EQUAL STATUS ACTS 2000-2015
Decision No – DEC-S2016-005
Ms Georgina Arundel McCarthy
(represented by Mr Brian Hallissey, instructed by O Sullivan Whelan Solicitors)
And
Planet Health Club (Planet Leisure ltd)
(represented by Gaffney Solicitors)
File No ES/2013/0102
Date of Issue: 5th February 2016
1 The Dispute
1.1 This case concerns a complaint by Ms Georgina Arundal Mc Carthy that she was discriminated against by Planet Health Club on the grounds of Traveller community contrary to 5(1) of the Equal Status Acts 2000-2008(hereafter referred to as “the Acts “). On 18th September 2013, the complainant referred a claim to the Director of the Equality Tribunal under the Acts.
The complaint was referred to me, Patsy Doyle, and Adjudication Officer who was an Equality Officer on 6 Oct 2015 under Section 16 of the Workplace Relations Act,2015 by the Director General of the Workplace Relations Commission in accordance with section 41 of Workplace Relations Act, 2015 and Part V11 of the Employment Equality Acts 1998 to 2012.
I commenced my investigation on that date. As required by section 25(1) of the Acts and as part of my investigation, an oral hearing was scheduled for November10, 2015.
1.2 On 28th July, 2014, Mr Hugh Lonsdale, then Equality officer issued a decision on a preliminary matter of a delay on behalf of the complainant in notifying the respondent of the complaint. He directed an extension for notification to four months in accordance with his powers under Section 21 of the Acts. The case proceeded on that basis.
1.3 A written statement was submitted by the complainant on 26 June, 2015. This was followed by a written submission on behalf of the respondent on 2 November, 2015. Both parties attended the hearing.
2 Preliminary Submission
2.1. The respondent raised a preliminary issue before the Tribunal by submitting that there were mirror proceedings listed before the District Court in this case. The respondent’s solicitor relied on a past Equal Status case Patrick and Tony Dunne v Planet Health Club[1], where the Equality Officer on that occasion, found the complaint to be inadmissible on the basis that the District Court was the correct forum for redress in this complaint
“Thecomplaint of discrimination made by Mr Patrick Dunne and Mr Tony Dunne refers to access to the gym. However, as the gym is covered by an Ordinary Seven Day Publican’s licence, it falls under the jurisdiction of the District Court in accordance with S.19 of the Intoxicating Liquor Act,2003 which states
“Prohibited conduct means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of a person in contravention of Part II (Discrimination and Related activities) of the Act of 2000 on or at the point of entry to, licensed premises”
(2) A person who claims that prohibited conduct has been directed against him or her, on or at the point of entry to, licensed premises may apply to the District Court for redress.
2.2 The respondent submitted that the Tribunal did not have jurisdiction to hear the case as the totality of the respondent’s premises had been deemed a licenced premises.
2.3 I asked the complainant’s representative for a submission on the preliminary issue. The complainant’s representative submitted that the case was properly before the Tribunal as the complaint referred to a set of facts which were distinguished from Dunne. The incident complained of referred to an action which occurred removed from the respondents premises i.e. notification of the intention to cancel the membership. The complainant stated that she was collecting her children from school when she received the call from the Leisure centre Manager. The representative for the complainant asked the Tribunal to apply the literal rule to the interpretation of “on or at the point of entry” as pertaining to S.19 of the Intoxicating Liquor Act, 2003 and to find that the Tribunal had jurisdiction to hear the claim. I asked both parties the status of the listing for hearing at the District Court and neither party was aware of an anticipated date.
2.4 I will address my deliberations on this preliminary point in my findings and conclusions.
2 The Complainants Submission
2.1 The complainant sought to join the Planet Health Club in early February 2013. She visited the Club with her cousin, Sarah Jane, and applied to join. She gave her address as Spring Lane Halting Site in the city. The club informed her that she would be placed on a waiting list as there was no immediate availability. Shortly afterwards, the complainant’s cousin joined the club on foot of a special offer broadcast on a local radio station. On this occasion, Ms S.J Mc Carthy gave her address as a house in Mayfield. The complainant and her daughter visited the club as guests of Sarah Jane and paid 10-euro visitation fee, without incident.
2.2 Approximately one week later the complainant reapplied for membership using the same address as her cousin had used and was admitted to membership. This was her parents address. She joined on 3rd March 2013 and paid €425.00 in cash. She attended the club on a daily basis and enjoyed the facility. The complainant then sought to bring her daughter as a guest but was refused by a particular employee who informed her of the three month in membership rule before guests were allowed in. The complainant was not happy with this as she had attended herself as a guest previously undeterred. She noticed a sign in the swimming area which permitted access for family members to the pool area and her daughter was permitted to use the pool.
2.3 The complainant told the Tribunal that both Sarah Jane and the complainant were engaged in an exercise class when both were randomly selected for a fitness assessment test by the Club staff. The complainant told the Tribunal that this resulted in Sarah Jane’s membership being initially suspended due to raised blood pressure pending a GP letter. When the letter was furnished, her membership was cancelled. The complainant told the Tribunal that her cousin applied for re admission on foot of a GP clearance but was denied. The complainant passed her own fitness test.
2.4 Both the complainant and her daughter continued to attend the facility. However, when one particular member of staff was on duty, the complainant’s daughter was denied access to classes on the premise that classes were for members only.
2.5 The complainant’s daughter applied for membership on foot of another radio broadcast offer for 6 months’ membership. The complainant stated in her written submission that her daughter was told that she couldn’t join as there was a waiting list. The complainant then called the club herself from a withheld number to be told that the offer was available. She contended that both conversations were attributed to the same person who refused her daughter access to the classes. The complainant was also told that classes were full when she knew they were not. She observed non-members attended the classes on a frequent basis.
2.6 On 28April, the complainant was prevented from attending a spinning class, where her cousin was in attendance. She told the Tribunal that she had not sought to bring her in and that she, herself had signed in as normal. The complainant was aware that the class was not oversubscribed.
2.7 On the next day, the complainant was collecting her children at school when she received a call from a manager named Chris from the club, who informed her that her membership was being cancelled for “trying to bring in guests “as she had not attained three months in membership. On 30 April, a cheque from the club was received in the post by the complainant. This refunded 10 months’ membership fee. It was not accompanied by any supporting documentation.
2.8 The complainant was very shocked and disappointed at this and contends that she was discriminated against and had her contract of membership terminated on the grounds of her membership of the travelling community.
2.9 On July 2nd 2013 the complainant’s solicitor wrote to the Health Club seeking an admission of liability, compensation and reinstatement of membership for the complainant, without which, they intended to pursue the matter to the Tribunal.
3 Respondents Submission
3.1 The respondent denied all claims of discrimination. The respondent’s business centred on a leisure Centre of 2000 members. The Gardaí had insisted that the entire premises be licenced and the respondent submitted a copy of the licence dated 9 October 2012, issued by Revenue which covers the period of the claim. The club had been open for 10 years.
3.2 The preferred business model of the club was one of “annualised commitment” and while “pay as you go “was permitted, it was not the preferred option due to random attendances not supporting a robust business model.
3.3 The respondent agreed that the complainant’s membership had been terminated by them for a breach of rules 6.5 and 8.1 of her membership agreement by her.
“6.5 states: We may cancel your agreement without giving you notice if you seriously or repeatedly break the conditions of your agreement: allow another person to use your membership card to get into the club (unless you have told Planet HC that your membership card has been lost or stolen) or you or your guests use offensive or abusive language, use violent or offensive behaviour, or if your behaviour puts our other members, guests or employees at risk “
“8.1states that:Guests: If you are over 18, and a member of more than 3 months standing, you can invite guests to the health club. Please ask at reception for details of our guest policy
3.4 The complainant signed a Membership Enquiry form on 3 March, 2013 and agreed to the terms and conditions of membership which incorporated rules 6.5 and 8.1.
3.5 The respondent described of a pattern of a concerted attempt by the complainant to gain access for her daughter and friends from March 3rd 2013. She was denied permission to bring her daughter/ friend as a guest on:
13 March: complainant was reminded of the rules
28th March complainant was reminded of the rules
26th April Sarah Jane Mc Carthy was refused entry
3.6 The respondent sought to draw the attention of the Tribunal to the mirror of the District Court claim and maintained that the complainant was not entitled to maintain two courses of action in circumstances under the same Act, i.e. Equal Status Acts, 2000-2008. The respondent sought the application of the precedent provided in Dunne[2] and the protection of S.19 of The Intoxicating Liquor Act, 2003.
3.7 The respondent was clear that the termination of membership was linked solely to the breach of the rules which had been “seriously or repeatedly breached”. The respondent was clear that the rules had been explained to the complainant and they had been ignored. They did not act on the contents of the July 2nd letter from the complainant’s solicitors as they had no record of the complainant under either of her two surnames. In addition, the respondent contended that the Tribunal did not have jurisdiction to hear the case.
4 Witness for the Respondent
4.1 Mr Denis Lynch, General Manager of the Club re-iterated that the entire building was licenced. He denied discrimination on grounds of membership of the Traveller Community. The club wished to rely on annualised membership and while there was a charge of €7.50 for members of the public to attend classes, guest was charged a fee of €20. Some classes were reserved for members of the public, others were open to members and guests based on the three-month rule.
4.2 The leisure Club staff were dissatisfied by the continued breaches on the admission of guest rule and had maintained records of contacting the complainant to remind her of the rules, but the complainant did not answer her phone. The membership listing of 2013 was not available.
4.3 During direct evidence, Mr Lynch expressed his recollection that Chris, manager at the centre had approached him to write a refund cheque for the complainant for €357. He was unable to bring the centre staff to the hearing as they were needed at the business. In cross examination, it was put to Mr Lynch that the admission of guest rule had only been randomly applied and Mr Lynch concurred he was disappointed by the system that permitted random entry of the complainant’s guests.
4.4 On enquiry on the turnover of membership per annum, Mr Lynch told the Tribunal that approximately 10 memberships were cancelled in a given year due to a combination of:
Failed Direct Debits
Failed Payment
Disciplinary Issues
Mr Lynch was unable to give a reason for the lack of a cover note accompanying the refund on April 30th
4.5 Mr Lynch told the Tribunal that he had nothing against Travellers but needed to run the business in accordance with the rules set down in the membership agreement. In response to the question on Ms Sarah Jane Mc Carthy and the complainant’s selection for Fitness assessment, he was clear that this was a universally necessary practice in all Gyms and cited an example where a recent death had occurred at a gym in a neighbouring county which crystallised everyone’s mind on safety issues.
5 Preliminary Issue
5.1 I have considered the argument introduced by the respondent representative in relationto the parameters of the Intoxicating Liquor Act, 2003 and its application in Dunne. I have also considered the complainant’s representative response which centered on the location in which the complainant found herself when she received the notice of termination by telephone, i.e. picking up her children at school I accept that the totality of the respondents’ premises is licensed. However, on this occasion, I am persuaded that the location in this instance must be identified as being removed from the Leisure center and therefore S.19 of the Intoxicating Liquor Act, 2003” on or at the point of entry” does not apply. I find that I have jurisdiction to hear the case based on the literal interpretation rule.
6 Findings and Conclusions of the Equality/Adjudication Officer
6.1 Section 38A (1) of the Acts 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. I have taken into account all of the evidence, both oral and written presented to me by the parties. I have concluded my investigation.
6.2 Therefore, the question that I must address in the circumstances of the present case is
whether or not the respondent's decision to terminate the complainant’s membership of Planet
Health Club was attributable to her membership of the Traveler community or was directly
related to” serious or repeated” breaches of the membership agreement which the respondent
6.3 Discrimination is set down in section 3 of the Acts as:
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’)
which—
(I) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
6.4 I have listened to both parties account of the complainant’s pathway to becoming a member of the Leisure centre on 3 March 2013. I accept that it was a bi lateral application on behalf of the complainant where she submitted two different addresses eliciting two different responses. The respondent was clear that other residents reside at Spring Lane apart from members of the travelling community and that placing an applicant on a waiting list was not a prohibited conduct. I cannot accept that it was a coincidence that the reference to “Bay X” of a halting site generated a “waiting list response” while reference to an address on a housing estate generated “full membership “by the respondent. In this I am guided by the Equality Officers findings in Ann Joyce v Michael Ryan (Funeral Director)[3] where it was decided that the respondent was aware of the complainant’s traveller community status from the outset. I must conclude that the respondent was aware of the complainants standing as a member of the traveller community as soon as the first address was submitted
6.5 The respondent is perfectly entitled to incorporate rules in any membership document to protect its business interests. The complainant acknowledged that she did not read the rules at the outset. I have been struck, by the erratic application of these rules in the case. It was undisputed by the parties that the complainant was prevented from bringing her daughter in as a guest until the complainant herself raised the family inclusion notice in the swimming pool. At all times, the complainant referred to the inconsistencies in the approach of the leisure center staff and with the exception of the approach taken by the “tallest girl at the desk”, she enjoyed entrance flexibilities at the leisure center when other staff were there. The respondent accepted that inconsistencies had applied amongst his staff but refuted this was discriminatory. I noted the absence of any of these staff members at the hearing and taken in conjunction with the lack of a membership file, I must draw inferences from their absence. I am mindful that no evidence was submitted on a detailed discussion with the complainant to inform her that her behaviour was a cause of concern for the respondent or that her membership was at risk of termination. I am struck by the reliance of the complainant on the contention of the random selection for fitness assessment by the respondent. She was clear that both she and her cousin were “called off the gym floor “while others received appointments. The respondent denied the call up was random. Given that the action resulted in immediate suspension of her cousin’s membership on health grounds, which was not reversed, followed by own terminated membership some weeks later, I find that this action was tainted by discrimination.
In Clare Co Council V Director of Equality Tribunal, Morgan ores [4]…… Justice Hedigan in the High Court observed that
“While it is recognized that not every Tribunal Investigation will require a party to be protected with the full panoply of procedural rights recognized in Re Haughey . It has to be regarded as a basic and fundamental tenet of procedural fairness that a party under investigation will have some ability to understand properly what is being raised against it “
I have no desire to comment on the fundamental business model of annualised membership rather than “drop ins” by the respondent, but I find that the complete vacuum of a record of dialogue with the complainant to be a significant omission on the respondent’s part given the constant staff presence on the leisure Centre desk. I do not accept that the complainant’s non availability by phone was a sufficient explanation for this omission.
6.6 I have considered the “seriously or repeatedly “clause outlined in 6.5 of the rules and I have examined the alleged breaches of this rule on three stated occasions by the complainant and I am struck by the number of avenues of access to the leisure Centre facilities
1 Membership
2 Access to classes by members of the general public
3 Guests
I note the relaxation of the rule in the case of the swimming pool which permitted the complainant’s daughter to attend there unimpeded.
It is of interest that 6.3 rules states that
“We do not accept cancellations via post, email or telephone.”
This is in sharp contrast with how the Centre itself effected the notification of termination of membership.i.e. by phone and post to the complainant. I find that the Leisure Centre had become impatient with the complainant and their interpretation of her operation of her membership. I find that a pattern of intolerance was directed towards the complainant over the course of her membership and that this was attributed to her membership of the travelling community.
In stating this, I accept as an accurate reflection on behalf of the complainant that just a short time before her membership was terminated, she was refused access to a spinning class when it was clearly visible to her on the attendance sheet that there were sufficient spaces available. I find it completely unacceptable that a leisure Centre 10 years in operation would execute a termination of membership unilaterally by phone and by placing a cheque in the post without a cover note or notification of appeal.
The three alleged breaches were not recorded on an incident report or any other form of data analysis by the respondent, therefore they were not trigger events. I find that the reference to “serious or repeated “breaches as grounds for summary termination to be disproportionate and overly severe. It was clear to me at the hearing that the complainant just wanted to be a member of the leisure Centre, she enjoyed it and missed it.
I find therefore that the three-month rule had actually been relaxed in the complainant’s case
very shortly into her membership as evidenced by the swimming pool access for her daughter
and the access of the general public to the classes. I find that the rules of 6.5 and 8.1 were
only directed at the complainant in this case and on that basis, she was unfavorably treated.
I must therefore conclude that this was a “veiled reason “given for the termination by the
respondent and that the complainant was treated less favorably due to her traveller
community status by the respondent .
7 Decision:
7.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
o That the complainant has established a prima facie case of direct discrimination on the ground of membership of the Travelling community and this has not been rebutted by the respondent.
7.2 Therefore, as per Section 27(1) (a), I order the respondent to invite the complainant back into membership of the Leisure centre within 4 weeks of the date of this decision. In so doing, I am mindful that, if acceptable, both parties will need to re-engage on a mutual understanding of the rules and regulations on membership and this discussion should be minuted and recorded as a collective agreement to be reviewed .
(b) I order the respondent to pay to the complainant the sum of € 2,500 in compensation for the effects of the prohibited conduct. In awarding this amount, I am taking into consideration the extreme distress caused to the complainant by her summary exclusion from the Leisure Centre and her desire to access membership of a leisure centre.
Patsy Doyle
Equality Officer/Adjudication Officer
5th February 2016
Footnotes
[1] DEC S2011-018: Patrick Dunne and Tony Dunne v Planet Health Club
[2] Supra 1
[3] Dec-S2014 012
[4] [2011]IEHC 303