EQUAL STATUS ACTS
DECISION NO. DEC-S2017-029
PARTIES
Dona Sfar
-v-
Abbey Court Hostel
FILE NO: et-158894-es-15
Date of issue: 15th of September, 2017
1. Dispute
This dispute involves a claim by the complainant
that she was discriminated against by the respondent, on grounds of her age when she was refused access to accommodation provided by the respondent.
2. Background
2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 20th of August, 2015. The complainant submits that she was refused access to overnight accommodation in the respondent Hostel on the night of 27th of April, 2015 and that this refusal was due to her age.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 2nd of February 2017 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 7th of April, 2017. Final correspondence in relation to this matter was received on the 13th of June, 2017.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of the complainant’s case
3.1 The complainant submits that
· she arrived at the respondent hostel on the 27th of April, 2015 having already booked a room over the phone,
· she was told on arrival that she was ‘barred’ and could not stay there,
· she was provided with a refund of the fee she had paid over the phone when making her booking,
· she had stayed at the hostel on a number of previous occasions about 20 in all,
· she left the hostel on the date in question but returned a few weeks later on 12th of May, 2015 and handed in a letter asking why she had been refused entry on the 27th of April 2015,
· she received no reply to the letter of 12th of May and so returned to the hostel a few weeks later to ask why she had been refused,
· she spoke to the owner Mr. A who told her that that he had received complaints from other guests about her behaviour and that she did not fit the profile for their guests and stated that the usual age of guest was in the 18-35 bracket and that she was ‘too old’,
· she advised Mr. A that she had not done anything wrong and that she had never been rowdy or drunk on the premises,
4. Summary of the Respondent’s case
4.1 The respondent submits that
the complainant was refused entry to the hostel on the night in question,
the respondent’s refusal of entry to the complainant had nothing to do with her age,
the complainant had stayed at the respondents hostel on a number of occasions previously, about 11 occasions and her age was not an issue, the complainant used two different surnames when staying with the respondent,
the complainant was refused entry as guests had made complaints about her behaviour on previous occasions and had even asked to move rooms during the night when placed in a room sharing with the complainant,
this is a problem for the respondent as most rooms cater for multiple guests and have 6 plus beds per room,
the respondent hostel caters for a wide variety of guests and its oldest repeat guest is 89 and has been staying with the respondent since she was 71,
the typical age profile of respondent’s guests are 18-35 but it caters for all age groups,
the respondent denies that any reference was made to the complainant being ‘too old’ and states that the reason for the refusal was due to previous complaints from other guests,
the respondent reserves the right to refuse admission and has to be careful given that guests in a dorm situation could be sharing with 20 others.
5. Preliminary Issue –Notification
5.1 Under Section 21(2) of the Equal Status Acts, it is required that a complainant must notify the respondent in writing of the nature of the complaint within 2 months after the prohibited conduct is alleged to have occurred. Under the Acts the notification must do all of the following:
(i) be in writing
(ii) give details of the nature of the complaint
(iii) state the complainant's intention to seek redress under the Equal Status Acts if there is no satisfactory response.
5.2 Section 21 (2)(a) of the Equal Status Acts, 2000 - 2015, states that
"Before seeking redress under this section the complainant-
(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of-
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act.”
5.3 Section 21(3)(a) of the Equal Status Acts, 2000 - 2015, states that:
"On application by a complainant the Director may-
(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or
(ii) exceptionally, where satisfied that it is just and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,
and where such a direction is given, this Part shall have effect accordingly."
5.4 The complaint form was submitted to the Tribunal on the 20th of August, 2015 with the last date of discrimination cited as 27th of April, 2015. The ES1 Form notifying the respondent was sent to the respondent on the 29th of June, 2015.
5.5 It is clear from the notification requirements under Section 21 that the last date for serving of notification on the respondent in relation to the incident on the 27th of April, 2015 would have been the 26th of June, 2015. Thus the notification in this case did not comply with the notification time limits as set out in the Acts.
5.6 This matter was raised with the complainant in January 2016 and again at the hearing of this matter and she was given the opportunity to request an extension of time for the notification period in accordance with Section 21(3) of the Acts which provides that, on application by a complainant, the Director may for ‘reasonable cause’ direct that the notification period of 2 months be extended to not more than 4 months or ‘exceptionally’ where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.
5.7 The ES1 form was issued to the respondent on the 29th of June, 2015 however the complainant advised the hearing that she had prior to this notification delivered a hand written letter to the respondent on the 12th of May, 2015 and she submits that this letter amounts to notification for the purposes of Section 21.
5.8 The complainant advised the hearing that she had given this letter to a receptionist at the respondent’s premises on 12th of May, 2015. The respondent at the hearing stated that it had not received the letter which the complainant alleges she hand delivered to them on the 12th of May, 2015. The complainant stated that she did not retain a copy of the letter but stated that she had kept a note in her work diary on the date in question. The complainant advised the hearing that this was a short letter and the purpose of it was to ask the respondent why she had been refused access to accommodation on the night of the 27th of April, 2015. She advised the hearing that the letter also contained her contact details and asked that the respondent contact her in relation to the matter.
5.9 It is the Complainant’s submission that this hand written letter which she states she handed in to the respondent’s premises on the 12th of May, 2015 satisfies the obligations imposed by Section 21 (2) of the Equal Status Act, 2000 namely that the Respondent was notified and was fully aware of the Complainant’s complaint and her intention, if not satisfied with the Respondent’s response, to seek redress from the Equality Tribunal.
5.10 The complainant when questioned at the hearing stated that the letter of the 12th of May 2015 did not refer to discrimination and that it did not refer to her age or to age discrimination. She stated that the letter only asked for the reason why she had been refused access to the hostel on the night in question and also included her contact details for reply. The respondent advised the hearing that the first notification it received of any allegation of discrimination against the complainant was the notification of the 29th of June, 2015 which it received on the 3rd of July, 2015.
5.11 In ascertaining whether this letter of the 12th of May, 2015 complies with the requirements of Section 21 (2)(a) I must be satisfied that it set out
(i) the nature of the allegation, and
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act.”
5.12 The complainant by her own admission told the hearing that this was a short letter which asked why she was refused admission and which contained her contact details and a request that the respondent reply to her. The complainant advised the hearing that it did not contain any reference to discrimination on the ground of age and did not refer to the Equal Status Acts or to seeking redress under the Equal Status Acts. I am thus satisfied from the evidence adduced, that this letter of the 12th of May 2015 does not comply with the requirements of Section 21 (2)(a). In addition, I am satisfied that the letter of the 29th of June 2015 which was received by the respondent on the 3rd of July, 2015 was the first formal notice issued to the respondent which referred to the complainant’s complaint of discrimination on grounds of age and to her intention to seek redress under the Equal Status Acts.
5.13 Section 21(3) of the Acts provides that, on application by a complainant, the Director may for ‘reasonable cause’ direct that the notification period of 2 months be extended to not more than 4 months or ‘exceptionally’ where satisfied that it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction. The notification in this case was sent more than 2 months after the most recent date on which the Complainant alleges the discriminatory conduct occurred.
5.14 The Equal Status Acts require that the notification must be sent within 2 months of the incident and that this 2 month requirement can be extended to 4 months where reasonable cause can be shown for the delay in submitting the notice outside of the 2 months but within 4 months. Therefore I must be satisfied that there exists “reasonable cause” which would justify and explain the delay in complying with the notification requirements.
5.15 In this case the complainant has not provided any reason for the delay in sending the notification but instead seeks to rely on the assertion that the letter of the 12th of May 2015 meets the requirements of notification under the Act.
5.16 In considering this matter I also note that the complainant advised the hearing that she has a legal background and that she spends a lot of time in the Four Courts. She advised the hearing that she had successfully challenged a court finding against her in relation to Animal Cruelty and that further proceedings in this regard were currently ongoing.
5.17 Taking all of the foregoing into consideration I cannot justify dispensing with the notification requirement in the present circumstances. The complainant in this case has not provided any “reasonable cause” that both justifies and explains the delay in notifying the respondent of the alleged discrimination. I am, therefore, not empowered under the Acts to extend the notification period. Furthermore, I am satisfied that the notification requirements set out in S. 21 (2) of the Acts, were not complied with, and accordingly, I find that the Commission has no jurisdiction to investigate the within complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all of the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that
(i) the complaint of discriminatory treatment on grounds of age was notified outside of the statutory time limits, and
(ii) the Commission lacks jurisdiction to investigate this matter as the notification requirements set out in S. 21(2) of the Acts were not properly complied with.
___________________
Orla Jones
Adjudication Officer/Equality Officer
15th of September, 2017