Complainant

Respondent

Anonymised Parties

Minor

Theatrical Summer Camp Organiser

Representatives

Next Friend

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052044-001

02/08/2022

This complaint is concerned with the decision of the Respondent not to confirm the attendance/participation of a minor at a summer camp in 2022. The Complainant is Russian, living in Russia. The reasons given for the decision not to allow the Complainant to participate in the camp related to two reasons: the war in Ukraine and concern expressed by the Respondent for the wellbeing of the Complainant should she attend. A deposit for her participation previously accepted by the Respondent was returned to her father via the representative. There is some disagreement as to the extent to which the two reasons formed part of the explanation provided by the Respondent but that the participation of the Complainant in the 2022 camp was cancelled and that these were the two reasons provided is not in dispute. There were email exchanges with the minor’s father and the representative. Any discussion was between the Respondent and the representative at the hearing i.e., the next friend.

That the Respondent is the provider of a service as defined under the Equal Status Act 2000 is accepted by them.

In January 2022, the father of the complainant booked and paid for a place for her on a summer drama camp organised by the Respondent. The minor was fourteen years old at the time. On 24 May 2022 the representative/ next friend contacted the Respondent to confirm that all was proceeding as arranged. On that day there was a conversation between one of the named respondents and the representative in which the Respondent indicated that they intended to cancel the booking referring to the sanctions against Russia due to the war in Ukraine. The representative sent an email recapping on the conversation.  Reference was made by the representative to discrimination. The Respondent said he would think about it. On 30 May the Respondent emailed that they would stick to the decision-they were cancelling the place for the same reason as in the call. In response to the Respondent the representative said there was a reference to the well-being of the minor, but her recollection was this was secondary-the main reason related to the war in Ukraine and the wish of the Respondent to do something to support the Ukraine.

On 17 June 2022 an ES1 form was issued to the Respondent-there was no reply. A copy of the form and the tracking certificate was provided.

Asked to explain the complaint of racism, the representative stated that the Complainants nationality was the only reason given-that she was Russian, that she lived in Russia and that she was victimised for these reasons-on grounds of her race. Had she been any nationality other than Russian, the Complainant would have been allowed to participate in the camp.

The contention that the ES1 was not sent or correctly sent was emphatically rejected.

The evidence and submission on behalf of the Respondent was that they provide a childrens theatre school at weekends. They also provide a small three-week theatre school in the July which has 65% Irish participants - the rest of the participants are from other nationalities and countries. Participants have included Russians in the past. There was a credit card booking of the deposit for the Complainant made by her father through Russia in January 2022. May is a busy time in the office. By that time, they were thinking that the booking would not go ahead as the Ukrainian situation had developed in the meantime-maybe next year. Then they received a call form the representative checking that the programme was going ahead and asking how to pay the balance. The witness said that he replied that he would need to check about the sanctions, and he also referred to a duty of care to the Complainant. The conversation got heated quite quickly, the representative went on a rant. In the call there was a reference to equal status legislation where he did ask was she threatening him and he was told that it was their job to deal with emotional issues (referring to the reactions of other students and impact on the complainant as part of the duty of care reason). He said they were concerned-were they breaking the sanctions. On May 29th there was another email from the Representative and on 30th May the Respondent emailed referring to the sanctions which were in place, that they could not take any bookings from Russia. They offered either a full refund or to transfer the deposit to next year when hopefully the situation would have changed. On May 31st they received another email from the representative who described the situation as ridiculous. They also emailed the Complainants father as requested by the representative. On June 2nd they received two emails from the Complainants father. The first was angry and the second said that he did not intend to sue but the situation was very unpleasant. This was the last time they heard from the Complainants father, and they believed the matter to be closed at the stage. They had said in the email to the father that were sorry about this situation and that the Complainant felt discriminated against-the situation only came about because of the war.

In oral evidence the Respondent spoke about their concern for the Complainant had she attended the camp. It was explained that with a group of young people in residence things can happen. Texting at 3am. Summer camps conveyed an immense responsibility. They couldn’t always offer a place and there were conditions expressed in their Ts and Cs that a deposit does not guarantee a place. If the opportunity arose in the future the Complainant could participate. They believed they had made the right decision and would still make the same decision if a booking came from Russia.

On the matter of the sanctions, they were of the view that there was an issue at the time but would accept the view of the WRC if they were not right in that. In response to the Chair the witness said that they did not check or take professional advice to see if the situation was affected by the sanctions but there was huge media coverage of sanctions at the time so they thought they must be breaking sanctions.

It was unfortunate due to the minor being Russian they felt they could not guarantee her well being in the camp. Children can be cruel (to each other). The booking payment was returned. The Complainants father accepted the return of the deposit and seemed to accept the decision. They had no record of receiving the ES1. There may have been an issue with the address used.

The respondent had received a request from the father of the Complainant on November 22nd saying that they now had citizenship in another country and he would like his daughter to attend the camp in 2023. They responded inquiring did the father know there was a case against them in the WRC.

Relevant terms of the Equal Status Act

a.     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.

The Respondent accepts they provide a service as defined.

b. Definition of Discrimination

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,

c.       The Race Ground

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

There is a not a lot in dispute concerning the facts in this case outside of the extent to which the discussion between one of the Respondents and the Representative for the Complainant became heated and how much emphasis was placed on child welfare as distinct from references to the Ukrainian war and sanctions in their exchange. What is agreed and what is central is that two different reasons were advanced by the Respondent at the time of the discussions between the parties as reflected in the emails exchanged.

Email of the representative to the Respondent following the initial telephone conversation:

You said that you are concerned with the emotional well being of all the kids in the camp (although you don’t appear to have considered the emotional effect on X(Complainant) of being ‘cancelled’ like this.

Email of 30 May 2022-Respondent

Unfortunately at this time while current european sanctions are in place we cannot accept any booking from Russia, regardless of dual passport.

The reality is that the reasons expressed in the emails and referenced in the related telephone call which preceded them both related to the Complainants nationality.

 Firstly, the relationship between her nationality-being Russian and residing in Russia led to some interpretation that EU sanctions applied to her in some way or became an obligation on the Respondent. There was no basis provided for any reference by the Respondent to sanctions related to the war against Ukraine, a fact which could have been established by the Respondent.

 Secondly even were it accepted that the organisers were exercising a legitimate concern about the welfare of the minor at the camp-that was also related to her nationality and the war in Ukraine-i.e., an inference that other children or minors could create difficulties for the Complainant solely because she is Russian and they potentially developing a negative connection between her and the war in Ukraine. However, there was no evidence that such a concern has led to the camps being abandoned or actual refusals of participation by minors based on what might occur between minors who do not know each other-based on a perception of the potential bias of those minors, as it would have been had such conduct actually occurred. Assumptions were being made by the Respondents about the other participants based, I suggest, on their own attitudes to the war in Ukraine and by extension Russians in general, or at least this is a reasonable conclusion. The Complainants representative made a valid point in asking would minors be refused on grounds of sexual orientation or colour out of concern for how other minors might behave towards them. While not suggesting or implying for an instant that the Respondents hold any discriminatory bias against such groups, in this situation it is reasonable to conclude that theirs was a case of personal bias being transferred to another person without their knowledge and then using that other person as an excuse for their own bias. Accepting that the Respondents may have genuinely held concerns about the potential misbehaviour of other minors, these were matters they could have expressed to the parent and the minor and sought their views before deciding. They also could have considered or put forward ways to actively manage any concerns as part of their responsibility to all minors in the camp. Instead, the Respondent simply made up their mind and linked the refusal to allow participation to the nationality of the minor to the war in Ukraine in the first email to the father and later to concerns about her wellbeing. Each reason was directly linked to the war and by extension was directly linked to the minor being of Russian origin and living in Russia.

Burden of proof.

38A. — (1) Where in any proceedings 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.

The Complainant has established facts from which it may be presumed that the prohibited conduct complained of occurred in relation to her.  The refusal of the Respondent to allow her to participate was a detriment experienced by the Complainant based wholly or mainly on her nationality.

In failing to provide any basis for their actions based on the sanctions in place and in relying on an assumption in the case of other minors while declining to manage that assumption, the Respondent has not provided any evidence that would prove that the prohibited conduct complained of did not occur or can be objectively justified when it was proven.

Finding

Based on the forgoing conclusions, the finding is that the minor/complainant was refused participation by the Respondent on the summer camp which they organised in the summer of 2022 based on her nationality which represents prohibited conduct by the Respondent in breach of the Equal Status Act under the race ground as defined under that Act at section 3.

The redress set out in the Decision provides two forms of recognition of the impact of the discrimination on the minor-a payment to be made to the payee through an account chosen by her father plus a second form of redress designed to allow her to participate in the camp in 2024 with the option of also taking that redress in a payment to the payee chosen by her father. In my view these forms of redress should make it clear to the minor that she was unfairly and unreasonably connected with events clearly not of her making.

CA-00052044-001 The complaint of discrimination brought by the Complainant against the Respondent is well founded. Redress is to be made by way of compensation of €1500 plus payment to a maximum of €1200 for the cost of travel plus the full cost of participation by the minor in the summer camp in 2024 or a further €1500 whichever of these latter two options she would prefer-to be confirmed by her within thirty days of the date of this decision. If she decides to take the option of participation in 2024 it will be the responsibility of the Respondent to take all reasonable steps to address any concerns that she or her father or indeed the Complainant has about the behaviour of other participants. In the event that the Complainant opts to attend the summer camp of 2024 and it does not go ahead for whatever reason, the second sum of €1500 would then become payable to the Complainant.

Equal Status -provision of goods and services-allegation of discrimination-race ground