Complainant

Respondent

Parties

Jim  Desmond

Association of Irish Racecourses clg (title amended at hearing on consent)  

Representatives

  Appeared In Person

 Paddy Walsh, AIR.

Act

Complaint Reference No.

Date of Receipt

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

CA-00047530-001

03/12/2021

On December 3, 2021, the WRC received a written complaint under the Equal Status Act, 2000. The Complainant, a Bookmaker submitted that the positioning permitted to operate as a Bookie, taking cash and credit bets was provided under appalling conditions at Racecourses. He posed the question “why are we being purposely victimised? “

On that day, he attached a copy of:

ES1 form dated 8 November 2021

Respondent response dated November 15, 2021

Copy of Executives Seniority and Pitch rules

Book Makers licence expiry dated 30 November 2021

Pictures of the forecourt of a racecourse

The Respondent was placed on notice of the case on 4 March 2022.

The case came for hearing on 14 November 2022.

On 11 October 2022, Mr. Paddy Walsh, CEO of the Association of Irish Racecourses requested that the case be decided on the papers by written submission in accordance with Section 47 of the Workplace Relations Act 2015. As a default, he sought a remote hearing in light of the Respondents Dublin base. He proposed to make a number of preliminary arguments to clarify matters.

On 14 October 2022, I responded in reliance of Section 25 of the Equal Status Act,2000, on my need to hold a mandatory investigation, detailing my preference to proceed in person. I did offer the parties access to a remote hearing, but this was not accepted by the complainant in the case.

The Hearing proceeded on an in-person basis with both parties present at 10 am on 14 November 2022.

The Respondent submitted a very comprehensive outline submission, which he read out at hearing.

I did endeavor to seek the party’s agreement to resolve this case informally and offered time for this approach, but this was not acted upon.

The Complainant is a Bookmaker of long standing. On December 2, 2021, he submitted a handwritten complaint of victimisation to the WRC. He submitted that as:

 “We, 1 in 3 of those taking cash/credit bets are being forced to operate under appalling conditions with idle accommodation 3 metres behind us. All this at a Racecourse where the accommodation and welfare of horses is absolutely brilliant “.

The earlier submitted ES 1 form, reflected factual details of the complaint as the Complainant having been sick 8 days after an event at Mallow Recourse. He wrote “I have a duty of care to my staff and AIR Racecourses have an equal duty to us. This is a manmade discriminatory rule”.

I asked the complainant to read the ES1 further. He referred to four “legally sets of people taking bets on course “

Tote

Short Course Bookies

Phone Betters

“All three competitors are allowed indoors or outdoors depending on the weather. We as course bookmakers are not allowed use the available indoor facilities “

He went on to recount getting wet at another racecourse, where he had got sick. He referred to the practice as “This is apartheid Irish Style “  

I immediately needed to obtain some clarification on whether this was a claim submitted on behalf of one person and what grounds was the complainant advancing his case of victimisation under?

The Complainant exhibited the ES1 form served on the Respondent dated 8 November 2021. On this form, the complainant recorded that he had been treated unlawfully when discriminated against and had been victimised on 31 October 2021 in his positioning on a racecourse. He clarified that he was a sole complainant.

The Complainant clarified that while he had not recorded his disability on the ES1 or indeed his letter of claim to the WRC. He now wished to be recognised as having a disability in terms of his enduring compromised mobility and a number of associated medical conditions. He accepted that he had not placed the Respondent on notice of these conditions prior to submission of his complaint.

Complainant’s evidence under Oath:

The Complainant outlined that he had been attending Mallow racecourse for 70 years. He had been a Bookmaker of long standing.

He contended that AIR was the correct respondent in the case as every time he had raised the matter of changing the location of the betting stand in Cork Racecourse, he had been informed by the local Manager, Mr Hb that AIR rules prevail.

The complainant gave a chronology on the reduction in the cluster of ononsite bookmakers at the track from 62 to 14. He said that the Racecourse traded 20 days a year.

He contrasted this with Limerick racecourse, which had developed a premia area with a specific access area in the event of rain for the bookmakers.

The Complainant recalled that in October 2021, while trading, he asked if he could go to the big tent at Mallow 3-4 metre back from where he was standing? A refusal from the course operator, on grounds of AIR rules, resulted in him getting the “wetting of wettings “. He was troubled that the customers on the day, a hen party were “soaked too “He could not understand why no lea way on relocation existed. He had experienced a similar unrest in Galway.

He clarified that he was progressing this case alone as he did not have confidence in the conflict resolution mechanisms of the Bookmakers Association, who would not take on this case.

He clarified that he was the named party as an objector to this process and had experienced some opposition.

He accepted that AIR had been participant in seeking improvements in incentivising horse racing for the general public. The Respondent interjected here and handed that accolade to HRI.

When addressing the presence of the Pitch Rules, and Seniority, the Complainant dismissed these as irrelevant and disputed that he would be heard at that forum. He maintained that he would get a fairer hearing at the WRC.

The Complainant outlined the scope of a Bookmaker licence and the annual permit paid to HRI of €300. The daily entrance fee paid to the racecourse was a 5x entrance fee.

The Complainant contended that the respondent held a discretion to effect change in the re-organisation of the bookie stand and cited a precedent in Tramore where a canopy was applied on wet days in the aftermath of October 2021.

When asked to expand on his claim for victimisation, the complainant submitted that he was treated less favourably that the other 2 bookies who entered the racecourse with him. These people were comfortable within the range of the named High St bookies heaters on the day.

During cross examination, Mr Walsh asked the complainant why it had taken him so long to advance this claim? The Complainant replied that he was influenced by the manifested changes on Limerick Racecourse in terms of the direction of corporate and premium facilities.

He believed that Cork had lagged behind and a development into premium facilities there “would provide scope for him “

The Complainant denied that any efforts had been made to diversify in Mallow and this caused him concern in terms of seeing other changes evolve in other racing zones.

The Complainant re-affirmed that he is taking this case alone and in his own name. He accepted that he did not presently hold a bookmaker permit, which his son had  now acquired , but he was not in Mallow.

He confirmed that the Racecourse was paid monthly in arrears for entrance fees. The daily fee was paid on 10th of every month to HRI.

He confirmed that he did not engage in any financial transaction with the Respondent as the Book makers do not pay AIR directly. The Pitch transfer is paid to HRI.

The Complainant, in response to Mr Walsh questions did express a number of reservations on whether he ought to have named the Cork Racecourse as the Respondent. He understood that the Respondent held an over arching discretionary power to intervene in the operation of racecourses. He believed that he was addressing the service leader. He wondered why Mr hb as Manager of Cork and Tipperary Racecourses was not in attendance?

The Complainant clarified that the ES2/ Respondent response of November 15, 2021, was unsatisfactory, but he had not responded to the request to clarify the claim for victimisation .

He reaffirmed that he was treated less favourably than an individual who work at the High St bookies who had access to “electric heaters and seats “

He accepted that he had not been disadvantaged on his seniority status.  

In conclusion, the Complainant submitted that he wanted a “happy ending “, not associated with financial recompense, which he saw in a manifestation of premium facilities in Cork Race Course .He pointed to the  physical presence of “ eaves “ at Tramore Racecourse as protective measures in his submitted photos of a race course .

The matter could be resolved by placing the outdoor bookies 3 metres back to a vacant Marquee area.

The Respondent is a limited company which promotes horse racing, the interests of racecourse owners and operators and the development of racecourses. Income is generated from memberships fees.

This stands in contrast to Horse Racing Ireland (HRI) established under statute and through which, government funding for horse racing is channelled.

Bookmakers are represented by the Irish National Professional Bookmakers Association (INPBA)

The Respondent expressed some difficulty in understanding the composition of the complaint in the case. He submitted that his interpretation of the complaint reflected the complainant’s determination that his outdoor location in which he set out his bookies stall amounted to discrimination.

The Respondent rejected the complaint out of hand. He read out the entire written submission prepared for hearing, and which can be summarised as:

Grounds Not Identified:

On the ES1 form, 2021, the Complainant had neglected to link his complaint of discrimination to any of the proscribed grounds. His complaint referred to alternative accommodation lying idle, but third complaint lacked the precision required.

The Respondent contends that the complainant’s failure to particularise his claim is fatal to its progression.

ES2 / Respondent Response 15 November 2021

In reference to the Racecourse Executives seniority and Pitch Rules (known as the Pitch rules) the Respondent noted that it fell to the Racecourse Executive to designate areas for betting rings “provided they consult with HRI / INPBA.  Further clarity on the composition of the claim followed.

Complainant response dated 26 November 2021

The Complainant did not expand on what the claim meant.

The Respondent urged the complainant to address his concerns to INPBA if he wished to secure changes in the Pitch rules. The Respondent sought to obtain further clarity on the claim but was unsuccessful and overtaken by the submission of the January 2022 complaint to WRC.

The Respondent had some concerns that the complainant was in fact a representative for a registered Bookmaker, his son.

The Respondent sought the application of Section 22(1) and an action to dismiss to the claim as he contended that it was misconceived and lacked any basis in law. The Respondent did not provide a service to the complainant in accordance with section 5 of the Act. The Complainant had never sought redress under the Equal Status Act and his claim for victimisation was without foundation.

The Respondents hands are tied in terms of any identified redress sought by the complainant as the power and authority to redesign the betting rings were out of its grasp and firmly in the domain of the Racecourse Executives, who in turn were bound by the Pitch Rules.

Burden of Proof:

The Respondent submitted that the complainant had not made out a prima facie case of Discrimination as required by Section 38A of the Act and supported in the jurisdiction of:

Southern Health Board v Mitchell [2001] ELR201

He had not been treated differently to the other bookmakers with different proscribed characteristics as all are subject to the same betting ring rules.

The Complainant had not submitted that he had been placed at a particular disadvantage by his membership of a proscribed grouping (section 3(1) (c) on indirect discrimination) Stokes v Christian Brothers High School, Clonmel and the Equality Tribunal at the Supreme Court [2015] 2IR 509.

Evidence by the Respondent at Hearing under oath

The Respondent outlined that the Complainant was wrongly drawing his comparator from another book maker from the High St (named at hearing) He outlined a very measured description of the roles and funding arrangements that various bookmakers and the Tote played on a race course and once more disputed that the complainant could rely on this commercial activity as a basis to claim victimisation.

He emphasised that a Bookmaker (on site) was subject to the Pitch rules 2019 as exhibited, whereas his Organisation covered.

Owners

Trainers

Jockeys

Vets

Administration

He outlined that the dynamic of the Racing ring was important. The matter of a dissatisfied bookmaker on site location had not been raised with him by anybody at Cork Racecourse.

He said that it was open to the Complainant to make a complaint with them directly.

He clarified that the date referred to on the ES1 form was 31 October rather than 16 October 2021.

During cross examination, the respondent accepted that Limerick adopted an accommodation for bookmakers in bad weather.

I had directed the Complainant to keep his questions relevant to the presiding legislation.

The respondent expanded on the workings of the Pitch Tribunal which operates under an Independent Chair.

Mr Walsh responded to the complainants’ questions that he had not grounded his claim on victimisation.

The Complainant addressed Mr Walsh and told him that he was annoyed that AIR did not accept that the Equal Status Act catered for his complaint.

The Respondent clarified that AIR did not operate an Equality Policy or Protocol and had not engaged in any Equality Training.

In conclusion, the respondent summarised that AIR did not operate a service directly to the complainant for the purposes of the Act. His claim was misconceived and not attributable to a recognised ground of discrimination for the purposes of the Act.

The matter could have been resolved by a careful application of the Pitch Rules disputes resolution mechanism.  

I have been requested to make a decision in the claim of Victimisation before me. In reaching my decision, I have taken account of the written submissions from both parties. I have also reflected on the evidence adduced by both parties at hearing.

It is an important backdrop and context for this case that the WRC and Circuit Court on appeal are the primary and secondary fora for hearing and determining discrimination complaints under the Equal Status Act, 2000

Source: Equal Status Acts 2000-2011, by Judy Walsh at Chapter 12.

Ms Walsh goes on to state.

“A person who believes that they have been discriminated against when accessing goods or services is obliged to notify the service provider in writing of their intention to seek redress under the ESA”.

It is also of note that the circumstances of this case unfolded during the era now referred to as the Covid 19 era, the National Pandemic, in this country, which clearly prompted a vulnerability , fear and a sense of the unknown in the population at large . This is a relevant social context and concern for me as I assess the facts as presented by both parties in this case.

Statement of Claim:

As a first comment, I wish to record my disappointment at the paucity of detail on the statement of claim to the WRC dated December 2, 2012. While I appreciate that a complaint form is not a statutory document, I would have liked a broader description of the claim, inclusive of the ground the case was built on in terms of the Equal Status Act, 2000. I will return to this later.

The Complaint before me dated 2 December 2021, alleges Victimisation against a grouping of people.

Both the WRC and IHREC provide very useful background document to guide a potential complainant or respondent in this area.

It is of note that the Respondent acknowledged that the AIR did not have a Policy on Equality. This may well be an area that the Respondent and its Board may wish to review.  

I was also concerned that the complainant appeared to have been submitted his claim as a collective claim rather than an individual complaint. This raises issues for the scope of my jurisdiction under the Equal Status Act, 2000. Reference: Gloria (Irelands Lesbian and Gay Choir) v Cork International Choral Festival ltd DEC -S2008-078 ) where the former Equality Tribunal  held that an unincorporated association of persons did not have the legal standing to progress a claim of discrimination on sexual orientation grounds

“ …. I am therefore of the view that the legislative intent in this regard was to protect individuals and not bodies from discrimination “

Prehearing Inter Party Correspondence:

The period from realisation of perceived discrimination to statement of claim before the WRC is a very important time in any investigation under the Equal Status legislation. It is a very important time as the ES1 form is designed to assist the parties to focus on the claim and time is permitted under Section 21 of the Act to allow the parties to resolve the matter at hand prior to referral to the WRC. 

In the instant case, it was helpful to observe that two parties were present and participant in the submission of the ES1 on 8 November, 2021 and its response dated November 15,  2021.

However, the Complainant stated that he was unhappy with the November 15, 2021, but did not engage in the window of time allowed for resolution.

I found the letter of November 15, 2021, written by the Respondent to be very clear. It set down the trading realities operated by Cork and Galway racecourses and referenced that Covid contingency arrangements had no bearing on the location of the betting ring.

The Respondent asked the complainant to clarify his claim for Victimisation in accordance with a definition of Victimisation cited on the ES1 form?

The Complainant did not elaborate on the claim in his response dated 26 November 2021. However, he did expand on his vulnerability to the covid 19 virus and equated being wet through outdoor postings at races as an added risk to acquiring this illness. He did not mention a disability at this point, or at any time prior to the hearing date of 14 November 2022.

However, the Complainant continued to refer to “we “rather than “ I “ in this interparty correspondence .

I found the Respondent reply dated December 1, 2021, worthy of capture for the purpose of my report in the case.

“If you have a difficulty with any of the provisions of the Pitch rules in these areas you might be best advised to take such matters up with the INPBA, in the first instance, with a view to seeking to have them amended.

Please accept my assurance that I did not intend to cause you any distress in my previous letter when I asked you to clarify the specific type of victimisation on which you were grounding your claim. In your most recent letter you refer to “colour race, sex “but these are not grounds for victimisation under the legislation. I remain unclear as to the specific grounds on which you allege discrimination and victimisation and would again, ask for clarification.”

There was no response to this letter and the matter was referred to WRC the next day.  

What followed was a disagreement on whether the complainant was a licensed bookmaker or not and no resolution in this case unfolded. The Respondent expressed an uncertainty regarding whether AIR was the correct respondent, and what capacity the claim was being advanced under.

The Hearing:

I listened carefully to both parties stated positions at hearing. I understand and accept that the origin for the circumstances  of the claim occurred on 31 October 2021 .  It became clear to me very early on that the complainant had a sense of being badly treated which he perceived to be discriminatory in nature. The Respondent came to hearing in a somewhat perplexed manner. Mr Walsh was keen to answer any claim advanced, but he had a sense that he was not the right “mark “ and he was very keen that I understand the measures that the respondent had  already engaged in to clarify and resolve matters pre hearing . I accept those submissions in full.

My jurisdiction in this case falls under the Equal Status Act, 2000.

In keeping with my jurisdiction under the Equal Status Act, I have stated the law in the relevant sections.

Discrimination (general).

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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

Or

Indirect Discrimination

(c) 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 of the Act defines a Service.

“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 the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, 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,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

Section 5 of the Act prohibits any discrimination in the provision of goods and services.

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Victimisation is outlined and provided in section 3 of the Act

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

A starting point in the ascertaining whether the Complainant has a stateable case rests in Section 38 A of the Act

Burden of proof.

38A.— (1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

The test is on the balance of probabilities.

I explained the burden of proof set out in Mitchell at hearing.

1 The complainant is covered by a relevant discriminatory ground.

 At the outset of the hearing, the complainant accepted, that while he understood that he possessed a disability and wished to run his case on those lines in pursuance of proving Victimisation. He equally accepted that he had not placed the respondent on notice of same. The Complainant did not exhibit any medical evidence of a disability at hearing.

While I appreciate that the Complainant experienced some mobility problems, I cannot accept that this amounted to a disability under the Act. I am strengthened in my view here by the complainant’s avoidance of engaging in any clarification of his claim prehearing. I could not identify any grounds of discrimination linked to disability in the framing of the complaint before the WRC at 2 December 2021.

I have found that the complainant is not covered by a relevant discriminatory ground.

2 There was specific treatment by the respondent.

There were several occasions during the hearing where the Complainant asked himself whether the claim was properly before AIR and not the Racecourse proper? He expressed a view that the Racecourse Manager should have been in attendance. It is a matter for each party separately to prepare their party for hearing .

The Complainant was taken aback when the Respondent confirmed that the matter of “a dry posting “had not been discussed with him in the context of Cork Race Course . This evidence was given under oath, and I accept that evidence.

From the evidence before me, I cannot identify that the Complainant was refused service by the Respondent.   He had no legal relations with AIR as monies were exchanged in return for “turf “ with the Race Course proper .

 I appreciate that the Respondent was viewed by the Complainant as the “mover and shaker “of change in Racing. The Complainant submitted that the Respondent yielded the power to which the Racecourse would /should or could accede. I have viewed this as an assertion and not a proven fact as the Pitch rules exhibited by both parties reflect the Pitch Rules as operational guidelines for race course management. The Respondent did appear to have a strategic oversight of this but the fees were exchanged from bookmaker to racecourse.

The Respondent did not provide a Service to the Complainant in this case.

3 The treatment of the complainant was less favourable than the treatment that was or would have been afforded to another person (the comparator) in similar circumstances.

I could not identify any less favourable treatment conducted from respondent towards the complainant in this case.

 Instead, I saw a Respondent who utilised the window of time from ES1 to hearing day to clarify and resolve the matter and direct the complainant to what he considered was the veritable correct direction for his dispute, that of the disputes resolution of the Pitch rules.

The Complainant compared himself to High St bookmakers who had access to comfort, light and warmth on the inner circle of the racecourse.

Having listened very carefully and reflected at length on what I have heard from both parties, I have not identified that the Complainant has secured the necessary burden of proof in this case.

He has not raised facts of sufficient significance from which I can infer that Discrimination occurred, so as to justify the reversal of the burden of proof to the Respondent.

He has not identified a ground of discrimination in his statement of complaint on December 2, 2021, that is  linked to  his claim for  Victimisation. The Respondent was not on notice of his stated disability at the time of the claim.

While I accept that the claim was drafted as “we “rather than I . I have found that the complainant has clarified that the claim is for himself as “one person “. This does not alter the meaning of the claim and the Respondent is not prejudiced by my accepting that the claim is a singular claim. 

The Respondent did not provide a service to the Complainant and thus no prohibited conduct was identifiable on this occasion.

I have not identified less favourable treatment on disability grounds as the comparators cited were bookmakers from the High St and I have no knowledge of their status vis a vis disability as they were not named.

Instead, I have concluded that I cannot take this matter any further in the circumstances, as this dispute, in my mind  is a Commercial dispute.

This is a dispute about the changing commercial evolution of racecourse facilities and the regional variances in same. Perhaps when parties to this dispute read my findings in this case, they make take another opportunity to reflect on my observations in this regard.

I have decided not to dismiss the claim as requested by the Respondent. I found that the Complainant approached the case in the genuine belief that he was treated less favourably on grounds of disability. He honestly believed that the WRC would provide him with a fair hearing . However, following my completed investigation, I must find that he is mistaken in his claim for Victimisation on this occasion. 

Both parties had a right to be heard in this case and receive a decision in due course.

I find that the Complainant has not satisfied the prima facie case necessary in this case. He was not Victimised by the Respondent.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have concluded my investigation and thank both parties for their participation and candour.

The Complainant has not satisfied the prima facie case necessary in this case.

He was not Victimised by the Respondent.

Victimisation.