Complainant

Respondent

Parties

Aneta Laska

Daa Plc Daa Plc

Representatives

Maureen O'Hara DAA PLC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021896-001

17/09/2018

The complainant is a Polish national. She lodged a complaint with the WRC on 17 September 2018.

The complainant submits that at the beginning of May 2018 she requested that a Polish group be allowed do a “flash mob” at Dublin Airport. She received an email response from the Dublin Airport Authority which indicated that this request could be facilitated and requesting more information regarding the event.

An exchange of emails then took place the complainant submits that a date for the event was agreed between the parties. However, as the woman the complainant had been dealing with was going on holidays the complainant was passed onto another official. The complainant was told by this second official that it would be impossible for the event to take place as the airport would be too busy at the end of May.

The complainant submits that she asked why she had ben mislead to this point and why it was that other Irish groups could hold events in the airport during the summer or at Christmas; she did not get a response.

In direct evidence at the hearing the complainant outlined the sequence of events, including the email exchange between the parties. The complainant stated that the DAA had allowed other “flash mobs” take place in the past. The complainant stated that she felt she had been misled and was only informed at a very late stage that the event was not going to be allowed take place.

The fact that the event was not allowed go ahead was bad enough, but the late notice of this decision caused great embarrassment for the complainant as she had organised a group for the event, many of whom had made changes to their diaries in order that they be part of the event. The event had to take place in advance of a Polish festival thus the timelines were tight.

The complainant stated that it was her belief that other similar Irish groups had been facilitated in the past by the DAA and that the only reason her group was turned down was because they are Polish.

The complainant stated that the whole matter had caused her great stress and she was looking for justice.

The respondent provided a detailed written submission.

The respondent denies that it has not contravened the Act in this matter.

By way of background the respondent outlined that it is the statutory body responsible for managing Dublin and Cork Airports. It is mandated to “take all measures for the safety, security, management, control, regulation, operation, marketing and developments of its airports”.

The respondent submits that it has a strong commitment to engage with the communities around its airports and works hard to ensure it maintains a good relationship with these communities. The DAA, operational and safety considerations, makes all efforts to facilitate requests from members of the public to host events at its airports. Each such request is considered on the operational and safety considerations that apply to the airports at the particular moment in time.

The respondent submits that when the complainant contacted them about holding the “flash mob” event on 24th April 2018, an official responded that, “we should be able facilitate this.” The complainant requested that she be facilitated on 20th May 2018 however, there was no communication with the complainant until 14th May 2018 when she texted asking for confirmation that they had permission to go ahead with the event. The following day the DAA replied to the complainant stating that the 20th May 2018 was not suitable due to operational reasons and could the complainant suggest a weekday that might suit for the event. The respondent submits that the only dates that suited the complainant were 24th or 26th May 2018.

The respondent submits that it considered the request from a security and operational perspective.   Particular safety and operational considerations arise in relation to “flash-mob” dances and the respondent took these into account when making its decision. Another consideration was the holding of a referendum on 25th May 2018. In light of the forthcoming referendum the DAA had made a decision not to host any requests to carry out events at Dublin Airport during the week 21-27th May 2018.

The respondent submits that the above safety/security concerns along with general operational and security constraints was the reason the complainant’s request was refused on the particular dates she sought. It was not based on any of the grounds as set out in the Act.

The respondent denies that the complainant was ever informed that the event had been given the green light to proceed. Notwithstanding this, the respondent submits that it always maintains the right to revoke any prior permission granted.

The respondent puts forward that the complainant’s request was for a very specific timeframe, i.e. only three possible dates within the same week were proposed by her. The respondent submits that the complainant refused to consider alternative dates. The complainant told the respondent that she would be going ahead with the event despite having been refused permission.

The respondent contends that this complaint is essentially a customer service complaint rather than an equality complaint.

In direct evidence at the hearing the respondent stated that the indication that the airport “should” be able facilitate the request indicates a willingness to facilitate the event however when the matter was discussed with the Operations team, passenger number forecasts and security consideration made it impossible on the dates in question.

The respondent also stated that “flash-mob” events have certain peculiarities which impact on security and operations than other public events. The last “flash-mob” event had taken place in 2013, when passenger numbers were much lower.

Having considered the matter carefully I find that what took place was an unfortunate sequence of events which caused the complainant difficulty and stress.

The communications from the respondent to the complainant were not what they could or should have been.   Before any indication was given that the airport “should” be in a position to facilitate her request, an “estimate of the situation” should have been conducted which might well have resulted in the request being turned down at the outset, thus eliminating any expectations developing.

The relatively late notice that the request was being turned down only exacerbated the situation and increased the complainant’s feeling of disappointment.

Notwithstanding the above, for her complaint to succeed, the complainant must first establish a prima facie case of discrimination

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this case, the complainant is a Polish national, covered by the race ground and is common case that her request for the “flash-mob” event was turned down by the respondent; thus, tiers one and two are satisfied.

In considering the third tier of the test, I have noted that although the respondent’s “customer care”, was not what it should have been and was wholly unsatisfactory from the complainant’s perspective, the fact that the treatment was less favourable than what would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground has not been proven. The complainant has failed to establish, on the balance of probabilities, a presumption of unlawful discrimination.

I find that the complainant has not established a prima facie case and therefore her complaint   cannot succeed.

 I am also satisfied that the request for the “flash-mob” event was turned down for security and operational reasons, not linked in any way to the complainant’s race.   The rationale for turning down the request stands up to scrutiny; security at airports is of paramount importance and decisions on these matters can only be taken by experts in that field.

The complaint is not well founded.

Prima facie, service, safety & security.