DEC-S2018-021

EQUAL STATUS ACTS 

DECISION NO. DEC-S2018-021

PARTIES

Timothy Simon Couzens and

Seleni Sewart, Thomas Sewart, Lucy Couzens and Samuel Couzens (all suing through their next friend Timothy Simon Couzens)

Complainants

 V

 Ryanair DAC

(Represented by Martin Hayden, SC with Frank Beatty, SC

instructed by Maples and Calder Solicitors)

Respondent

File reference: ES/2013/0004 and ES/2013/0115

Date of issue:   22 November 2018

Introduction:

1.1       On the 18th January and the 11th October 2013, the complainants referred complaints against the respondent. On the 28th October 2016, in accordance with his powers under section 25 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on two dates.

1.2       The first-named complainant (the “complainant”) attended the hearing dates. Martin Hayden, SC with Frank Beatty SC instructed by Maples and Calder Solicitors represented the respondent. One witness gave evidence for the respondent. This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainants:

2.1       The first-named complainant (the “complainant”) referred to his detailed, written submissions as well as to the newspaper articles. His claim related to both direct and indirect discrimination on grounds of race. The respondent’s terms and conditions state that cases should be taken in Ireland. The complainant outlined that on the 1st January 2013 he booked seven sets of return airline tickets for travel between London Stansted and Zadar, Croatia. The outward journeys would take place on the 28th July 2013 and the return on the 11th August 2013. He paid £2,378.32 sterling for the flights. The following day, he realised that he had been overcharged by £444 because he was charged in sterling for the return flights. He notified the respondent of this and later submitted the Equal Status complaints.

2.2       The complainant acknowledged that on the 15th January 2013, the respondent offered to reimburse the difference. He accepted this offer and the monies were refunded to him. There was a further email correspondence which went into ‘spam’. The respondent later sought to charge back the amount of €444.73. The complainant said that he refunded the money under duress and under the threat of costs. He commented that the status of the flights changed while on holiday. This was put down to a computer glitch. He felt that he had been treated with scorn and contempt and was under threat from the respondent. The complainant also claimed victimisation and harassment.

2.3       In respect of jurisdiction, the complainant submitted that Croatia was not a member of the European Union at the time he booked the flights. EU Equality law required a no cost or low cost means of lodging claims of discrimination, including relating to air travel. The complainant said that there were complaints had on behalf of two his children (who were under 18) and two step-children, who were under 18 at the time of the complaints. The complainant said that the newspaper articles were relevant as evidence of discrimination in the UK. The Huffington post article of the 31st October 2012 was written about a UK passenger challenging having to pay fee for not printing out her boarding card. The reference to ‘Bloody English’ was evidence of the respondent’s scorn and disrespect for UK passengers. The article from the Telegraph of the 7th May 2015 showed how the respondent required UK customers to pay more in fares and fees.

2.4       The complainant outlined that when he first made the booking, he was not aware of the issue of paying for the return flights in sterling. He had not checked booking the flights as one-way flights. The problem with booking two sets of one-way flights is if the first set of flights are cancelled, you cannot cancel the return one-way flights to your point of origin. The complainant said that the respondent had repaid £444.73 but then sought this back in April 2013. He emailed the respondent’s solicitors to say that he had not received the wrongly dated letter of the 17th April 2013 as it had gone into spam. He challenged the allegation that he was not telling the truth. He later became aware that he had received two emails dated the 15th April 2013 and the one relating to the amount of £444.73 and the obligation for confidentiality went into spam.

2.5       In cross-examination, it was put to the complainant that it was clear from the email of the 15th April 2013 that the settlement was based on confidentiality; he acknowledged receiving the letter of the 15th April 2013 but he had not received the second letter, the one starting “we acknowledge receipt”. The complainant outlined that he made a counter-offer in this email of the 16th April 2013 to the first letter. He had not known that the respondent had not accepted his counter-offer as their replying email had gone into spam. It was put to the complainant that the first email of the 15th April 2013 does not mention the amount of £444.73 so how could his email include this amount unless he received both emails; he replied that the amount was the difference between the euro and sterling fares. It was put to the complainant that both letters refer to confidentiality while only one refers to the amount of £444.73; he replied that he may have mixed the letters up.

2.6       In closing submissions, the complainant outlined that he advanced this case on his behalf and on behalf of the travellers who were then children. The respondent’s terms and conditions stated that complaints should be brought in Ireland. He further referred to section 46 of the Equal Status Act regarding the application of the Act to aircraft registered in Ireland. He was complaining of discrimination in having to pay in the currency of the point of departure. The complainant said that the price of the return fare was the same as the price charged on the first flight. He would have paid a lower fare had euro been charged for the return flights. He said that he had been victimised by the threat of legal costs as well as the respondent’s conduct, including calling him a liar. The respondent could have inspected the spam folder of the email account and he may have got the letters mixed up. There was also victimisation in how the respondent sought to recover the amount of £444.73 from a different credit card and amended the booking to say it was unconfirmed. He repaid the £444.73 under protest as he had been told that they could not fly unless it was repaid. In respect of the harassment complaint, the complainant said that the respondent’s tone had been intimidatory, in particular with regard to his counter-offer. The threat of costs was still terrifying, even at the end of the second day of hearing. They were wary when travelling to Croatia as the return booking had changed and was marked unconfirmed. It was upsetting that the respondent treated people who complain in this way.

3. Submissions and evidence of the respondent:

3.1       At the outset of the hearing, the respondent raised several preliminary points. The first related to the number and identity of complainants. The respondent submitted that the multiple complainants stated on the complaint forms were not mentioned in the ES1 form and only mentioned in submissions. It submitted that there was only one complainant to this case. The complainant could not advance the complaints on behalf of other adults or the children who were now over 18.

3.2       The respondent made the preliminary submission that the complaints should have been advanced in the UK and not in Ireland. They related to a UK customer booking flights from the UK to and from Croatia. The respondent submitted that the complainant had a remedy available in the UK. The respondent’s terms and conditions could not give the Equality Tribunal jurisdiction where it did not possess this. Clauses 2.2 and 2.4 of the terms and conditions address jurisdiction but do not convey jurisdiction to a statutory body. It submitted that it was for the complainant to show that the Equal Status Acts had extra-territorial effect. The respondent submitted that legislation such as the Data Protection Act provided for extra-territorial effect, but there was no such provision in the Equal Status Acts. The respondent had raised the issue of jurisdiction in correspondence of the 26th June 2013.

3.3       The respondent submitted that the Air Services Regulations (Regulation 1008/2008) provided a mandatory jurisdiction to determine claims of discrimination in the setting of air fares. Article 23 of the Regulation and the respondent’s terms and conditions permitted the respondent charge the consumer in a stated currency. It required airlines not to discriminate on grounds of nationality or the customer’s place of residence. It provided an avenue of redress, in this case the Commission for Aviation Regulation. The respondent referred to the CJEU decision in Vueling Airlines SA v Instituto Galego de Consumo de la Xunta de Galicia (C-487/12) and in particular paragraphs 25, 27, 28, 32, 38 and 43, which held that the Directive addressed air fares. This must include issues of discrimination, which must be advanced by way of the Regulations. It submitted that a member state can protect consumers but cannot go in conflict to the Directive. The setting of air fares was addressed by the Directive and they must be set consistently across the EU. Article 23 of the Directive provided for non-discrimination and specifically covered a race case such as this. It submitted that the Directive applied to the flights in question as the service was provided after the 1st July 2013, the date of Croatia’s accession to the EU. Transitional arrangements also applied to Croatia at the time.

3.4       The respondent challenged the admissibility of the survey evidence presented by the complainant. It relied on the Irish High Court decision in Galway Free Range Eggs Ltd v O’Brien and others [2016] IEHC 249 and the UK Court of Appeal decision of Comic Enterprises Ltd v Twentieth Century Fox Film Corporation [2016] EWCA Civ 41. It objected to the introduction of surveys and it had no idea how they were prepared. The Huffpost article had no probative value and could not be taken into account.

3.5       The respondent indicated that it was prepared to proceed with the substantive part of the case, on a strictly without prejudice basis. It referred to Payne v City of DublinVEC (DEC-S2011-38), where the complainant must make out a prima facie case. The respondent submitted that this complaint did not fall within either direct or indirect discrimination. All customers were treated the same, irrespective of nationality. The pricing structure applied to all travellers from the UK. The respondent submitted that the complainant had not presented statistical evidence regarding indirect discrimination. The respondent provides a point-to-point service, so the customer can only book one leg and does not get additional entitlements when booking return flights.

3.6       The respondent submitted that the request that the complainant return the €444.73 was not bullying. The monies were remitted to the complainant on clear terms and the respondent’s correspondence was measured and reasonable. On the 10th July 2013, the complainant had agreed to repay this money, but only later said that this was “under duress”. There had been no threat to prevent the complainant from flying and the tickets remained available to use. This was confirmed to the complainant by the email of the 7th August 2013.

3.7       In evidence, the Head of Yield outlined that he has worked for the respondent since 2008. His role was to set prices on all routes to achieve a load factor. Yield is the average price paid per seat. The respondent sold 189 seats on each flight. The model was load factor active, yield passive where the respondent sought to grow demand for each flight. Seats were sold on a one-way basis and prices set to stimulate demand. This contrasted with the model operated by other carriers, who charged more for a one-way flight than return flights. Airlines were free to set their own fares. For the respondent, the London Stansted – Zadar flight was a different product to the Zadar - London Stansted flight. One could not compare different flights on different days. One could book separate flights.

3.8       The Head of Yield said that the complainant had booked a flight leaving London on the 28th July 2013, at the start of the school holidays and a peak flight. Demand increased the price and there was less demand for the return flight. The respondent quoted prices in the local currency of the point of departure, so all customers booking a flight from the UK pay in sterling, per the respondent’s terms and conditions. This was similar to the model used by other airlines, for example Aer Lingus. The Head of Yield stated that load factor is the primary factor in determining price and this was adjusted according to how many tickets were sold. Each airline flight is a different product, including flights in different directions from two points. A flight could be different priced depending on the day of the week. He outlined that pricing policy was subject to EC Regulation 1008/2008 and this included the obligation not to discriminate. The complainant could have made separate one-way bookings. Prices vary and they are set by demand.

3.9       In cross-examination, it was put to the Head of Yield that the respondent applied a sterling price and a euro-pound equivalency to the return leg of flights originating from the UK; he acknowledged this and said that all pricing was based on the point of first departure. He said that the respondent had the freedom under the Air Service Regulations to set the price. It was put to the Head of Yield that a Croatian customer would have paid in euro on both legs; he replied that a customer was charged according to the currency of their point of departure. It was put to the Head of Yield that Croatian travellers had a favourable euro rate when flying to the UK, but this was not available to those travelling from the UK; he replied that it was the point of origin that determined price. He accepted that in certain instances, such as Croatia in 2013, the respondent price in euros even where there is a local currency.

3.10     In re-examination, the Head of Yield said that the respondent had the freedom to set prices. The London-Zadar-London route was a different product to the Zadar-London-Zadar route, and they were not comparable itineraries.

3.11     In closing submissions, the respondent outlined that the complainant had not led evidence in respect of the confirmed/unconfirmed status of the airline tickets. In any event, the complainant and his party travelled to Croatia and texted the respondent’s solicitor to resolve the ticketing issue. The complainant could have also done this online. The respondent submitted that while the complainant’s email of the 16th April 2013 referred to the respondent’s first correspondence of the 15th April 2013, it contained the £444.73 mentioned in the second email. Moreover, both respondent emails refer to confidentiality. The respondent submitted that it was not within the jurisdiction of the Equality Tribunal to dismantle a settlement. It had made a straightforward offer to the complainant, and if he did not accept this, he had to repay the money. The respondent would have been entitled to refuse passage in these circumstances.

3.12     In respect of the other complainants, it was for the complainant to show that he is in locus parentis, for example of the step-children. The claimants who are adults had withdrawn their cases.

3.13     The respondent submitted that there was no statistical support to show indirect discrimination. The evidence was that the point of origin determines the currency used and this applied to people of all nationalities. The respondent submitted that the cases of Bilka, Seymour-Smith and Becker related to equal pay or equal treatment. Much statistical evidence had been submitted in Bilka-Kaufhaus Gmbh v Weber von Hartz (C-170/840), in contrast to this case. The respondent also had a rational basis for the pricing structure. Referring to Regina v Secretary of State for Employment ex parte Seymour-Smith (C-167/97), the respondent submitted that the complainant had not led any evidence of statistical impact. It was not enough to assert that more UK citizens were affected. The complainant had not shown he was discriminated against either directly or indirectly. Referring to paragraph 61 of the judgment, there was no statistical evidence here of any disparity and the complainant has not submitted such evidence.

3.14     In respect of the application of the Air Service Regulations and the jurisdiction of the Equality Tribunal, the respondent submitted that the decision of Charleton J. in Minister for Justice v Director of Equality Tribunal [2010] 2 IR 455 remained the law. In Vueling, the Court of Justice held that the airline can set prices and must be transparent. The evidence here was that the respondent set prices adjusted for demand. Flights with a different point of origin could not be compared. Different airlines priced according to their own policy. The pricing mechanism was the same for everyone. This provided objective justification if a finding of indirect discrimination was made.

3.15     The respondent submitted that the complainant had a mechanism in the UK as he could go to the Regulator, as per the Minister for Justice decision. It submitted that there was no power for an administrative body such as the Equality Tribunal to exceed its jurisdiction. The respondent submitted that by applying the Minister for Justice and the Vueling decisions, jurisdiction had expressly been given to the Commission for Aviation Regulation. The Equality Tribunal did not have extra-territorial jurisdiction. Freedom to price is afforded to the respondent by the Regulation and it cannot discriminate. There are regimes in Ireland and the UK to process complaints, including an entitlement to compensation. It submitted that no jurisdiction can be imported to the Workplace Relations Commission. The respondent’s terms and conditions did not import territorial jurisdiction to the Tribunal. In this case, the service provided by the respondent took place between the UK and Croatia. Article 2(18) permitted the respondent to use sterling and this was a matter for the airline to choose.

3.16     The respondent submitted that while the Equal Status Act was based on a Directive, this did not trump the Air Service Regulations. The freedom to price was absolute and the Regulations prohibit discrimination. The respondent stated that the complainant relied on section 3(1) of the Equal Status Act and for completeness, the respondent’s pricing structure was objectively justified and met the Vueling “business model” test. The European Commission had looked at this.

3.17     In respect of the victimisation claim, the respondent submitted that the complainant had been offered an ex gratia payment and any claim arising from this agreement was a matter of specific performance, and outside of the jurisdiction of this hearing. The emails exchanged between the 15th and 17th April 2013 did not amount to victimisation. There was no basis for the harassment claim and the complainant had not linked this to any ground.

4. Findings:

4.1       The complainants were customers of the respondent and this case relates to their return flights from London Stansted to Zadar. The flights were booked by on the 1st January 2013. While there was a great amount of interaction between the parties in the early part of 2013, the complainant and his party availed of the flights. They flew out on 28th July and returned on the 11th August 2013. The respondent priced flights from Croatia in euro prior to its accession to the European Union on the 1st July 2013.

4.2       Clause 4.3 of the respondent’s General Terms and Conditions of Carriage provides: “Fares, taxes, fees and charges are payable in the currency of the country of origin of travel unless another currency is indicated by us at or before the time payment is made, for example, because of the non-convertibility of the local currency. We may at our discretion accept payment in another currency.

            [The respondent] guarantees the currency exchange rate at the time of booking the ticket. This exchange rate will not change. If you do not choose [the respondent’s] currency exchange rate you may be exposed to negative currency fluctuations between the time you make your booking and when your card issuing bank converts the transaction, as in most cases the currency conversion occurs a number of days after the date of booking the booking.”

            The central issue in this case is a member of the public booking return flights is charged for both legs in the currency of the country of origin.

4.3       The respondent raised several preliminary objections and submitted that they should be addressed prior to considering the substantive issues raised. While there are certainly cases where it is necessary to first decide a preliminary issue (see Volkswagen Group Ireland Ltd v Higgins [2017] IEHC 809), I declined to adopt this suggested approach. First, the Equal Status Acts, unlike the Employment Equality Act, does not provide for a preliminary decision and refers to ‘decision’ in the singular. Second, I note that while addressing preliminary issues arising in tort actions, O’Donnell J., in L.M. v An Garda Síochána [2015] IESC 81, urged caution in deciding cases on preliminary points:

“32. It is, as a general matter, important that the point sought to be tried as a preliminary issue should have the possibility of either terminating the claim altogether or at least resulting in an obvious saving in both costs and time consequent on a reduction of the issues to be tried. A point should also raise a clear issue to which it is possible to give a clear answer. The more qualified and contingent the possible answers, the less likely that the court will be able to provide a clear and decisive disposition of the case and a clarification of the law. The decision to direct a trial of a preliminary issue is therefore one which requires careful consideration by trial judges. It is important that judges do not too readily accept a respondent’s protestations of complexity, impossibility or inconvenience in trying a preliminary issue, while at the same time interrogating with some scepticism a moving party’s claim that the point is clear and potentially dispositive of the litigation or some significant portion of it.”

4.4       The first preliminary issue raised by the respondent related to the identity of the complainants. The complainant attended the two days of hearing and outlined that he did so on behalf of four others, who were children in 2013. In the circumstances, I allow the complainant advanced the complaints on behalf of the four children or (now) young adults identified in the title page to this report.

4.5       The second preliminary issue related to the jurisdiction of the Irish Equality Tribunal to hear a complaint regarding a customer based in the UK travelling to Croatia. The respondent asserted that the Equality Status Acts did not have extra-territorial application and the respondent’s own terms and conditions could not convey this jurisdiction to the Equality Tribunal. The complainant outlined that he pursued the complaints in Ireland in line with the respondent’s terms and conditions. Clause 2.4 of the respondent terms and conditions state: “Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these Terms & Conditions of Carriage and our Regulations shall be governed by and interpreted in accordance with the laws of Ireland. Any dispute arising out of or in connection with this contract shall be subject to the jurisdiction of the Irish Courts.” Article 3 of the Rome Convention provides that parties to a contract may choose which law is applicable to the contract. The respondent’s terms and conditions are clear that this is Irish law. The complainant agreed to the terms and conditions when booking the flights to Zadar. Given that the contract is subject to Irish law, a person who is provided with a service by the respondent may pursue a complaint via the Equal Status Acts.

4.6       The third preliminary issue relates to the Air Service Regulations. Article 23 of the Regulations provides:

“1. Air fares and air rates available to the general public shall include the applicable conditions when offered or published in any form, including on the Internet, for air services from an airport located in the territory of a Member State to which the Treaty applies. The final price to be paid shall at all times be indicated and shall include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and fees which are unavoidable and foreseeable at the time of publication.

In addition to the indication of the final price, at least the following shall be specified:

(a) air fare or air rate;

(b) taxes;

(c) airport charges; and

(d) other charges, surcharges or fees, such as those related to

security or fuel;

where the items listed under (b), (c) and (d) have been added to the air fare or air rate. Optional price supplements shall be communicated in a clear, transparent and unambiguous way at the start of any booking process and their acceptance by the customer shall be on an ‘opt-in’ basis.

2. Without prejudice to Article 16(1), access to air fares and air rates for air services from an airport located in the territory of a Member State to which the Treaty applies, available to the general public shall be granted without any discrimination based on the nationality or the place of residence of the customer or on the place of establishment of the air carrier's agent or other ticket seller within the Community.”

The Commission for Aviation Regulation is the licensing body per the Regulations. The Commission is the designated enforcement body pursuant to Regulation 261/2004 and the Persons with Reduced Mobility Regulations 1107/2006.

4.7       The Equal Status Acts implements the Race Directive (2000/43/EC) and the Gender Goods and Services Directive (2004/113/EC) as well as providing wider protection on 11 grounds, including disability. The prohibition on discrimination in the Irish statute on the race ground incorporates “race, colour, nationality or ethnic or national origins”. The Equal Status Act curtails situations where findings of discrimination can be made. Section 14, for example, provides that actions required by any enactment or Court order are not prohibited conduct. Also by example, section 19 of the Intoxicating Liquor Act, 2003 ceased the application of the Equal Status Acts to prohibited conduct on, or at the point of entry to, a licenced premises. As referred to by the complainant, section 46 of the Equal Status Act provides “The provisions of this Act shall extend to and apply in respect of any ship or aircraft registered in the State that is operated by a person who has a principal place of business or ordinary place of residence in the State, whether or not the ship or aircraft is outside the State.”

4.8       Having considered the evidence and submissions of the parties, I find that the Equality Tribunal (now Workplace Relations Commission) has jurisdiction to hear complaints of discrimination relating to airline pricing. The existence of an anti-discrimination provision at Article 23 of the Air Service Regulations does not restrict the scope of the Equal Status Act. Any such restriction must be set out in the Equal Status Act or in other legislation. There is no such restriction to the purview of the Equal Status Acts. Moreover, I note that while persons with a disability have particular rights set out in Regulation 1107/2006, they also have recourse via the Equal Status Acts (see Duyn v Aer Arran Group (DEC-S2011-023)).

4.9     Moving to the substantive element of the complaint, section 38A of the Equal Status Act sets out the burden of proof in complaints: “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.” I note that the complainant refers to both direct and indirect discrimination. I find that the claim of direct discrimination is not substantiated. The respondent applies terms and conditions to its air fares irrespective of race, nationality or ethnicity. Those rules include that the currency applied to an air fare is per the currency of the country of origin. The complainant referred to a coincidence that the price of the return leg was the same as the outbound leg (e.g. a £79.99 fare on the outbound flight and the same price charged for the return). The respondent’s witness gave strong evidence that prices are charged on a point-to-point basis and will go up or down according to forecast or actual demand. I find that the claim of direct discrimination fails.

4.10     The kernel of the case is whether there is indirect discrimination. Section        3(1)(c) of the Equal Status Act provides: “where an apparently neutral provision would put a person referred to in any paragraph of section 3(2)     at a particular disadvantage compared with other persons, unless the             provision is objectively justified by a legitimate aim and the means of      achieving that aim are appropriate and necessary.” Section 3(2) sets out the discriminatory grounds, including that of race and nationality.     Indirect discrimination requires a claimant demonstrate that an           apparently neutral provision places them at a particular disadvantage to      others. They must show that the provision has a detrimental effect on          them on the ground advanced. They can demonstrate this quantitatively             (by way of statistics) or qualitatively, see, for example the comments by          the Labour Court in NBK Designs Ltd v Inoue (EED0212) regarding “the      inconvenience and expense involved in producing elaborate statistical         evidence to prove matters which are obvious to the members of the Court   by drawing on their own knowledge and experience. Whilst there are      many cases in which the unequal affect of a provision can be seriously put   in issue and the true position can only be established by elaborate        statistical evidence, the Court is satisfied that this is not such a case.”

4.11     In Seymour-Smith v Secretary of State for Employment (C-167/97), the CJEU considered indirect discrimination in relation to the two-year service requirement to refer an unfair dismissal claim. The Court held “As regards the establishment of indirect discrimination, the first question is whether a measure such as the rule at issue has a more unfavourable impact on women than on men.

Next, as the United Kingdom Government was right to point out, the best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. Itis not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in that State.

As the Court has stated on several occasions, it must be ascertained whether the statistics available indicate that a considerably smaller percentage of women than men is able to satisfy the condition of two years' employment required by the disputed rule. That situation would be evidence of apparent sex discrimination unless the disputed rule were justified by objective factors unrelated to any discrimination based on sex.”

4.12     In Bilka-Kaufhaus GmbH v Weber von Hartz (C170/84), the CJEU held “If, therefore, it should be found that a much lower proportion of women than of men work full time, the exclusion of part-time workers from the occupational pension scheme would be contrary to Article 119 of the Treaty where, taking into account the difficulties encountered by women workers in working full-time, that measure could not be explained by factors which exclude any discrimination on grounds of sex.”

4.13     In a free movement case, the Court of Justice examined indirect discrimination arising from rules pertaining to a territorial condition in O’Flynn v Adjudication Officer (C-237/94) “Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers ... or the great majority of those affected are migrant workers ... where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers ... or where there is a risk that they may operate to the particular det­riment of migrant workers.” The Court of Justice held in Sotgiu v Deutsche Post (C-152/73) “The rules regarding equality of treatment ... forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by application of other criteria of differential, lead in fact to the same result ... It may therefore be that criteria such as place of origin or residence of a worker may, according to the circumstances, be tantamount, as regards their practical effect, to discrimination on the grounds of nationality, such as is prohibited by the Treaty and the Regulation [1612/68].”

4.14     The first task is to consider whether the rule identified by the complainant puts UK citizens at a particular disadvantage. The rule is that the respondent requires customers to pay in the price of their currency of origin. Where the customer opts to book return flights, they will pay for both flights in the currency of the country of origin. Where one currency is particularly strong, it may cost that customer more as they pay the fare for the return leg in the currency of their country of origin. The first thing to say that this applies to all customers flying from a country of origin, irrespective of their nationality. I note that the respondent determines air fares on a point-to-point basis. It has not followed the practice of other airlines who charge higher prices for one-way trips. I note that the impact of the currency differential will vary over time (as has been the case between the euro and sterling since 2013). It is also the case that the rule applies to customers booking in all the currencies the respondent prices in. There may be currencies stronger than sterling so that a customer flying to the UK from that country will pay for their return fare according to the currency of their point origin; the customer flying from the UK on the same itinerary pays in sterling for their flights. Most significantly, rather than book return flights, the customer can book two one-way flights, paying in one currency on the way out and a second for the “return”. The respondent does not impede this in any way. It does not restrict customers, via their IP address or otherwise, from purchasing one-way tickets from an airport that is not their point of origin. It prices point-to-point. Taking these factors together, I find that the complainant has not established that the rule causes a disparate impact on grounds of nationality. The complainant outlines that the issue with booking two one-way flights is where the first flight is cancelled; the customer is left with the “return” flight. This possibility, however, cannot be added in to find that indirect discrimination has occurred. I find that the complainants have not established a prima facie case of discrimination as required by section 38A of the Equal Status Act.

4.15     The complainant asserts that he was victimised and harassed at the hands of the respondent. On the second day of hearing, there was discussion over correspondence sent by the respondent’s solicitor to the complainant on or after the 15th April 2013. I accept that the complainant was confused at the hearing and referred to the wrong email going to his spam. I accept that he received the letter with the opening line “we act on behalf of” and the second letter “we acknowledge receipt of your email” went into his spam. I note the complainant had referred to the amount of €444.73 in his complaint form of the 13th January 2013. The complainant emailed the respondent’s solicitor on the 16th April 2013 to accept the sum of money and to make a “separate arrangement” for confidentiality. The respondent remitted the €444.73 to the complainant. It stated in emails sent on the 15th and 17th April that this was subject to confidentiality. On the 3rd May 2013, the complainant featured in a UK newspaper article entitled “Why UK passengers pay more on Ryanair: And why this man's victory could open the floodgates.” On the 8th May 2013, the respondent demanded that the €444.73 be repaid and sought to recover it via a credit card charge back. The complainant later paid this to the respondent “under duress”. The complainant and the party travelled to Croatia in July and on the 5th August 2013 sought assurance that they could travel on the return leg as their flights were marked “unconfirmed”. The respondent’s solicitor provided this reassurance on the 7th August and the complainant flew on the scheduled respondent flight.

4.16     It is fair to say that there was forthright correspondence between the parties. The respondent was critical of the validity of the claim, using words such as ‘bogus’, ‘baseless’ and ‘absurd’ in their correspondence. The respondent stated it would pursue costs against the complainant. I note that there is no provision under the Equal Status Acts to award costs. The respondent is entitled to respond to claims made against it. These actions do not constitute victimisation or harassment within the ambit of the Equal Status Act. While the complainant was concerned regarding the status of the return flights, the respondent provided reassurance that the complainant and his party could fly.

5. Decisions:

5.1       In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: the complainants have not established a prima facie case of discrimination or victimisation, contrary to the Equal Status Acts, 2000-2015 and the claim of harassment does not succeed.

______________________________

Kevin Baneham

Equality Officer / Adjudication Officer

22 November 2018