Complainant

Respondent

Parties

Mark Dennis

Newbridge Gym Limited

Representatives

The Complainant attended in person and was not represented   

 The Respondent attended in person and was not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00037121-001

12/06/2020

The Respondent operates a gym which was established in 2020. The Complainant visited the Respondent’s gym on 30 January, 2020 and made enquiries if it would be possible to avail of a discounted membership fee on the basis that he is a person with a disability. The Complainant claims that he was discriminated against by the Respondent on the grounds of disability in terms of sections 3(1) and 3(2)(g) of the Equal Status Acts and contrary to section 5(1) of the Equal Status Acts in relation to the response that he received from the Respondent in relation to the request for a discount of the membership fee.  

The Complainant has been medically diagnosed with a chronic pain disorder called fibromyalgia. The Complainant stated that he visited the Respondent’s gym on 30 January, 2020 and made enquiries with the male receptionist, Mr. A, on duty at the premises if he could avail of the discounted rate of membership offered to students and old age pensioners on the basis that he had a disability. The Complainant stated that Mr. A indicated that he would have to seek clarification on this matter and proceeded to make enquiries with a number of people who were standing in another part of the premises. The Complainant stated that he believed the other people whom Mr. A spoke to about this matter were members of management.

The Complainant stated that Mr. A returned to the reception desk after consulting with the others and informed him that “we don’t give discounts to people who are lazy and sitting on the dole”. The Complainant stated that he was very much taken aback by the response from Mr. A and replied that he didn’t have a choice about being able to work on account of his disability. The Complainant stated that Mr. A indicated that there wasn’t anything further that he could do in relation to the matter.

The Complainant confirmed that the alleged discrimination in this case does not relate to the actual refusal to grant him the discounted rate of membership but rather relates to the fact that he was called “lazy” and accused of “sitting on the dole” arising from his disability. The Complainant claims that this treatment amounts to discrimination on the grounds of his disability contrary to the Equal Status Acts.

The Respondent stated that the gym was established in January, 2020 and that it offers two separate rates of membership, namely a standard rate and a discounted rate for students and old age pensioners.

The Respondent stated that the Complainant attended the gym on 30 January, 2020 and made a request for a discount of the membership fee on the basis that he had a disability and was unable to work. The Complainant was advised that the Respondent was not in a position to offer him a discount and was informed that he would be welcome to join the facility based on the standard membership rates.

The Respondent refutes the allegation that a member of its staff informed the Complainant that he was called lazy or used the words “we don’t give discounts to people who are lazy and sitting on the dole” or any words to that effect.

The Respondent denies the Complainant’s claim of discrimination on the grounds of disability.

Evidence of Ms. X, Managing Director

Ms. X stated that she is the Managing Director of the Respondent and that the company was established in January, 2020. Ms. X stated that she was present in the gym on the date that the Complainant attended and sought to obtain a discount of the membership fee to join the gym. Ms. X stated that the Complainant spoke to Mr. A at reception when he entered the premises on the date in question. Ms. X stated that she was on the premises at the material time in question when Mr. A approached her and asked if it was possible to provide a discount in the membership fee to a person who was a recipient of Social Welfare benefits. Ms. X stated that she informed Mr. A that there wasn’t any discount available for Social Welfare benefit recipients and that he immediately returned to the reception desk to convey this information to the Complainant. Ms. X stated that she could not hear the subsequent conversation that took place between the Complainant and Mr. A.

Ms. X stated that she was informed by the Operations Manager (Ms. Y) the following day that the Complainant had made a complaint against Mr. A arising from the discussions that had taken place in relation to the request for a discount. Ms. X stated that the Operations Manager (Ms. Y) telephoned the Complainant to discuss this matter and to try and establish the precise nature of his complaint. This matter was subsequently investigated by Ms. Y who in turn spoke to Mr. A in relation to his interaction with the Complainant on the date in question. Ms. X stated that an incident report was completed in relation to the matter and that Mr. A denied the claim that he had made the alleged remarks to the Complainant about being lazy or on the dole.

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 taken into account all of the evidence, both written and oral, made to me by the parties to the case. 

I note that the Complainant confirmed at the oral hearing that the claim of discrimination was not based on the actual refusal by the Respondent to allow him avail of the discounted rate of membership but rather it relates to the alleged remarks made by Mr. A in response to his query about this matter. Therefore, the issue for consideration in the instant case is whether the Complainant was treated less favourably by the Respondent on the grounds of his disability on the material date in question contrary to the Equal Status Acts in relation to his interaction with Mr. A regarding his request for a discount in the membership fee to join the gym.

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 that he is covered by a discriminatory ground (in this case that he has a disability); (2) it must be established that the specific treatment alleged by the Complainant actually occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who did not have a disability (or had a different disability) would have received in similar circumstances.

The Complainant adduced evidence, which was uncontested by the Respondent, that he has a medical condition called fibromyalgia. I am satisfied that this condition constitutes a disability within the meaning of Section 2 of the Equal Status Acts. Therefore, the Complainant has satisfied the first part of the test identified above.

In relation to the second part of the test, I note that there was a complete conflict of evidence between the parties on the question of whether or not the specific treatment alleged by the Complainant actually occurred. The Complainant, on the one hand, claims that he sought clarification from the Respondent’s receptionist (Mr. A) as to whether he could avail of the discounted membership fee available to students/OAP’s and was informed by him that the Respondent does not provide “discounts to people who are lazy and sitting on the dole”. The Respondent, on the other accepts that the Complainant was informed by Mr. A that he could not avail of the discounted membership fee. However, the Respondent emphatically denies that Mr. A made the alleged remarks to the Complainant about being refused the discount on the basis that he was “lazy” or “on the dole”.

In considering this matter, I note that the Respondent’s Managing Director (Ms. X) adduced evidence that Mr. A was interviewed by the Operations Manager (Ms. Y) in relation to this matter and that he denied making the alleged remarks. The Respondent also adduced into evidence the investigation report which was completed by the Operations Manager which it contends supports its position on this matter. However, I also note that the Respondent confirmed that Mr. A is no longer employed by the company and he did not attend the hearing to adduce evidence in relation to his interaction with the Complainant on the material date in question. Therefore, I am satisfied that the Respondent’s evidence in relation to the discussions that took place between the Complainant and Mr. A amounts to mere hearsay.

In the circumstances, I find that I can attach very limited weight to the Respondent’s evidence in terms of resolving the conflict of evidence relating to the question of whether or not Mr. A made the alleged remarks to the Complainant. On balance, I prefer the Complainant’s evidence in relation to this matter and I have found his account of the interactions and discussions that took place with Mr. A on this date to be very credible and compelling. Therefore, I accept the Complainant’s evidence that Mr. A informed him on the date in question that he couldn’t avail of a reduction on the membership fee on the basis that the Respondent didn’t “give discounts to people who are lazy and sitting on the dole”.

The final issue that I must consider in order to decide if the Complainant has established a prima facie case of discrimination is whether the specific treatment received by him on the material date in question amounted to less favourable treatment on the grounds of his disability. Therefore, it is necessary for the Complainant to establish that there was a nexus or direct connection between the specific treatment to which he was subjected by Mr. A and the fact of his disability. Having regard to the totality of the evidence adduced, I find that the remarks made by Mr. A to the Complainant in response to his request for a reduction in the membership fee were not connected to this disability but rather were directly attributable to the fact that he was the recipient of a Social Welfare benefit. Whilst it is undoubtedly the case that the Complainant’s treatment by Mr. A in the circumstances was totally inappropriate and reprehensible, it does not amount to discriminatory treatment on one of the discriminatory grounds within the meaning of the Equal Status Acts. In the circumstances, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability contrary to the Equal Status Acts.

I have concluded my investigation of this complaint and I find pursuant to Section 25(4) of the Acts, that the Complainant has failed to establish a prima facie case of direct discrimination on the ground of disability contrary to Sections 3(1), 3(2)(g) and 5(1) of the Equal Status Acts. Accordingly, I find in favour of the Respondent.

Equal Status Acts – Discrimination – Disability – Section 3(1)(g) – Failure to establish a prima facie case