EQUAL STATUS ACTS 2000-2015
DECISION NO. DEC-S2016-065
PARTIES
A Member of the Traveller Community
(Represented by Tiernan Lowey BL,
instructed by Róisín Courtney & Company Solicitors)
-AND-
The Chairman & Nominee of a Sporting Club and a Gym
File References: ES/2014/0041 & ES/2014/0042
Date of Issue: 2nd November 2016
1. DISPUTE
1.1 This dispute concerns a complaint by the Complainant, that she had been discriminated against by the Respondent on the ground of membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts (hereinafter also referred to as ‘the Acts’).
1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 31st January 2014, a notification having been sent to the Respondent on 30th December 2013 and the subject-matter of this complaint arising on 29th August 2013. Two complaint forms were submitted naming the Respondent as Chairman and Nominee of a Sporting Club on one form and of a Gym on the other. The notification was accepted as being within time owing to the ongoing nature of the alleged discrimination. On 1st July 2016, in accordance with his powers under Section 16 of the Workplace Relations Act 2015 and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated the case to me, Aideen Collard, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General. This is the date that my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hearing on 8th July 2016. Written submissions had been submitted on behalf of the Complainant who was legally represented and gave evidence along with her sister who had an identical complaint and both complaints were heard together. The Respondent had never engaged with the Equality Tribunal / WRC in relation to either complaint or submitted any written submissions or supporting documentation notwithstanding numerous requests for same. All correspondence including notification of the hearing date sent to him by registered post had been returned marked ‘refused’. Copy letters sent by ordinary post had not been returned. There was no attendance on behalf of the Respondent at the hearing, no explanation was proffered for his non-attendance and there was no application for an adjournment on his behalf. Before proceeding to hearing, I satisfied myself that the Respondent was properly named and that all correspondence had been sent to the correct address and concluded that there was no reasonable excuse for his non-appearance at the hearing. All oral and written evidence presented has been taken into consideration in my decision. I also indicated that I would be relying upon the key statutory provisions and relevant case law on the area.
1.3 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant outlined the background to this complaint and confirmed that she is a member of the Traveller community and lived in a rural Irish town. She confirmed that she and her family would have been known to the Respondent (also the named Nominee herein) as members of the Traveller community as they had grown up and lived in the area. The Complainant’s membership of the Traveller community was also obvious from her name and address, which was a former halting site converted into a purpose-built housing estate. Along with other sporting activities, the Respondent ran six-week fitness courses for a €50 subscription fee per course and classes were conducted between a gym and a nearby football pitch also operated by the Respondent. The Complainant and her sister had participated in these fitness courses since their commencement in February 2012 without any restriction or issue. The Complainant confirmed that they had always paid their subscription fees and adhered to the membership rules.
2.2 In August 2013, the Complainant had missed a few weeks and had rejoined again on 19th August 2013, paying the balance due for the remaining classes of €30. The Respondent did not usually have any direct dealings with the courses and other staff took membership applications and ran the fitness classes. However, when the Complainant was warming up for a class being held on the football pitch on the evening of 29th August 2013, the Respondent was in attendance and called her over. He held out €30 cash to her and said: “You have to leave”. She was shocked and asked was he serious, in response to which he replied: “Yes”. She asked him for a reason but none was forthcoming. The Complainant then approached the course organiser who said: “It’s nothing to do with me. I didn’t know anything about this until 45 minutes ago.” The Complainant stated to the course organiser that she had been a member for a year and a half without any hassle and this was discrimination. She walked over to her sister who had also just been asked to leave and upset and humiliated they left the pitch together. There were 10-12 other members on the pitch at the time, some of whom were so upset by the incident that they also left.
2.3 The Complainant’s sister gave evidence corroborating her account of the circumstances giving rise to this complaint and also of being asked to leave the fitness class by the Respondent on the evening in question. She was further refused renewal of her membership on 31st August 2013. When she subsequently phoned the Respondent in tears, he told her that she was not welcome back and when she asked for a reason, he said: “We don’t want ye”. She had hoped that in time she would receive an apology on behalf of the Respondent and/or a request for her to return but this was never forthcoming.
2.4 Although other members of the Traveller community had previously participated in the fitness courses they had since left and as far as the Complainant and her sister are aware, they were the only participating members of the Traveller community at the material time and were also the only two asked to leave. They have never been given any explanation or reason for being told to leave the course, particularly as the Respondent has failed to engage with their complaints or respond to the notifications made under Section 21(1)(a) of the Acts. They confirmed that the Respondent has since ceased trading and has apparently taken up another occupation. Membership of the fitness courses played a large part of their social life and also provided a means of mixing with the settled community. This incident has greatly affected their self-confidence and dignity. They were particularly humiliated at the public manner in which they had been asked to leave the pitch. Counsel for the Complainants submitted that this amounted to direct discrimination on the ground of membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts and also referred to relevant authorities including decisions of the Equality Tribunal in Anne Joyce -v- Michael Ryan Funeral Directors DEC-S2014-012 and Arundel McCarthy -v- Planet Leisure Ltd DEC-S2016-005.
3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE
3.1 As no documentation or written submissions were furnished by the Respondent and there was no appearance on his behalf at the hearing, no evidence was proffered in defence/rebuttal of this complaint.
4. FINDINGS AND CONCLUSIONS
4.1 The issue for my decision herein is whether the Respondent refused the Complainant admission to the fitness course in question and/or terminated her membership owing to her membership of the Traveller community within the meaning of the Acts. The facts adduced must be assessed in relation to the relevant legal provisions. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “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)..." Section 3(2)(i) defines the discriminatory ground of membership of the Traveller community as arising in circumstances when as between any two persons “that one is a member of the Traveller community and the other is not (the ‘Traveller community ground’).” In relation to the disposal of goods and provision of services, Section 5(1) provides that “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.” Section 38A of the Acts sets out the burden of proof which applies to all claims of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
4.2 Firstly, I am satisfied that the fitness course in question constitutes a service to the public within the meaning of Section 5(1) of the Acts. I am further satisfied that the named Chairman and Nominee herein operated the courses in question and is the correct Respondent for the purposes of this complaint.
4.3 Secondly, I found the Complainant and her sister to be impressive witnesses and their detailed evidence to be wholly credible in relation to the circumstances giving rise to this complaint and in the absence of any evidence on behalf of the Respondent, fully accept her version of the events giving rise to this complaint. I am satisfied that they are clearly identifiable as members of the Traveller community and would have been known to the Respondent as members of the Traveller community based upon their evidence that they had grown up in the area and also their address. I am further satisfied that the Respondent refused the Complainant and her sister’s admission to the fitness course in question and/or terminated their membership without any good reason or explanation. This is supported by the Respondent’s refusal to engage with this complaint at any stage including his failure to respond to the notification. The other non-members of the Traveller community who did not have their membership refused provide actual comparators and leave me in no doubt that the Complainant and her sister were excluded from the fitness course owing to their membership of the Traveller community. I therefore find that the Complainant has made out a prima facie case of direct discrimination on this ground and in the absence of any appearance or evidence on behalf of the Respondent, same has not been rebutted.
5. DECISION
5.1 I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of direct discrimination on the ground of membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts, which has not been rebutted by the Respondent.
5.2 In accordance with Section 27 of the Acts, I order the Respondent to pay the Complainant €5,000 in compensation in respect of the finding of direct discrimination on the ground of membership of the Traveller community. This award is arrived at having regard to the seriousness of the discrimination imposed and the humiliating effect on the Complainant arising from the very public manner in which she was told to leave the fitness course and which continues to remain with her to this day.
5.3 I have also exercised my discretion to anonymise this decision at the request of the Complainant.
____________________
Aideen Collard
Adjudication Officer
2nd November 2016