ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00042171

Parties:

	Complainant	Respondent
Parties	Mark Hegarty	Limerick Greenway Bike Hire Limited

Representatives

Self and Yun Hegarty

Self

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00052894-001	20/09/2022

Date of Adjudication Hearing: 22/06/2023

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The Respondent withdrew from the hearing the evening before the first scheduled hearing-leaving a former member of staff to give evidence. This was not acceptable to the undersigned as the former member of staff could not be said to be a representative who was responsible as the Respondent for what had occurred or to be vicariously liable for what had occurred. The hearing was rearranged and K McDonnell attended as the representative of the Respondent. Sworn evidence was provided by witnesses. A complaint of discrimination on grounds of age selected on the complaint form was withdrawn on the first day.

Background:

This case is concerned with the events of 07/08/2022 when the Respondent refused to hire a bike with a trailer to the Complainant (and Y Hegarty -see matching complaint ADJ-00042169) for reasons related to the age of the youngest of the Complainants children. The complaint is one of discrimination on the protected ground of family status of arising from the refusal to provide to provide a service on the day in question. As required under the legislation a form ES1(or its equivalent) was sent to the Respondent on 31/08/2022. A response was received on 20/09/2022. The complaint was received by the WRC on 20/09/2022.

Summary of Complainant’s Case:

Yun Hegarty gave evidence of what had occurred and the basis of the complaint of discrimination on the family status ground.

The family wanted to book a bike on the day in question and looked up and found the Respondent business on a website. Mark Hegarty rang and asked about hiring a bike with a trailer. They have two children aged two and seven months at the time. He was told they did not need to hire a bike -they could just call in. They arrived at the office and Mark went. Yun Hegarty remained standing at the door where she could hear what was said. The seven-month-old was strapped into a buggy. Mark said they were there to book a bike with a trailer. Ms Motherswell said no, that the seven-month-old was not old enough to be in a trailer. Mark said Yun Hegarty was going to walk alongside the trailer with the younger child in the buggy. Ms Motherwell said she understood that but they could put the child in the trailer and it would not be possible for Yun Hegarty to keep up with the bike and trailer. The witness said she would walk in the opposite direction to the bike and trailer but this was also refused.

The Hegartys feel they were discriminated against as they were turned away. From what was said in the ES2 there was an assumption that they were being untruthful, that they were trying to trick Ms Motherwell. A lot of assumptions were made, no resolution was offered in the ES2 reply. Yun Hegarty said she felt she was being queried as a parent, that she was not looking out for the best interests of their child.

Asked why she regarded what had happened as discrimination on grounds of family status, she replied that what had happened was because she and Mark shown up that day with a child. Someone who turned up without a child would not have been treated that way. Someone who turned up with a disability would not have been turned away.

Asked about the effects of what had occurred, the witness said their day was spoiled and they ended up arguing about what had happened.

Summary of Respondent’s Case:

On behalf of the Respondent Mr McDonnell explained that this was a new business at the time. The last thing they wanted to do was to turn business away. However, they have to ensure the safety of the equipment they hire out and work with the manufacturer’s specifications. They were not disputing the facts of what had occurred. This was a judgement call by Ms Motherwell on the day which they supported as being correct and the Respondent would do again in the same circumstances. They were asked to rent a bike with a trailer for the use of a child less than one years old. It was explained that this could not happen as it was a safety issue and that was the correct decision.

Evidence of the witness Ms Motherswell.

The witness stated that she was the manager of the shop in Limerick at the time. They had premises in three different towns. On the morning in question, she received a call about coming in to hire bikes with a trailer for children aged two and seven months. She explained they could not hire a trailer for the seven-month-old. Later around 12 30 the Complainants came to the office and she explained the age restrictions again and that she would not hire out a trailer to carry the seven-month-old. The Complainants were disappointed-that they had come a long way. Yun Hegarty said she would alongside the trailer with the buggy. The witness felt that it would be impossible to walk alongside the buggy and bike at speed and rejected this option. Yun Hegarty said she would walk with the seven-month-old in the opposite direction. At that stage the witness felt that the story of the Complainants had changed a few times. Maybe there was a miscommunication from the phone call but she was anew manager and quite nervous-that there was no reasonable way that she could ensure they would not put the child into the carrier when they were out of her sight. It seemed to her that when they arrived, they presented as a new customer and not as the people who had spoken to that morning and explained the age restrictions. At the time she believed the Complainants had hoped they would meet a different person to the one they had spoken to in the call earlier that day. Her recollection was that they spoke about hiring bikes and only changed this to hiring one bike and a trailer as the discussion went on.

The witness said she had not meant to imply that the Complainants were irresponsible parents and she apologised for that (inference).

Under cross examination the witness said she could see the second child was less than one years old. She was not sure if the baby could support themselves. The manufacturers specification was not for use for a child less than nine months old-to which the Respondent added a further three months.

Asked by the Chair to respond based on the complaint of discrimination-that a person without a child would be treated differently-the witness replied yes that a person without a child could hire the trailer- people put all sorts of things in the carrier, backpacks for example.

Findings and Conclusions:

Neither party were professionally represented in this case. Their respective positions relied mainly on their interpretation of the facts as they saw them. One significant role of the Adjudication Officer in arriving at any decision is to have regard to the terms of the legislation on which the complaint is based even if legal arguments are not made by the parties specifically referring to the sections and subsections of that legislation. The following are the sections of the Equal Status Act which are considered relevant in arriving at the decision in this case.

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.

That the definition in this section applies to the Respondent in this case was not disputed by the Respondent and is deemed to apply to them based on the provision of a bike hire service to the public.

“family status” means being pregnant or having responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

The application of the definition of family status to the Complainants was not disputed by the Respondent. Insofar as the Complainant is a parent of the child who was central to the refusal of the service and that child was under 18 and the parent was also refused the same service because of the age of the child, the definition of family status can be taken to apply to the circumstances of this case.

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,

The Complainant has satisfied the terms of the Act in respect of the definitions of the disposal of a service to the public generally and that she has family status for the purposes of the definition of family status-a ground which existed at the time of alleged discrimination when the complaint was made and which still exists.

Having listened very carefully to the reasoning put forward by both parties, on the balance of probabilities, the most reasonable conclusion is that during their exchanges on the day, Ms Motherswell was primarily exercising her judgment on health and safety grounds. In doing so she developed a mistrust of the Complainants which seems to have been instinctive rather than anything else and she became quite biased against them based on that mistrust. While this could be regarded as very subjective reasoning on her part, I am satisfied that at all times her concerns were those of a responsible employee acting out the safety procedures of her employer. Nothing she is quoted as saying on the telephone or in person deviated from the principle of caring for the welfare of an infant if that child were to have been placed in the carrier at any stage. Nothing indicates that she was biased against the parents because of their family status. Or because they had a small child. On the contrary it is accepted that she was concerned about the welfare of that child. Ms Motherwell agrees that she would have rented the bike with the carrier to a person without a child. However, the circumstances cannot be said to compare unless that solo person also had a child and was not refused the hire of the same equipment. A person is a not an appropriate comparator in this case solely on grounds of their not having a child. Logically, the health and safety issues would not arise in that other situation. While understanding the upset and annoyance of the Complainant on the day, that the Respondent in the adoption of the safety guidelines in the case of infants under one year old or through Ms Motherwell on the day in question, engaged in discriminatory treatment of the Complainant and or the family on grounds of family status compared to another person not having the same family status, is not accepted as a valid contention.

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.

(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.

On the basis of the forgoing conclusions, it is found that the Complainant has not met the threshold of establishing as matter of fact that prohibited conduct did occur in relation to him to the extent that such prohibited conduct may be presumed which would require the Respondent to go further to prove the contrary.

Finding

The complaint of discrimination by Mark Hegarty on the family status ground is not well founded in this instance.

Decision:

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.

CA—00052894-001 Based on a finding that the complaint by Mark Hegarty of discrimination on the family status ground is not well founded, there is no basis for an order for redress against the Respondent.

Dated: 10/07/2023

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Discrimination Goods and Services -Ground: Family Status