ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043782
Parties:
| Complainant | Respondent |
Parties | Ms. Sandra Adams | National Women's Council of Ireland |
Representatives | N/A | Ms. Sinead Lucey, Free Legal Advice Centres. |
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-00054066-001 | 08/12/2022 |
Date of Adjudication Hearing: 21/09/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 25 of the Equal Status Act 2000 as amended, 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.
Ms. Sandra Adams (the “Complainant”) represented herself. The Complainant had one witness in attendance, C1, who gave evidence.
The National Women’s Council of Ireland (the “Respondent”) was represented by Ms. Sinead Lucey
of the Free Legal Advice Centres (“FLAC”). The Respondent had two witnesses in attendance, R1 and R2, who both gave evidence. One Respondent employee was also in attendance for some of the Hearing.
For the reasons outlined below, the Hearing was held in private and the witnesses are anonymised.
The Complainant provided evidence on affirmation and C1 provided evidence on oath. R1 and R2 both provided evidence on affirmation. The legal perils of committing perjury were explained to all. Cross-examination was allowed.
The following matters were addressed at the outset of and during the Hearing:
Private Hearing and Anonymity of Witnesses:
I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all Workplace Relations Commission (“WRC”) hearings are held in public. I explained that where “special circumstances” apply, a matter could be heard in private and decisions could be anonymised. I invited oral submissions from the Parties.
The Complainant requested that this matter be heard in private. She further submitted that while she was satisfied to be named, she requested that her witness be anonymised. The Respondent also requested that this matter be heard in private. The Respondent further submitted that it was satisfied to be named but requested that its witnesses also be anonymised. The Parties agreed that these requests were based on the hostility around the case and the potential targeting of witnesses.
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 ruled that the Hearing would be held in private, the Parties would be named and the witnesses would be anonymised.
Complaint Not Time-Barred:
I noted that the pre-Hearing correspondence indicated that the complaint was possibly time-barred. However, this appeared to have been borne out of an administrative error which was since clarified by the Complainant. Both Parties accepted that the complaint was not time-barred.
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 briefly and gave the Parties the opportunity to consider this potential jurisdictional issue.
Upon reconvening the Hearing, the Complainant outlined that her case is against the Respondent and not the hotel, as she was denied entry to the 9 June Event by the Respondent and not the hotel.
The Respondent submitted that there is some difficulty in aligning the Equal Status Act 2000 as amended with the Intoxicating Liquor Act 2003 as amended. The Respondent submitted that the licensee is not involved in this complaint. The Respondent submitted that it is not taking a position on the issue and would accept that the WRC has jurisdiction for the purposes of this complaint.
I accept 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.
Parameters of the Complaint:
At the outset of the Hearing, the Complainant confirmed that she was not proceeding with the victimisation complaint. The Complainant confirmed that her complaint, for adjudication, concerns an allegation of discrimination, on the ground of religion, regarding the provision of services.
Further Evidence:
During the Hearing, the Complainant sought to introduce further evidence in the form of a statement made on “Twitter”/ “X” dated September 2023 – some 15 months after the 9 June Event; and an email dated March 2022 – some three months before the 9 June Event. I did not allow the introduction of this further evidence as it was irrelevant.
Submissions:
The Complainant outlined her objection to the late submission of the Respondent’s submissions on 15 September 2023. She submitted that she wanted time to make further submissions by way of response. The Respondent submitted that its submissions were short and contained nothing new.
Twice, I offered the Complainant an adjournment to consider the Respondent’s submissions. However, the Complainant refused and submitted that she had sufficient time to consider the Respondent’s submissions and that she wanted to proceed.
The Complainant then made an application to make further submissions which she had not raised previously. These submissions concerned the Irish and English versions of the Equal Status Act 2000 as amended (the “ESA”) and more specifically, the meaning of the word “creideamh”. The Complainant submitted that the Irish word “creideamh” is broader than the English word “religion”. The Complainant confirmed that she did not want her complaint to be heard in Irish. The Respondent submitted that it would require time to address this new specific issue.
I referred the Parties to the “WRC Procedures in the Adjudication and Investigation of All Employment and Equality Complaints and Disputes” which provides under section 7 that all documentation be submitted to the WRC 15 days in advance of the Hearing. I heard submissions from the Parties on how best to proceed in the circumstances.
I subsequently ruled that the Parties could file chronological submissions on this specific issue, after the Hearing. The Parties agreed to the same. At the conclusion of the Hearing, I reserved my position on whether to hold a further hearing day to hear more on this specific issue. The Complainant filed additional submissions on 10 October 2023. The Respondent filed additional submissions by way of response on 3 and 6 November 2023. Having considered this further, I am satisfied that I can decide this matter on the basis of the information before me and that there will not be another hearing day.
Background:
The Complainant submits that she was discriminated against by the Respondent on the basis of 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 “9 June Event”), held at a hotel in Dublin. In her Complaint Form, the Complainant outlined that she was discriminated against due to her “lack of belief that people can change sex”. In her written submissions the Complainant submits that she was discriminated against for not adopting the Respondent’s beliefs. The Complainant submitted that she was discriminated against (i.) directly in her private capacity as an individual (ii.) directly by association as a member of “The Countess” organisation; and (iii.) indirectly by the incorrect application of the “legitimate aim” provision of ensuring safety at an event. The Complainant submitted her ES1 to the Respondent on 8 August 2022 and her Complaint Form to the WRC on 8 December 2022.
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 should be dismissed as she has not identified any religious belief underpinning her complaint; and as she accepts that there is a “gap” in the ESA insofar as it extends to religion but not “beliefs”. The Respondent further submits that the Complainant has not established a prima facie case of discrimination 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 who is transgender (the “Named 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 the 9 June Event to members of “The Countess” organisation, including the Complainant, was risk-based. |
Summary of Complainant’s Case:
The Complainant submits by way of background that she was a member of the Respondent from October 2020 until May 2021. However, she cancelled her membership due to the Respondent’s position regarding those holding “gender critical” views. The Complainant submits that she attended events where she made her “gender critical” views known. She also sent a (published) letter into “The Irish Times”. The Complainant submits that she was directly and indirectly discriminated against by the Respondent on the basis of religion in violation of the ESA, when she was refused entry to the Respondent’s 9 June Event, held at a hotel in Dublin. In her Complaint Form, the Complainant outlined that she was discriminated against due to her “lack of belief that people can change sex”. The Complainant further submits that although there is no definition of “religion” in EU or Irish law, the Respondent has adopted a set of beliefs which can be demonstrated as fitting the criteria to be deemed “religious” and that she was discriminated against for not adopting those beliefs. The Complainant submits that section 15 of the ESA does not apply. The Complainant submits that there is no evidence that she represented a “substantial risk” and that the Respondent cannot demonstrate that a reasonable person would believe that she posed a “substantial risk”. The Complainant relied on Michael Moorehouse v. Ayleswood Ltd, DEC-S2001-009 and Martin Mongan v. Mulleady's Limited, ADJ-00034333. The Complainant relies on the European Convention on Human Rights Act 2003 (the “ECHRA”) as well as the European Convention on Human Rights (the “ECHR”). The Complainant referred in particular to the protection of freedom of expression, freedom of belief and the prohibition against discrimination on the grounds of belief, political or other opinion, under Schedule 1 and Articles 9, 10 and 14 of the ECHR. The Complainant relies on, inter alia, Arrowsmith v. The United Kingdom. The Complainant also relies on the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union, in particular Articles 10, 12 and 21. Finally, the Complainant relies on Article 40.6.1 of The Constitution. The Complainant also refers to Minister for Justice and Equality, Commissioner of An Garda Síochána v the WRC, Case C-378/17, which held that the WRC has the authority to dis-apply Irish law that conflicts with existing EU law. The Complainant submits that she is seeking to clear her name and receive a public apology from the Respondent. She is also seeking damages. The Complainant – Evidence: The Complainant submitted that she is a member of an organisation called “The Countess”. She submitted that it is an organisation limited by guarantee, with a CEO and two directors. She submitted that it has eight “pillars” of concern and that its purpose is to draw attention to the unintended consequences of the Gender Recognition Act. She submitted that it is a “non-violent advocacy group that advocates for the rights of women and children.” She submitted that the group has 20 to 30 active members and many followers and supporters. The Complainant submitted that she planned on attending the 9 June Event. She intended to ask two questions regarding proposed legislative wording and whether the Respondent continued to stand by a letter dated 2020 concerning those holding “gender critical beliefs”. The Complainant submitted that she did not intend to disrupt the event. She further submitted that she is of good character and has no criminal record. The Complainant submitted that she secured a ticket in her own name via the “Eventbrite” website, approximately two weeks before the June Event. She submitted that she met with C1 in another hotel about 30 minutes prior to the 9 June Event. The Complainant stated that she knew that there would be a protest but that she did not know how many would attend. The Complainant outlined that she later saw two women with homemade signs attempting to enter the hotel, but she did not recognise them. The Complainant submitted that when she arrived at the registration area for the 9 June Event, she was refused entry by R2 who informed her that she would make the event unsafe. The Complainant submitted that she was “taken aback”. The Complainant submitted that she was asked to stand by an emergency exit door, in a recess, which she did quietly. The Complainant submitted that C1 and two other women, one of whom had a baby, were refused entry. The Complainant did not recall if anyone else was refused admission. The Complainant submitted that the hotel manager was called. She submitted that he was professional and calm and explained that he had to respect the wishes of the venue hirer and asked the women to leave. The Complainant submitted that she went outside and held posters which said “You do not speak for us”. She submitted that this was the entirety of the event. The Complainant submitted that, legally, she has the right to hold a different belief, including “gender critical beliefs”. She further submitted that pursuant to the Minister for Justice and Equality, Commissioner of An Garda Síochána v. The WRC, Case C-378/17, the WRC has the authority to dis-apply Irish law that conflicts with existing EU law. The Complainant submitted that either the WRC should uphold EU law or it should not hear cases concerning EU law and that “there is no third way”. The Complainant submitted that the Respondent frequently uses the words “action” and “protest” and there is no implication of risk or violence. The Complainant submitted that the Respondent takes a different position when “The Countess” uses the same words. The Complainant – Cross-Examination: Under cross-examination, the Complainant confirmed that she is a member of “The Countess” organisation. The Complainant was referred to the Countess Press Release. The Complainant stated that she was not aware of the content of the Countess Press Release prior to the 9 June Event. She confirmed that she was aware that an action was taking place as she had to quickly get eight posters printed for it. She also confirmed that she was asked to contribute to the Countess Press Release on the night of 8 June 2022, but she did not do so as she was too tired. The Complainant stated that she did not know that the Countess Press Release had been widely disseminated on social media by a Senator and two journalists. The Complainant stated that when she was in the registration area for the 9 June Event, she was asked if she was attending as an individual or as part of an organisation. The Complainant responded that she was attending as both. The Complainant stated that R2 was not aggressive towards her. The Complainant submitted that R2 said that she was part of a group which made the 9 June Event unsafe. The Complainant accepted that the Respondent made its decision to refuse her entry on the basis of her confirmation that she was a member of “The Countess”, and that it had no further information about her. The Complainant submitted that the Respondent should have “enquired into [her] intention”. The Complainant accepted that she was going to the event as a “protester” and that she stood over the content of the Countess Press Release. The Complainant did not accept that the Named Board Member was targeted by the Countess Press Release. The Complainant stated that everyone is entitled to respect. The Complainant submitted that the Named Board Member “represents the collapsing of the gender category”. The Complainant stated that if she were singled out in a press release, she would only consider the language offensive if it were untrue. The Complainant accepted that it was reasonable for the Respondent to have concern for the Named Board Member, when it became aware of the Countess Press Release. The Complainant accepted that it was reasonable for the Respondent to put measures in place to protect the Named Board Member. The Complainant accepted that members of “The Countess” were refused entry on health and safety grounds. The Complainant accepted that the Respondent is entitled to take such health and safety measures. The Complainant confirmed that the CEO who had organised the “call to action” outlined in the Countess Press Release, was not in attendance. She said that “The Countess” members in attendance were responsible for themselves and for stewarding themselves. The Complainant accepted that on the basis of the Respondent’s risk assessment, she was permitted to attend the event. However, the Complainant did not accept that it was the Countess Press Release that changed this position. The Complainant did not accept that as the Respondent did not know what the unspecified call to action would involve, it was reasonable to refuse entry to members of “The Countess” and those with anti-transgender views. The Complainant confirmed that when she brought her complaint, she did not believe that it came within the ESA as the law Is “lacking”. C1 – Evidence: C1 outlined that prior to the 9 June Event, she met with the Complainant at a nearby hotel where they discussed the two questions that they would ask. C1 outlined that she obtained her ticket from another woman and when they entered the registration area, she saw the Complainant standing quietly to the side. C1 said that she was refused entry to the 9 June Event by R2 who said that “The Countess” had targeted the Named Board Member. C1 outlined that neither she nor the Complainant intended to disrupt the 9 June Event. She said that she had no part in drafting the Countess Press Release. C1 said that by “action”, she understood that people would stand outside the 9 June Event with posters and that it would be peaceful. C1 outlined that R2 was agitated. C1 said that R2 was speaking loudly and gesticulating. She said the whole episode in the registration area lasted 10 to 15 minutes. C1 said that she left earlier than the other women who had been refused entry as she was “fed up”. C1 stated that she was shocked and humiliated at being refused admission. C1 stated that previous events run by “The Countess” had not been described as violent and there were no questions about her conduct. C1 – Cross-Examination: C1 confirmed that she is in involved in “The Countess”. She outlined that she was at the launch in 2020 and that she was involved in drafting the “pillars”. C1 stated that she was unaware of the Countess Press Release being issued, however, she was aware that it was under discussion the night before the 9 June Event. C1 outlined that as far as she was aware, the “action” involved members holding up pre-printed posters. C1 accepted that her version of “action” may be different to that specified in the Countess Press Release. C1 stated that it was fair for the Named Board Member to be targeted in the Countess Press Release. C1 stated that she would be concerned if a member of “The Countess” was similarly targeted. C1 accepted that it was “fair” that the Respondent had concerns in light of the Countess Press Release. C1 also accepted that it was “fair” that the Respondent took steps to protect the Named Board Member and other people attending. C1 accepted that the Respondent had only a short time to deal with the Countess Press Release, prior to the start of the 9 June Event. C1 stated that the Respondent should have asked attendees more questions and sought a commitment that they would not disrupt the 9 June Event, rather than refusing them entry when they confirmed that their views aligned with “The Countess”. C1 stated that she saw others being asked to give an undertaking. C1 accepted that it was not reasonable for an organisation to call an “action” and not have anyone there to oversee or manage it. |
Summary of Respondent’s Case:
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 submits that on the morning of the 9 June Event, it became aware of the Countess Press Release which targeted the Named Board Member and outlined plans to “stage an action”. The Respondent submits that the Countess Press Release was disseminated to thousands of people on social media. The Respondent submits that as a consequence, the risk of disruption to the event and/or harm to other speakers, attendees and the Named Board Member, escalated considerably. The Respondent submits that the list of registered attendees was then re-examined and it was decided that members of “The Countess” and persons who aligned themselves with its views, would not be permitted entry to the 9 June Event. The Respondent submits that this was an appropriate action to mitigate against the elevated risk presented. 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 pursuant to the ESA. Moreover, the Respondent submits that the Complainant has not made out any coherent claim of religious belief discrimination. The Respondent submits that it does not mandate any religious or non-religious viewpoint. Additionally, the Respondent submits that the Complainant has not grounded her claim within the provisions of the ESA as enacted. The Respondent further submits that the Complainant must establish a prima facie case of discrimination before section 15(1) of the ESA can be invoked. The Respondent submits that it is not placing reliance on section 15 of the ESA as it does not need to do so. The Respondent submits that the ECHR and the ECHRA do not apply to this complaint. The Respondent further submits that the Complainant has not made a direct link between her reliance on the ESA and EU law. R1 – Evidence: R1 outlined that she has been employed by the Respondent for a number of years. R1 outlined that the Respondent was established in 1973 and that it is a well-established, well-known organisation, with no religious aspect to its work. R1 outlined that when the Respondent uses words such as “action”, it is asking people with authority to make change. R1 outlined that the 9 June Event consisted of two different events – the morning event, which was open to a wider group and organised via “Eventbrite”; and the AGM which took place after lunch and was open to members only. R1 outlined that in advance of the 9 June Event, she prepared a risk assessment in which risks and mitigation steps were identified. She outlined that the Respondent also prepared an event plan which outlined the roles of all staff – who covers access, registration etc.. R1 outlined that no one would be excluded from the 9 June Event on the basis of their viewpoints. R1 outlined that there were over 100 attendees and that it was a pressurised situation. She outlined that many attendees had questions concerning membership fees, voting etc. She said that it was not possible to engage individually with people. R1 outlined that she was informed by a colleague, of the Countess Press Release at approximately 8am on the morning of the 9 June Event. She outlined that the Management Team had a conversation about the Countess Press Release. They noted that it outlined a “call to action” and targeted the Named Board Member and that it had been widely disseminated. R1 outlined that it was “completely out of the blue”. R1 outlined that they had concerns about the safety of the Named Board Member and they were also conscious that a T.D. was attending. R1 outlined that they “considered the risk to be serious”. R1 outlined that she spoke to the hotel manager and assistant manager about the Countess Press Release. They re-organised the physical layout of the room. They moved the tea and coffee area into the conference room. They also moved the registration desks apart – keeping the registration desk for “individuals” outside the conference room doors. It was also agreed that the Named Board Member and the T.D. could access the 9 June Event via a separate entrance so that they did not have pass by the demonstrators. R1 outlined that it was agreed that the hotel manager would call the Gardaí if necessary. R1 outlined that R2 was identified as the best person to handle matters as she has conflict management experience. R1 outlined that she was located in the conference room, dealing with those holding group memberships. She outlined that it was very busy. She further outlined that at one point, an individual ran into the conference room and refused to leave. R1 outlined that she positioned herself between the individual and the Named Board Member. R1 outlined that she indicated that the 9 June Event could not start as once it became quiet, the individual could cause disruption. R1 outlined that the hotel assistant manager came down and escorted the individual out. R1 outlined that he told the individual that it was his hotel and that she had to leave. R1 outlined that on her return to the conference room, she saw another woman shouting at R2 “you were going to hit me, you were going to hit me”. R1 outlined that R2 was standing back, with her hands in her pockets. R2 outlined that the hotel assistant manager said “she has her hands in her pockets”, she is not going to hit you”. R1 outlined that she re-entered the conference room and that the rest of the event went smoothly. R1 – Cross-Examination: Under cross-examination, R1 confirmed that the Complainant had contacted the Respondent in May 2021, to cancel her subscription. R1 denied knowledge of the nature of the Complainant’s views and of her letter to “The Irish Times”. R1 stated that an “an anti-trans person” is someone who doesn’t believe in transgender people and does not believe that they have rights. R1 was referred to the Countess Press Release. R1 stated that the Respondent was concerned about the word “action” and the references to the Named Board Member. R1 stated that the Respondent was also concerned that the Countess Press Release had been widely disseminated. R1 confirmed that the Respondent did not try to contact the point of contact named on the Countess Press Release. She also confirmed that the Respondent did not contact the Gardaí, nor did it receive intelligence from the Gardaí. R1 stated that she knows what a “call to action” means for the Respondent. R1 stated that approximately five to ten people received the risk assessment. She said that the Management Team made the decision to exclude people from the 9 June Event on the basis of the unknown risk presented. R1 stated that the Complainant would have been permitted entry to the 9 June Event only for the Countess Press Release. R1 stated that there was no record of the decision or of any debrief after the 9 June Event. 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 has a de facto inclusive policy and that the formal adoption of a position regarding the inclusion of transgender people was decided upon at the Respondent’s 2018 AGM. R2 outlined that the Respondent decided to be more public-facing in its campaigning and to organise more public events. R2 outlined that the Respondent dealt with many contentious matters such as sex work and abortion. R2 outlined that there had been past AGMs were members were “vociferously against” certain motions. R2 outlined that the Respondent’s definition of someone being disruptive was non-exhaustive. She stated that “attempts to derail, distract, disrupt in ongoing ways [….] refusing to pass the mic on” would be considered disruptive. R2 outlined that they also had a vulnerable speaker at the 9 June Event who they were mindful of. R2 outlined that she was not familiar with the Complainant or her letters. R2 outlined that it was likely that she was told of the Complainant’s membership cancellation. R2 said that if it had not been for the Countess Press Release, the Complainant “would have been admitted, no question”. R2 outlined that she had overall responsibility for ensuring that the 9 June Event ran smoothly. She outlined that members of staff had different responsibilities – ranging from the registration of attendees, to minding the doors, to dealing with persons with posters. R2 outlined that if the Respondent calls for a protest, they always have persons to marshal the event. She gave an example of International Women’s Day, where SIPTU marshalled the event for the Respondent. R2 outlined that she became aware of the Countess Press Release at approximately 8am on the morning of the 9 June Event. She outlined that the Management Team had to review the Countess Press Release and discuss it. R2 stated that while it was two hours until the 9 June Event started, it was only 90 minutes until people began to arrive, so they had only 90 minutes to deal with it. R2 outlined that “The Countess” is a relatively new organisation with no defined structure, board management or track record for events. R2 stated that the Respondent did not know what “The Countess” meant by the word “action”. R2 outlined that the Respondent was “extremely concerned” about the identification of the Named Board Member in the Countess Press Release. R2 outlined that generally, persons are not identified in press releases, and that to so was “quite a threatening thing to do.” R2 outlined that it was “a very anxiety inducing experience”. R2 outlined that the point of contact named on the Countess Press Release was actually out of the country and in a different time zone at the time. R2 outlined that it was a “very pressurised environment”. R2 outlined that the real anxiety for the Management Team was not knowing what was intended by the “action”. She outlined that the Respondent felt that it had obligations to its members, visitors, speakers and Board. R2 outlined that the Respondent had to manage this undefined risk. R2 outlined that the Respondent revisited the risk assessment and decided to refuse entry to those who were members of “The Countess” or whose views aligned with “The Countess”. R2 outlined that she did not think that there was an alternative open to the Respondent. R2 outlined that she and R1 were tasked with managing the situation. R2 stated that her training deals with conflict management and de-escalation. She said that they moved more senior members of staff to the registration area. She outlined that group members were brought into the conference room and registered at the desk there. R2 stated that she was at the registration desk dealing with “individuals” where she asked attendees if they were a member of “The Countess” or aligned with “The Countess” or part of the protest taking place. R2 outlined that if they answered “yes”, she asked them to step aside and not to come in. R2 said that there were a few people who were known to them already and they were refused entry. R2 outlined that they made it clear that this was about the safety of the members and the Board and they restated this “over and over again”. R2 outlined that they tried to minimise the disruption, “keep the flow moving [and] keep people optimistic.” R2 outlined that some persons raised an objection about being refused entry. R2 stated that the Complainant seemed bemused and just stepped aside. R2 outlined that once the Complainant was refused entry, she moved five to ten metres away from the registration desk and was very calm. R2 stated that C1 seemed upset but she spoke in a small group and moved on. R2 denied that she was aggressive and agitated. She said that one woman was very loud and making a lot of accusations and that another member of staff may have asked the hotel manager to come. R2 outlined that the hotel manager offered tea and coffee to those who were refused entry. R2 outlined that the hotel manager was “rightly focusedon de-escalating the matter”. R2 outlined that protestors had entered the hotel with posters and had been hostile towards a senior member of staff, so she went to check on her. R2 outlined that she also checked on members of staff upstairs and in the registration area. R2 – Cross-Examination: R2 confirmed that the Respondent tracks media using software called “Zenark”. R2 stated that once the Complainant identified herself as being a member of “The Countess”, they were concerned that she was part of the “call to action”. R2 did not accept that the Respondent overreacted and stated that it could only act on the information that it had. R2 said that the Countess Press Release outlines that an “action” will take place and calls on people to join. R2 stated that the word “action” can have many meanings and that it can be violent. R2 stated that the Respondent does not ascribe a violent meaning to it. R2 stated that she did not ask if anyone was a member of “Women’s Space Ireland” as the press release had been issued by “The Countess”. R2 stated that the Complainant was refused admission due to her membership of “The Countess”. R2 stated that she did not call the Gardaí as the hotel had undertaken to call the Gardaí if the physical threat level escalated. R2 confirmed that it was a “collective decision” by the Management Team to refuse admission to members of “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). Section 15 of the ESA outlines certain activities which do not constitute discrimination. Such activities include the prevention of criminal or disorderly conduct or behaviour and are provided for under section 15(1) 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”. Section 15(1) does not require a complainant to establish a prima facie case of discrimination before it can be invoked and / or applied. 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: Approximately two weeks in advance of the 9 June Event, the Complainant, a member of “The Countess” organisation, obtained a ticket in her own name. R1 and R2 outlined that the Complainant would have been permitted entry to 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 – approximately 90 minutes 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 “threatening” and describing it as “a very anxiety inducing experience”. R1’s and R2’s evidence was clear that the safety of the Named Board Member, the other Board Members, the attendees and the speakers was paramount. R1’s and R2’s evidence showed that the widely-disseminated Countess Press Release had escalated the level of risk significantly, largely in view of the number of unknowns. The Respondent did not know what the plans to “stage an action” involved. 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.) Refuse entry to the 9 June Event to members of “The Countess” organisation and to those who aligned themselves with its views; and (v.) Escort the T.D. and the Named Board Member via a separate entrance into and out of the 9 June Event so that they did not have pass by the demonstrators. It was on the basis of no. (iv.) above that the Complainant was refused entry to the 9 June Event. It is noteworthy that under cross-examination: the Complainant accepted that it was reasonable for the Respondent to have concerns for the Named Board Member, when it became aware of The Countess Press Release and that it was reasonable for the Respondent to put measures in place to protect the Named Board Member. The Complainant also accepted that members of “The Countess” were refused entry on health and safety grounds and that the Respondent is entitled to take such health and safety measures. C1 accepted that it was “fair” that the Respondent had concerns in light of the Countess Press Release. C1 also accepted that it was “fair” that the Respondent took steps to protect the Named Board Member and other people attending. Finally, C1 accepted that it was not reasonable for an organisation to call an “action” and not have anyone there to oversee or manage it. 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 section 15(1) 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 who was a member of “The Countess”. As section 15(1) applies, it is not necessary for me to address the Parties’ submissions concerning the Irish and English versions of the ESA and more specifically, the meaning of the word “creideamh”. In conclusion, I find that the Complainant was refused entry “on grounds other than discriminatory grounds”. In the circumstances, I find that section 15(1) applies and there was no discrimination in any form as alleged. |
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 in any form as alleged. |
Dated: 1st February 2024.
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Equal Status Act, Discrimination, Section 15. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043782
Parties:
| Complainant | Respondent |
Parties | Ms. Sandra Adams | National Women's Council of Ireland |
Representatives | N/A | Ms. Sinead Lucey, Free Legal Advice Centres. |
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-00054066-001 | 08/12/2022 |
Date of Adjudication Hearing: 21/09/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 25 of the Equal Status Act 2000 as amended, 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.
Ms. Sandra Adams (the “Complainant”) represented herself. The Complainant had one witness in attendance, C1, who gave evidence.
The National Women’s Council of Ireland (the “Respondent”) was represented by Ms. Sinead Lucey
of the Free Legal Advice Centres (“FLAC”). The Respondent had two witnesses in attendance, R1 and R2, who both gave evidence. One Respondent employee was also in attendance for some of the Hearing.
For the reasons outlined below, the Hearing was held in private and the witnesses are anonymised.
The Complainant provided evidence on affirmation and C1 provided evidence on oath. R1 and R2 both provided evidence on affirmation. The legal perils of committing perjury were explained to all. Cross-examination was allowed.
The following matters were addressed at the outset of and during the Hearing:
Private Hearing and Anonymity of Witnesses:
I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all Workplace Relations Commission (“WRC”) hearings are held in public. I explained that where “special circumstances” apply, a matter could be heard in private and decisions could be anonymised. I invited oral submissions from the Parties.
The Complainant requested that this matter be heard in private. She further submitted that while she was satisfied to be named, she requested that her witness be anonymised. The Respondent also requested that this matter be heard in private. The Respondent further submitted that it was satisfied to be named but requested that its witnesses also be anonymised. The Parties agreed that these requests were based on the hostility around the case and the potential targeting of witnesses.
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 ruled that the Hearing would be held in private, the Parties would be named and the witnesses would be anonymised.
Complaint Not Time-Barred:
I noted that the pre-Hearing correspondence indicated that the complaint was possibly time-barred. However, this appeared to have been borne out of an administrative error which was since clarified by the Complainant. Both Parties accepted that the complaint was not time-barred.
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 briefly and gave the Parties the opportunity to consider this potential jurisdictional issue.
Upon reconvening the Hearing, the Complainant outlined that her case is against the Respondent and not the hotel, as she was denied entry to the 9 June Event by the Respondent and not the hotel.
The Respondent submitted that there is some difficulty in aligning the Equal Status Act 2000 as amended with the Intoxicating Liquor Act 2003 as amended. The Respondent submitted that the licensee is not involved in this complaint. The Respondent submitted that it is not taking a position on the issue and would accept that the WRC has jurisdiction for the purposes of this complaint.
I accept 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.
Parameters of the Complaint:
At the outset of the Hearing, the Complainant confirmed that she was not proceeding with the victimisation complaint. The Complainant confirmed that her complaint, for adjudication, concerns an allegation of discrimination, on the ground of religion, regarding the provision of services.
Further Evidence:
During the Hearing, the Complainant sought to introduce further evidence in the form of a statement made on “Twitter”/ “X” dated September 2023 – some 15 months after the 9 June Event; and an email dated March 2022 – some three months before the 9 June Event. I did not allow the introduction of this further evidence as it was irrelevant.
Submissions:
The Complainant outlined her objection to the late submission of the Respondent’s submissions on 15 September 2023. She submitted that she wanted time to make further submissions by way of response. The Respondent submitted that its submissions were short and contained nothing new.
Twice, I offered the Complainant an adjournment to consider the Respondent’s submissions. However, the Complainant refused and submitted that she had sufficient time to consider the Respondent’s submissions and that she wanted to proceed.
The Complainant then made an application to make further submissions which she had not raised previously. These submissions concerned the Irish and English versions of the Equal Status Act 2000 as amended (the “ESA”) and more specifically, the meaning of the word “creideamh”. The Complainant submitted that the Irish word “creideamh” is broader than the English word “religion”. The Complainant confirmed that she did not want her complaint to be heard in Irish. The Respondent submitted that it would require time to address this new specific issue.
I referred the Parties to the “WRC Procedures in the Adjudication and Investigation of All Employment and Equality Complaints and Disputes” which provides under section 7 that all documentation be submitted to the WRC 15 days in advance of the Hearing. I heard submissions from the Parties on how best to proceed in the circumstances.
I subsequently ruled that the Parties could file chronological submissions on this specific issue, after the Hearing. The Parties agreed to the same. At the conclusion of the Hearing, I reserved my position on whether to hold a further hearing day to hear more on this specific issue. The Complainant filed additional submissions on 10 October 2023. The Respondent filed additional submissions by way of response on 3 and 6 November 2023. Having considered this further, I am satisfied that I can decide this matter on the basis of the information before me and that there will not be another hearing day.
Background:
The Complainant submits that she was discriminated against by the Respondent on the basis of 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 “9 June Event”), held at a hotel in Dublin. In her Complaint Form, the Complainant outlined that she was discriminated against due to her “lack of belief that people can change sex”. In her written submissions the Complainant submits that she was discriminated against for not adopting the Respondent’s beliefs. The Complainant submitted that she was discriminated against (i.) directly in her private capacity as an individual (ii.) directly by association as a member of “The Countess” organisation; and (iii.) indirectly by the incorrect application of the “legitimate aim” provision of ensuring safety at an event. The Complainant submitted her ES1 to the Respondent on 8 August 2022 and her Complaint Form to the WRC on 8 December 2022.
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 should be dismissed as she has not identified any religious belief underpinning her complaint; and as she accepts that there is a “gap” in the ESA insofar as it extends to religion but not “beliefs”. The Respondent further submits that the Complainant has not established a prima facie case of discrimination 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 who is transgender (the “Named 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 the 9 June Event to members of “The Countess” organisation, including the Complainant, was risk-based. |
Summary of Complainant’s Case:
The Complainant submits by way of background that she was a member of the Respondent from October 2020 until May 2021. However, she cancelled her membership due to the Respondent’s position regarding those holding “gender critical” views. The Complainant submits that she attended events where she made her “gender critical” views known. She also sent a (published) letter into “The Irish Times”. The Complainant submits that she was directly and indirectly discriminated against by the Respondent on the basis of religion in violation of the ESA, when she was refused entry to the Respondent’s 9 June Event, held at a hotel in Dublin. In her Complaint Form, the Complainant outlined that she was discriminated against due to her “lack of belief that people can change sex”. The Complainant further submits that although there is no definition of “religion” in EU or Irish law, the Respondent has adopted a set of beliefs which can be demonstrated as fitting the criteria to be deemed “religious” and that she was discriminated against for not adopting those beliefs. The Complainant submits that section 15 of the ESA does not apply. The Complainant submits that there is no evidence that she represented a “substantial risk” and that the Respondent cannot demonstrate that a reasonable person would believe that she posed a “substantial risk”. The Complainant relied on Michael Moorehouse v. Ayleswood Ltd, DEC-S2001-009 and Martin Mongan v. Mulleady's Limited, ADJ-00034333. The Complainant relies on the European Convention on Human Rights Act 2003 (the “ECHRA”) as well as the European Convention on Human Rights (the “ECHR”). The Complainant referred in particular to the protection of freedom of expression, freedom of belief and the prohibition against discrimination on the grounds of belief, political or other opinion, under Schedule 1 and Articles 9, 10 and 14 of the ECHR. The Complainant relies on, inter alia, Arrowsmith v. The United Kingdom. The Complainant also relies on the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union, in particular Articles 10, 12 and 21. Finally, the Complainant relies on Article 40.6.1 of The Constitution. The Complainant also refers to Minister for Justice and Equality, Commissioner of An Garda Síochána v the WRC, Case C-378/17, which held that the WRC has the authority to dis-apply Irish law that conflicts with existing EU law. The Complainant submits that she is seeking to clear her name and receive a public apology from the Respondent. She is also seeking damages. The Complainant – Evidence: The Complainant submitted that she is a member of an organisation called “The Countess”. She submitted that it is an organisation limited by guarantee, with a CEO and two directors. She submitted that it has eight “pillars” of concern and that its purpose is to draw attention to the unintended consequences of the Gender Recognition Act. She submitted that it is a “non-violent advocacy group that advocates for the rights of women and children.” She submitted that the group has 20 to 30 active members and many followers and supporters. The Complainant submitted that she planned on attending the 9 June Event. She intended to ask two questions regarding proposed legislative wording and whether the Respondent continued to stand by a letter dated 2020 concerning those holding “gender critical beliefs”. The Complainant submitted that she did not intend to disrupt the event. She further submitted that she is of good character and has no criminal record. The Complainant submitted that she secured a ticket in her own name via the “Eventbrite” website, approximately two weeks before the June Event. She submitted that she met with C1 in another hotel about 30 minutes prior to the 9 June Event. The Complainant stated that she knew that there would be a protest but that she did not know how many would attend. The Complainant outlined that she later saw two women with homemade signs attempting to enter the hotel, but she did not recognise them. The Complainant submitted that when she arrived at the registration area for the 9 June Event, she was refused entry by R2 who informed her that she would make the event unsafe. The Complainant submitted that she was “taken aback”. The Complainant submitted that she was asked to stand by an emergency exit door, in a recess, which she did quietly. The Complainant submitted that C1 and two other women, one of whom had a baby, were refused entry. The Complainant did not recall if anyone else was refused admission. The Complainant submitted that the hotel manager was called. She submitted that he was professional and calm and explained that he had to respect the wishes of the venue hirer and asked the women to leave. The Complainant submitted that she went outside and held posters which said “You do not speak for us”. She submitted that this was the entirety of the event. The Complainant submitted that, legally, she has the right to hold a different belief, including “gender critical beliefs”. She further submitted that pursuant to the Minister for Justice and Equality, Commissioner of An Garda Síochána v. The WRC, Case C-378/17, the WRC has the authority to dis-apply Irish law that conflicts with existing EU law. The Complainant submitted that either the WRC should uphold EU law or it should not hear cases concerning EU law and that “there is no third way”. The Complainant submitted that the Respondent frequently uses the words “action” and “protest” and there is no implication of risk or violence. The Complainant submitted that the Respondent takes a different position when “The Countess” uses the same words. The Complainant – Cross-Examination: Under cross-examination, the Complainant confirmed that she is a member of “The Countess” organisation. The Complainant was referred to the Countess Press Release. The Complainant stated that she was not aware of the content of the Countess Press Release prior to the 9 June Event. She confirmed that she was aware that an action was taking place as she had to quickly get eight posters printed for it. She also confirmed that she was asked to contribute to the Countess Press Release on the night of 8 June 2022, but she did not do so as she was too tired. The Complainant stated that she did not know that the Countess Press Release had been widely disseminated on social media by a Senator and two journalists. The Complainant stated that when she was in the registration area for the 9 June Event, she was asked if she was attending as an individual or as part of an organisation. The Complainant responded that she was attending as both. The Complainant stated that R2 was not aggressive towards her. The Complainant submitted that R2 said that she was part of a group which made the 9 June Event unsafe. The Complainant accepted that the Respondent made its decision to refuse her entry on the basis of her confirmation that she was a member of “The Countess”, and that it had no further information about her. The Complainant submitted that the Respondent should have “enquired into [her] intention”. The Complainant accepted that she was going to the event as a “protester” and that she stood over the content of the Countess Press Release. The Complainant did not accept that the Named Board Member was targeted by the Countess Press Release. The Complainant stated that everyone is entitled to respect. The Complainant submitted that the Named Board Member “represents the collapsing of the gender category”. The Complainant stated that if she were singled out in a press release, she would only consider the language offensive if it were untrue. The Complainant accepted that it was reasonable for the Respondent to have concern for the Named Board Member, when it became aware of the Countess Press Release. The Complainant accepted that it was reasonable for the Respondent to put measures in place to protect the Named Board Member. The Complainant accepted that members of “The Countess” were refused entry on health and safety grounds. The Complainant accepted that the Respondent is entitled to take such health and safety measures. The Complainant confirmed that the CEO who had organised the “call to action” outlined in the Countess Press Release, was not in attendance. She said that “The Countess” members in attendance were responsible for themselves and for stewarding themselves. The Complainant accepted that on the basis of the Respondent’s risk assessment, she was permitted to attend the event. However, the Complainant did not accept that it was the Countess Press Release that changed this position. The Complainant did not accept that as the Respondent did not know what the unspecified call to action would involve, it was reasonable to refuse entry to members of “The Countess” and those with anti-transgender views. The Complainant confirmed that when she brought her complaint, she did not believe that it came within the ESA as the law Is “lacking”. C1 – Evidence: C1 outlined that prior to the 9 June Event, she met with the Complainant at a nearby hotel where they discussed the two questions that they would ask. C1 outlined that she obtained her ticket from another woman and when they entered the registration area, she saw the Complainant standing quietly to the side. C1 said that she was refused entry to the 9 June Event by R2 who said that “The Countess” had targeted the Named Board Member. C1 outlined that neither she nor the Complainant intended to disrupt the 9 June Event. She said that she had no part in drafting the Countess Press Release. C1 said that by “action”, she understood that people would stand outside the 9 June Event with posters and that it would be peaceful. C1 outlined that R2 was agitated. C1 said that R2 was speaking loudly and gesticulating. She said the whole episode in the registration area lasted 10 to 15 minutes. C1 said that she left earlier than the other women who had been refused entry as she was “fed up”. C1 stated that she was shocked and humiliated at being refused admission. C1 stated that previous events run by “The Countess” had not been described as violent and there were no questions about her conduct. C1 – Cross-Examination: C1 confirmed that she is in involved in “The Countess”. She outlined that she was at the launch in 2020 and that she was involved in drafting the “pillars”. C1 stated that she was unaware of the Countess Press Release being issued, however, she was aware that it was under discussion the night before the 9 June Event. C1 outlined that as far as she was aware, the “action” involved members holding up pre-printed posters. C1 accepted that her version of “action” may be different to that specified in the Countess Press Release. C1 stated that it was fair for the Named Board Member to be targeted in the Countess Press Release. C1 stated that she would be concerned if a member of “The Countess” was similarly targeted. C1 accepted that it was “fair” that the Respondent had concerns in light of the Countess Press Release. C1 also accepted that it was “fair” that the Respondent took steps to protect the Named Board Member and other people attending. C1 accepted that the Respondent had only a short time to deal with the Countess Press Release, prior to the start of the 9 June Event. C1 stated that the Respondent should have asked attendees more questions and sought a commitment that they would not disrupt the 9 June Event, rather than refusing them entry when they confirmed that their views aligned with “The Countess”. C1 stated that she saw others being asked to give an undertaking. C1 accepted that it was not reasonable for an organisation to call an “action” and not have anyone there to oversee or manage it. |
Summary of Respondent’s Case:
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 submits that on the morning of the 9 June Event, it became aware of the Countess Press Release which targeted the Named Board Member and outlined plans to “stage an action”. The Respondent submits that the Countess Press Release was disseminated to thousands of people on social media. The Respondent submits that as a consequence, the risk of disruption to the event and/or harm to other speakers, attendees and the Named Board Member, escalated considerably. The Respondent submits that the list of registered attendees was then re-examined and it was decided that members of “The Countess” and persons who aligned themselves with its views, would not be permitted entry to the 9 June Event. The Respondent submits that this was an appropriate action to mitigate against the elevated risk presented. 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 pursuant to the ESA. Moreover, the Respondent submits that the Complainant has not made out any coherent claim of religious belief discrimination. The Respondent submits that it does not mandate any religious or non-religious viewpoint. Additionally, the Respondent submits that the Complainant has not grounded her claim within the provisions of the ESA as enacted. The Respondent further submits that the Complainant must establish a prima facie case of discrimination before section 15(1) of the ESA can be invoked. The Respondent submits that it is not placing reliance on section 15 of the ESA as it does not need to do so. The Respondent submits that the ECHR and the ECHRA do not apply to this complaint. The Respondent further submits that the Complainant has not made a direct link between her reliance on the ESA and EU law. R1 – Evidence: R1 outlined that she has been employed by the Respondent for a number of years. R1 outlined that the Respondent was established in 1973 and that it is a well-established, well-known organisation, with no religious aspect to its work. R1 outlined that when the Respondent uses words such as “action”, it is asking people with authority to make change. R1 outlined that the 9 June Event consisted of two different events – the morning event, which was open to a wider group and organised via “Eventbrite”; and the AGM which took place after lunch and was open to members only. R1 outlined that in advance of the 9 June Event, she prepared a risk assessment in which risks and mitigation steps were identified. She outlined that the Respondent also prepared an event plan which outlined the roles of all staff – who covers access, registration etc.. R1 outlined that no one would be excluded from the 9 June Event on the basis of their viewpoints. R1 outlined that there were over 100 attendees and that it was a pressurised situation. She outlined that many attendees had questions concerning membership fees, voting etc. She said that it was not possible to engage individually with people. R1 outlined that she was informed by a colleague, of the Countess Press Release at approximately 8am on the morning of the 9 June Event. She outlined that the Management Team had a conversation about the Countess Press Release. They noted that it outlined a “call to action” and targeted the Named Board Member and that it had been widely disseminated. R1 outlined that it was “completely out of the blue”. R1 outlined that they had concerns about the safety of the Named Board Member and they were also conscious that a T.D. was attending. R1 outlined that they “considered the risk to be serious”. R1 outlined that she spoke to the hotel manager and assistant manager about the Countess Press Release. They re-organised the physical layout of the room. They moved the tea and coffee area into the conference room. They also moved the registration desks apart – keeping the registration desk for “individuals” outside the conference room doors. It was also agreed that the Named Board Member and the T.D. could access the 9 June Event via a separate entrance so that they did not have pass by the demonstrators. R1 outlined that it was agreed that the hotel manager would call the Gardaí if necessary. R1 outlined that R2 was identified as the best person to handle matters as she has conflict management experience. R1 outlined that she was located in the conference room, dealing with those holding group memberships. She outlined that it was very busy. She further outlined that at one point, an individual ran into the conference room and refused to leave. R1 outlined that she positioned herself between the individual and the Named Board Member. R1 outlined that she indicated that the 9 June Event could not start as once it became quiet, the individual could cause disruption. R1 outlined that the hotel assistant manager came down and escorted the individual out. R1 outlined that he told the individual that it was his hotel and that she had to leave. R1 outlined that on her return to the conference room, she saw another woman shouting at R2 “you were going to hit me, you were going to hit me”. R1 outlined that R2 was standing back, with her hands in her pockets. R2 outlined that the hotel assistant manager said “she has her hands in her pockets”, she is not going to hit you”. R1 outlined that she re-entered the conference room and that the rest of the event went smoothly. R1 – Cross-Examination: Under cross-examination, R1 confirmed that the Complainant had contacted the Respondent in May 2021, to cancel her subscription. R1 denied knowledge of the nature of the Complainant’s views and of her letter to “The Irish Times”. R1 stated that an “an anti-trans person” is someone who doesn’t believe in transgender people and does not believe that they have rights. R1 was referred to the Countess Press Release. R1 stated that the Respondent was concerned about the word “action” and the references to the Named Board Member. R1 stated that the Respondent was also concerned that the Countess Press Release had been widely disseminated. R1 confirmed that the Respondent did not try to contact the point of contact named on the Countess Press Release. She also confirmed that the Respondent did not contact the Gardaí, nor did it receive intelligence from the Gardaí. R1 stated that she knows what a “call to action” means for the Respondent. R1 stated that approximately five to ten people received the risk assessment. She said that the Management Team made the decision to exclude people from the 9 June Event on the basis of the unknown risk presented. R1 stated that the Complainant would have been permitted entry to the 9 June Event only for the Countess Press Release. R1 stated that there was no record of the decision or of any debrief after the 9 June Event. 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 has a de facto inclusive policy and that the formal adoption of a position regarding the inclusion of transgender people was decided upon at the Respondent’s 2018 AGM. R2 outlined that the Respondent decided to be more public-facing in its campaigning and to organise more public events. R2 outlined that the Respondent dealt with many contentious matters such as sex work and abortion. R2 outlined that there had been past AGMs were members were “vociferously against” certain motions. R2 outlined that the Respondent’s definition of someone being disruptive was non-exhaustive. She stated that “attempts to derail, distract, disrupt in ongoing ways [….] refusing to pass the mic on” would be considered disruptive. R2 outlined that they also had a vulnerable speaker at the 9 June Event who they were mindful of. R2 outlined that she was not familiar with the Complainant or her letters. R2 outlined that it was likely that she was told of the Complainant’s membership cancellation. R2 said that if it had not been for the Countess Press Release, the Complainant “would have been admitted, no question”. R2 outlined that she had overall responsibility for ensuring that the 9 June Event ran smoothly. She outlined that members of staff had different responsibilities – ranging from the registration of attendees, to minding the doors, to dealing with persons with posters. R2 outlined that if the Respondent calls for a protest, they always have persons to marshal the event. She gave an example of International Women’s Day, where SIPTU marshalled the event for the Respondent. R2 outlined that she became aware of the Countess Press Release at approximately 8am on the morning of the 9 June Event. She outlined that the Management Team had to review the Countess Press Release and discuss it. R2 stated that while it was two hours until the 9 June Event started, it was only 90 minutes until people began to arrive, so they had only 90 minutes to deal with it. R2 outlined that “The Countess” is a relatively new organisation with no defined structure, board management or track record for events. R2 stated that the Respondent did not know what “The Countess” meant by the word “action”. R2 outlined that the Respondent was “extremely concerned” about the identification of the Named Board Member in the Countess Press Release. R2 outlined that generally, persons are not identified in press releases, and that to so was “quite a threatening thing to do.” R2 outlined that it was “a very anxiety inducing experience”. R2 outlined that the point of contact named on the Countess Press Release was actually out of the country and in a different time zone at the time. R2 outlined that it was a “very pressurised environment”. R2 outlined that the real anxiety for the Management Team was not knowing what was intended by the “action”. She outlined that the Respondent felt that it had obligations to its members, visitors, speakers and Board. R2 outlined that the Respondent had to manage this undefined risk. R2 outlined that the Respondent revisited the risk assessment and decided to refuse entry to those who were members of “The Countess” or whose views aligned with “The Countess”. R2 outlined that she did not think that there was an alternative open to the Respondent. R2 outlined that she and R1 were tasked with managing the situation. R2 stated that her training deals with conflict management and de-escalation. She said that they moved more senior members of staff to the registration area. She outlined that group members were brought into the conference room and registered at the desk there. R2 stated that she was at the registration desk dealing with “individuals” where she asked attendees if they were a member of “The Countess” or aligned with “The Countess” or part of the protest taking place. R2 outlined that if they answered “yes”, she asked them to step aside and not to come in. R2 said that there were a few people who were known to them already and they were refused entry. R2 outlined that they made it clear that this was about the safety of the members and the Board and they restated this “over and over again”. R2 outlined that they tried to minimise the disruption, “keep the flow moving [and] keep people optimistic.” R2 outlined that some persons raised an objection about being refused entry. R2 stated that the Complainant seemed bemused and just stepped aside. R2 outlined that once the Complainant was refused entry, she moved five to ten metres away from the registration desk and was very calm. R2 stated that C1 seemed upset but she spoke in a small group and moved on. R2 denied that she was aggressive and agitated. She said that one woman was very loud and making a lot of accusations and that another member of staff may have asked the hotel manager to come. R2 outlined that the hotel manager offered tea and coffee to those who were refused entry. R2 outlined that the hotel manager was “rightly focusedon de-escalating the matter”. R2 outlined that protestors had entered the hotel with posters and had been hostile towards a senior member of staff, so she went to check on her. R2 outlined that she also checked on members of staff upstairs and in the registration area. R2 – Cross-Examination: R2 confirmed that the Respondent tracks media using software called “Zenark”. R2 stated that once the Complainant identified herself as being a member of “The Countess”, they were concerned that she was part of the “call to action”. R2 did not accept that the Respondent overreacted and stated that it could only act on the information that it had. R2 said that the Countess Press Release outlines that an “action” will take place and calls on people to join. R2 stated that the word “action” can have many meanings and that it can be violent. R2 stated that the Respondent does not ascribe a violent meaning to it. R2 stated that she did not ask if anyone was a member of “Women’s Space Ireland” as the press release had been issued by “The Countess”. R2 stated that the Complainant was refused admission due to her membership of “The Countess”. R2 stated that she did not call the Gardaí as the hotel had undertaken to call the Gardaí if the physical threat level escalated. R2 confirmed that it was a “collective decision” by the Management Team to refuse admission to members of “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). Section 15 of the ESA outlines certain activities which do not constitute discrimination. Such activities include the prevention of criminal or disorderly conduct or behaviour and are provided for under section 15(1) 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”. Section 15(1) does not require a complainant to establish a prima facie case of discrimination before it can be invoked and / or applied. 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: Approximately two weeks in advance of the 9 June Event, the Complainant, a member of “The Countess” organisation, obtained a ticket in her own name. R1 and R2 outlined that the Complainant would have been permitted entry to 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 – approximately 90 minutes 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 “threatening” and describing it as “a very anxiety inducing experience”. R1’s and R2’s evidence was clear that the safety of the Named Board Member, the other Board Members, the attendees and the speakers was paramount. R1’s and R2’s evidence showed that the widely-disseminated Countess Press Release had escalated the level of risk significantly, largely in view of the number of unknowns. The Respondent did not know what the plans to “stage an action” involved. 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.) Refuse entry to the 9 June Event to members of “The Countess” organisation and to those who aligned themselves with its views; and (v.) Escort the T.D. and the Named Board Member via a separate entrance into and out of the 9 June Event so that they did not have pass by the demonstrators. It was on the basis of no. (iv.) above that the Complainant was refused entry to the 9 June Event. It is noteworthy that under cross-examination: the Complainant accepted that it was reasonable for the Respondent to have concerns for the Named Board Member, when it became aware of The Countess Press Release and that it was reasonable for the Respondent to put measures in place to protect the Named Board Member. The Complainant also accepted that members of “The Countess” were refused entry on health and safety grounds and that the Respondent is entitled to take such health and safety measures. C1 accepted that it was “fair” that the Respondent had concerns in light of the Countess Press Release. C1 also accepted that it was “fair” that the Respondent took steps to protect the Named Board Member and other people attending. Finally, C1 accepted that it was not reasonable for an organisation to call an “action” and not have anyone there to oversee or manage it. 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 section 15(1) 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 who was a member of “The Countess”. As section 15(1) applies, it is not necessary for me to address the Parties’ submissions concerning the Irish and English versions of the ESA and more specifically, the meaning of the word “creideamh”. In conclusion, I find that the Complainant was refused entry “on grounds other than discriminatory grounds”. In the circumstances, I find that section 15(1) applies and there was no discrimination in any form as alleged. |
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 in any form as alleged. |
Dated: 1st February 2024.
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Equal Status Act, Discrimination, Section 15. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043782
Parties:
| Complainant | Respondent |
Parties | Ms. Sandra Adams | National Women's Council of Ireland |
Representatives | N/A | Ms. Sinead Lucey, Free Legal Advice Centres. |
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-00054066-001 | 08/12/2022 |
Date of Adjudication Hearing: 21/09/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 25 of the Equal Status Act 2000 as amended, 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.
Ms. Sandra Adams (the “Complainant”) represented herself. The Complainant had one witness in attendance, C1, who gave evidence.
The National Women’s Council of Ireland (the “Respondent”) was represented by Ms. Sinead Lucey
of the Free Legal Advice Centres (“FLAC”). The Respondent had two witnesses in attendance, R1 and R2, who both gave evidence. One Respondent employee was also in attendance for some of the Hearing.
For the reasons outlined below, the Hearing was held in private and the witnesses are anonymised.
The Complainant provided evidence on affirmation and C1 provided evidence on oath. R1 and R2 both provided evidence on affirmation. The legal perils of committing perjury were explained to all. Cross-examination was allowed.
The following matters were addressed at the outset of and during the Hearing:
Private Hearing and Anonymity of Witnesses:
I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all Workplace Relations Commission (“WRC”) hearings are held in public. I explained that where “special circumstances” apply, a matter could be heard in private and decisions could be anonymised. I invited oral submissions from the Parties.
The Complainant requested that this matter be heard in private. She further submitted that while she was satisfied to be named, she requested that her witness be anonymised. The Respondent also requested that this matter be heard in private. The Respondent further submitted that it was satisfied to be named but requested that its witnesses also be anonymised. The Parties agreed that these requests were based on the hostility around the case and the potential targeting of witnesses.
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 ruled that the Hearing would be held in private, the Parties would be named and the witnesses would be anonymised.
Complaint Not Time-Barred:
I noted that the pre-Hearing correspondence indicated that the complaint was possibly time-barred. However, this appeared to have been borne out of an administrative error which was since clarified by the Complainant. Both Parties accepted that the complaint was not time-barred.
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 briefly and gave the Parties the opportunity to consider this potential jurisdictional issue.
Upon reconvening the Hearing, the Complainant outlined that her case is against the Respondent and not the hotel, as she was denied entry to the 9 June Event by the Respondent and not the hotel.
The Respondent submitted that there is some difficulty in aligning the Equal Status Act 2000 as amended with the Intoxicating Liquor Act 2003 as amended. The Respondent submitted that the licensee is not involved in this complaint. The Respondent submitted that it is not taking a position on the issue and would accept that the WRC has jurisdiction for the purposes of this complaint.
I accept 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.
Parameters of the Complaint:
At the outset of the Hearing, the Complainant confirmed that she was not proceeding with the victimisation complaint. The Complainant confirmed that her complaint, for adjudication, concerns an allegation of discrimination, on the ground of religion, regarding the provision of services.
Further Evidence:
During the Hearing, the Complainant sought to introduce further evidence in the form of a statement made on “Twitter”/ “X” dated September 2023 – some 15 months after the 9 June Event; and an email dated March 2022 – some three months before the 9 June Event. I did not allow the introduction of this further evidence as it was irrelevant.
Submissions:
The Complainant outlined her objection to the late submission of the Respondent’s submissions on 15 September 2023. She submitted that she wanted time to make further submissions by way of response. The Respondent submitted that its submissions were short and contained nothing new.
Twice, I offered the Complainant an adjournment to consider the Respondent’s submissions. However, the Complainant refused and submitted that she had sufficient time to consider the Respondent’s submissions and that she wanted to proceed.
The Complainant then made an application to make further submissions which she had not raised previously. These submissions concerned the Irish and English versions of the Equal Status Act 2000 as amended (the “ESA”) and more specifically, the meaning of the word “creideamh”. The Complainant submitted that the Irish word “creideamh” is broader than the English word “religion”. The Complainant confirmed that she did not want her complaint to be heard in Irish. The Respondent submitted that it would require time to address this new specific issue.
I referred the Parties to the “WRC Procedures in the Adjudication and Investigation of All Employment and Equality Complaints and Disputes” which provides under section 7 that all documentation be submitted to the WRC 15 days in advance of the Hearing. I heard submissions from the Parties on how best to proceed in the circumstances.
I subsequently ruled that the Parties could file chronological submissions on this specific issue, after the Hearing. The Parties agreed to the same. At the conclusion of the Hearing, I reserved my position on whether to hold a further hearing day to hear more on this specific issue. The Complainant filed additional submissions on 10 October 2023. The Respondent filed additional submissions by way of response on 3 and 6 November 2023. Having considered this further, I am satisfied that I can decide this matter on the basis of the information before me and that there will not be another hearing day.
Background:
The Complainant submits that she was discriminated against by the Respondent on the basis of 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 “9 June Event”), held at a hotel in Dublin. In her Complaint Form, the Complainant outlined that she was discriminated against due to her “lack of belief that people can change sex”. In her written submissions the Complainant submits that she was discriminated against for not adopting the Respondent’s beliefs. The Complainant submitted that she was discriminated against (i.) directly in her private capacity as an individual (ii.) directly by association as a member of “The Countess” organisation; and (iii.) indirectly by the incorrect application of the “legitimate aim” provision of ensuring safety at an event. The Complainant submitted her ES1 to the Respondent on 8 August 2022 and her Complaint Form to the WRC on 8 December 2022.
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 should be dismissed as she has not identified any religious belief underpinning her complaint; and as she accepts that there is a “gap” in the ESA insofar as it extends to religion but not “beliefs”. The Respondent further submits that the Complainant has not established a prima facie case of discrimination 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 who is transgender (the “Named 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 the 9 June Event to members of “The Countess” organisation, including the Complainant, was risk-based. |
Summary of Complainant’s Case:
The Complainant submits by way of background that she was a member of the Respondent from October 2020 until May 2021. However, she cancelled her membership due to the Respondent’s position regarding those holding “gender critical” views. The Complainant submits that she attended events where she made her “gender critical” views known. She also sent a (published) letter into “The Irish Times”. The Complainant submits that she was directly and indirectly discriminated against by the Respondent on the basis of religion in violation of the ESA, when she was refused entry to the Respondent’s 9 June Event, held at a hotel in Dublin. In her Complaint Form, the Complainant outlined that she was discriminated against due to her “lack of belief that people can change sex”. The Complainant further submits that although there is no definition of “religion” in EU or Irish law, the Respondent has adopted a set of beliefs which can be demonstrated as fitting the criteria to be deemed “religious” and that she was discriminated against for not adopting those beliefs. The Complainant submits that section 15 of the ESA does not apply. The Complainant submits that there is no evidence that she represented a “substantial risk” and that the Respondent cannot demonstrate that a reasonable person would believe that she posed a “substantial risk”. The Complainant relied on Michael Moorehouse v. Ayleswood Ltd, DEC-S2001-009 and Martin Mongan v. Mulleady's Limited, ADJ-00034333. The Complainant relies on the European Convention on Human Rights Act 2003 (the “ECHRA”) as well as the European Convention on Human Rights (the “ECHR”). The Complainant referred in particular to the protection of freedom of expression, freedom of belief and the prohibition against discrimination on the grounds of belief, political or other opinion, under Schedule 1 and Articles 9, 10 and 14 of the ECHR. The Complainant relies on, inter alia, Arrowsmith v. The United Kingdom. The Complainant also relies on the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights of the European Union, in particular Articles 10, 12 and 21. Finally, the Complainant relies on Article 40.6.1 of The Constitution. The Complainant also refers to Minister for Justice and Equality, Commissioner of An Garda Síochána v the WRC, Case C-378/17, which held that the WRC has the authority to dis-apply Irish law that conflicts with existing EU law. The Complainant submits that she is seeking to clear her name and receive a public apology from the Respondent. She is also seeking damages. The Complainant – Evidence: The Complainant submitted that she is a member of an organisation called “The Countess”. She submitted that it is an organisation limited by guarantee, with a CEO and two directors. She submitted that it has eight “pillars” of concern and that its purpose is to draw attention to the unintended consequences of the Gender Recognition Act. She submitted that it is a “non-violent advocacy group that advocates for the rights of women and children.” She submitted that the group has 20 to 30 active members and many followers and supporters. The Complainant submitted that she planned on attending the 9 June Event. She intended to ask two questions regarding proposed legislative wording and whether the Respondent continued to stand by a letter dated 2020 concerning those holding “gender critical beliefs”. The Complainant submitted that she did not intend to disrupt the event. She further submitted that she is of good character and has no criminal record. The Complainant submitted that she secured a ticket in her own name via the “Eventbrite” website, approximately two weeks before the June Event. She submitted that she met with C1 in another hotel about 30 minutes prior to the 9 June Event. The Complainant stated that she knew that there would be a protest but that she did not know how many would attend. The Complainant outlined that she later saw two women with homemade signs attempting to enter the hotel, but she did not recognise them. The Complainant submitted that when she arrived at the registration area for the 9 June Event, she was refused entry by R2 who informed her that she would make the event unsafe. The Complainant submitted that she was “taken aback”. The Complainant submitted that she was asked to stand by an emergency exit door, in a recess, which she did quietly. The Complainant submitted that C1 and two other women, one of whom had a baby, were refused entry. The Complainant did not recall if anyone else was refused admission. The Complainant submitted that the hotel manager was called. She submitted that he was professional and calm and explained that he had to respect the wishes of the venue hirer and asked the women to leave. The Complainant submitted that she went outside and held posters which said “You do not speak for us”. She submitted that this was the entirety of the event. The Complainant submitted that, legally, she has the right to hold a different belief, including “gender critical beliefs”. She further submitted that pursuant to the Minister for Justice and Equality, Commissioner of An Garda Síochána v. The WRC, Case C-378/17, the WRC has the authority to dis-apply Irish law that conflicts with existing EU law. The Complainant submitted that either the WRC should uphold EU law or it should not hear cases concerning EU law and that “there is no third way”. The Complainant submitted that the Respondent frequently uses the words “action” and “protest” and there is no implication of risk or violence. The Complainant submitted that the Respondent takes a different position when “The Countess” uses the same words. The Complainant – Cross-Examination: Under cross-examination, the Complainant confirmed that she is a member of “The Countess” organisation. The Complainant was referred to the Countess Press Release. The Complainant stated that she was not aware of the content of the Countess Press Release prior to the 9 June Event. She confirmed that she was aware that an action was taking place as she had to quickly get eight posters printed for it. She also confirmed that she was asked to contribute to the Countess Press Release on the night of 8 June 2022, but she did not do so as she was too tired. The Complainant stated that she did not know that the Countess Press Release had been widely disseminated on social media by a Senator and two journalists. The Complainant stated that when she was in the registration area for the 9 June Event, she was asked if she was attending as an individual or as part of an organisation. The Complainant responded that she was attending as both. The Complainant stated that R2 was not aggressive towards her. The Complainant submitted that R2 said that she was part of a group which made the 9 June Event unsafe. The Complainant accepted that the Respondent made its decision to refuse her entry on the basis of her confirmation that she was a member of “The Countess”, and that it had no further information about her. The Complainant submitted that the Respondent should have “enquired into [her] intention”. The Complainant accepted that she was going to the event as a “protester” and that she stood over the content of the Countess Press Release. The Complainant did not accept that the Named Board Member was targeted by the Countess Press Release. The Complainant stated that everyone is entitled to respect. The Complainant submitted that the Named Board Member “represents the collapsing of the gender category”. The Complainant stated that if she were singled out in a press release, she would only consider the language offensive if it were untrue. The Complainant accepted that it was reasonable for the Respondent to have concern for the Named Board Member, when it became aware of the Countess Press Release. The Complainant accepted that it was reasonable for the Respondent to put measures in place to protect the Named Board Member. The Complainant accepted that members of “The Countess” were refused entry on health and safety grounds. The Complainant accepted that the Respondent is entitled to take such health and safety measures. The Complainant confirmed that the CEO who had organised the “call to action” outlined in the Countess Press Release, was not in attendance. She said that “The Countess” members in attendance were responsible for themselves and for stewarding themselves. The Complainant accepted that on the basis of the Respondent’s risk assessment, she was permitted to attend the event. However, the Complainant did not accept that it was the Countess Press Release that changed this position. The Complainant did not accept that as the Respondent did not know what the unspecified call to action would involve, it was reasonable to refuse entry to members of “The Countess” and those with anti-transgender views. The Complainant confirmed that when she brought her complaint, she did not believe that it came within the ESA as the law Is “lacking”. C1 – Evidence: C1 outlined that prior to the 9 June Event, she met with the Complainant at a nearby hotel where they discussed the two questions that they would ask. C1 outlined that she obtained her ticket from another woman and when they entered the registration area, she saw the Complainant standing quietly to the side. C1 said that she was refused entry to the 9 June Event by R2 who said that “The Countess” had targeted the Named Board Member. C1 outlined that neither she nor the Complainant intended to disrupt the 9 June Event. She said that she had no part in drafting the Countess Press Release. C1 said that by “action”, she understood that people would stand outside the 9 June Event with posters and that it would be peaceful. C1 outlined that R2 was agitated. C1 said that R2 was speaking loudly and gesticulating. She said the whole episode in the registration area lasted 10 to 15 minutes. C1 said that she left earlier than the other women who had been refused entry as she was “fed up”. C1 stated that she was shocked and humiliated at being refused admission. C1 stated that previous events run by “The Countess” had not been described as violent and there were no questions about her conduct. C1 – Cross-Examination: C1 confirmed that she is in involved in “The Countess”. She outlined that she was at the launch in 2020 and that she was involved in drafting the “pillars”. C1 stated that she was unaware of the Countess Press Release being issued, however, she was aware that it was under discussion the night before the 9 June Event. C1 outlined that as far as she was aware, the “action” involved members holding up pre-printed posters. C1 accepted that her version of “action” may be different to that specified in the Countess Press Release. C1 stated that it was fair for the Named Board Member to be targeted in the Countess Press Release. C1 stated that she would be concerned if a member of “The Countess” was similarly targeted. C1 accepted that it was “fair” that the Respondent had concerns in light of the Countess Press Release. C1 also accepted that it was “fair” that the Respondent took steps to protect the Named Board Member and other people attending. C1 accepted that the Respondent had only a short time to deal with the Countess Press Release, prior to the start of the 9 June Event. C1 stated that the Respondent should have asked attendees more questions and sought a commitment that they would not disrupt the 9 June Event, rather than refusing them entry when they confirmed that their views aligned with “The Countess”. C1 stated that she saw others being asked to give an undertaking. C1 accepted that it was not reasonable for an organisation to call an “action” and not have anyone there to oversee or manage it. |
Summary of Respondent’s Case:
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 submits that on the morning of the 9 June Event, it became aware of the Countess Press Release which targeted the Named Board Member and outlined plans to “stage an action”. The Respondent submits that the Countess Press Release was disseminated to thousands of people on social media. The Respondent submits that as a consequence, the risk of disruption to the event and/or harm to other speakers, attendees and the Named Board Member, escalated considerably. The Respondent submits that the list of registered attendees was then re-examined and it was decided that members of “The Countess” and persons who aligned themselves with its views, would not be permitted entry to the 9 June Event. The Respondent submits that this was an appropriate action to mitigate against the elevated risk presented. 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 pursuant to the ESA. Moreover, the Respondent submits that the Complainant has not made out any coherent claim of religious belief discrimination. The Respondent submits that it does not mandate any religious or non-religious viewpoint. Additionally, the Respondent submits that the Complainant has not grounded her claim within the provisions of the ESA as enacted. The Respondent further submits that the Complainant must establish a prima facie case of discrimination before section 15(1) of the ESA can be invoked. The Respondent submits that it is not placing reliance on section 15 of the ESA as it does not need to do so. The Respondent submits that the ECHR and the ECHRA do not apply to this complaint. The Respondent further submits that the Complainant has not made a direct link between her reliance on the ESA and EU law. R1 – Evidence: R1 outlined that she has been employed by the Respondent for a number of years. R1 outlined that the Respondent was established in 1973 and that it is a well-established, well-known organisation, with no religious aspect to its work. R1 outlined that when the Respondent uses words such as “action”, it is asking people with authority to make change. R1 outlined that the 9 June Event consisted of two different events – the morning event, which was open to a wider group and organised via “Eventbrite”; and the AGM which took place after lunch and was open to members only. R1 outlined that in advance of the 9 June Event, she prepared a risk assessment in which risks and mitigation steps were identified. She outlined that the Respondent also prepared an event plan which outlined the roles of all staff – who covers access, registration etc.. R1 outlined that no one would be excluded from the 9 June Event on the basis of their viewpoints. R1 outlined that there were over 100 attendees and that it was a pressurised situation. She outlined that many attendees had questions concerning membership fees, voting etc. She said that it was not possible to engage individually with people. R1 outlined that she was informed by a colleague, of the Countess Press Release at approximately 8am on the morning of the 9 June Event. She outlined that the Management Team had a conversation about the Countess Press Release. They noted that it outlined a “call to action” and targeted the Named Board Member and that it had been widely disseminated. R1 outlined that it was “completely out of the blue”. R1 outlined that they had concerns about the safety of the Named Board Member and they were also conscious that a T.D. was attending. R1 outlined that they “considered the risk to be serious”. R1 outlined that she spoke to the hotel manager and assistant manager about the Countess Press Release. They re-organised the physical layout of the room. They moved the tea and coffee area into the conference room. They also moved the registration desks apart – keeping the registration desk for “individuals” outside the conference room doors. It was also agreed that the Named Board Member and the T.D. could access the 9 June Event via a separate entrance so that they did not have pass by the demonstrators. R1 outlined that it was agreed that the hotel manager would call the Gardaí if necessary. R1 outlined that R2 was identified as the best person to handle matters as she has conflict management experience. R1 outlined that she was located in the conference room, dealing with those holding group memberships. She outlined that it was very busy. She further outlined that at one point, an individual ran into the conference room and refused to leave. R1 outlined that she positioned herself between the individual and the Named Board Member. R1 outlined that she indicated that the 9 June Event could not start as once it became quiet, the individual could cause disruption. R1 outlined that the hotel assistant manager came down and escorted the individual out. R1 outlined that he told the individual that it was his hotel and that she had to leave. R1 outlined that on her return to the conference room, she saw another woman shouting at R2 “you were going to hit me, you were going to hit me”. R1 outlined that R2 was standing back, with her hands in her pockets. R2 outlined that the hotel assistant manager said “she has her hands in her pockets”, she is not going to hit you”. R1 outlined that she re-entered the conference room and that the rest of the event went smoothly. R1 – Cross-Examination: Under cross-examination, R1 confirmed that the Complainant had contacted the Respondent in May 2021, to cancel her subscription. R1 denied knowledge of the nature of the Complainant’s views and of her letter to “The Irish Times”. R1 stated that an “an anti-trans person” is someone who doesn’t believe in transgender people and does not believe that they have rights. R1 was referred to the Countess Press Release. R1 stated that the Respondent was concerned about the word “action” and the references to the Named Board Member. R1 stated that the Respondent was also concerned that the Countess Press Release had been widely disseminated. R1 confirmed that the Respondent did not try to contact the point of contact named on the Countess Press Release. She also confirmed that the Respondent did not contact the Gardaí, nor did it receive intelligence from the Gardaí. R1 stated that she knows what a “call to action” means for the Respondent. R1 stated that approximately five to ten people received the risk assessment. She said that the Management Team made the decision to exclude people from the 9 June Event on the basis of the unknown risk presented. R1 stated that the Complainant would have been permitted entry to the 9 June Event only for the Countess Press Release. R1 stated that there was no record of the decision or of any debrief after the 9 June Event. 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 has a de facto inclusive policy and that the formal adoption of a position regarding the inclusion of transgender people was decided upon at the Respondent’s 2018 AGM. R2 outlined that the Respondent decided to be more public-facing in its campaigning and to organise more public events. R2 outlined that the Respondent dealt with many contentious matters such as sex work and abortion. R2 outlined that there had been past AGMs were members were “vociferously against” certain motions. R2 outlined that the Respondent’s definition of someone being disruptive was non-exhaustive. She stated that “attempts to derail, distract, disrupt in ongoing ways [….] refusing to pass the mic on” would be considered disruptive. R2 outlined that they also had a vulnerable speaker at the 9 June Event who they were mindful of. R2 outlined that she was not familiar with the Complainant or her letters. R2 outlined that it was likely that she was told of the Complainant’s membership cancellation. R2 said that if it had not been for the Countess Press Release, the Complainant “would have been admitted, no question”. R2 outlined that she had overall responsibility for ensuring that the 9 June Event ran smoothly. She outlined that members of staff had different responsibilities – ranging from the registration of attendees, to minding the doors, to dealing with persons with posters. R2 outlined that if the Respondent calls for a protest, they always have persons to marshal the event. She gave an example of International Women’s Day, where SIPTU marshalled the event for the Respondent. R2 outlined that she became aware of the Countess Press Release at approximately 8am on the morning of the 9 June Event. She outlined that the Management Team had to review the Countess Press Release and discuss it. R2 stated that while it was two hours until the 9 June Event started, it was only 90 minutes until people began to arrive, so they had only 90 minutes to deal with it. R2 outlined that “The Countess” is a relatively new organisation with no defined structure, board management or track record for events. R2 stated that the Respondent did not know what “The Countess” meant by the word “action”. R2 outlined that the Respondent was “extremely concerned” about the identification of the Named Board Member in the Countess Press Release. R2 outlined that generally, persons are not identified in press releases, and that to so was “quite a threatening thing to do.” R2 outlined that it was “a very anxiety inducing experience”. R2 outlined that the point of contact named on the Countess Press Release was actually out of the country and in a different time zone at the time. R2 outlined that it was a “very pressurised environment”. R2 outlined that the real anxiety for the Management Team was not knowing what was intended by the “action”. She outlined that the Respondent felt that it had obligations to its members, visitors, speakers and Board. R2 outlined that the Respondent had to manage this undefined risk. R2 outlined that the Respondent revisited the risk assessment and decided to refuse entry to those who were members of “The Countess” or whose views aligned with “The Countess”. R2 outlined that she did not think that there was an alternative open to the Respondent. R2 outlined that she and R1 were tasked with managing the situation. R2 stated that her training deals with conflict management and de-escalation. She said that they moved more senior members of staff to the registration area. She outlined that group members were brought into the conference room and registered at the desk there. R2 stated that she was at the registration desk dealing with “individuals” where she asked attendees if they were a member of “The Countess” or aligned with “The Countess” or part of the protest taking place. R2 outlined that if they answered “yes”, she asked them to step aside and not to come in. R2 said that there were a few people who were known to them already and they were refused entry. R2 outlined that they made it clear that this was about the safety of the members and the Board and they restated this “over and over again”. R2 outlined that they tried to minimise the disruption, “keep the flow moving [and] keep people optimistic.” R2 outlined that some persons raised an objection about being refused entry. R2 stated that the Complainant seemed bemused and just stepped aside. R2 outlined that once the Complainant was refused entry, she moved five to ten metres away from the registration desk and was very calm. R2 stated that C1 seemed upset but she spoke in a small group and moved on. R2 denied that she was aggressive and agitated. She said that one woman was very loud and making a lot of accusations and that another member of staff may have asked the hotel manager to come. R2 outlined that the hotel manager offered tea and coffee to those who were refused entry. R2 outlined that the hotel manager was “rightly focusedon de-escalating the matter”. R2 outlined that protestors had entered the hotel with posters and had been hostile towards a senior member of staff, so she went to check on her. R2 outlined that she also checked on members of staff upstairs and in the registration area. R2 – Cross-Examination: R2 confirmed that the Respondent tracks media using software called “Zenark”. R2 stated that once the Complainant identified herself as being a member of “The Countess”, they were concerned that she was part of the “call to action”. R2 did not accept that the Respondent overreacted and stated that it could only act on the information that it had. R2 said that the Countess Press Release outlines that an “action” will take place and calls on people to join. R2 stated that the word “action” can have many meanings and that it can be violent. R2 stated that the Respondent does not ascribe a violent meaning to it. R2 stated that she did not ask if anyone was a member of “Women’s Space Ireland” as the press release had been issued by “The Countess”. R2 stated that the Complainant was refused admission due to her membership of “The Countess”. R2 stated that she did not call the Gardaí as the hotel had undertaken to call the Gardaí if the physical threat level escalated. R2 confirmed that it was a “collective decision” by the Management Team to refuse admission to members of “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). Section 15 of the ESA outlines certain activities which do not constitute discrimination. Such activities include the prevention of criminal or disorderly conduct or behaviour and are provided for under section 15(1) 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”. Section 15(1) does not require a complainant to establish a prima facie case of discrimination before it can be invoked and / or applied. 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: Approximately two weeks in advance of the 9 June Event, the Complainant, a member of “The Countess” organisation, obtained a ticket in her own name. R1 and R2 outlined that the Complainant would have been permitted entry to 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 – approximately 90 minutes 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 “threatening” and describing it as “a very anxiety inducing experience”. R1’s and R2’s evidence was clear that the safety of the Named Board Member, the other Board Members, the attendees and the speakers was paramount. R1’s and R2’s evidence showed that the widely-disseminated Countess Press Release had escalated the level of risk significantly, largely in view of the number of unknowns. The Respondent did not know what the plans to “stage an action” involved. 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.) Refuse entry to the 9 June Event to members of “The Countess” organisation and to those who aligned themselves with its views; and (v.) Escort the T.D. and the Named Board Member via a separate entrance into and out of the 9 June Event so that they did not have pass by the demonstrators. It was on the basis of no. (iv.) above that the Complainant was refused entry to the 9 June Event. It is noteworthy that under cross-examination: the Complainant accepted that it was reasonable for the Respondent to have concerns for the Named Board Member, when it became aware of The Countess Press Release and that it was reasonable for the Respondent to put measures in place to protect the Named Board Member. The Complainant also accepted that members of “The Countess” were refused entry on health and safety grounds and that the Respondent is entitled to take such health and safety measures. C1 accepted that it was “fair” that the Respondent had concerns in light of the Countess Press Release. C1 also accepted that it was “fair” that the Respondent took steps to protect the Named Board Member and other people attending. Finally, C1 accepted that it was not reasonable for an organisation to call an “action” and not have anyone there to oversee or manage it. 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 section 15(1) 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 who was a member of “The Countess”. As section 15(1) applies, it is not necessary for me to address the Parties’ submissions concerning the Irish and English versions of the ESA and more specifically, the meaning of the word “creideamh”. In conclusion, I find that the Complainant was refused entry “on grounds other than discriminatory grounds”. In the circumstances, I find that section 15(1) applies and there was no discrimination in any form as alleged. |
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 in any form as alleged. |
Dated: 1st February 2024.
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Equal Status Act, Discrimination, Section 15. |