EQUAL STATUS ACTS
DECISION NO. DEC-S2016-012
PARTIES
Thomas Flanagan
(represented by Neil Mc Nelis & Co.)
AND
Falls Hotel
(represented by Carmody & Company Solicitors)
File reference: ES/2014/0086
Date: 15th February 2016
1. The Claim
1.1 This claim concerns a claim by Thomas Flanagan (hereinafter the “Complainant”) that he was discriminated against by being subjected to regular occurrences of a female member of staff, hereinafter Ms. A, entering the gents changing room of the Falls Hotel (hereinafter the “Respondent”) which resulted in his discrimination, harassment and victimisation between October 2012 and January 2014 contrary to the Equal Status Acts 2000 and 2012 (hereinafter the “Acts”)
1.2 The Complainant referred his claim to the Director of the Equality Tribunal on 13th May 2014 under the Acts.
1.3 In accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Caroline McEnery, an Adjudicator, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.
1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 30th October 2015 and the 15th December 2015.
1.5 The Complainant and the Respondent attended the hearing along with their representatives.
1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.
2. Complainant’s Submission
2.1 The Complainant stated that he was a member of the Leisure Centre of the hotel and it became a regular occurrence that a female member of staff Ms. A would enter the gents changing room, while it was occupied to clean it or to use it as a thoroughfare between different parts of the building. The Complainant has alleged that at times several men were present in the changing rooms but he was alone with Ms. A on occasion. The Complainant stated that his put him in a precarious situation as he was afraid he could have been accused of obscene acts. In addition the Complainant stated that he was extremely uncomfortable and embarrassed by the intrusions by the Ms. A and there was a palpable sense of discomfort in the changing room due to being partially or completely naked at the time of her presence. The Complainant stated he directly asked the Ms. A, who was the supervisor, to cease her actions but that she chose to ignore his requests. The Complainant states that after raising the matter again with the member of staff in question after his initial requests were ignored, the Respondent terminated his membership. He stated his membership was terminated without investigation into his complaints nor was he given the opportunity to put his version of events forward for consideration prior to his membership been terminated. He stated that this situation continued for a protracted length of time and other members were equally uncomfortable with the situation.
2.2 The Complainant stated that he believes no woman has been, or would be subjected to the same treatment. The Complainant stated that he believes the Respondent finds it acceptable to subject men to such treatment but would not subject women in the same way.
2.3 The Complainant stated that by the repetitive nature of the intrusions, invasions of men’s privacy and the flagrant disregard of the staff for requests to remedy the situation that he was subjected to unfavourable treatment that female members were not subjected to or would be expected to endure.
3. Respondent’s Submission
3.1 The Respondent states that the complaint is made in bad faith, is frivolous, vexatious and misconceived and/or relates to a trivial matter and was brought to embarrass the Respondents. The Respondents stated that on the 29th November 2013 the Complainant approached Ms. A and verbally attacked her to the point that spit was discharged into her face due to his proximity. Ms. A relayed this incident to her employer and the Complainants membership to the leisure facility was terminated. The Respondent states that the Complainant made his complaint to the business owners on foot of the membership cancellation.
3.2 The Respondent states that there are no grounds to substantiate a claim for discrimination within the meaning of Section 3 of the Equal Status Act 2000 and 2004. The Respondent states that Ms. A is an employee of the Hotel and her duties include cleaning the men’s changing room when she is rostered. The Respondent states that the employee is one of 12 of which 2 are male. The Respondent states that it cannot be contended that the role of a cleaner when she is the only staff member rostered can fall within the definition of harassment as set out in Section 11(5) of the Equal Status Act, 2000 and 2004. The Respondent refers to the Complainants awareness of a procedure whereby female staff knock on the changing room door prior to entering to warn all patrons. In addition, the Respondent also states that the complaint is frivolous and vexatious in that the vast majority of cleaning staff are female and that in order to comply with the Complainant’s wishes more male staff would have to be employed, to the exclusion of female staff and calls for the complaint to be dismissed. There was no written procedure in place but they contend that this was the process that was followed.
3.4 The Respondent states that there are no grounds to substantiate a complaint of victimisation within the meaning of the Equal Status Act 2000 and 2004.
4. Findings And Conclusions
In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.
Section 38(A) of the Equal Status Act, 2000 and 2004 sets out the burden of proof which applies in a claim of discrimination.
38A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
In deciding on this complaint, 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. The Complainant has presented evidence through his written and oral submissions which constitute a prima facie case and it is the opinion of this Equality Officer that the Complainant has established the burden of proof in regards to his complaint.
4.1 Discrimination
In line with Section 3 (1) and (2) of the Equal Status Act, 2000 and 2004;
“3. (1) For the purposes of this Act, discrimination shall be taken to occur where—
(a) on any of the grounds specified in subsection (2) (in this Act referred 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,
(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,
or
(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,
(ii) The person is obliged by the provider of a service (within the meaning of section 4 (6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,
(iii) substantially more people outside the category than within it are able to comply with the condition, and
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.
(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the “gender ground”),”
The Complainant stated that it became a regular occurrence that a female member of staff, Ms. A, would enter the gents changing room, while it was occupied to clean it or to use it as a thoroughfare between different parts of the building. In addition the Complainant stated that he was extremely uncomfortable and embarrassed by the intrusions by Ms. A and there was a palpable sense of discomfort in the changing room due to being partially or completely naked at the time of her presence. The Complainant stated he directly asked Ms. A who was the supervisor, to cease her actions but that she chose to ignore his requests. The Complainant stated that he believes no woman has been, or would be subjected to the same treatment.The Complainant stated that he believes the Respondent finds it acceptable to subject men to such treatment but would not subject women in the same way.
The Respondent states that there are no grounds to substantiate a claim for discrimination within the meaning of Section 3 of the Equal Status Act 2000 and 2004. The Respondent states that Ms. A is an employee of the Hotel and her duties include cleaning the men’s changing room when she is rostered. The Respondent states that the employee is one of 12 of which 2 are male. The Respondent states that it cannot be contended that the role of a cleaner when she is the only staff member rostered can fall within the definition of harassment as set out in Section 11(5) of the Equal Status Act, 2000 and 2004. The Respondent refers to the Complainants awareness of a procedure whereby female staff knock on the changing room door prior to entering to warn all patrons and would only enter when it was confirmed it was empty or when they had got the clients approval as they were clothed at that time. There was no written procedure in place. In addition, the Respondent also states that the complaint is frivolous and vexatious in that the vast majority of cleaning staff are female and that in order to comply with the Complainant’s wishes more male staff would have to be employed, to the exclusion of female staff and calls for the complaint to be dismissed.
It is this Equality Officers opinion that this complaint does not constitute a frivolous and vexatious complaint. Firstly, the Complainant has established that he is covered by the relevant discriminatory ground, gender. In addition, the Complainant has established that the specific treatment alleged has actually occurred through his written submission and in his oral evidence and I believe the altercation between the two parties would not have occurred if the procedure the hotel say was in place was actually adhered to on a consistent basis.
It is this Equality Officers opinion that the procedure put in place by the Respondent in regards to the members of staff knocking prior to entering was not properly followed, if in place at all. I have taken into account the oral evidence from a male member of staff that he would not enter the female changing rooms if a female was present. I have also taken into account that the Respondent received an additional complaint in relation to the male changing room cleaning by another member who chose not to renew his membership on the basis of his complaint. The Respondent confirmed that the Complainant had previously raised this concern with Ms. A prior to this incident. I am of the belief that no woman has been, or would be subjected to the same treatment in the ladies changing room.
However, this Equality Officer is of the belief that the fault cannot be attributed to Ms. A. This is due to the belief that Ms. A followed unacceptable procedures, that were not enforced, if any procedures were in place that were expected for her to be followed, in carrying out her daily duties in her role. This procedure for cleaning was not documented nor did it clearly require the changing rooms to be vacant for cleaning to occur or at minimum get the consent of the occupants for a member of the opposite sex to enter the changing rooms when they were occupied. The procedures the Respondent suggested was in place, if practiced consistently would meet the required standard to prevent a re-occurrence of this type of complaint.
In addition, it is important to note that in the course of this Complaint there was no complaints procedure which should direct members on how to deal with their complaints should an issue arise. I am of the belief that if the two considerations above were in place and I do not belief this matter would have resulted in this complaint.
Therefore, I have concluded that the Complainant was discriminated by the Respondent in allowing a female member of staff enter the gents changing room, while it was occupied to clean it or to use it as a thoroughfare between different parts of the building and this behavior would not have been considered to have been acceptable if it was a female changing room that a male member of staff entered.
4.2 Harassment
For the avoidance of doubt the definition of harassment is outlined as per Section 11 (5) of the Equal Status Act, 2000 and 2004;
“Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her.”
The Complainant stated that it became a regular occurrence that a female member of staff, Ms. A, would enter the gents changing room, while it was occupied to clean it or to use it as a thoroughfare between different parts of the building. In addition the Complainant stated that he was extremely uncomfortable and embarrassed by the intrusions by Ms. A and there was a palpable sense of discomfort in the changing room due to being partially or completely naked at the time of her presence. The Complainant stated he directly asked Ms. A, who was the supervisor, to cease her actions but that she chose to ignore his requests. The Complainant has stated he was put in a vulnerable and embarrassing situation by the behaviour of Ms. A.
In coming to a conclusion I have taken into account that I have no doubt that the Complainant was uncomfortable and embarrassed by the intrusions by the female member of staff in the male changing rooms. I have no doubt that this occurred on numerous occasions and amount to less favourable treatment. However, I am of the belief that Ms. A or any alternative female member of staff was acting in the course of their employment in attending to the male changing rooms. I conclude that the Complainant was harassed under the definition as per Section 11 (5) of the Equal Status Act, 2000 and 2004 as these actions were ‘offensive and humiliating’ to the Complainant.
4.3 Victimisation
Section 3(2) (j) of the Equal Status Act 2000 provides 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”).
The Complainant states that he brought his complaints to the Respondent and the Respondent terminated his membership. He stated his membership was terminated without investigation into his complaints.
The Respondents stated that on the 29th November 2013 the Complainant approached Ms. A and verbally attacked her to the point that spit was discharged into her face due to his proximity. Ms. A relayed this incident to her employer and the Complainants membership to the leisure facility was terminated. The Respondent states that the Complainant made his complaint of foot of the membership cancellation. The Respondent states that there are no grounds to substantiate a complaint of victimisation within the meaning of the Equal Status Act 2000.
This Equality Officer is of the opinion that the information pertaining to the cancellation of the membership differs. On the balance of probabilities this Equality Officer is of the opinion that the membership of the Complainant was terminated based on an alleged aggressive incident which occurred with Ms. A and this was a decision taken by the Employer in an attempt to create a safe working environment for the employee. It is understandable that the relationship was untenable after the incident and it would been preferable if the Complainant raised his complaint with Management prior to talking to Ms. A as this resulted in this altercation which he contributed to. In this respect I have concluded that the Complainant was not victimised by the Respondent in terminating his membership.
7. Conclusion/Decision
7.1 Section 38(A) of the Equal Status Act, 2000 and 2004sets out the burden of proof which applies in a claim of discrimination. In accordance with Section 38(A) of the Equal Status Act, 2000 and 2004, I conclude and issue the following decision that the Complainant has established a prima facie case of discrimination on the ground of gender.
7.2 I have considered the following to confirm if this claim meets the requirements of this Acts:
· The Complainant must establish that he is covered by the relevant discriminatory ground. I can confirm the Complainant has established that he is covered by the relevant discriminatory ground which is gender.
· The Complainant must establish that the specific treatment alleged has actually occurred. I can confirm that the Complainant has established that the specific treatment alleged has actually occurred.
7.3 I find that the Respondent has discriminated against the Complainant contrary to Section (3) of the Equal Status Act, 2000 and 2004and discriminated against him on the grounds of gender.
7.4 It is evident now that the relationship between both parties is untenable and I have taken this into account in making my decision regarding redress.
7.5 I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Complainant a total of €2,000 in compensation. This figure represents compensation for infringement of his rights under the Equal Status Act, 2000 and 2004.
____________________
Caroline McEnery
Adjudication Officer/Equality Officer
15th February 2016