Complainant

Respondent

Parties

Martin  Mongan

Mulleady's Limited

Representatives

FLAC

 Connellan 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-00045207-001

15/07/2021

The Complainant is a member of the Traveller community who resides at Traveller specific accommodation, specifically, a halting site. The halting site comprises two bays. The Complainant resides there with his wife and their children. The other bay is occupied by his wife’s family.

The Respondent is a private company limited by shares engaged in the provision of waste management services.

On 4 February 2021, the Complainant contacted the Respondent by telephone with the intention of hiring a skip so that he could tidy up around his halting site.

The Complainant submitted that the Respondent directly discriminated against him by initially refusing to deliver a skip to his halting site and, subsequently, by refusing to deliver to his halting site on the same terms and conditions that it offers to other customers without any basis for the differential treatment.

On 4 February 2021 the Complainant spoke to a member of the Respondent’s staff (skip manager) by telephone with the view of hiring a skip.

The staff member attended the hearing and gave evidence.

An audio recording of the conversation was replayed to me twice at the hearing.  This was very beneficial to me to understand the conversation that took place.  The Complainant's Representative described the call as a "car crash".

On the call, the Complainant and the skip manager first discussed the sizes of skip in the Respondent’s stock and the corresponding price of hiring each. The Complainant stated he would require a large skip because he wished to dispose of tyres which had been left in his area. The skip manager informed the Complainant that he would not be allowed to put tyres in the skip.  The skip manager then asked the Complainant where he lived. The Complainant told the skip manager that he lived in the halting site. The skip manager said in response:

We won’t deliver a skip into a halting site anyway

The Complainant asked why the Respondent could not deliver a skip into a halting site and the skip manager said:

Because of where it is

The Complainant told the skip manager that he thought the Respondent’s refusal to deliver a skip to a halting site was racist. In response, the skip manager said:

It’s for the safety of the skip

The Complainant was taken aback by the Respondent’s refusal to deliver a skip and confirmed with the skip manager that the call was being recorded.

The skip manager explained that the Respondent would not leave a skip at a halting site overnight and that a skip could only be left at the Complainant’s halting site for a maximum of six hours during the day on one day. She explained that the reason for the Respondent offering a limited service to halting sites was the safety of the skip, she stated that the Respondent also provided a limited service to certain housing estates.

The skip manager denied that she had initially refused outright to deliver a skip to a halting site. She blamed the Complainant for not listening correctly and interrupting her.

The call ended without any transaction being completed.

The Complainant reiterated his view that the Respondent’s policy was racist and that he would be contacting a solicitor.

The Complainant’s case was that on the call the skip manager used a condescending tone, raised her voice and spoke across the Complainant. After the call he was left disgusted, embarrassed and upset by the treatment he received.

The Complainant explained to me that having a skip for six hours will not be of any use to him. He didn't agree to take the skip on those terms.

He described that the impact of the call was “huge on him”. He felt ashamed of where he lived. He hasn't telephoned for anything else because he didn't want to be refused.

He made alternative arrangements for the items to be delivered to the Respondents depot.

The Respondent denied that any discrimination had occurred. The Respondent described the Complainant’s account of the phone call, as “largely inaccurate”.

The telephone call was recorded by the Respondent. All telephone calls are recorded.

The Respondent disputed that it had refused to deliver a skip to the Complainant’s address and stated that it had been willing to deliver a skip for a six-hour maximum period. The Respondent stated that its position was based upon a policy also applied to certain housing estates on the grounds of the safety of the skip.  

The Respondent explained that in these named estates the contents of skips have been set alight overnight thereby causing damage to the skip.  It explained that in these named estates other people (not the hirers of the skip) have used the opportunity to load refuse into the skip resulting the skip becoming overloaded. 

Its submission was that for that reason, and that reason alone there were certain locations whereby the Respondent does not leave skips overnight.  They listed 4 named Estates in Longford town, 1 in Ballymahon and 1 in Mullingar. 

Evidence was given to me that the halting site is located within an industrial estate. The managing director explained that the Respondent had issues with skips in the industrial estate.

The Respondent went on to argue that the policy has absolutely nothing to do with the ethnicity of the Residents of these estates or that of the person to whom the skip is being hired.  It is due exclusively to the Respondents experience of the treatment of skips in those estates.

The Respondent agreed that it had no written policy or document recording a policy that skips were not to be left overnight in the listed housing estates. This was a verbal instruction given to staff members from time to time.

It argued that the policy as set out above applied to Estates whose residents comprised primarily members of the Non-Traveller Community.  It argued that the Complainant was treated differently against because of where he resided, not because of his membership of the Traveller Community. 

The Respondent submitted that such discrimination is not unlawful, and the Applicant is not entitled to compensation.

It further submitted that it was the Complainant's decision not to take up the skip on the terms available.

The Managing Director of the Respondent gave evidence.

He described how in some cases, skips were overfilled to the extent that it was not physically possible to cover them with a net. He explained how without the net cover, the skip could not be transported back to the depot facility.  He explained how the overloading is not usually carried out by the householder or the customer but usually by third parties.

The skip manager gave evidence at the hearing. She explained that her brother-in-law was from a traveller background, and she would not countenance any type of discrimination.

She explained that the Respondents policy had developed by experience.

She gave evidence as to the context of her phrase "because of where it is" in the telephone call. She explained that this referred to where the halting site was, namely in an industrial estate.

She explained how in the industrial estate, two companies with lock up facilities had skips on hire from the Respondent a long-term basis. The other companies in the industrial estate were only provided with same day Skip hire (like that provided to the Complainant) if they did not have lock-up facilities for the skip.

In reaching my decision I have considered all the submissions, both oral and written, made to me by the parties during my investigation into the complaint.

The Complainant, as a member of the Traveller community, which community was recognised by the State as an ethnic group in 2017, falls under both discriminatory grounds section 3(2)(h) and section 3(2)(i) of the Equal Status Acts provide for the discriminatory grounds of race (the definition of which includes ethnic origins) and membership of the Travelling community.

In relation to the burden of proof and pursuant to section 38A of Equal Status Acts, the Complainant is required to establish a prima facie case which requires him to demonstrate (i) that he is covered by the relevant discriminatory ground (ii) that there was specific treatment by the Respondent and (iii) that the Complainant was treated less favourably than another person would have been. Once the prima facie case has been established, the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

There was no dispute that the Complainant was a member of the Traveller Community. 

It was explained to me that the Respondent does provide a regular refuse collection service (wheelie bin) from the halting site. 

I listened carefully to the audio recording.  I was noted that both parties to the call became irritate during the call.

I was advised that there was only one halting estate in the County.

On the call, this skip manager asked the Complainant as to his location:  "Where are you?".

The Complainant replied:  "The halting site".

This skip manager said: “We won't deliver a skip to the halting site anyway”

The Complainant asked: “Why”

The skip manager replied: “Because of where it is”.

She later said: “It’s for the safety of the skip”.

It is notable that the Respondent staff member’s initial reaction was that it would not provide the skip hire to the Complainant.  She later offered a reduced service when an allegation of discrimination was made.

Accordingly, I am satisfied that the Complainant has established a prima facie case of discriminatory treatment. Consequently, the burden of proof has shifted to the Respondent to show that there is a credible non-discriminatory reason for its actions.

The Respondent sought to rely on Section 15(1) of the Equal Status Act 2000 (as amended).

Certain activities not discrimination.

15.—(1) For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (“the customer”) in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located.

This section requires evidence of substantial risk of damage to property being provided.  This is a high bar and the reason given to explain the discrimination needs to be analysed.  The word substantial means more than a reasonable risk. 

The Complainant in the telephone call of the 4 February 2021 did explain that tyres had been dumped near his property. 

The Managing Director gave a general statement that the policy it applied as regards a reduced service was dictated by experiences in the areas identified (and within the Industrial Estate) but the Respondent did not provide any direct evidence of a substantial risk of damage to the skip if provided to the Complainant on the Respondent’s normal terms and conditions.

The Respondent was unable to provide any written policy for the reduced service provision for examination. 

Based on the above, I conclude that the Complainant’s prima facie case of discriminatory treatment on the ground of membership of the Traveller Community was not satisfactorily rebutted by the Respondent.   I find therefore the Respondent engaged in prohibited conduct contrary to section 3 of the Act.

I note that the Respondent following an accusation of discrimination clarified its position to an offer of a reduced service to the Complainant. The Complainant did not accept such service. 

The Complainant had to organise an alternative way to transport the items he wished to dispose of to the Respondents depot. 

The maximum award I can make is the jurisdiction of the District Court.  I don’t believe that such an award would be appropriate in the circumstances of this case.  I note that the Respondent does provide a wheelie bin service to the halting site where the Complainant resides.

This complaint is well founded.

I direct the Respondent to make compensation of €2,000.00 to the Complainant for the effects of the discrimination experienced.

Member of Traveller Community

Section 15(1) Equal Status Act