent have acted the same if, say two business partners of the same gender had been involved. I think it is likely that they would on the basis of avoiding damage to good will and potential conflict with customers, or at least sufficiently likely to provide an explanation as to why they did so in this case.

Clearly a factor in the case was the apparent existence of a conflict between a husband and wife about the purchase of the vehicle as a result of which the respondent, not wishing to become involved in what he understood to be a family or matrimonial dispute between spouses, backed out of the matter, as it said it would regardless of the gender of the complaining partner.

This seems a plausible explanation for what happened. I cannot attribute a discriminatory motive to the respondent on the basis of mere speculation about his holding an attitude he denies holding and which would be against his commercial interests to hold.

In relation to Garret Lee v Ashers Baking Company Ltd, Colin McArthusr and Karen McArthur, the so-called ‘Gay cake’ case, in that case the respondent refused to offer a particular service to a customer on the grounds that it was prevented from doing so because the customer was gay.

There may well be more to come on that case but, prima facie, the discrimination was clearly on an unlawful ground; the respondent refused to make the cake;

‘because they took an exception to gay sexual orientation as being sinful, and that the only non-sinful relations were those between married, heterosexual couples.

(Page 9 of the plaintiff’s evidence).

Undoubtedly, the current case does raise a ‘presumption’ of unlawful discrimination, as the complainant submitted. That is fine insofar as it may be necessary to determine where the burden of proof may fall.

It would not be acceptable in the face of the evidence provided by the respondent to adjudicate on the matter on the basis of a further presumption that because such attitudes are prevalent in society that they may automatically, or by presumption, be attributed to the respondent.

As noted above in the Gill judgement the presence of discrimination that ‘may be subtle, insidious or hidden’ must still be ‘examined’ to see whether that person acted in the way he did on grounds of the discriminatory ground by reference to the evidence before the adjudicator.

The complainant says she is entitled ‘to infer that the car dealership believed she required the approval of her former husband to enter into a contract with them, and that had she been a man she would not have been treated in this way’.

I have looked at a common definition of an inference;

In the law of evidence, a truth or proposition drawn from another that is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.

On the basis of my examination of the evidence I do not conclude that the respondent did act in a discriminatory way and that the respondent has discharged the burden of proof in the case. It would be unfair to the respondent to conclude that because it appears to the complainant that they acted as they did because they presumed she needed her husband’s permission to make the purchase, that this was in fact the reason.

There is more than sufficient doubt about that contention to render it an unsafe basis for a finding against them.

Such a conclusion would be based more on supposition than inference and, in my view, that is an insufficient basis for upholding the complaint.

Decision:

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Accordingly, for the reasons set out above I do not uphold complaint CA-00003013-001 and the complaint is dismissed.

Dated:   15 December 2016