Complainant

Respondent

Anonymised Parties

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00020128-001

02/07/2018

The Complainant is a member of the Traveller community. The Complainant claims that he was discriminated against by the Respondent on the grounds of his membership of the Traveller community in terms of Section 3(1) and 3(2)(i) of the Equal Status Acts and contrary to Section 5(1) of the Acts in relation to the Respondent preventing him from using the facilities of the Respondent’s gym on 29th January 2018. The Complainant seeks compensation.

The ES1 form was sent to the Respondent on 26th February 2018. ES2 letter was issued on 8th March 2018.

CCTV footage was presented at the hearing.

The hearing was held on 9th October 2018. Additional submissions were received from the Respondent on 15th October 2018. The Complainant was given an opportunity to comment.

Counsel for the Respondent raised the preliminary point at the adjudication hearing in relation to the legal entity named in the complaint. The position is that the entity named in the complaint is incorrect and in those circumstances the complaint must fail. It is submitted that the Complainant claims to have been discriminated against by Limerick Strand Hotel Limited. It is submitted that the Respondent herein has not been the owner/occupier/proprietor of the Strand Hotel, Ennis Road, Limerick since in or about 2015, and the Complainant has ensued the incorrect party.

The Respondent cited Travelodge Management Ltd. V Sylwia Wach EDA1511.

Counsel for the Complainant submits that Form ES1 was issued on 26th February 2018 and there was no objection raised in respect of the incorrect respondent. The Complainant noted that the respondent took no issue with the name of the respondent throughout the process. The Complainant requested that the name of the Respondent in the within proceedings be amended. In the alternative, the Complainant makes an application for an extension of time to allow to initiate proceedings against the correct respondent.

In relation to the preliminary point I find as follows.

The Complainant named Limerick Strand Hotel Limited as the respondent to his claim. At the hearing it was argued that Limerick Strand Hotel Limited has not been the owner/occupier /proprietor of the Strand Hotel since in or about 2015. Firstly, I note that the solicitors for Strand Leisure Investments Limited in their written communication with the Complainant’s solicitor dated 20th March and 19th April 2018 note: “Our Client: Limerick Strand Hotel Ltd”. Similarly, a ‘Membership Application’, copy of which was exhibited at the hearing states: “Limerick Strand Hotel Ltd.”

I find that by its written communication to the Complainant’s solicitor in reply to form ES1 dated 8th March 2018 Strand Leisure Investments Limited solicitors addressed the complaint of discrimination. I find that the Counsel for Strand Leisure Investments Limited attended the adjudication hearing and made submissions in relation to the legal entity named in the complaint and to the substantive matter of this complaint.

In relation to this issue, I refer to the Decision of the High Court in the case of Capital Foods Emporium Ltd v Walsh [2016] IEHC 725. In that Decision, Barrett J considered whether a party to a complaint who “participates in proceedings to the extent that it acknowledges and accepts that those proceedings were rightly brought against it” can “later allege that the proceedings were not so brought.” In relation to that point Barrett J stated that the maxim Quod approbo non reprobo” (that which I approve, I cannot disapprove) applies.

In the instant case, the solicitor for Strand Leisure Investments Limited engaged in the exchange of correspondence with the Complainant’s representative in which it did not raise the matter of an incorrect Respondent and themselves used the incorrect name. Moreover, the correspondence outlined its client’s instructions in relation to the complaint, denied the claim and noted that any claim will be defended. I find that it was unreasonable to subsequently attend at the adjudication hearing and raise further issues in relation to the complaint as submitted.

Moreover, there was no dispute that Mr Wallace-O’Donnell, BL attending the hearing represented the correct Respondent, Strand Leisure Investments Limited (SLIL), and had a statement on its behalf presented at the hearing.

I am also of the view that a purposive view of the legislation should be applied to this complaint as previously considered in Equality Officer Decision No: DEC-S2011-013 Frances Comerford v Trailfinders Ireland Limited which states as follows:

“The Equal Status Acts is a remedial social statute to be widely and liberally construed. In the long title the 2000 Equal Status Act is expressed to be remedial legislation and as such it is submitted that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327. " As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done."

Having considered the matter and bearing in mind that the purpose of the legislation is to assist complainants where a perception of discrimination exists, I am of the view that the name of the respondent can be amended.

On the basis of the foregoing, I find that I can consider the substantive complaint as submitted.

The Complainant submits that he is a member of the Traveller community as defined under Section 2 of the Equal Status Act, 2000. He submits that on 26th January 2018 he joined Energize Health Club at the Limerick Strand Hotel. The Complainant submits that he completed all required forms and paid his membership fee. The Complainant claims that he was advised that his membership card would be available for him on Monday 29th January 2018. The Complainant submits that he attended at the gym on Monday 29th January to avail of the facilities. He claims that there was no staff member at the reception desk when he entered the premises so he proceeded to make his way to the changing rooms. The Complainant claims that he was met in the changing rooms by a gentleman who he knows to be the manager, Mr A, who brought him back to the reception area and advised him that he was not a member of the gym. The Complainant submits that he tried to explain the situation to Mr A. However, he claims that Mr A advised him that he was only a member until 12noon that day, until Mr A heard more from his superiors. Mr A advised that he would telephone the Complainant. The Complainant claims that this exchange took place in public view and earshot of third parties. The Complainant submits that he did use the facilities for a short period of time that day but he was very uncomfortable in doing so given what had occurred. The Complainant claims that he was embarrassed and shocked by the way he was treated. The Complainant submits that to date he has not received a telephone call from Mr A or any other person associated with the gym. The Complainant submits that he was discriminated against because he is a member of the Traveller community.

Evidence of Mr Jason Faulkner, the Complainant

The Complainant gave direct evidence. He confirmed the events as outlined above. The Complainant stated that on Friday 26th January 2018 he inquired about joining the gym and asked if he could have a ‘look around’. He was dealt with by Ms N who showed him around the gym, pool, boxing area etc. The Complainant stated that Ms N brought him back to the reception. He explained that he could not read or write and Ms N went through the details of the application form with him and helped him to fill out the form. The Complainant confirmed that he signed and dated the form. The Complainant stated that he paid €60 cash and Ms N confirmed that he was a member and that his membership card would not be ready until Monday, but the receipt is a proof of his membership. The Complainant stated that Ms N was very helpful.

The Complainant submitted that he returned to the gym on Monday morning. The receptionist went to the back room and he had no swipe card yet. He stated that the gate was open so he walked in to the dressing area. The Complainant claimed that the manager came from the pool and told him to follow him to the reception. The Complainant claims that the manager and the membership officer told him that they did not know how did he become a member as spaces were limited and the membership was full. The Complainant claims that the manager presented the “pink” member’s copy of the form stating that it needs to be approved. He claims that he was told and understood that he was a member until 12 o’clock unless he is told differently. The Complainant submitted that he noticed that at that time another person was at the reception signing up for a membership. He stated that he went to the gym and went back out. He claims that the membership officer told him at this stage that it was a misunderstanding. He claims that there was no contact from the gym thereafter and he subsequently cancelled his membership. The Complainant confirmed that he was informed that his card would not be ready for a few days and the receipt was a proof of membership. However, he did not have the receipt with him at the material time.

In cross-examination, the Complainant denied that the manager was trying to assist him and that after initially asking if the Complainant was a member, his membership was never contested. The Complainant denied also that he was told that the manager would contact him only if there was any issue. The Complainant was asked if he stepped forward towards the manager and he confirmed he came closer “to keep it quiet”. The Complainant was also asked why did he not use the gym but he did do a lap around and walked out of the gym to which he replied that he did not feel comfortable. The Respondent referred to the CCTV footage and pointed out to the Complainant that the video does not seem to show that the Complainant “got looks from people” as he claimed. The Complainant reiterated that he did. The Complainant confirmed that he did not have the receipt with him on 29th January and he did not follow up on the matter and cancelled the direct debit payments.

The Respondent unequivocally refutes the claim. The Respondent submits that on the morning of 29th January 2018 the manager of the gym, Mr A was making his way from the plant room with some chlorine to shock dose one of the gym’s swimming pool when he saw a man he now knows to be the Complainant but whom he did not recognise at the time. The Respondent submits that Mr A saw the Complainant linger at reception for a moment, then make his way past same without swiping a membership card. The manager followed the Complainant into the men’s changing room and asked him if he was a member to which the Complainant answered in the affirmative. The manager then asked the Complainant if he had a membership card, to which he answered in the negative. The Respondent submits that the manager asked the Complainant to accompany him to reception where he would ask the membership officer to issue the Complainant a membership card. The Respondent submits that the Complainant accompanied the manager to reception and the manager returned to his pool duties. The Respondent submits that the manager then returned to the reception. The Respondent submits that January is a busy month for the gym in terms of new memberships and there was a backlog in processing membership and issuing cards. The Respondent claims that the manager explained to the Complainant that his membership would have to be processed onto the system before a card would issue. The Respondent claims that the Complainant said that he was a paid-up member and said words to the effect of “is it because I am a traveller that you have brought me out here to embarrass me?” The Respondent submits that the manager explained to the Complainant that there was a process for putting membership on the system. The Complainant again reiterated that he was a member. The manager explained that no one is denying his membership, that a process was being followed and that his membership card would be ready the following day. The Respondent submits that in order to try to defuse the situation the manager attempted to change the subject by asking the Complainant if he had received a copy of the document he had signed when joining, to which the Complainant replied that he had signed nothing as he could neither read or write. The manager showed the Complainant a sample of one of the forms he would have signed. At this stage, the Complainant said he had paid up and was going into the gym. The Respondent submits that, in fact, on 26th January 2018, the Complainant had signed the relevant forms and retained the customer’s copy thereof.

The Respondent submits that in circumstances where the Complainant had denied having signed any document, the manager told the Complainant that he would have to check over the forms and if any issues arose discuss same with the General Manager. The manager told the Complainant that he would contact him before noon that day if there was any issue with the documents. Thereafter the Complainant entered the gym. Thereafter, at reception the Complainant was agitated and asked the membership officer who the manager was and went on to say that he was a member and ask why the manager stopped him. The membership officer explained that the Complainant’s details had to be processed onto the system and that his membership card would be ready the following day. Throughout the exchange the Complainant repeated that he was a member of the gym which the membership officer and manager repeatedly confirmed. The Respondent submits that the Complainant then said to the membership officer words to the effect of “something will be done about [the manager]”. The membership officer did not reply and the Complainant returned to the changing room. Having examined the relevant forms, the manager and the membership officer noted that the Complainant had signed the relevant document and the back sheet (member’s copy) was missing thereby demonstrating that same was in order. In the circumstance the manager did not contact the Complainant.

The Respondent submits that at no time did the SLIL discriminate against the Complaint, whether on the ground of being a member of the Traveller community or otherwise.

Evidence of Ms N, Fitness Instructor

Ms N confirmed that she dealt with the Complainant on 26th January 2018 and did not dispute his version of events on that date. She confirmed that she showed the Complainant around the facilities. She asked the Complainant for the direct debit form. She stated that the Complainant made her aware of his difficulty with reading and writing and she helped him to fill out the membership application form. In relation to the events of 29th January, Ms N stated that she did not know what exactly happened as she was on her break. When she returned from her break she was dealing with someone else and in a quick exchange she confirmed that the Complainant was a member.

Evidence of Mr A, the Manager

The manager from the outset noted that he had no reason to doubt that the Complainant was a gym member. He pointed out that Ms K, the membership officer / sales executive is the only person who processes the memberships and she does not work on Saturday/Sunday. The manager noted that it is not uncommon that the processing and issuing of the cards is delayed. The manager stated that the Complainant stepped forward and was intimidating and agitated. The manager stated that he asked the Complainant if he had a copy of the form or the receipt and the Complainant replied that he signed nothing. The manager stated that he then showed the Complainant a blank pink sheet and showed to him that it needed to be signed off by the General Manager. He claims that he explained to the Complainant that if he did not sign it he would not know the terms and conditions of his membership. The manager stated that the Complainant’s details were in the computer so the form with T&C had to be signed. The manager asserted that he told the Complainant that he would ring him around 12noon if there was any issue. He reckoned that the Complainant would be in the gym at least until 12 noon and therefore there was no point to ring earlier. He stated that Ms K then found the Complainant’s application and processed it immediately. The manager noted that the Complainant told him that he is a member of Traveller community and asked if the manager was trying to embarrass him. The manager noted that the gym has over 1000 members and all are treated in the same manner. He clarified that all members are required to swipe their card at the entrance. If a member forgot the card an employee can manually ‘put them through the system’.

In cross-examination Mr A confirmed that he explained a couple of times to the Complainant that there was a delay with processing of applications, but he was free to use the gym. He denied that he was irate. He denied that he was trying to “row back” and rely on the General Manager clause to revoke the membership. He stated that he never came across a situation where a member would not have signed the forms with T&C and wanted to clarify it with the General Manager. However, he noted that he did not want to add fuel to the fire and told the Complainant that he would call him if there was any issue.

Mr A confirmed that the Complainant membership was paid in advance for January and February and the payments were stopped by the Complainant in March 2018.

Evidence of Ms K, Membership Officer / Sales Executive

Ms K noted that the delay in processing of the membership applications is a common occurrence in January and the Complainant was not treated differently in this regard. Ms K stated that when walking out the Complainant asked her who Mr A, to which she replied that he was a manager. She claims that the Complainant said that something needed to be done about the manager. She apologised for the misunderstanding.

In cross-examination Ms K was asked if it occurred to her at the time to go and look for the form as it would have ended the dispute and she replied: “I don’t know”. She confirmed that the Complainant was irate and she explained to him that it was a misunderstanding. Ms K confirmed that she found the application after the Complainant had left and processed it on the same day.

Evidence of Mr S, the General Manager

Mr S stated that, although the gym does not ask for details of this nature, based on the addresses of the members he believed that they have other gym members who are members of the Traveller community. He confirmed that there is no formal or informal policy in respect of members of Traveller community. He noted that the Respondent’s staff induction book would have equal treatment policy (copy was submitted post-hearing). In cross-examination Mr S did not accept that one employee could look for a reason not to sign up a member of Traveller community. Ms S pointed out that if there was any difference between the Respondent’s policy and an individual’s approach, the individual would be subject to a disciplinary action.

The Complainant claims that he was discriminated against on the grounds of membership of the Traveller community. I note the submissions of the parties differ greatly and cannot be reconciled. Accordingly, I will be making my findings on the balance of probabilities.

Section 3(1)(a) provides, inter alia, 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 this case the Traveller community ground). Section 3(2)(i) provides that: “As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”)”. Section 5(1) of the Act provides: "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 a claim 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.

In making my decision, I have considered all of the evidence, written and oral, made to me by the parties to the case, including the CCTV footage. The issue for consideration in the instant case is whether the Complainant was prevented from accessing the Respondent’s gym facilities on the day in question on the grounds of his membership of the Traveller community contrary to the Equal Status Acts. First, I must consider whether the Complainant has succeeded in establishing a prima facie case of discrimination. In order to do so, the Complainant must satisfy three criteria in relation to his complaints. He must (1) establish he is covered by a discriminatory ground (in this case the Traveller community ground); (2) it must be established that the specific treatment alleged by the Complainant, on balance, occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances.

In this case, it is not a fact in dispute that the Complainant is a member of the Traveller community. The Complainant confirmed that he inquired about the membership on the 26th January 2018 and that the staff member was very helpful. He was shown around the facilities. Thereafter, he was afforded additional assistance in completing the relevant forms, he paid the membership, as required, two months upfront. I find that the Complainant was afforded service without any difficulty in the Respondent’s gym on 26th January 2016. I note that the Complainant confirmed at the hearing that he was informed that his membership card would not be ready until Monday and the receipt would be a proof of his membership on the meantime. I am cognisant of the fact that the Complainant application form was completed on Friday evening and the Complainant visited the gym next on the morning of Monday, 29th January 2018. In that regard, I accept the Respondent’s evidence that firstly, the membership officer does not work at the weekends and secondly, that it is not uncommon for the application processing to be delayed in January due to the volume of applications.

I find that on 29th January 2018, the Complainant entered the facilities without swiping a membership card, which was not issued to him at the time and without communicating his presence to the Respondent’s staff. In the circumstances I do not find it unusual or unexpected that the Complainant was approached by a staff member and it cannot be attributable to the Complainant’s membership of the Traveller community. Furthermore, the evidence before me shows that the Complainant was at no point prevented from entering and using the Respondent’s gym facilities following the conversation with the manager and the membership officer. Moreover, I note that the in the correspondence of 8th March 2018 the Respondent’s solicitor states: “Given that your client is currently a member of the Leisure Club and his Direct Debt [sic] is being paid monthly, you might please indicate by return whether you wish the membership to cease and the payments to stop. If your client is not inclined to attend the premises to use his membership we would have thought that he should be entitled to his money back and that the Membership should cease. Otherwise, membership fees will continue to be collected…”The Complainant’s membership remained valid until the Complainant cancelled membership payments.

In the instant case, I am satisfied that the action taken by the Respondent was in no way attributable to the Complainant’s membership of the Traveller community.

Having regard to the evidence adduced, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of his membership of the Traveller community.

Having considered the submissions of both parties to this complaint I declare that the Complainant has failed to establish a prima facie case of discrimination and accordingly the complaint is not well founded.

Equal Status Acts – Direct Discrimination – Membership of the Traveller community – Refusal of Service – Prima facie case not established