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-00020129-001

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 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 but did not do so.

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 notes that the Respondent took no issue with the name of the Respondent throughout the process. The Complainant requests 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 not only did not raise the matter of an incorrect Respondent but 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 applied to become a member of the Respondent gym and attended on 28th January 2018 to complete the membership documentation. The Complainant submits that he was assisted by a member of staff in doing so. The Complainant submits that he was missing certain documents to complete the registration and he returned the following day 29th January 2018 to produce same. The Complainant submits that when he went to the reception of the gym he was met by a man who he knows to be the manager, Mr A. The Complainant claims that the manager advised him that the membership was full and that he was not joining the gym. The Complainant submits that he was shocked and embarrassed by this and told the manager that he was going to see his solicitor regarding same and the manager advised him to do that. The Complainant submits that he believes that he was discriminated against because he is a member of the Traveller community.

Evidence of Mr Michael Faulkner, the Complainant

The Complainant gave direct evidence at the hearing. He submitted that he visited the Respondent’s gym on Sunday 28th January 2018 at around 2-3pm. He noted that the staff member who dealt with him was very nice and helpful. The Complainant advised the staff member that he was not great at reading and writing and she helped him with the paperwork. She also gave him a handwritten list of what he was required to bring in order to set up direct debit. The Complainant submits that he returned the next day and met the manager, Mr A. The Complainant claims that the manager told him that all spaces are filled up. The Complainant claims that he explained to the manager that the staff member who dealt with him the day before had no issue. The Complainant pointed out that there was a “come and join” sign outside the door of the gym at the time. The Complainant submits that he believed it was “total discrimination and embarrassment”. The Complainant argues that he had everything in order and he was treated this way because he is a member of the Traveller community. The Complainant submits that he went home and spoke with his brother about the incident.

In cross-examination the Complainant confirmed that the staff member and “all the girls” were very nice. The Complainant disagreed with the Respondent that the staff member was uncertain whether a fuel receipt rather than a standard proof of address such as a bank letter/utility bill could be used to set up direct debit. The Complainant claimed that he had what was required and the manager told him he was not becoming a member. The Complainant denied that he was asked to pay up front for two months. The Complainant claimed that he was unaware of the earlier incident involving his brother.

The Respondent rejects the claim.

The Respondent submits that on 28th January the Complainant attended the Respondent’s gym where he inquired about direct debit membership. The Respondent submits that a member of staff told the Complainant that in order to set up same he needed to bring photographic identification and a utility bill for proof of address dated within the last three months. The Complainant had neither of these at the time and left. The Respondent submits that later that day the Complainant returned with a receipt from a fuel provider and details of his wife’s bank account which he wished to use. A member of staff told him that she was unsure if the receipt was sufficient proof of address and asked the Complainant to come back on Monday after she had checked same with management. The Respondent submits that on Monday 29th September 2018 the Manager of the gym went to reception to get some materials when the Complainant approached him. He was behind some people dealing with a member of staff. The Respondent claims that the Manager acknowledged the Complainant and the Complainant told the manager that he wished to join the gym. The manager opened the gate and invited the Complainant to the reception desk.

The Respondent submits that the Complainant said that he had been at reception the previous day enquiring about signing up to direct debit membership. The Respondent claims that the manager, having looked at the application form and seen that everything was in order, told the Complainant that he was required to pay two months up front given that he was paying by direct debit and that his membership card would not be ready for a day or so as the membership must be processed on the system. The Respondent submits that the manager explained that the Complainant was signing up to a minimum of six months’ direct debit membership. The Respondent asserts that the Complainant asked, if that was six months membership to which the manager replied, that it was full membership (in that, it was for a minimum of six months).

The Respondent submits that the Complainant told the manager that he was not aware of the two months upfront payment and he became visibly irate. The manager confirmed that the application could not be processed without the said payment. The Respondent submits that the Complainant then asked the manager if he was the man who had dealt with Mr X that morning. (This is a reference to an incident involving the Complainant’s brother earlier that morning, which is a subject of a separate complaint). Before the manager could reply the Complainant picked up his papers and said he was calling the Gardaí. The Manager said that he was afraid there was no more he could do for the Complainant. The Respondent submits that the Complainant then walked away from reception with the forms in his hand as he took the telephone from his pocket. He then sat on a chair by the pool viewing area.

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

Evidence of Mr A, the Manager

Mr A submitted that he was behind the reception desk when he saw the Complainant waiting to be dealt with. Mr A claims that he signalled the Complainant to approach the desk and let the Complainant through the gate. Mr A submitted that after he told the Complainant that he needs to pay two months fee upfront the Complainant stated that he was not aware of that and said he was going to call the Gardaí. Mr A emphasised that the same process is followed with all applicants.

Evidence of Ms R, Fitness Instructor

Ms R stated that she was at the reception dealing with other customers when the incident happened. She confirmed the evidence of Mr A, the Manager and noted that the Complainant was not treated differently to other people as the procedures are the same.

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 issue for decision by me in the case before me is whether the Respondent discriminated against the Complainant on grounds of his membership of the Traveller community in terms of Sections 3 of the Equal Status Acts.

Section 3(1)(a) provides, inter alia, that “For the purposes of this Act discrimination shall be taken to occur — (a) where a person is treated less favorably 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) 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".

The Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. 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 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 submissions of the parties differ significantly and cannot be reconciled. Accordingly, I will be making my findings on the balance of probabilities.

It was not in dispute that the Complainant is a member of the Traveller community and I am therefore satisfied that he is covered by the Traveller community ground. The Complainant has claimed that he was subjected to discriminatory treatment on the grounds of his membership of the Traveller community in relation to his application to join the Respondent’s gym. The Respondent denies the claim of discriminatory treatment and submits that the Complainant did not complete the application process by making an advanced payment for two months and setting up a direct debit payment.

I accept the Respondent’s evidence that the joining of the gym on a direct debit basis is subject to the completion of relevant forms and an advanced payment for two months. The Complainant confirmed that, when he originally made enquiries about the membership he was dealt with in a nice and helpful manner. He confirmed that the staff member, having been made aware of his difficulties with reading and writing, went as far as helping him to fill out the forms and making a note for him as to what was he required to supply in order to complete the process. I find that the Complainant was afforded service without any difficulty in the Respondent’s gym on 28th January 2018, and in fact by his own admission he was afforded additional assistance with the application. I am satisfied that the Complainant was in no way precluded from become a member, subject to the completion of relevant forms and an advanced payment for two months.I am satisfied that the Complainant has failed to adduce any meaningful or cogent evidence to establish that the actions of the Respondent on the 29th January 2018 were in linked to his membership of the Traveller community.

Having regard to the evidence adduced, I am satisfied that I have not been presented with any evidence from which it could reasonably be concluded that the Complainant was treated less favourably on the grounds of his membership of the Traveller community regarding the manner in which the Respondent dealt with him in relation to this matter. Having regard to the foregoing, 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 in the circumstances of the present case.

In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that the Complainant has failed to establish a prima facie case of discrimination on the Traveller community ground within the meaning of Section 3(1)(a) of the Acts.

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