ADJ-00000511

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00000511

Parties: 

Complaint for Resolution:

Date of Adjudication Hearing: 19th April 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 9^th November 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Equal Status Acts. The complainant is a concert goer and the respondent is a concert promoter. 

The complaint was scheduled for adjudication on the 19^th April 2016. The complainant was accompanied by his wife. The respondent was represented by Claire Bruton, BL, instructed by Paul Maguire, solicitor and two witnesses (the booking agent and a subcontractor) attended on its behalf. 

In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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 complainant, who is English, asserts discrimination, victimisation and harassment in contravention of the Equal Status Acts in relation to comments made at a music concert on the 26^th August 2015. The complaint is made pursuant to the Equal Status Acts on the race ground. The respondent denies the claim and asserts that it is not the proper respondent to this claim.

Summary of Complainant’s Case:

The complaint relates to an incident of the 26^th August 2015 and to comments made by a named singer who was the warm-up act for the concert. During his performance, the warm-up singer made the following comments from the stage: “I hate people who put on false American accents”, “I don’t want offend my fellow countrymen”, “I wrote this song about an Englishman instead”. The comments were made to the audience assembled for the concert. The singer then proceeded to sing the song, which was a parody about signing a song in a foreign accent. The complainant’s wife said that the singer’s comments had made everyone laugh and she had stayed to see what would happen. The complainant said that he walked out and made a complaint to a person behind the desk. He asked to speak to a manager and a representative of the venue said that it was a matter for the respondent, the concert promoter. The complainant said that he telephoned the respondent the following day and established where he should send in the ES1 form. He sent in the ES1 form on the 27^th August 2015 and never received a response. 

The complainant outlined that in not responding to the ES1 form, the respondent was dodging its responsibilities to customers and it had to acknowledge the need to protect the human rights of customers. He submitted that the respondent had not abided by its customer care and customer complaints policies. The complainant said that while the performer was responsible for his own actions, the promoter was also responsible. He relied on the decision of Kearns P. in Barska v Equality Tribunal [2011] IEHC 239. He said that the instant case necessitated a reference to the Court of Justice of the European Union to establish the human rights obligations of concert promoters to customers and whether a concert promoter was obliged to process any complaint it received. 

The complainant submitted that the performer had created atmosphere of victimisation and his treatment at the hands of the music venue had been part of this victimisation. The complainant’s spouse outlined that she was able to see across the venue even though she was seated. She could observe the crowd’s reaction and could see that some people were revved up, while others squirmed. She commented that 60% of the crowd knew each other. The complainant outlined that he returned to attend the main act. 

As redress, the complainant said that the respondent should issue a letter of apology, in particular for the failure to deal with his complaint. It was the failure to deal with the complaint that had made things worse. He had been nervous for the following two or three weeks. 

In reply to the respondent witnesses, the complainant said that he had given his card to the venue on the night in question and had not given his seat number. They were regular visitors to the venue and knew the manager. He had expected to receive a phone call from the respondent about the incident. In submissions, the complainant outlined that this claim was one made pursuant to “ethnicity” which was covered by the Race Directive. He stated that his ethnicity is English, while his nationality is British. As one cannot become English, it is an ethnicity as opposed to a nationality. Even if this related to nationality this had been provided for in the Equal Status Acts and referred also the European Convention on Human Rights and the EU Charter of Fundamental Rights. Referring to Z v A Government Department C-363/12, the Equality Tribunal was able to refer questions to the Court of Justice of the European Union. Relying on Barska, there was an obligation to consider EU law. Relying on Larsy v CIF, there was a duty to disapply national provisions that conflict with EU law. There was a need to clarify the duty in law of promoters, in particular where the respondent was referred to in newspaper advertisements for the event. He stated that he had purchased the ticket from the venue. He said that the bulk of this claim related to the failure of the respondent to deal with his complaint and that it had partial responsibility for the concert. The respondent’s code of conduct refers to human rights and the complaints procedure. 

In submissions made after the hearing, the complainant outlined that it was unlawful to discriminate on grounds of racial origin in Irish law irrespective of whether or not it was unlawful under EU law. It was submitted that the failure of the respondent to acknowledge or respond to his complaint constitutes discrimination, harassment and victimisation. The complainant asserts that he also happens to have British nationality as a citizen of the United Kingdom. Englishness falls within the definition of “race” and “national origin”. He states that his claim relates to racial discrimination on grounds of his Englishness and that being English is a national origin whether or not it is a nationality or ethnic origin. He referred to BBC Scotland v Souster [2001] IRLR 150, Northern Joint Police Board v Power [1997] IRLR 610 and Ealing London Borough Council v Race Relations Board [1972] AC 342 to distinguish between “national origins” and “nationality”. The complainant submits that Englishness constitutes a racial group. He referred to Dublin City Council v Deans (unreported, Circuit Court, 15^th April 2008) and Barska v Equality Tribunal that the equality legislation must be interpreted in conformity with EU law, and failing this, Article 21 of the Charter of Fundamental Rights of the European Union applies regarding the specific prohibition on the grounds of race. It is submitted that the failure of the respondent to reply to the ES1 Form and his telephone call are evidence of an insulting and dismissive attitude which have compounded the hurt and detriment of the original incident, in breach of the respondent’s own policies. He asserted that he was entitled to rely on a hypothetical comparator and that the respondent’s own evidence had established such less favourable treatment.

Summary of Respondent’s Case:

The respondent submitted that while nationality was included in the Equal Status Acts, the Race Directive did not provide that it was a ground of discrimination. It referred to recent decisions of the Workplace Relations Commission in relation to allegations of race discrimination in the insurance industry. It denied that there was any basis for a referral to the Court of Justice of the European Union. In respect of the Barska authority opened by the complainant, it was submitted that this had an EU law angle because it related to discrimination on grounds of gender and concerned the obligation to enter mediation. The respondent outlined that it had prepared a draft response to the complainant’s letter, but this was never sent, due to an administrative error. It submitted that there was an overlap between the claims of victimisation and harassment. 

The booking agent gave evidence. He outlined that the music venue had initially been the promoter but had refused to pay the relevant fee to the main artist. The respondent had a relationship with the artist and was promoting his Dublin shows. The details of this show had already been agreed between the venue and the artist, for example the date of the performance and the rental of the venue. It had been the main artist who had asked for the particular support act and the respondent had not involvement in this selection. The main artist had paid the support artist’s fee for both gigs and had booked the support via his agent. The venue had supplied the equipment to the support artist. The booking agent confirmed that he had contacted the subcontractor about the complaint as well as about other matters. In questioning, the booking agent said that it had not been his responsibility to follow up with the complainant. 

The subcontractor gave evidence. He outlined that he had been engaged to ensure the technical aspects of the performance, including the sound check for all artists. He attended for the full performance and liaised with the main artist. He said that he became aware of the issue with the support artist’s comments from the venue’s front of house staff. He said that he had not heard the comment and asked the venue staff to identify who had complained. There had been allocated seating at the concert. The venue staff were not able to tell him the seat number of the complainant and they had also not taken his phone number. The subcontractor said that he had not reported the incident to the respondent and acknowledged that he did not appreciate how strong the complainant felt about the incident. He had been told that someone had taken offence, without knowing any further details, and sought to meet this person. It was his role to ensure that all parties, including customers, were happy. If he had heard something offensive, he would have reported it to the respondent. He said that he received a phone call from the booking agent in August or September 2015 to find out what had happened and the complainant was specifically mentioned in this phone call. In questioning, the subcontractor did not accept that he undertook to phone the complainant. He had no contact details for the complainant. The word “racism” had not been used. 

In submissions, the respondent referred to Mandla v Lee [1983] IRLR 209 and Fitzgerald v Minister for Community, Equality and Gaeltacht Affairs [2011] IEHC 180 regarding the definition of “ethnicity”. It also relied on Sabherwal v ICTS (UK) Ltd (DEC-S2008/037). It was submitted that being English was a nationality and not an ethnicity. Relying on Garda Commissioner v Equality Tribunal [2009] IEHC 72, it was submitted that there is no jurisdiction for the Equality Tribunal to disapply Irish law. The respondent had been the promoter and was not a service provider. There could be no penalty for not responding to the form and there was no jurisdiction pursuant to human rights and EU law. It was submitted that the warm-up performer had been performing in a personal capacity and therefore the respondent was not “providing a service” within the definition of section 4(6) of the Acts. The respondent’s role lay with the promotion and advertisement of the concert and was not responsible for the contents of the performance. The respondent referred to Gogarty v Gilna (DEC – S2008-056), where the claim was dismissed as the respondent to the claim had not been the service provider, and did not have any control over the service. The respondent relied on section 42 of the Equal Status Acts to state that it could not be held vicariously liable. The warm-up performer was not an employee of the respondent, nor its agent, nor a service provider. Furthermore, the warm-up act had been engaged by the performer, and could not be considered to be the agent or employee of the respondent. A relationship of agency could not be imputed between the respondent and the warm-up act. It contrasted this situation to that arising in Jordan v Marsh Ireland (DEC-E2008-054) as the respondent had no relationship and exerted no authority over the warm-up performer. The respondent exhibits the contract signed with the performer. It also exhibits email correspondence exchanged between the performer’s agent and the respondent of May 2015 regarding the selection of support act. The respondent refers to its suggestion of an alternative support act to the one chosen by the main performer and the centre of this claim. The respondent also referred to Kelly v Panorama Holiday Group Ltd (DEC –S2007-007) regarding the identification of the proper respondent. 

In submissions made after the hearing, the respondent asserts that the claim can only be determined with reference to Irish law and the provisions of the Race Directive are not applicable. The Charter is not applicable as there is no question of EU law to be interpreted. The respondent refers to Northern Joint Police Board v Power [1997] IRLR 610, to say that Englishness does not fall within the definition of ethnic origin. It referred to Mandla v Lee that Englishness could not amount to an ethnic group within the meaning of the Race Relations Act, 1976. It submitted that the argument that a person may be British by nationality and English by ethnic origin should be rejected as misconceived. It submitted that the complainant’s evidence that the “atmosphere and environment” at the concert does not meet the definition of victimisation in the Acts. In conclusion, it submitted that this claim is a matter of Irish law only and that no discrimination, harassment or victimisation occurred.

Findings and conclusions:

This claim relates to the events of the 26^th August 2015, when a named singer made insulting comments about English people in the introduction to a song. It is clear that the comments were offensive and invited the audience to mock English people. The complainant and his spouse, who are English, were in the audience and immediately complained about the comments. The respondent is a concert promoter and denies that it can be held liable for the comments made by the warm-up performer. 

The Equal Status Acts provides, at section 21, for a mandatory notification procedure, requiring a complainant to notify a respondent of the nature of the alleged prohibited conduct and to state that the complainant intends to seek redress pursuant to the Acts. It also permits the complainant to question the respondent in writing so as to obtain material information and the respondent may “if the respondent so wishes, reply to any such questions.”  

Section 26 provides that inferences may be drawn in the investigation of any complaint made pursuant to the Equal Status Acts. The section, as amended, provides as follows:

            26. — If, in the course of an investigation under section 25, it appears to            the       Director of the Workplace Relations Commission—

(a) that the respondent did not reply to a notification under section 21 (2)(a) or to any question asked by the complainant under section 21(2)(b) ,

            (b) that the information supplied by the respondent in response to the   notification or any such question was false or misleading, or

(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission,

the Director of the Workplace Relations Commission may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c) . 

The first issue to be addressed in this case is the failure of the respondent to respond to the complainant’s ES1 form submitted promptly after the incident. I note that the submission of the ES1 form was preceded by a telephone call from the complainant and that the respondent’s representative at the venue had been aware of the issue on the night of the concert. While administrative errors do arise, I do not find that it is credible that the respondent’s response to the complainant’s ES1 form had been drafted, but, in error, never sent. Such evidence would be more credible had the respondent returned the complainant’s telephone call or had otherwise engaged with him. Instead, the respondent did not acknowledge or reply to any of the complainant’s communications. I conclude that the respondent made a decision not to engage with the complainant. 

The respondent’s approach is certainly not laudatory, but the issue to be determined is whether it can create a stand-alone liability under the Equal Status Acts. Given that section 21 refers to a respondent replying to an ES1 form if it so wishes, such a failure cannot establish a stand-alone liability. 

The parties made detailed submissions during, and following, the adjudication as to whether being discriminated on grounds of being English constituted discrimination on grounds of race or ethnic origin. It was not disputed that being discriminated on grounds of being English falls within the scope of the Equal Status Acts as the definition of “race” in section 3(2)(h) includes discrimination on grounds of national origin. The issue of whether discrimination on grounds of being English was discrimination on grounds of race or ethnic origin was contested because of the narrower scope the Race Directive (Council Directive 2000/43/EC). It was agreed by the parties that discrimination on grounds of national origin did not, of itself, contravene the Directive. 

This is an adjudication of a complaint made pursuant to the Equal Status Acts. It clearly falls within the scope of the Acts that discrimination on grounds of being English is discrimination on grounds of national origin, and within the scope of the Irish legislation. This is a claim to be determined as to whether the respondent can be held liable for the event that occurred on the 26^th August 2015 and it is not necessary for me to determine if other elements of the definition of “race” fall within the claim. 

Section 6 of the Equal Status Acts prohibits discrimination with regard to the disposal of goods and the provision of services. 

Section 11 provides as follows in relation to harassment:

“11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,…

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.…

(5) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

…

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” 

Section 42 of the Equal Status Acts provides in respect of vicarious liability:

“42. — (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

            (a) from doing that act, or

            (b) from doing in the course of his or her employment acts of that description.” 

Having assessed the evidence, it is clear that the act was a discriminatory act and constitutes harassment. I do not, however, believe that the respondent falls within the definition of “responsible person” provided by section 11(2) of the Acts. The respondent was not responsible for the operation of the place in which the act of harassment occurred. The fact that the respondent was engaged as the concert promoter does not make it responsible for the operation of the place. I acknowledge that the representative of the respondent on site on the night in question investigated the complaint made to the venue staff, but this response is not sufficient to make the respondent the responsible person. It is also difficult to attribute agency to the relationship between the respondent and the warm-up singer. I accept the respondent’s evidence that it did not book the warm-up act and that the contractual relationship was between the warm-up act and the main performer. I accept that this was only belatedly relayed to the complainant. 

While the respondent was a high profile entity associated with the events of the 26^th August 2015, taking these findings into account, I find that the complainant is unable to succeed in this claim against the respondent. This is because the respondent was not the responsible person for the operation of the place in which the service was provided. There was also no employment relationship with the respondent and the warm-up singer and the relationship between the two entities is too remote to attribute a relationship of agency between them. On the basis of these findings, I determine that the claim does not succeed. For completeness, I find that the claim of victimisation does not succeed as the events complained of do not amount to victimisation within the definition of section 3 of the Act and nor does not replying to the complainant’s communications.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint. 

CA-00000720-001

Pursuant to section 25 of the Equal Status Acts, 2000 to 2015, I find that the claim does not succeed. 

Dated:   04 April 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Equal Status Acts – race – national origin – harassment – responsible person – vicarious liability - agency