Complainant

Respondent

Parties

Robert  Cantwell

Ralerno Hotels Ltd T/A Ocean Fitness

Representatives

Daniel Shields V.P. Shields Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039299-001

21/08/2020

The Complainant stated that he suffered from a disability, that he required the use of a wheelchair, had brain surgery twice, had to learn how to look after himself and that he lives on a disability allowance. The Complainant stated that he was discriminated against on the 1st July 2020 on the disability ground, in terms of the Respondent’s failure to facilitate his membership of the Ocean Fitness Leisure Club and provide him with reasonable accommodation. The Respondent denied the complaint.

Pursuant to the provisions of the Equal Status Act [2000-2018], on the 11th July 2020 the Complainant notified the Respondent of his complaint on the prescribed Notification Form ES.1 and subsequently sent this form to the WRC. The Respondent replied to the Notification Form ES.1 on the 31st July 2020 by way of Form ES.2 which was received by the Complainant on the 4th August 2020. The WRC received the Complainant’s complaint on 21/08/2020.

The Complainant stated that on the morning of the 1st July 2020, he called into the Ocean Fitness club as he considered that membership of its gym would benefit his health. The Complainant stated that he lives on a disability allowance and was seeking a membership rate that he could afford. He said there was a crowd in the club when he went in. The Complainant stated that he first spoke with a member of the staff, asked her about the cost of membership and about the rates for disabled people. The Complainant stated that he was informed by this member of staff that there was no specific disability rate and that the club was not taking any new members as it had to limit its membership due to Covid-19. The Complainant stated that he asked this member of staff if she was aware that the club’s policy was discriminatory but she disagreed. The Complainant stated that he asked to speak to the Manager (ie Senior Administrator). He stated that he was seeking to speak with someone who was not closed to the idea that he was a disabled man trying to better himself and improve his health.

The Complainant stated that he enquired of the Manager/Senior Administrator about the rate of membership for persons with a disability. Arising from this exchange, the Complainant stated that the Manager was not capable of dealing with him or understanding his position and that she was out of her depth. The Complainant stated that he was accused of being aggressive and seeking preferential treatment which he said was not true. The Complainant stated that he did not go into the club with “guns blazing”, was not hostile, that he did not “put the boot in” but was assertive of necessity. In that regard, the Complainant stated that he had no option but to raise his voice because of the “din” around him. The Complainant stated that the message he believed he was receiving was that his request was preposterous. The Complainant informed the Manager that he had previously been a member of the club and he asked her if she had ever heard of the Equal Status Act. The Complainant stated that during this exchange he considered that the Manager/Senior Administrator did not maintain a balance, was not capable of dealing with the issue, that he felt he was being dealt with in a “dismissive” manner and that he had never encountered this type of obstruction before. He stated that after a while he realised he “was flogging a dead horse” and that he then left the club, rang the hotel in which the club is situated and relayed what occurred.  The Complainant stated that CCTV would have cleared up what occurred but that it had not been retained by the Respondent.

The Complainant was cross examined by the Respondent’s legal representative. In the course of cross examination the Complainant stated that he had no option but to raise his voice in order to be heard but that it wasn’t to in-still hostility or anger. In relation to his conversation with the member of staff, the Complainant stated that he informed her he had previously been a member of the club, that she explained the rate had increased by €6/month from €49/month to €55/month and that a membership waiting list was in operation. The Complainant stated that this member of staff “was delightful and mannerly” and that his conversation with her was calm and respectful. Whilst the Complainant clarified under cross examination that he asked for a membership rate for persons with a disability, he rejected the contention that he wanted the club to give him the rate of membership he wanted or that he wanted preferential treatment. He also denied that he had stated that morning that he would make the owner give him the membership he was seeking.  Whilst the Complainant accepted that a suitable rate was quoted he also stated that an increase of €6/month would cause him financial hardship. The Complainant stated that the issue for him was accommodation for persons with a disability.

The Complainant was questioned on his interaction with the Manager/Senior Administrator. He maintained that the manager was out of her depth, that she was “managerial” in her approach, not able to deal with his issue, that a “rocket went off in her head” when he mentioned the Equal Status Act and that she lost the plot. The Complainant stated that  the Manager was “fuming” when shecame out to meet him, that he felt “hostility” coming from her, signals of “guns blazing…. in her eyes”, that her attitude should be “outlawed” and that she did not treat him with respect. The Complainant stated that he felt the Manager was implying by her “body language” that the club didn’t “want people like you” – however under cross examination, he accepted these words were not used by the Manager/Senior Administrator. The Complainant stated that he considered himself “barred” from the leisure centre but accepted under cross examination that word was not used.  It was put to the Complainant that the Manager/Senior Administrator offered him the opportunity to go on the membership waiting list, however he maintained that the conversation never got that far. In response to further questioning, the Complainant accepted there was mention of a waiting list but he insisted there was no mention of his name being put on it. The Complainant clarified that he did not follow up on the issue of the waiting list afterwards. It was also put to the Complainant that the Manager/Senior Administrator advised him that if he had a problem with the rate amount, that it could be discussed again when membership became available. The Complainant rejected this and stated that he would have been prepared to go on a waiting list if offered the opportunity. The Complainant maintained that at all times he was competent, rational and that his demeanour was friendly.

The Complainant stated that when he left the leisure centre he felt “damaged” and later on that evening when he thought about how he was treated he was “boiling in [his] mind”, that he was not mentally well, that he considered he was not treated properly because of his disability and that this  was another exclusion. It is the Complainant’s position that he was discriminated against as a result of the failure of the Respondent to provide him with a disability rate of membership and by the club’s treatment of him on the morning of the 1st July 2020 and that in addition, he was not afforded reasonable accommodation contrary to the provisions of the Equal Status Act [2000-2018].

The Respondent rejected the complaints of discrimination. The Respondent outlined that the Complainant was a member of its gym in 2014 and that since then price rates have increased. In that regard, the Respondent confirmed that the rate of €49/month which the Complainant had previously paid had increased to €55/month and this was the lowest price category of membership as it was “off peak”. The Respondent stated that Ocean Fitness Leisure Club was full to capacity, that there were restrictions on numbers post lock down and that all new applications for membership were subject to a waiting list. In that regard the names and contact details of the persons seeking membership were being taken and put on the waiting list. The Respondent stated that the Complainant was offered the opportunity to go on the waiting list but that he did not take up the offer.

The Respondent clarified that the first time the Complainant had sought copy of the CCTV was on the 4th August 2021 and that he also asked for it on 3rd September 2021. The Respondent strongly rejected any suggestion that the CCTV was deleted intentionally and explained that the CCTV footage is automatically deleted after twenty one days.

The Respondent’s staff member gave evidence of her interaction with the Complainant on the 1st July 2020. She stated that the leisure centre was very busy and loud that morning as it was opening up after lock down.  The staff member stated that she recalled the Complainant asked her about membership rates, that she advised him that the rate he had paid previously had increased from €49/month to €55/month and that the only available rates were those set out on the club’s tariff sheet. The staff member stated that in her opinion the Complainant was dismissive of the price list and the waiting list. The staff member stated that she heard the Manager/Senior Administrator advise the Complainant that there was a waiting list and that she would discuss the rate further when membership became available. The staff member also stated that she heard the Complainant say “I’ll make the owner give the price I want”. The Complainant disputed this.

The Complainant questioned the staff member on her evidence. In response, the staff member stated that the Complainant had asked about a disability rate, that she had pointed out the standard rates available on the price list and that she had informed the Complainant she was not aware of a disability rate. The staff member also clarified that she heard only parts of the conversation between the Complainant and the Manager/Senior Administrator. In response to questions that the centre was understaffed and that she was under pressure, the staff member stated that she believed she handled the situation as best as possible and did not consider herself overwhelmed. The Complainant accepted that the staff member treated him with “utmost respect”.

The Respondent’s Manager/Senior Administrator gave evidence of her interaction with the Complainant on the 1st July 2020. She stated that she was in the office that morning and overheard the conversation between the Complainant and the Respondent’s staff member including the Complainant seeking a discounted rate. The Senior Administrator stated that she advised the staff member to take the Complainant’s details and add his name to the waiting list. The Senior Administrator stated that she spoke with the Complainant, that he was loud and aggressive and that she also invited him to leave his contact details and go on the waiting list. She clarified that at the time membership was capped at 3000 to ensure comfort and safety but that over time people drop out and consequently, there was a reasonable prospect that the Complainant would obtain membership. The Senior Administrator stated that the Complainant wanted a reduced membership rate there and then but she advised him that the price could be discussed again when membership became available. This was disputed by the Complainant. The Senior Administrator stated that the Complainant’s disability was not an issue, that he was welcome to become a member when there was availability and that she did not give him any impression to the contrary.

The Manager/Senior Administrator was questioned on her evidence by the Complainant. In response she stated that she had held her position for ten years, that contrary to what was suggested she dealt with the Complainant as she would any member or prospective member, that the leisure centre was inclusive and that she upheld professional standards. The Manager/Senior Administrator  disputed and rejected the characterisation of her by the Complainant including that she was “aggressive” or “fuming”, that she did not lose “the plot” when the Complainant mentioned the Equal Status Act,  nor she stated was she dismissive of the Complainant. In response to a question on the number of members with a disability, the Manager/Senior Administrator stated that she did not know. She also stated that she did not see any CCTV footage of the incident and that after the incident she wrote a note for own Manager. She also stated that she did not stand in the doorway as she was behind reception at the time.

It is the Respondent’s position that it did not discriminate against the Complainant, that the Complainant was correctly advised there was a waiting list for membership which was operated on a first come first served basis, that the Complainant was advised of the membership rates and that he did not take up the offer of going on the waiting list. The Respondent submitted that in the Complainant’s ES.1 Form his grievance was solely based on the membership rates but that at the adjudication hearing the Complainant sought to introduce new grievances – particularly the conduct of its Senior Administrator. The Respondent submitted that the Complainant had failed to provide specific examples of any discriminatory conduct and further, that there is no obligation in law to provide a preferential rate of membership for persons with a disability. The Respondent cited various case law in support of its position. It is the Respondent’s position that the Complainant has failed to establish a prima facie case of discrimination and has not discharged the burden of proof in that regard.

The Equal Status Act [2000 – 2018] prohibits discrimination in the context of buying or selling goods to and from the public (or a section of the public) and also in the context of using and/or providing services available to the public (or a section thereof). In general terms discrimination is taken to have occurred where a person is treated less favourably than another person is (or would be) treated by reason of any of the discriminatory grounds outlined at Section 3 of the Act. In that regard, Sections  3 (1) and (2) of the Equal Status Act [2000 – 2018] provide – inter alia -  as follows: 

“3 (1) For the purposes of this Act discrimination shall be taken to occur –

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ….. in this Act referred to as the ‘discriminatory grounds’ …

 “3 (2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: .......

(g) that one is a person with a disability and the other either is not or is a person with a different disability”.

Section 2 of the Equal Status Act [2000-2018] defines service as follows:

“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 use of any place,

(b)     facilities for –

(i) banking, insurance, grants, 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, ……..”

Section 4 of the Equal Status Act [2000-2020] sets out the obligations on providers of a service to reasonably accommodate persons with a disability. In this regard, Sections  4 (1) and (2) of the Act state as follows:

1)      For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

2)      A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

3)      ………”

Section 21 of the Equal Status Act [2000 – 2018] provides that an individual may seek redress in respect of any prohibited conduct that has been directed against him/her by referring a case to the Workplace Relations Commission (WRC).  It is a condition precedent to bringing such complaint before the WRC that the individual Complainant shall already have notified the Respondent in writing (Form ES.1) of the nature of the allegation and the intention to seek redress if not satisfied with the Respondent’s response.  This notification to the Respondent must be brought within two months of the said prohibited conduct or the last incident of such conduct. This is a statutory requirement. In the present case, the alleged discrimination occurred on the 1st July 2020 and the Complainant sent Form ES.1 to the Respondent on the 11th July 2020. The Respondent completed its reply Form ES.2 on the 31st July 2020 which was received by the Complainant on the 4th August 2020. In light of this sequence, I am satisfied the Complainant has complied with the statutory requirements of Section 21 of the Act and accordingly, I have jurisdiction to hear and decide this complaint.

For a claim of discrimination on grounds of disability to succeed, the first requirement is for a Complainant to establish that he/she has a disability. This was not disputed in the instant case and from the evidence adduced at the adjudication hearing, I am satisfied that the Complainant is a person with a disability in accordance with the definition of disability set out at Section 2 of the Equal Status Act [2000 – 2018].

In addition to the foregoing, Section 38A of the Equal Status Act [2000-2018] Act provides that where facts are established from which it may be presumed that prohibited conduct or discrimination has occurred, it is for the Respondent in the case to prove the contrary. Accordingly, for an allegation of discrimination to be upheld a Complainant must – in the first instance -  show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof then shifts to the Respondent to show that discrimination did not take place. The test for shifting the burden of proof was considered in an employment context in Mitchell v Southern Health Board [2001] ELR 201 which established that the Complainant is obliged to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which he bears, his/her case cannot succeed. In its findings in the case of Tesco Ireland Ltd V Grzegorz Kowalski [Determination EDA1812], the Labour Court cited the case of Cork City Council v McCarthy [Determination EDA0821] as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts……”

In light of the foregoing legal principles, I must first consider whether a prima facie case of discrimination has been established by the Complainant as only then does the onus shift to the Respondent to rebut the inference raised. From the evidence adduced at the adjudication hearing, I am satisfied there was an exchange between the Complainant and the Respondent’s employees on the morning of the 1st July 2020 in relation to his seeking membership of the club. I have carefully considered the evidence adduced at the adjudication hearing in relation to the nature of this exchange and whether facts can be extrapolated from this exchange to raise a prima facie case of discrimination and/or less favourably treatment and/or failure to provide reasonable accommodation. In that regard, I have carefully considered the Complainant’s evidence and that of the staff member and Manager/Senior Administrator in relation to the membership capacity of the club, the issue of the waiting list, the membership rates including the Complainant’s previous membership rate and the issue of affordability and/or a specific disability membership rate. As a result, I have come to the following conclusions:

·         I am satisfied that the exchange between the Complainant and the Respondent’s staff member and Manager/Senior Administrator on the 1st July 2020 took place at a time when the Respondent’s club was busy and there was considerable noise around. The Complainant clarified at the adjudication hearing that in terms of how he was treated, he had no complaint against the staff member and considered this person treated him with the “utmost respect” and “was delightful and mannerly”. The Complainant did however, outline his several complaints against the Manager/Senior Administrator in terms of her dealings with him that morning. I note that under cross examination the Complainant clarified that various words which he used to describe how he felt as a result of this treatment – such as “barred” or that the club didn’t “want people like [him]” were not actually said. In all the circumstances, I am of the view that the Complainant has not cited any specific word(s) or gesture(s) or type of conduct used by the Manager/Senior Administrator which would indicate she was treating him less favourably because of his disability. Rather he has sought to rely on his interpretation of the Manager/Senior Administrator’s “attitude”, “body language” and general approach. Whilst I accept that the exchange between the Manager/Senior Administrator and the Complainant may have been tense or even tetchy given that the Complainant was seeking a disability rate which was not available in the club, I am not satisfied that the evidence shows that the Respondent’s Manager/Senior Administrator treated the Complainant differently or less favourably during this exchange because of his disability;  

·         I am satisfied that on the 1st July 2020 the Respondent was operating a membership waiting list due to the fact there were excess applications for membership over and above the club’s capacity. Accordingly, I am of the view that on 1/7/2020, the Complainant could not have been offered immediate membership of the club – at any price rate - since there was no availability at that time. In addition, I am satisfied from the evidence adduced, that the Complainant has not established facts from which it may be presumed that another person would have been or was treated more favourably in terms of access to the club’s membership on that day;

·         I note that in his evidence the Complainant accepted there was mention of a waiting list but no mention of him being put on it and that he stated he would have gone on such a list. Having considered this issue, on balance, I am persuaded by the evidence of the staff member and the Manager/Senior Administrator that the Complainant was offered the opportunity to go on the waiting list in the same manner as any other person seeking membership of the club at that time. I am of the view that that once the existence of a waiting list was mentioned at all it is more likely that an offer was made to the Complainant to go on it;

·         In terms of the membership rate, the Complainant stated at the adjudication hearing that he was seeking a membership rate he could afford and that he was also seeking a disability rate. On his ES.1 Form, the Complainant stated that “I explained to the Manager…..that I was a Member previously and I availed of a Rate reflecting my Disabled State” and he also stated that he “…. cannot afford €55 Euro Per Month as my income is tiny”. In relation to the membership rate, I fully accept the Complainant’s bona fides in terms of his financial situation and his explanation at the adjudication hearing that whilst a rate increase of €6/month “wouldn’t have broken” him, it would “have caused a huge financial issue” for him. Having carefully considered all the evidence, I am of the view that the issue of affordability and a disability rate became intertwined. However, I am satisfied that disability and affordability are not automatically linked nor do I consider they are linked for the purposes of providing a service within the meaning of Section 2 of the Equal Status Act [2000 – 2018]. Accordingly, I consider that the Complainant has not established as a matter of fact, that the Respondent’s membership rate was discriminatory on the disability ground;

·         In relation to the matter of the CCTV, I accept the Respondent’s explanation that the footage is automatically deleted after a specific time period.

In light of the foregoing, I am satisfied that the Complainant has not established facts from which it may be presumed that the Respondent treated him less favourably than another would have been treated in the same situation. Accordingly, I decide that the Complainant has not established a prima facie case of discrimination.

CA-00039299-001

Section 25 of the Equal Status Act [2000 – 2018] requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

For the reasons outlined, I decide this complaint is not well founded.

Discrimination; Less Favourable Treatment; Disability Rate of Membership.