DEC-S2018-001

EQUAL STATUS ACTS    

DECISION NO. DEC-S2018-001   

PARTIES  

Thomas Whelehan    

-v-    

The Football Association of Ireland    

File reference: es-153049-es-15         

Date of issue: 11th January, 2018       

1.   Background to the Claim

1.1       The Complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 3rd February, 2015. On the 25th May, 2017, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts the Director General delegated the case to me, Enda Murphy, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. Written submissions were received from the Complainant on 30th September, 2015 and 23rd December, 2015 and from the Respondent on 24th November, 2015. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 14th November, 2017.  

1.2       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(3) of the Workplace Relations Act, 2015.  

2.         Dispute

2.1       The dispute concerns a claim by the Complainant that he was discriminated against by the Respondent on the Age ground in terms of Sections 3(1)(a) and 3(2)(f) contrary to Section 5(1) of the Equal Status Acts in relation to its alleged refusal to address an issue regarding an advertisement in a local regional publication regarding over 35’s football. The Complainant also claims that he was subjected to victimisation by the Respondent within the meaning of section 3(2)(j) of the Equal Status Acts.  

3.         Summary of the Complainant's Case

3.1       The Complainant submits that an advertisement was placed in a magazine in his locality offering interested persons the opportunity to play over 35’s football at 9pm on Thursday nights. The Complainant responded to the contact number on the advertisement to express his intertest in participating in the football but did not receive any subsequent response or follow up. The Complainant claims that the contact name on the advertisement was that of a prominent committee member of the local football club in his locality. The Complainant subsequently contacted the Respondent to make a complaint about the refusal of the relevant football club to respond to his request to partake in the over 35’s football. However, he claims that the Respondent failed to investigate this incident or to take any action in relation to the matter.  

3.2       The Complainant claims that the Respondent, being the governing body for football in this country, cannot dissociate itself from the discriminatory actions of this football club, which is affiliated to the organization. The Complainant claims that the Respondent allowed the football club to treat him in a discriminatory manner on the grounds of his age by refusing to investigate the matter or to seek an explanation from the club as to the reason why he was denied the opportunity to participate in the over 35’s football. The Complainant submits that the Respondent has a duty to ensure that people of all ages are treated equally in terms of access to participation in football activities in the state.

3.3       The Complainant also claims that he has been subjected to victimisation by the Respondent contrary to the Equal Status Acts. The Complainant submits that he previously initiated proceedings against the Respondent under the Equal Status Acts in relation to a ban which was imposed on him by his local football club. The Complainant claims that he made several attempts to contact and engage with personnel employed by the Respondent in relation to the incident involving his attempts to play over 35’s football. However, the Complainant contends that the Respondent failed to take any action and ignored his request for assistance in relation to the matter. The Complainant claims that the refusal by the Respondent to take any action in relation to this matter was directly attributable to the earlier proceedings which he had initiated under the Equal Status Acts.  

4.         Summary of the Respondent's Case

4.1       The Respondent refutes the claim that it has discriminated against the Complainant on the grounds of age or that he has been subjected to victimisation contrary to the Equal Status Acts.  

4.2       The Respondent submits that it has no input into the running of the particular group that placed the advertisement in the local magazine in relation to the over 35’s football. The Respondent submits that this group is not affiliated to a member of the FAI but rather is a social adult recreational ad hoc group who privately book use of the all-weather pitch of the football club in the locality where the Complainant resides. Therefore, whilst this group use the facilities of the club they do so privately and pay a rent for same. They are not a registered team with the club and are not registered in any league or to the FAI. The Respondent submits that as the group is in no way connected to the FAI, the organization has no jurisdiction to intervene in the workings of this group. The Respondent contends that any issues relating to membership or participation in this social group should be addressed to that group and not the club or the FAI as they are not an affiliated member of the FAI. The Respondent submits that the instant complaint is therefore misconceived and should be dismissed in accordance with the provisions of Section 22 of the Acts.  

4.3       Without prejudice to the foregoing, the Respondent refutes the Complainant’s contention that the advertisement for the over 35’s football had been placed in the magazine on behalf of the local football club. The Respondent submits that there was no reference in the advertisement to the contact person being the secretary or in any way connected to the football club. The Respondent contends that this advertisement was not sanctioned by the club. The Respondent notes the Complainant’s assertion that the reason he got a negative response to his request for information on the over 35’s group was based on age. The Respondent submits that the Complainant has produced no evidence to support this assertion. The Respondent submits that as the FAI has no jurisdiction over this group there can be no discrimination attributed to it. The Respondent submits that the Complainant has failed to support his assertion of discrimination on the grounds of age in relation to this matter with any facts in relation to differential or less favourable treatment. The Respondent submits that the Complainant has failed to point out any specific incidents in which the FAI or its employees have allegedly discriminated against him or victimised him. The Respondent contends that notwithstanding this lack of information, at no stage has the Complainant been treated less favourably by the FAI or persons under the control of the FAI.  

4.4       The Respondent denies that the Complainant has been subjected to victimisation contrary to the Acts arising from his interaction with the FAI in relation to his requests for an investigation into the matter relating to the over 35’s football. The Respondent contends that all previous complaints made by the Complainant and the appeal in relation to the ban were dealt with in accordance with standard procedures and the Complainant has not been victimised as a result of those previous complaints or appeal. The Respondent submits that the Complainant has had access to a number of staff within the FAI who sought to assist him regularly with his queries over the last number of years.      

5.         Conclusions of the Equality Officer

5.1       The issues for consideration by me are (i) whether or not the Respondent discriminated against the Complainant on the grounds of age contrary to Section 5 of the Acts and (ii) whether or not the Respondent subjected the Complainant to victimisation within the meaning of Section 3(2)(j) of the Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.  

Complaint of Discrimination on the age ground

5.2       I will firstly consider the Complainant’s claim that he was subjected to discrimination on the grounds of age in relation to the alleged refusal by the Respondent to address an issue regarding an advertisement in a local regional publication regarding over 35’s football. The Equal Status Acts prohibit certain types of discrimination in the provision of goods and services, education and accommodation across ten protected grounds. However, in order for me to have jurisdiction to investigate any claim of prohibited conduct under the Acts, I must be satisfied that there is a nexus between the alleged unlawful act and the protected ground. Furthermore, I must be satisfied that the complaint relates to a situation where, in the circumstances of this case, the Complainant was availing of a service. Therefore, the first matter which I must consider is whether the Complainant was in receipt of a “service” from the Respondent within the meaning of the Equal Status Acts as amended.  

5.2       In Section 2 of the Equal Status Acts the term “service” refers to: ‘‘service’’ means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes — 

(a) access to and the use of any place, 

(b) facilities for — 

(i) banking, insurance, grants, loans, credit or financing, 

(ii) entertainment, recreation or refreshment, 

(iii) cultural activities, or 

(iv) transport or travel, 

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and 

(d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;” 

5.3       Section 5 refers to the disposal of goods and provisions of services. Section 5(1) states:

“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."  

5.4       In the instant case, the Complainant claims that the Respondent, being the governing body for football in this state, had a responsibility to investigate and provide assistance to him in establishing the reasons for the negative response which he obtained after replying to an advertisement in a local magazine to participate in an over 35’s football group. The Respondent contends that the group which was organising the over 35’s football was a private group and was not affiliated either to either the FAI or the local football club whose facilities they were renting on a private basis for the purpose of this activity. The Respondent further submits that the FAI had no jurisdiction whatsoever over this group which it contends was acting on an ad hoc basis and totally independent of the association.  

5.5       Having carefully considered the evidence adduced, I have found the Respondent’s evidence on this matter to be more compelling and I am satisfied that the advertisement for the over 35’s football was placed by a social recreational group which was not affiliated in any manner to the FAI. I am satisfied that the Respondent had absolutely no jurisdiction over this group, and therefore, did not have any authority to investigate or take any action on behalf of the Complainant in relation to his attempts to participate in this group. In the circumstances, I find that the Respondent was not providing any service or facility to the Complainant in the context of the Equal Status Acts. Therefore, the complaint of discrimination on the grounds of age contrary to Section 5 of the Acts does not come within the scope of the Acts.  

5.6       Furthermore, in order for me, as an Adjudication Officer, to have jurisdiction to investigate this complaint I must also be satisfied that there are at least some facts supporting a claim of less favourable treatment in a comparator situation and that there is a nexus between the alleged treatment and the protected ground(s). The Complainant has claimed that the less favourable treatment in the instant case was based on the age ground. In terms of the alleged discriminatory treatment on the age ground, I am satisfied that the Complainant has failed to provide any facts to support his assertions of less favourable treatment by the Respondent in the circumstances of the present case. There are no facts relating to differential or less favourable treatment on the grounds of age. The Complainant submitted that the FAI had failed to offer him assistance, and or, investigation in the circumstances of his case. No facts supporting his assertion that a person of a different age would have been treated more favourably in similar circumstances have been forthcoming. The Complainant has relied on mere supposition unsupported by any evidence in support of his claim of less favourable treatment on the grounds of age by the Respondent.  

5.7       Section 22 of the Equal Status Acts provides that:

"The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious misconceived or relates to a trivial matter." 

The meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [1998] ELR 256 in which he stated:

“So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.” 

5.8       The meaning and scope of the word ‘misconceived’ has been set out by the High Court in Keane v Minister for Justice [1994] 3 IR 347.   Lynch J. found that the Minister for Justice had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the Council to this effect was therefore ‘wholly misconceived and invalid’. A claim is misconceived if it is incorrectly based in law. In my view this complaint is similarly misconceived, as noted above (i) the Respondent is not a service provider within the meaning of the Equal Status Acts in the context of the alleged discrimination in the present case and (ii) the Complainant has failed to establish any nexus between the alleged treatment and the protected ground (i.e. being the age ground). Therefore, I find that the complaint of discrimination on the ground of age is misconceived and cannot succeed. Accordingly, I dismiss the complaint of discrimination on the ground of age as misconceived pursuant to Section 22 of the Acts.  

Complaint of Victimisation

5.9       The Complainant also claims that he was subjected to victimisation by the Respondent within the meaning of Section 3(2)(j) of the Acts arising from his interaction with the FAI in relation to his requests for an investigation into the matter relating to the over 35’s football.  

5.10     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 she 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.  

5.11     The term "victimisation" is defined within section 3(2)(j) of the Equal Status Acts as meaning:              

"that one —                       

(i) has in good faith applied for any determination or redress provided for in Part II or III,                       

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,                       

(iii) has given evidence in any criminal proceedings under this Act,                       

(iv) has opposed by lawful means an act which is unlawful under this Act, or                       

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”)”.   

5.12     It was not in dispute that the Complainant had referred a previous complaint against the Respondent to the Equality Tribunal under the Equal Status Acts in relation to a ban which had been imposed upon him by his local football club. However, it is clear from the provisions of Section 3(2)(j) that victimisation within the meaning of the Equal Status Acts takes place when a person is treated adversely or less favourably because they have tried to enforce rights under equality legislation or to support someone else doing so. Having considered the totality of the evidence adduced, I have not been presented with any evidence from which I could reasonably conclude that the Complainant was treated less favourably or adversely by the Respondent in terms of his interaction with the FAI (or members of its staff) after he had raised the issues in relation to his complaint about the over 35’s football as a result of having initiated a previous complaint under the Acts. Therefore, I find that the Complainant has failed to establish a prima facie case of victimisation within the meaning of Section 3(2)(j) of the Acts in the context of the present case. Accordingly, this element of the Complainant’s claim must fail.  

6.         Decision

6.1       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 discrimination on the grounds of age is misconceived and I dismiss the claim under Section 22 of the Equal Status Acts. In accordance with Section 22(2) the Complainant may appeal against this decision in the Circuit Court on notice to the Director specifying the grounds of the appeal. Such an appeal must be lodged no later than 42 days after the dismissal.

(ii)  The Complainant has failed to establish a prima facie case of victimisation within the meaning of Section 3(2)(j) of the Acts. Accordingly, this element of the Complainant’s claim must fail.         

_________________

Enda Murphy

Equality Officer/Adjudication Officer

11th January, 2018