EQUAL STATUS ACTS 2000-2015
Decision DEC – S2017 – 019
PARTIES
Mr Olumide Smith
and
APCOA Parking Ireland Ltd (represented by Sherwin O’Riordan Solicitors)
File Reference: et-155315-es-15
Date of Issue: 26th May 2017
Keywords: race – Race Directive 2000/43/EC – car clamping – discriminatory acts presuppose knowledge of protected ground – harassment needs to include reference to protected ground – harassers need to be clearly identified – no prima faciecase.
1. Claim
1.1 The case concerns a claim by Mr Olumide Smith, that APCOA Parking Ireland Ltd discriminated against him on the ground of race contrary to Section 3(2)(h) of the Equal Status Acts 2000 to 2011, in terms of clamping his car.
1.2 The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 17 April 2015. A submission was received from the complainant on 25 November 2015. A submission was received from the respondent on 13 January 2016. On 8 March 2017, in accordance with her powers under S. 25 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 May 2017.
2. Summary of the Complainant’s Written Submission
2.1 The complainant submits that he was not informed that he needed a parking permit to park his car outside his home in the private estate in Dublin where he lives. The area being a private estate, parking in it is not regulated by the relevant local authorities. He further states that according to the Citizens Information website, clamping operations in private areas are not covered by legislation and hence their legality is unclear.
2.2 The complainant states that in January 2015, he was informed by the estate’s property management company that a parking permit system was being introduced. The complainant states that he did not receive any such permit for his car from the management company, and that as a result, the respondent clamped his car. It is the complainant’s contention that other cars which did not display the proper permit either, were not clamped by the respondent and that hence his car was singled out by the respondent. The clamp remained in place until the respondent received a notice from the District Court on 27 March to remove the clamp and it did so on 2 April 2015.
2.3 It is the complainant’s position that the matter should have been dealt with either through An Garda Siochana, or the Private Residential Tenancies Board. In his submission, the complainant again raises questions for the respondent on what basis or rationale his car was clamped.
2.4 He also mentions another car as being “singled out” to be clamped and gives that car’s registration number, but does not provide any details of the race of the car’s owner in his submission. He nevertheless alleges that car owners of other races are being treated more favourably by the respondent in terms of the clamping of their vehicles.
3. Summary of the Respondent’s Written Submission
3.1 The respondent denies that it discriminated against the complainant as alleged or at all. It states that the complainant was in possession of a valid parking permit for parking in his estate for the year 2014-2015, and that these parking permits are distributed by the estate’s management agent rather than the respondent.
3.2 It is the respondent’s understanding that the complainant did not receive a parking permit for 2015-2016 because his lease was terminated by his landlord. The respondent further understands that this is subject to proceedings before the PRTB.
3.3 The respondent states that it informed the complainant of the appeals process for appealing a declamping fee, which it submits is via an Independent Parking Appeals Service. It also states that when it became aware that the complainant’s missing parking permit was the result of a dispute between the complainant and his landlord, it removed the clamp free of charge.
The respondent also submits that the clamping of the complainant’s vehicle was also the subject of a District Court claim and a subsequent appeal, both of which went against the complainant.
Specifically with regard to the complainant’s complaint of discriminatory treatment on the ground of race, the respondent submits that it does not possess any data on the owners of the vehicles it clamps, and that private parking operators in Ireland have no access to the National Vehicle Database. It states that when its employee clamped the vehicle, he did not know the identity or race of the complainant.
It further states that patrols and clamping are carried out selectively, and not on a zero-tolerance basis.
4. Conclusions of the Equality Officer
The main issue for decision in this case is whether the complainant was discriminated against on the ground of race when the respondent clamped his car.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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.
In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
The complainant is Yoruba, and he claims that the respondent “set him up” with the clamping of his car. He read out the definitions of racial discrimination from Council Directive 2000/43/EC, commonly known as the Race Directive. Article 2 states that
1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; [Emphasis added]
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
3. Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. [Emphasis added]
4. An instruction to discriminate against persons on grounds of racial or ethnic origin shall be deemed to be discrimination within the meaning of paragraph 1.
By the above definition, which the complainant correctly bases his case on, an act can only be racially motivated if the race of the person it is directed against is known to whoever carries it out. In this context, I am satisfied that it is impossible to correctly infer someone’s race from the car they drive. This is simply common sense. Therefore, in order to prove that the respondent clamped his vehicle for discriminatory reasons connected to his race, the complainant needs to provide evidence that the respondent knew his race ahead of the clamping. He was unable to provide any such evidence. The complainant asserted that the owner of another, unclamped vehicle with the wrong parking disc was Caucasian, but again, did not provide the slightest bit of evidence that the respondent would have known this. In terms of yet another vehicle which was clamped by the respondent and which the complainant had photographed, the complainant was unable to give the owner’s race. In the circumstances, the complainant failed to show how the clamping of his car could have been racially motivated.
The complainant also asserted that it took the respondent three weeks before it removed the clamp free of charge, after the complainant had initiated court proceedings. However, this by itself is not enough to prove discrimination, in which evidence needs to be adduced that someone else was treated more favourably. Such a person, in equality law, is called a comparator, and no case of direct discrimination can succeed without it. (The complainant did not make any valid argument for an indirect discrimination case at all.)
In cases where such a comparator does not exist, it is also permissible to adduce evidence to support the contention that a hypothetical person would have been treated more favourably. This was established by the Labour Court decision in Citibank v. Massinde Ntoko [EED045], in which the court held that because Mr Ntoko was the only agency worker in the respondent business and hence a category of one, he was entitled to rely on a hypothetical comparator. Here, I am satisfied that the complainant had Caucasian neighbours who were also at risk of being clamped by the respondent, and hence had real comparators available to him establish his case.
Accordingly, in order to prove that someone else of another race was treated more favourably by the respondent, the complainant would have needed to provide evidence of such a comparator of another race whose car would have been de-clamped faster than his, also without charge or de-clamped without charge in the same amount of time, but without court proceedings. The complainant failed to adduce any such evidence and hence failed to establish the elements of a prima facie case, in respect of this part of his claim, from which possible discrimination may be inferred.
The complainant further alleged that staff of the respondent harassed him by “playing”, in his words, with the clamp on his car, which he claims created an “intimidatory, hostile, degrading, humiliating or offensive” environment for him. However, Section 11(5)(a)(i) of the Equal Status Acts defines harassment as “any form of unwanted conduct related to any of the discriminatory grounds, […]” [Emphasis added]. The alleged conduct, apart from that it remains entirely unproven – the complainant submitted photos of his car which show that the clamp had indeed been tampered with, but no evidence at all of who did the tampering, so it is not clear that this was done by the respondent’s staff – simply lacks any connection to the complainant’s race as set out in the above section, or in that matter, in the provisions of the Race Directive quoted above.
In short, the complainant’s entire claim fails for lack of basic evidence which would establish a prima facie case as required by S. 38A of the Acts.
5. Decision
Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that APCOA Parking Ireland Ltd. did not discriminate against Mr Olumide Smith on the grounds of race in terms of the clamping of his car and events arising from this.
______________________
Stephen Bonnlander
Equality Officer/Adjudication Officer
26 May 2017