ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040678

Parties:

	Complainant	Respondent
Parties	Ms. Sarah Holmes	National Women’s Council of Ireland

Representatives

N/A

Ms. Sinead Lucey, Free Legal Advice Centres, instructing Ms. Kiwana Ennis B.L..

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00051898-001	28/07/2022

Dates of Adjudication Hearings: 13/04/2023 and 16/05/2023

Workplace Relations Commission Adjudication Officer: Elizabeth Spelman

Procedure:

In accordance with section 25 of the Equal Status Act 2000 as amended (the “ESA”), 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.

The Hearing was conducted over the course of two days and was held in person. Ms. Sarah Holmes (the “Complainant”) represented herself. The Complainant had two witnesses in attendance, C1 and C2, who both gave evidence. On the first Hearing day, the Complainant’s friend attended by way of support. On the second Hearing day, the Complainant’s husband attended by way of support.

The National Women’s Council of Ireland (the “Respondent”) was represented by Ms. Sinead Lucey of the Free Legal Advice Centres (“FLAC”), instructing Ms. Kiwana Ennis B.L. on the first Hearing day. On the second Hearing day the Respondent was represented by Ms. Sinead Lucey of FLAC only. The Respondent had two witnesses in attendance, R1 and R2, who both gave evidence. On the first Hearing day, two employees of the Respondent were also in attendance. On the second Hearing day, only one employee of the Respondent was also in attendance.

For the reasons outlined below, the Hearing was held in private and the witnesses were anonymised. The Complainant provided evidence on affirmation. C1 provided evidence on oath and C2 provided evidence on affirmation. R1 and R2 both provided evidence on affirmation. The legal perils of committing perjury were explained to all. Cross-examination was allowed.

Applications:

There were a number of applications made in advance of and throughout, these proceedings. Moreover, there was extensive Party correspondence for consideration.

Private Hearing and Anonymity of Witnesses:

In advance of the Hearing, both the Complainant and the Respondent made applications for this complaint to be heard in private.

On 20 March 2023, the Respondent wrote to the Workplace Relations Commission (the “WRC”) outlining concerns for the welfare of their witnesses if this complaint was heard in public and they were named in any decision. The Respondent outlined that, while not an allegation specifically against the Complainant, there are individuals and groups who use social media and other means “to vilify and harass” those who are involved in work that is perceived to promote transgender rights in any way. The Respondent indicated that a key witness was subject to harassment previously and would be reluctant to give evidence unless the complaint was heard in private. The Respondent submitted that these concerns constituted “special circumstances” warranting the hearing of this complaint in private and the anonymity of witnesses.

On 11 April 2023, the Complainant emailed the WRC and made an anonymity application for herself. She submitted that it would be easy for individuals to “track down” where she and her family live, amongst other things. She submitted that her complaint is in the public interest, however she wanted to be anonymised so as not to put herself, her family, her job and her privacy at risk.

On the first Hearing day, I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all WRC hearings are held in public. I explained that where “special circumstances” apply, a matter could be held in private and decisions could be anonymised. I invited oral submissions from the Parties.

The Parties provided oral submissions in support of their applications, outlined above. The Respondent requested that this matter be heard in private. The Complainant requested that the media be present, but under the instruction that witnesses not be named. The Complainant submitted that she wanted the Respondent to be named in the decision, and that she would consent to being named herself, so long as the Respondent is named. The Respondent did not object. Neither Party objected to each other’s witnesses being anonymised.

I considered both Parties’ submissions. I accepted that witnesses’ personal welfare and safety would constitute a “special circumstance” warranting the hearing of this complaint in private and the anonymity of witnesses. I further noted that the Respondent’s case would be significantly undermined if a key witness would not attend due to genuine personal welfare concerns, if the matter was held in public and/or if they were named. I ruled that the Hearing would be held in private, the Parties would be named and the witnesses would be anonymised.

Conflict of Interest:

On the first Hearing Day, the Parties were invited to make further oral submissions regarding a potential conflict of interest raised in advance of the Hearing.

The Complainant submitted that she believed that FLAC has a conflict of interest in this matter. She outlined that she attended a FLAC advice clinic last year and had a detailed consultation in relation to her complaint. She submitted that as FLAC had previously made a public statement regarding the ESA, it is not neutral in this matter. Finally, she submitted that FLAC has “vilified her” and made “fake claims” about her.

The Respondent’s Representative denied the Complainant’s allegations and outlined that it was satisfied that there was no conflict of interest or impediment to FLAC acting on behalf of the Respondent. The Respondent’s Representative outlined that its Advice Clinic consultations are provided by volunteer solicitors and barristers. These consultations are wholly confidential, and the only information provided to FLAC from such volunteers is anonymised statistical information. The Respondent’s Representative further outlined that it is the Independent Law Centre, which provides legal representation to members of the public or on occasion to an NGO such as in this complaint. The Respondent’s Representative outlined that this client work is wholly separate from the Advice Clinic referred to above.

I referred the Parties to section 25A of the ESA, which states:

“A party (whether complainant or respondent) to proceedings under section 24 or 25 may be represented by any individual or body authorised by the party in that behalf.”

I explained to the Parties that the legislation is clear – parties can be represented by any individual or body they choose.

Joining of Complaints:

The Respondent outlined that it had received a separate and almost identical complaint submitted to the WRC on 8 December 2022 concerning the 9 June Event, which is central to this complaint. This separate complaint had been brought by C2 – one of the Complainant’s witnesses. In the circumstances and to deal with these matters efficiently, the Respondent requested that the two complaints be joined and heard together.

I explained to the Complainant and C2 that, while complainants are entitled to have their complaints dealt with separately, where suitable they can be joined. I adjourned the Hearing for approximately 30 minutes and gave the Complainant and C2 the opportunity to consider inter alia this request. Upon reconvening the Hearing, the Complainant and C2 outlined that they believed that their complaints were sufficiently different to merit separate hearings and so they refused the Respondent’s request. I noted the same.

Respondent’s Binder of Evidence:

On the first Hearing day, the Respondent outlined that it wished to submit a binder of evidence (the “Respondent’s Binder”) which collated documentation, encompassing submissions and evidence filed by the Complainant as well as evidence relevant to the complaint. The Respondent outlined that the Complainant had already had sight of all of the documentation in the Respondent’s Binder.

The Complainant objected to the admission of the Respondent’s Binder and outlined that she needed time to consider it.

I adjourned the Hearing for approximately 30 minutes and gave the Complainant inter alia the opportunity to review the Respondent’s Binder and to consider whether she required more time to consider it. I explained that I could adjourn this Hearing, to proceed on another date, if necessary.

Upon reconvening the Hearing, the Complainant confirmed that she was satisfied to proceed with the Hearing. She outlined some GDPR and victimisation concerns, set out below. Twice more, I offered to adjourn the Hearing and proceed on another date. However, the Complainant declined an adjournment, indicating that she was certain that she wanted to proceed and that she did not want to prolong this matter.

In the circumstances, and particularly as the Complainant was clear that she did not want an adjournment, I allowed the Respondent’s Binder and reconvened the Hearing.

Data Protection Complaints:

The Complainant submitted that a number of her emails included in the Respondent’s Binder were obtained in violation of her General Data Protection Regulation (“GDPR”) rights. She accepted that she had sent the emails to the Respondent. However on 10 June 2022, the day following the 9 June Event, she requested that her emails be deleted. She was concerned that this had not been done. She outlined that this was “further evidence” of the Respondent’s “victimisation campaign” against her.

I made it clear to the Parties that GDPR complaints are not within my jurisdiction. I stated that such complaints were a matter for the Data Protection Commissioner.

Jurisdiction:

I referred to a potential jurisdictional issue in this matter. I noted that the 9 June Event, central to the complaint, had occurred in a hotel in Dublin. I referred to section 19 of the Intoxicating Liquor Act 2003 which transfers jurisdiction for cases alleging discrimination “on or at the point of entry to, licensed premises” to the District Court. I provided the Parties with a copy of the legislation as well as with a relevant Equality Tribunal decision and a WRC decision (DEC-S2011-018 and DEC-S2017-044). I adjourned the Hearing for approximately 30 minutes and gave the Parties the opportunity to consider inter alia this potential jurisdictional issue.

Upon reconvening the Hearing, the Complainant outlined that it was the Respondent and not the hotel which denied her entry to the 9 June Event. She outlined that she is on good terms with the manager of the hotel. The Complainant stressed that she wants her discrimination and victimisation complaints to be heard.

The Respondent outlined that it is a “tricky” issue. The Respondent noted that while it appears from section 19 that this complaint should be heard by the District Court, it is also clear from the redress provisions under section 19(3) of the Intoxicating Liquor Act 2003 that the legislation is directed at the licensee of the licenced premises. The Respondent outlined that it was not taking a position on the issue.

I accept the Respondent’s argument that, in the circumstances of this matter, the Intoxicating Liquor Act 2003 is directed at the licensee of the licenced premises and not at a third party using the licenced premises. Therefore I rule that I have jurisdiction to hear this complaint.

Postponement Request:

This complaint had been scheduled for a two and a half hour Hearing on 13 April 2023. Despite extending the Hearing for a further hour that day, it was not possible to conclude the Complainant’s cross-examination, which she was part-way through. When the Hearing adjourned, I asked the Complainant not to discuss her evidence with anyone while she was under oath, in compliance with the “WRC Guidelines on Oaths and Affirmations”.

On 27 April 2023, after seeking agreement on suggested dates from the Parties, it was confirmed that the second Hearing day would take place on 16 May 2023.

On 4 and 8 May 2023, the Respondent wrote to the WRC, making a Postponement Request and providing suggested alternative dates.

On 9 May 2023, I wrote to the Parties and declined the Respondent’s Postponement Request, once it was confirmed that it was not possible to reach agreement on an alternative date. I explained that when considering the Respondent’s Postponement Request, I considered the WRC Postponement Policy Guidelines dated July 2021 – particularly the requirement to consider whether there are “exceptional circumstances and substantial reasons” evidenced.

The second Hearing day took place as scheduled on 16 May 2023.

Submissions:

On 13 April 2023, the first Hearing day, the Complainant was offered an adjournment on three separate occasions so that she could further consider the Respondent’s Binder. She declined these offers.

On 14 April 2023, the Complainant emailed the WRC, seeking permission to file further evidence and submissions, on the basis that she had no prior warning of the emails contained in the Respondent’s Binder.

On 20 April 2023, I wrote to the Parties and explained that I was mindful that the Complainant was unrepresented and that she did not have sight of the Respondent’s Binder until the first Hearing day. In the interest of fairness, I allowed the Complainant to provide further evidence and submissions on the points outlined in her email dated 14 April 2023, by no later than close of business on 27 April 2023. I invited the Respondent to reply to the same by no later than 4 May 2023.

On 27 April 2023, the Complainant filed further submissions and evidence.

On 4 May 2023, the Respondent wrote to the WRC indicating its intention to file submissions dealing with the complaint and with the further submissions most recently filed by the Complainant, having considered the Complainant’s submissions made at the first Hearing day and to date.

On 4 May 2023, the Complainant emailed the WRC, outlining her strong objections to the filing of the Respondent’s submissions.

On 5 May 2023 (9.24am), the Complainant again emailed the WRC with further objections to the filing of the Respondent’s submissions.

On 5 May 2023, the Respondent filed its submissions.

On 5 May 2023 (4.27pm), the Complainant filed further submissions and evidence.

On 9 May 2023, I wrote to the Parties and stated that I would hear oral submissions regarding the abovementioned submissions on 16 May 2023, the second Hearing day.

On 16 May 2023, the second Hearing day, the Complainant outlined that the Respondent’s submissions filed on 5 May 2023 should not be allowed. She believed that in allowing the submissions, the Respondent would secure “an unfair advantage”.

By way of response, the Respondent referred to Halal Meats Packers (Ballyhaunis) Ltd v. Employment Appeals Tribunal (Ex tempore, SC, 14th November 1989) (“the Halal Meats Packers Case”). Here the Supreme Court confirmed that it is a fundamental requirement of justice that a respondent in a case is entitled to put up a defence and challenge the case being made against it. The Supreme Court also held that any issue of a party being taken by surprise by an argument or evidence is entirely addressed by way of adjournment to allow time to consider the argument or evidence raised.

Having considered the submissions, I explained that pursuant to the Halal Meats Packers Case, I am bound to accept the Respondent’s submissions and that I could address any argument of being taken by surprise by allowing the Complainant time to consider the argument or evidence raised. I therefore allowed the Complainant over ten weeks, until 31 July 2023, in which to provide submissions in response and to obtain whatever legal advice that she wished. I also asked the Complainant to address section 15 of the ESA (entitled “Certain activities not discrimination”) in her submissions, including what it means and how it impacts her case. I asked the Complainant to provide all of her submissions in one document. Finally, I confirmed that I would provide the Respondent with an opportunity to respond to the Complainant’s submissions. Both Parties confirmed that they were satisfied with this approach.

On 25 July 2023, the Complainant emailed the WRC and the Respondent. She indicated that she had approached approximately 20 law firms, none of which would assist her.

On 26 July 2023, the Complainant filed her Final Submissions in this matter, totalling 52 pages (the “Complainant’s Final Submissions”).

On 29 September 2023, the Respondent filed its Final Submissions in this matter, totalling 3 pages (the “Respondent’s Final Submissions”).

Duplicate Complaint Under ADJ-00040738:

On 16 May 2023, the second Hearing day, the Complainant confirmed that ADJ-00040738 was a duplicate complaint and could be withdrawn.

The Risk Assessment and Admissibility of Evidence:

The Respondent prepared a risk assessment in advance of the 9 June Event (the “Risk Assessment”). In evidence, the Respondent submitted that the Risk Assessment was initially created on 3 June 2022 and finalised on 7 June 2022.

On the first Hearing day, the Complainant sought to admit a report which challenged the creation date of the Risk Assessment. The Respondent objected as the author of the report was not in attendance. I did not allow this report as it was hearsay evidence. The Complainant made oral submissions outlining why she believed the Risk Assessment was created after the 9 June Event and her concerns about the term “anti-nwc person” used in the Risk Assessment. She queried what this term meant.

On the second Hearing day, the Respondent accepted the report which the Complainant had sought to introduce on the first Hearing day. The Respondent acknowledged that in doing so, it waived my hearsay ruling. R1 confirmed in evidence that the Risk Assessment relied on during the Hearing and provided to the Complainant had a different “creation” date, as once WRC proceedings were initiated, the Risk Assessment had been subsequently copied and saved to a different file in preparation for the Hearing. This action had misleadingly allocated it a different “creation” date. In support of R1’s evidence, the Respondent sought to rely on the original Risk Assessment in the form of a Word document as well as the screenshot of the relevant files. The Complainant did not object. I asked the Respondent to email both documents directly to the WRC and the Respondent by 19 May 2023.

In the Complainant’s Final Submissions, she appeared to accept that the Risk Assessment was created in advance of the 9 June Event. However, she took issue with the version of the Risk Assessment sent to her after the second Hearing day. The Complainant alleged that the Respondent had falsified the original Risk Assessment in advance of the WRC proceedings, replacing the term “anti-trans person” with the term “anti-nwc person” (“nwc” is an abbreviation for National Women’s Council, which is the Respondent here). The Complainant noted that the term “anti-nwc person” had also been used by R1 and R2 at the Hearing. The Complainant outlined that in doing so, the Respondent sought to mislead the Complainant and the WRC.

In the Respondent’s Final Submissions, the Respondent submitted that R1 gave her evidence in good faith and understood that the Risk Assessment provided at the Hearing was identical to the original. The Respondent submitted that it cannot account for the difference between the two documents and that it is apologetic to the Complainant and the WRC for any confusion caused by the difference in the documents. The Respondent submitted that there was no attempt to mislead anyone. The Respondent refuted the Complainant’s suppositions as to the reason for the differences in the documents and submitted that the difference between the terms “anti-nwc person” and “anti-trans person” has no material bearing on the issue for determination.

It is regrettable that the correct and original Risk Assessment was not provided to the Complainant and the WRC. However, I note that for the purposes of my final decision it is immaterial whether the term “anti-nwc” or “anti-trans” was used in the Risk Assessment.

Request for Reference to the Court of Justice of the European Union:

The Complainant submits that if the WRC has any uncertainty regarding the protection of her beliefs, her complaint should be referred to the Court of Justice of the European Union (the “CJEU”). This matter has been determined on the basis of section 15(1) of the ESA, which does not require an examination of the protection of the Complainant’s beliefs. As such, I rule that a referral to the CJEU is unnecessary in the circumstances.

Background:

The Complainant submits that she was discriminated against and victimised by the Respondent on the basis of her religion in violation of the ESA, when she was refused entry to the Respondent’s event entitled “Shifting the Narrative – Moving to an Inclusive, Feminist Model of Care” on 9 June 2022 (the “9June Event”), held at a hotel in Dublin. The Complainant submits that she was attending the event in an individual capacity.

The Respondent, a national representative organisation for women and women’s groups in Ireland, refutes the Complainant’s allegations in their entirety. In short, the Respondent submits that the Complainant’s claims are misconceived and that she has not established a prima facie case of discrimination or victimisation pursuant to the ESA. The Respondent submits that at 11.26pm on 8 June 2022, “The Countess” organisation issued a press release (the “Countess Press Release”) which targeted a Board Member and outlined its plans to “stage an action” at the 9 June Event. The Countess Press Release was disseminated to thousands of people on social media. The Respondent submits that its subsequent decision to refuse entry to members of “The Countess” organisation and to those persons who aligned themselves with its views, such as the Complainant, was risk-based.

Summary of Complainant’s Case:

Complainant’s Submissions – Overview:

The Complainant outlines that in early June 2022, she applied for and received two tickets for the 9 June Event. However at the registration desk, when she was about to receive her name tag, she was refused entry. She believes that this was because of her beliefs (outlined below) that she had made known in previous communications to the Respondent and because of what she said at an unrelated political party event in April 2022. On 30 June 2022, the Complainant submitted her ES1 Form to the Respondent, outlining the details of her complaint, but received no reply.

In her Complaint Form submitted to the WRC on 28 July 2022 (the “Complaint Form”), the Complainant outlines her beliefs as: “I do not believe that humans can change sex and I do not subscribe to gender identity theory.” During the Hearing and in the Complainant’s Final Submissions, she further submits that the Respondent has adopted a set of religious beliefs and that she was discriminated against for not adopting those beliefs. In her Complaint Form, the Complainant submits that she was also victimised at the 9 June Event. During the Hearing and in the Complainant’s Final Submissions, the Complainant submits that she was victimised when the Respondent allegedly attempted to “intimidate and dissuade” her from proceeding with her WRC complaint in its letter dated 14 March 2023. The Complainant outlines that she is not a member of “The Countess” and that she had attended the event in an individual capacity.

The Complainant relies on the ESA which prohibits discrimination on the “religion ground” and prohibits victimisation. In her Complaint Form, the Complainant outlines that her belief falls under the “religion ground”. In her Final Submissions, the Complainant outlines that she selected the “religion ground” as the “ESA is lacking in that it does not currently include ‘beliefs’ as protected.” At the Hearing and in her Final Submissions, the Complainant further submits that the Respondent has adopted a set of beliefs which can be demonstrated as fitting the criteria to be deemed “religious” and the Complainant was discriminated against for not adopting these beliefs. The Complainant submits that section 15 of the ESA (entitled “Certain activities not discrimination”) does not apply to her complaint as inter alia, there was no “substantial risk”. In this regard, the Complainant relies on Michael Moorehouse v. Ayleswood Ltd, DEC-S2001-009 and Martin Mongan v. Mulleady's Limited, ADJ-00034333.

The Complainant also relies on the European Convention on Human Rights (the “ECHR”), the Treaty of the European Union, the Charter of Fundamental Rights of the European Union and the Constitution. The Complainant further submits that her beliefs are protected under the European Convention on Human Rights Act 2003, as revised (the “ECHR Act”). The Complainant submits that pursuant to the ECHR Act, Irish courts are obliged to interpret statute provisions and laws in accordance with the ECHR. In particular, the Complainant refers to the following rights: freedom of belief and prohibition against discrimination on the grounds of belief, political or other opinion, enshrined under Schedule 1 – Articles 9, 10 and 14.

Finally, the Complainant submits that if the WRC has any uncertainty regarding the protection of her beliefs, her complaint should be referred to the Court of Justice of the European Union.

Complainant – Evidence:

On the first Hearing day, the Complainant submitted that she is an atheist and that she does not ascribe to an ideology. She said that her belief is that she “cannot deny material reality” regarding one’s gender at birth. She submitted that her beliefs are protected. She stated that the “religion ground” was the only ground that she could identify under the ESA which applied to her situation.

The 9 June Event:

The Complainant outlined that she was never a member of “The Countess” organisation, however, she knows many of its members. The Complainant outlined that in early June 2022, she registered for the 9 June Event and obtained two tickets in her name. One ticket was for her, while the other ticket was for C1, a member of “The Countess” organisation and one of her witnesses. The Complainant outlined that she planned on attending the 9 June Event to meet people. She also planned to ask specific questions during the Questions & Answers segment. She did not plan to disrupt the event. The Complainant confirmed that about two days in advance of the 9 June Event, she knew that there would be protests.

After providing her name at the registration desk, the Complainant submitted that R2 approached her, called her a “religious bigot” and cited her “religious belief” as the reason why she could not enter the 9 June Event. The Complainant outlined that R2 was “flapping her hands around”. The Complainant submitted that R2 knew of her views as she had made them known at a previous unrelated political party event. The Complainant submitted that she was not hostile and that R2 had no evidence that she would disrupt the 9 June Event or cause any trouble. The Complainant outlined that she supports some of the Respondent’s work, for example as regards prostitution and sex workers. The Complainant also took issue with the authenticity of the Respondent’s Risk Assessment. She alleged that it had been created after the 9 June Event by the Respondent. The Complainant also raised concerns about the term “anti-nwc person” used in the Risk Assessment. She queried what this term meant.

The Complainant submitted that the whole incident took place in under 15 minutes and that she was back upstairs in the hotel lobby by 10.15am, where she was provided with complimentary tea and coffee by the hotel manager. The Complainant said that she was on good terms with the hotel manager throughout and that she has stayed in touch with him since.

Victimisation Complaint:

The Complainant submitted that when she left the 9 June Event, she knew that she had been badly treated by the Respondent. She submitted that the Respondent, which is publicly funded, was ignoring her questions. She submitted that the Respondent vilified her in its Statement to the RTÉ “Liveline Programme”, dated 16 June 2022. The Complainant submitted that she was victimised when the Respondent allegedly attempted to “intimidate and dissuade” her from proceeding with her complaint to the WRC, in its letter dated 14 March 2023.

Complainant – Cross-Examination:

Complainant’s Submissions:

Under cross-examination, the Complainant stated that the Respondent has a “religious view on gender identity”. The Complainant stated that the Respondent organisation had “all of the hallmarks of religious beliefs” such as “flags and symbolism” and referred to Catholicism by way of similar comparison. She further stated that the Respondent is “calling for women to be stripped of their right to representation”. The Complainant outlined that to enter the 9 June Event, she was required to adhere to the Respondent’s “belief system”.

The Complainant did not accept that anything that she doesn’t agree with, she considers a religion. The Complaint stated that she could tolerate people with different views but she took issue with the Respondent refusing to “answer [her] questions”.

The 9 June Event:

The Complainant confirmed that she had been on the Respondent’s mailing list and that she had received two tickets for the 9 June Event. The Complainant stated that she had previously requested to be removed from the Respondent’s mailing list but that the Respondent had not done so.

The Complainant stated that when she was at the registration desk for the 9 June Event, R2 approached her and “raised her hands in the air and told her she was part of a transphobic hate group”. The Complainant said that R2 told her both that she was a danger and that she was there to attack the Respondent’s members. The Complainant stated that three other women were also prevented from entering the 9 June Event after her.

The Respondent put it to the Complainant that R2 would dispute her version of events and would provide evidence to the effect that R2 was standing with her hands in her pockets and that she refused the Complainant entry as her views aligned with “The Countess” organisation. The Complainant rejected this version of events. She stated that R2 was animated and agitated and that she “put her chest out” towards her and “came up to her face”. For this reason, the Complainant stated that she accused R2 at the time, of trying to hit her.

Still under cross-examination, the Complainant accepted that she was speculating that R2 had recognised her at the 9 June Event. The Complainant further stated that she did not remember the hotel manager telling her that R2 could not hit her as R2 had her hands in her pockets. However, the Complainant accepted that this was possible. She also accepted that R2 could have had her hands in her pockets “at times”.

The Respondent put it to the Complainant that it had no issue with the Complainant attending the 9 June Event. However, the Countess Press Release dated 8 June 2022 (the “Countess Press Release”), calling for action, changed the situation. The Complainant responded that the Countess Press Release had nothing to do with her and that she knew nothing about it until after the 9 June Event.

The Countess Press Release:

The Complainant accepted that her views aligned with the views of “The Countess” organisation. The Complainant also confirmed that she “has an issue with” one of the Respondent’s Board Members who is transgender (the “Named Board Member”) directing policy and being on the Board.

The Complainant stated that The Countess Press Release had nothing to do with her. The Complainant stated that the language used in the Countess Press Release was regularly used and did not justify her treatment by the Respondent.

The Complainant accepted that the Respondent could take steps in response to the Countess Press Release. However, she did not accept that the Respondent could exclude people with tickets from the 9 June Event. The Complainant stated that the Respondent had “completely overreacted”. The Complainant stated that any disruptive people should only be removed once they “become a problem”.

The Complainant accepted that two days in advance of the 9 June Event, she knew there would be protests and that “The Countess” members were planning to protest. She accepted that she did not know who exactly would attend, what they would do, or if they would try to enter the 9 June Event.

The Named Board Member:

The Complainant accepted that the 9 June Event was followed by the Respondent’s AGM. She stated that she did not know if the Named Board Member would be present.

The Complainant denied that the Countess Press Release targeted the Named Board Member, when it was put to her that the Named Board Member is specifically named and discussed in it.

The Complainant also denied that she herself had targeted the Named Board Member. The Complainant was referred to her correspondence including an email to the Respondent dated 6 January 2021 in which she said “[y]ou have put a man on our board of directors simply because he says he is a women [sic]. Women are not a costume to be worn”. The Complainant stated that she was not targeting the Named Board Member and that she is “just commenting”. The Complainant stated that the Respondent “shifted its position” when the Named Board Member joined the Board. The Complainant accepted that her emails could be considered hurtful but that it was not her intention. While accepting that she had sent those emails, the Complainant submitted that it is the Respondent’s intention to “frame [her, the Complainant] in a bad light”.

C1 – Evidence:

C1 stated that she was a member of “The Countess” organisation. She outlined that the Complainant offered her a ticket for the 9 June Event, which she accepted. C1 outlined that her intention was to ask questions during the Questions & Answers segment. C1 said that she was not there to disrupt the 9 June Event or to target a Board Member.

C1 outlined that as she approached the hotel holding the 9 June Event, she noticed that there were women outside, protesting and holding signs, who she had not previously met. C1 outlined that she and the Complainant approached the registration desk together at approximately 10am. She saw that C2 was standing to the side of the registration desk. C1 outlined that she was informed by R2 that she was part of a transphobic group which was targeting the Named Board Member. C1 said that she was puzzled as she knew nothing about the Countess Press Release. C1 said that R2 told the Complainant that they had her emails and that she was not allowed enter the 9 June Event. C1 said that she stood to the side with C2 and another member of “The Countess”, while the Complainant entered into discussions regarding why she was being refused entry. C1 outlined that the Complainant did not raise her voice, that she was not hostile and that “she was firm in her position”.

C1 outlined that they remained near the registration desk for approximately 15 minutes. The hotel manager then asked them to move upstairs to the hotel lobby area, where he gave them complimentary tea and coffee. C1 outlined that at approximately 11am, she, C2 and the Complainant went outside, held up posters and took photographs. She outlined that there were approximately eight other protesters outside. She outlined that not all of “The Countess” members had turned up to protest. C1 then went back into hotel, spoke to other people and went home at approximately 12pm.

C1 – Cross-Examination:

C1 confirmed that she received an invitation email to the 9 June Event from the Respondent as she was on the Respondent’s mailing list. However, she attended the 9 June Event on a ticket obtained by the Complainant.

C1 confirmed that she wanted to ask questions during the Questions & Answers segment at the 9 June Event. Under cross-examination, C1 could not recall the topic of the 9 June Event. C1 outlined that she was embarrassed when she was refused entry, but that she did not feel intimidated.

C1 explained that “The Countess” considers and analyses legislation and policy. She outlined that “The Countess” has a “core membership” of approximately 30 people as well as “peripheral supporters”. C1 outlined that she was aware of the protests in advance of the 9 June Event. C1 outlined that she only became aware of the Countess Press Release, after the 9 June Event. She outlined that the person who had issued the Countess Press Release was in America at the time of the 9 June Event.

C1 accepted that the Respondent first became aware of the Countess Press Release on the morning of the 9 June Event. C1 accepted that, while she took issue with the word “targeted”, it was reasonable for the Respondent to implement a process in response to the Countess Press Release which referred to the Named Board Member.

C1 said that she returned to the hotel to “debrief people”.

C2 – Evidence:

C2 outlined that she is a member of “The Countess” organisation. She outlined that she was once a member of the Respondent and had remained on their mailing list. She explained that she applied for a ticket for the 9 June Event in her own name. C2 outlined that she thought that it would be a good opportunity to ask questions.

C2 outlined that she approached the registration desk, gave her name, and was given a name tag. She was then approached by R2 who asked her if she was attending as an individual or as a member of an organisation. C2 responded that she was attending in both capacities and that she was a member of “The Countess” organisation. C2 outlined that R2 informed her that she could not enter the 9 June Event for safety reasons. C2 outlined that R2 “seemed agitated” and that she thought that “her demeanour was hyper and unprofessional”. C2 asked for further details but was only told that her presence would be unsafe. C2 then stood to the side of the registration desk. She further outlined that other attendees were also being asked if they were attending as a member of an organisation. C2 outlined that the Complainant and C1 were refused entry. C2 outlined that the entire episode lasted approximately 10 minutes.

C2 outlined that the hotel manager arrived and “seemed to de-escalate things”. He took them upstairs to the hotel lobby where they had coffee. C2 outlined that she, C1 and the Complainant went outside and held up the posters and later re-entered the hotel.

C2 outlined that she had observed some disruption in the hotel when two protesters entered the hotel lobby with handmade signs.

C2 – Cross-Examination:

C2 confirmed that she is a “core member” of “The Countess” organisation, which was incorporated in early 2022. C2 said that there are no membership fees payable. Instead, they are a voluntary organisation, “united by a common interest”. C2 outlined that there are various teams of volunteers working on different areas, who act professionally. C2 stated that she considers education and the new curriculum. C2 said that the CEO provides instruction and leads the organisation, which is accountable in the same way as any incorporated organisation.

C2 confirmed that she had organised the printing of the posters and so she was aware of the protest at least two days in advance of the 9 June Event. C2 stated that the night before the 9 June Event, she was asked to help draft the Countess Press Release, but she declined as she was too tired. C2 said that she did not know that the Countess Press Release was issued, until the Saturday after the 9 June Event. C2 confirmed she agreed with its content. C2 accepted that the Countess Press Release “could be considered by some to be hurtful”.

C2 confirmed that she complied with R2’s request and stepped to the side of the registration desk. She said that she was surprised at being refused entry, but she was not insulted by R2.

C2 confirmed that there were approximately seven people who had coffee upstairs in the lobby after being refused entry to the 9 June Event. She confirmed that there were other women present but she did not recognise them. C2 accepted that the Respondent was responsible for everyone at the 9 June Event and that the Respondent would have to assess and deal with any health and safety issues. When it was put to C2 that the Countess Press Release presented a new risk, C2 accepted that it was reasonable for the Respondent to take it into account and change their Risk Assessment.

Summary of Respondent’s Case:

Respondent’s Submissions – Overview:

In its submissions, the Respondent outlines that it is the leading national representative organisation for women and women’s groups in Ireland. It was founded in 1973 and has over 190 members. The Respondent outlines that feminism, inclusivity and diversity are among its core values and that it welcomes differing views and perspectives. The Respondent outlines that on its website, it confirms that by the term “woman” the Respondent refers to “any person who identifies as a woman.” By taking this position, the Respondent submits that it is complying with anti-discrimination law and with the provisions of the Gender Recognition Act 2015. The Respondent outlines that it is directed by an elected executive Board and that it is funded by way of government grants and its own fundraising strategies.

The Respondent refutes the Complainant’s allegations in their entirety. The Respondent submits that the Complainant has not established a prima facie case of discrimination or victimisation pursuant to the ESA. Moreover, the Respondent argues that the Complainant’s claims are misconceived and should be dismissed in circumstances where the Complainant has not identified any religious belief on the part of either Party underpinning her claim of alleged discrimination; and has not advanced any statable claim of victimisation pursuant to the ESA. Additionally, the Respondent submits that the Complainant has not grounded her claim within the provisions of the ESA as enacted.

The Respondent submits that the Complainant’s attempted reliance on the ECHR, the Treaty of the European Union, the Charter of Fundamental Rights of the European Union and the Constitution is misconceived. The Respondent outlines that none of these instruments provide for a right not to be discriminated against in respect of the provision of goods and services.

The Respondent submits that at 11.26pm on 8 June 2022, “The Countess” organisation issued a press release (the “Countess Press Release”) which targeted a Board Member and outlined its plans to “stage an action” at the 9 June Event. The Respondent submitted that the Countess Press Release was disseminated to thousands of people on social media. The Respondent outlines that it was on notice of the Countess Press Release from approximately 8am on the morning of the 9 June Event. The Respondent outlines that it had a short period of time in which to deal with this development and ensure the safety of the Named Board Member, the attendees, the other Board Members and the speakers. The Respondent submits that its decision, taken on the morning of the 9 June Event, to refuse entry to members of “The Countess” and to persons who aligned themselves with its views, such as the Complainant, was risk-based.

R1 – Evidence:

R1 outlined that she has been employed by the Respondent for a number of years. She outlined that the Respondent is a secular organisation and does not espouse any religious views nor does it gather information on peoples’ religions.

R1 outlined that she was responsible for overseeing the 9 June Event. She outlined that there was a morning event entitled “Shifting the Narrative – Moving to an Inclusive, Feminist Model of Care” which was followed by the AGM in the afternoon. R1 explained that the morning event was open to all and was advertised on “Eventbrite”, whereas the AGM was open to members only.

R1 outlined that there are 11 Board Members, who are elected at the AGM. R1 stated that the AGM requires significant preparation and generates a huge number of documents, such as: invitations for motions; template for motions; nominations to the Board; audit of accounts; minutes of the previous AGM; and internal documents such as the event plan and risk assessment.

R1 outlined that she and an administrator complete the event plan, which outlines staff responsibilities. She outlined that she would always know who was not allocated a task and that there would always be floating members of staff.

R1 outlined that there is also a risk assessment for each event. She said that after the Respondent’s event on International Women’s Day in 2022, the Respondent decided to complete a risk assessment for future events. R1 outlined that the Risk Assessment for the 9 June Event was initially created on 3 June 2022 and finalised on 7 June 2022. R1 stated that the term “anti-nwc person”, used in the Risk Assessment, is a person who is against the Respondent’s policies. She said that they had initially planned on allowing “anti-nwc person”s into the event and manage it from there. If they became disruptive – such as raising their voices, being loud or abusive, saying that they wanted to do something at the event – they would be refused entry, or asked to leave, or removed, if necessary. R1 explained that if an “anti-nwc person” is a member and is disruptive, they would be asked to make their point and sit down. R1 outlined that the Respondent allows those who do not agree with its views to say what they have to say. She noted that there are group members who do not agree with the Respondent.

The 9 June Event:

R1 outlined that she got a call from a colleague at 8am on the morning of the 9 June Event, to tell her about the Countess Press Release. R1 outlined that the 9 June Event was due to commence at 10am. R1 outlined that as far as she knew, the Countess Press Release was being shared by individuals who had many social media followers. R1 said that the Respondent did now know who would come or what would happen. R1 thought that the Countess Press Release presented a risk which needed to be addressed.

R1 outlined that she went to the hotel. She spoke to the hotel manager and informed him about the Countess Press Release. She explained that there would be protests outside. She explained that the Respondent was concerned about the Named Board Member. R1 outlined that they considered the physical layout of the registration area and the conference room for the 9 June Event. They rearranged the furniture so that non-group members could be registered outside the conference room doors.

R1 outlined that the Senior Management Team made decisions that morning as to what they should do in light of the Countess Press Release. R1 outlined that more senior members of staff were moved to the registration area. R2 was also positioned in this area as she had a background in crowd control and steward-type duties. It was agreed that R2 would ask attendees if they were attending as an individual, or as a member of “The Countess”, or as an activist. If they indicated the latter two, they would not be permitted entry. It was agreed that this policy would be applied to everyone. R1 stated that no decisions taken that day were based on anyone’s religion.

R1 outlined that she was located in the conference room, making sure everything was ok. She stated that she wasn’t completely aware of what was going on outside of the conference room. However, at one stage, a staff member opened the door and a woman ran in, under her arm. R1 outlined that she followed the woman and asked her to leave, but she wouldn’t. The woman seated herself at the table beside the Named Board Member. R1 outlined that she stood between them. R1 did not allow the 9 June Event to start as she was concerned that once it went quiet, the woman might try to upset the Named Board Member. The hotel manager was alerted to the situation. He came down and asked the women to leave, which she did.

R1 outlined that she passed the registration desk outside the conference room shortly afterwards. She outlined that she saw the Complainant, a woman with a baby, another woman, the hotel manager and R2. She outlined that she heard the Complainant say to R2 “you were going to hit me, you were going to hit me, why were you going to hit me?”. She heard the hotel manager respond “she is notgoing to hit you, she has her hands in her pockets.”

R1 – Cross-Examination:

R1 accepted that the term “anti-nwc person” used in the Risk Assessment would cover a lot of people. She further stated that there is no issue with people, including Board Members, holding and voicing differing opinions. R1 stated that only those who were disruptive would be excluded from the 9 June Event.

R1 stated that it was more than likely that she had identified the risks set out in the Risk Assessment. R1 stated that the Senior Management Team would have reviewed the Risk Assessment and would have had a copy of it at the 9 June Event.

R1 stated that the Complainant’s name would have been “highlighted” after the “Eventbrite” registration date had passed. R1 stated that the Complainant’s name would have been highlighted as she had sent many “disrespectful” emails to the Respondent and she was regarded as someone vocal in their views.

R1 stated that she did not know what “The Countess” meant by “stag[ing] an action”. R1 said that as “The Countess” does not have a management structure, the Respondent could not ask it what it intended to do.

R1 stated that the Respondent had never denied entry to people to their events until the 9 June Event.

R1 stated that they would have called the Gardaí if necessary and if there was a serious risk. However, by not allowing people in, they were reducing the risk of physical harm. R1 stated that the hotel manager was there too.

R1 rejected the Complainant’s proposition that they could have spoken at greater length to attendees to establish their risk rather than asking if they were attending as individuals or part of an organisation. R1 stated that there were over 100 people there and the option to talk to people to was not viable.

R2 – Evidence:

R2 outlined that at the time of the 9 June Event, she was an employee of the Respondent.

R2 outlined that the Respondent is a democratic, membership organisation and that its policies are set by its members at the AGM. R2 stated that most of the unions are members and so many different angles can arise. R2 outlined that there are many issues upon which members have different and contrarian views, for example prostitution, sex exploitation and abortion. R2 stated that there are policy elements that develop over time, for example in relation to its pro-choice position. R2 outlined that the trans-inclusive policy was decided upon by the members.

Risk Assessment:

R2 outlined that after the Respondent’s event for International Women’s Day 2022, the Respondent decided to implement an extensive risk management system and prepare a risk assessment for future events. R2 outlined that the Senior Management Team met every Monday morning and the risk assessment was always on the agenda.

R2 stated that “anti-nwc persons” were those, maybe also members, who hold strong views against the Respondent. These individuals may raise a challenge at events but one person cannot be allowed to dominate the discussion and the microphone has to move on.

R2 stated that she reviewed the registrations for the 9 June Event on “Eventbrite”. She outlined that she does this to identify certain attendees, for example a government minister or a donor. R2 stated that when doing this, she would have identified that the Complainant was coming and that she had two tickets. R2 outlined that the Complainant had been very vocal in her opposition to the Respondent’s trans-inclusive policy over a protracted period of time. R2 explained that she had previously responded to many of the Complainant’s emails and that she continued to email “on the same issue again and again”. R2 outlined that the Complainant’s emails were disseminated widely as she also addressed her emails to Oireachtas members and MEPs. R2 said that she treated the Complainant’s correspondence in the same way as she treated everyone else’s correspondence. R2 said that the Complainant was identified as having “a very strong position that was antithetical to [the Respondent’s] trans-inclusive policy”. This was discussed internally and it was decided that the Complainant would be allowed entry to the 9 June Event and that if she wanted to say something, she would be handed the microphone, permitted to speak and asked to hand the microphone back. R2 stated that the Complainant was not considered dangerous.

9 June Event:

R2 explained that on the morning of the 9 June Event, the Senior Management Team received notice of the Countess Press Release. The Countess Press Release indicated that an action would be staged and the Named Board Member was specifically targeted. R2 outlined that at least three well-known individuals, including a Senator and a journalist, disseminated the Countess Press Release on their social media platforms which had thousands of followers. R2 outlined that it was “very unnerving”.

R2 outlined that the Respondent did not call the phone number on The Countess Press Release as it was understood to concern press inquiries. She outlined that the Respondent had a short period of time in which to deal with this matter and to keep everyone safe.

R2 outlined that she was conscious that one of the speakers had an intellectual disability and had done a lot of work in preparation for the 9 June Event. R2 was also conscious that the Named Board Member had been referred to by way of inflammatory language in The Countess Press Release. R2 outlined that a T.D. was coming to the 9 June Event and could also be a target. R2 outlined that they needed to make sure that attendees, staff and Board Members were kept safe. R2 stated that the Respondent’s concern was not that there would be “hurt feelings”, but that they “did not know what could arise”.

R2 outlined that the physical layout of the registration area was changed. Group members were directed straight through into the conference room and received welcome packs. More senior members of staff were in place in the registration area. R2 outlined that she has a great deal of experience in public events and that she has completed stewarding training. R2 outlined that she can de-escalate situations. R2 said that she was the senior floating person designated to keep an eye on and respond to developments on the day. She outlined that she spoke to the staff on the registration desk to check their comfort levels. Attendees were asked if they were attending in their own capacity or if they were there with “The Countess” or if they held similar views to those affiliated with “The Countess”. There was also a point at the top of the stairs where the staff could keep an eye out for anyone entering with posters and they were asked to notify the hotel staff if this happened.

R2 noted that C2 had said that she was a member of “The Countess” and so R2 refused her entry as the Respondent had concerns for the safety of those at the event. R2 outlined that the interaction lasted two to three minutes and that she had no further contact with C2. R2 stated that she herself was not agitated and that while C2 appeared surprised to be asked to step aside, she was polite.

R2 outlined that the Complainant’s name was highlighted on the “Eventbrite” attendee list. R2 stated that the Complainant was refused entry as her views were in alignment with “The Countess” organisation. R2 denied that she had run to the desk with her arms in the air, as alleged by the Complainant. R2 outlined that she knew that people would be uncomfortable with being turned away and that the Respondent was trying to bring 100 people into an important event. R2 was mindful of the fact that they wanted people to stay and that if something aggressive or difficult was happening, they would have left. R2 said that she stood with her hands in her pockets, made limited eye contact and did not get “pulled into the conversations”. R2 outlined that these are all standard de-escalation techniques.

R2 outlined that the Complainant was very upset to be told that she couldn’t enter. R2 said that while the Complainant was not shouting, her voice was raised. R2 stated that the Complainant said that the Respondent was gaslighting her and Irish women and that the Respondent did not care about women in prisons or about children. R2 stated that she did not call the Complainant “a transphobic bigot” as alleged, nor did she say that she was a member of a transphobic group. R2 said that this would have “massively escalated the situation”. R2 said that when the Complainant said that R2 was going to hit her, the hotel manager said “no, she is not going to hit you, she has her hands in her pockets.” R2 outlined that they did not ask the hotel staff to intervene until they absolutely needed to and she thought that another member of staff had asked the hotel manager to come.

R2 outlined that she refused entry to the Complainant, C1, C2 and two other women, one of whom had a baby with her. She outlined that it was an “intense situation” and lasted anywhere from 30 – 45 mins to one hour. R2 stated that some people arrived very early – from 9.15am onwards. R2 outlined that the hotel manager negotiated with the group who were refused entry and offered them complimentary tea or coffee upstairs in the hotel lobby.

R2 outlined that in the meantime, protesters with posters had attempted to come down the stairs to the registration area but they had been stopped. R2 further outlined that a woman had also got through into the conference room, but at the time she was not aware of that happening. R2 outlined that at 12pm, she went upstairs to review what was happening. She could see that there were still people protesting outside. R2 stated that she escorted public representatives, the T.D. and the Named Board Member safely out of the hotel.

R2 – Cross Examination:

R2 outlined that the Respondent did not call the Gardaí as the Respondent was trying to de-escalate the matter. R2 outlined the Respondent wanted the 9 June Event to go ahead in a safe manner. R2 outlined that there was no individual causing an actual affray and so Gardaí could not get involved.

R2 stated that The Countess Press Release had been widely disseminated and a Senator had asked her social media followers to “join us”. R2 stated that the Respondent could not know what this meant or who would be there. R2 repeated that the Respondent had to keep people safe.

R2 stated that she knows what the word “action” means when the Respondent uses it, but she does not know what it means when “The Countess” organisation uses it.

When it was put to R2 that, when refusing the Complainant entry, she should have taken her to the side and dealt with her separately, R2 stated that she did not do this as she did not know how many people she would have to talk to.

R2 said that she had no evidence that the Complainant was a risk and no evidence that the Complainant was not a risk. R2 stated that they were obliged to make a decision about what to do once on notice of The Countess Press Release which made a call for action. R2 stated that this was about safety. R2 stated that the Respondent has “a legal, fiduciary and moral duty” to protect those at the event. R2 stated that prior to The Countess Press Release, the Complainant’s views were known and she was still welcome to attend the 9 June Event. R2 stated that The Countess Press Release changed the situation by elevating the level of risk considerably and that the Complainant was refused entry as her views aligned with “The Countess”.

Findings and Conclusions:

The Law:

Legislation:

The Equal Status Act 2000-2015 as amended, (the “ESA”) prohibits discrimination in the provision of goods and services, accommodation and education. It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller community and housing assistance (only as regards the provision of accommodation). The ESA also provides for certain exceptions. One such exception concerns inter alia the prevention of criminal or disorderly conduct or behaviour and is provided for under section 15(1) of the ESA as follows:

“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.”

Section 15(1) clarifies that the ESA permits a service provider to refuse service in circumstances where they believe that there is substantial risk of criminal or disorderly conduct or behaviour. This section requires an analysis of the totality of the evidence. Judy Walsh notes in “Equal Status Acts 2000-2011: Discrimination in the Provision of Goods and Services” (p.143) that section 15(1) also applies to those alleging discrimination who are not responsible for the criminal or disorderly conduct. She further notes that section 15(1) is limited to action being taken “on grounds other than discriminatory grounds”. Finally, as noted in Martin Mongan v. Mulleady's Limited, ADJ-00034333, there must be evidence of “substantial” risk, which is more than “reasonable” risk.

Caselaw:

Mongan v. The Firhouse Inn, DEC-S2003-034-35:

In this matter, the Equality Officer found that section 15(1) applied. This matter concerned a complaint of discrimination on the basis of membership of the Traveller community. Here, two members of the Traveller community were refused service due to the hostility of other patrons in the pub, against the background of an ongoing dispute between the local settled community and the Traveller community regarding an unofficial halting site. The Equality Officer noted:

“I am satisfied that the barman, Mr. Hughes did not have time to analyse matters on the evening in question. Rather, he acted instantly to deal with a perceived, and I am satisfied, substantial risk of imminent violence on the premises. He was immediately aware that the complainant's continued presence in the establishment was the source of that substantial risk and he acted to remove the risk.”

The Equality Officer accepted that members of the Traveller community were served under normal circumstances and was satisfied that in this instance they were not served as “it was immediately obvious that a potentially explosive situation existed”. The Equality Officer further noted that the complainants "had neither done nor said anything to provoke the reaction which gave rise to the refusal”.

Mr. Patrick McDonagh and Mr. Martin Stokes v. City Cinemas Limited, DEC-S2017-024:

In this matter, the Equality Officer found that section 15(1) applied. This matter concerned a complaint of discrimination on the basis of membership of the Traveller community. Here, two members of the Traveller community were refused admission to a cinema due to their threatening and abusive behaviour the previous night. The Equality Officer emphasised that she considered the “totality of the evidence”. She also noted that the complainants were not refused admission to the cinema prior to and after the night in question.

Findings and Conclusion:

Factual Matrix:

The Complainant was on the Respondent’s mailing list and received a notification concerning the 9 June Event. In early June 2022, the Complainant registered for the 9 June Event and obtained two tickets in her name. One ticket was for her, while the other ticket was for C1, a member of “The Countess” organisation and one of her witnesses. The Complainant’s other witness, C2 was also a member of “The Countess” organisation.

The Respondent had previously received correspondence from the Complainant in which she made clear her objections to the Respondent’s trans-inclusive policy and the Named Board Member. R1 and R2 both outlined that, as a result, the Complainant’s name had been highlighted as part of its risk management, in advance of the 9 June Event. R1 and R2 outlined that it was agreed that the Complainant would be permitted entry and would be permitted speak at the 9 June Event. However, this position changed once the Respondent was on notice of The Countess Press Release which was issued at 11.26pm on 8 June 2022, the night before the 9 June Event.

The Countess Press Release detailed a Named Board Member and outlined plans to “stage an action” at the 9 June Event. It was disseminated to thousands of people on social media. The Respondent was on notice of the Countess Press Release from approximately 8am on the morning of the 9 June Event – little more than an hour before attendees began to arrive. It was clear from the evidence that the Respondent took the Countess Press Release very seriously, with R2 finding it “unnerving” and describing the morning as “intense”. Their evidence was clear that the safety of the Named Board Member, the attendees, the other Board Members and the speakers was paramount. R1’s and R2’s evidence showed that the level of risk had escalated significantly, largely in view of the number of unknowns. They did not know what the plans to “stage an action” involved. They did not know how many would attend, what they would do, or if they would try to enter the event.

In the circumstances, the Respondent proceeded with the 9 June Event and decided to take the following action to mitigate the substantial risk presented:

(i.) Reconfigure the physical layout of the registration area;

(ii.) Reallocate staff, which included the placing of more senior staff in the registration area;

(iii.) Put the hotel on notice of the Countess Press Release and planned protests;

(iv.) Confirm with the hotel that no protesters with posters would be allowed enter the hotel;

(v.) Refuse entry to the 9 June Event to members of “The Countess” organisation and to those who aligned themselves with its views; and

(vi.) Escort public representatives, the T.D. and the Named Board Member safely out of the hotel.

It was on the basis of no. (v.) above that the Complainant was refused entry to the 9 June Event. It is noteworthy that under cross-examination: the Complainant accepted that the Respondent could take steps in response to The Countess Press Release; C1 accepted that it was reasonable for the Respondent to implement a process in response to the Countess Press Release which detailed the Named Board Member; and C2 accepted that the Countess Press Release presented a new risk which the Respondent had to take into account. It is also noteworthy that even with the abovementioned measures in place, two protesters still managed to enter the hotel with posters, while another woman managed to run into the conference room and refused to leave.

Application of the Law to the Facts of this Complaint:

Having considered the totality of the evidence, I am satisfied that the section 15(1) exemption applies here. I note that the case of Mongan v. The Firhouse Inn, DEC-S2003-034-35 (outlined above) has a number of similarities to the complaint before me.

I am satisfied that the Complainant would have been admitted to the 9 June Event, had the Countess Press Release not been issued. However, once the Respondent received the Countess Press Release on the morning of the 9 June Event, it had to act quickly to deal with a perceived and, I am satisfied, substantial risk of criminal or disorderly conduct or behaviour. On the information which the Respondent had at the time, a potentially explosive situation existed. The Respondent had a duty to protect all those at the 9 June Event, including the Named Board Member. The Respondent believed that in the circumstances, the presence of members of “The Countess” organisation and persons who aligned themselves with its views was the source of that substantial risk. The Respondent sought to mitigate that risk by inter alia refusing entry to those persons, including the Complainant. The Complainant was therefore refused entry “on grounds other than discriminatory grounds”.

In the circumstances, I find that section 15(1) applies and there was no discrimination.

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.

I find that section 15(1) applies and there was no discrimination.

Dated: 27th October 2023

Workplace Relations Commission Adjudication Officer: Elizabeth Spelman

Key Words:

Equal Status Act, Discrimination, Section 15.