Complaint under the Equal Status Act 2000
DEC - S2007 - 007
Mr. Declan Kelly
Dunhill Rural Enterprises Ltd.
(Represented by Purcell, Cullen, Kennedy Solicitors)
Mr. Kelly referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainant's case
When starting his own business Mr. Kelly leased a unit in Dunhill Rural Enterprise Park (DREP) owned by the respondent. In December 2005 a number of derogatory racial comments about the complainant were allegedly made and reported to the complainant and these were attributed to the Chairman of the respondent company. On the basis of this the complainant alleges that the company's treatment of him and his business in general, while unfavourable, was based on his race. Mr. Kelly was unwilling to bring witnesses to attest to the comments. Mr. Kelly said that the company would not allow his wife, who is not Irish, to continue in business in the park and he indicated that she did not have a lease or other agreement. He also said that there were disagreements in respect of back rent owed. In January 2006 he was asked to leave and in April 2006 he was served with a Notice to Quit. Amounts of back rent remain in dispute including January 2005 and a number of other months. When Mr. Kelly's unit was fitted with an upper floor in late 2005, Mr. Kelly argued that his rent should then be halved. His own floor space remained the same, although this was somewhat restricted during the works. Although Mr. Kelly is Irish he maintains has an English accent and he alleges these comments were made because the respondent imputed English nationality or ethnic origin on him.
Summary of the Respondent's Case
The respondent is a not-for-profit company whose members are volunteers. Only the manager of the park is an employee. In January 2005 rent arrears were agreed with the complainant and provision was made to allow one month free. The respondent states that this brought things up to date till December 2004 while the complainant says the relevant month was January 2005. Not all rent was paid in respect of February to October 2005. The company officers who had agreed the settlement figure with the complainant in January 2005 subsequently realized that an amount for that period, of which they were not aware when they agreed the figure, remained outstanding. Officers of the respondent company vehemently denied making any derogatory racial statements.
The company submitted a record of rent showing each month becoming due and when payments were made. Their current account statements showing payments were also submitted.
One member of the company met with Mr. Kelly's wife to discuss her business proposal. Before any other action was taken or any agreement was in place she began her operations in the canteen at the DREP. Her proposal was subsequently considered and the company declined to offer her a lease and asked her to cease operations.
Conclusions of the Equality Officer
Mr. Kelly's claim of discrimination is on the race ground. He alleges that an officer of the respondent company made derogatory racial statements about him to another unnamed person. The person who told Mr. Kelly of these statements is also unnamed. The number of people in this information chain is unclear.
In order to establish a prima facie case of discrimination a complainant must show that there was less favourable treatment based on one of the grounds listed in the Act. Mr. Kelly produced no evidence to support his allegation that derogatory racial statements were made about him. No other evidence was presented that would support an allegation on the race ground. In respect of the treatment received by Mr. Kelly it is unlikely to be considered less favourable. He was given at least one month rent free in order to help his business. From the records presented to me he was permitted to operate while in arrears from October 2003 onwards. Following the hearing of the case Mr. Kelly submitted details of his accounts as he had recorded them and he submitted quotes he had allegedly given to companies following the closure of his business to show loss of earnings. However, since Mr. Kelly prepared these documents himself they offer little evidential value when compared to the third party bank records. In addition, he submitted arguments that his lease had been misinterpreted by the respondent. Where it stated under the heading "Rent payable and manner of payment: €550 plus VAT @21% for twelve months to 30th April 2004, ....., payable monthly in advance..." this should have been interpreted to mean €550 for the year rather than per month. However, based on the evidence presented, I am satisfied that any such matters arising in this case are not discriminatory and therefore are not a matter for me. Mr. Kelly also further discussed the treatment of his wife even though his wife is not a complainant before me. Having considered the evidence I am satisfied that she was not less favourably treated on grounds of race and that her treatment can have no impact on the complaint made by her husband.
Having considered all of the evidence presented, written and oral, I am not satisfied that there was any less favourable treatment of the complainant, or that any such treatment was based on an imputed English background. I am satisfied that any clients in the DREP in similar circumstances including similar arrears would be treated in a similar manner by the respondent. Mr. Kelly has therefore failed to establish a prima facie case of discrimination on the race ground.
Mr. Kelly has failed to establish a prima facie case of discrimination on the race ground. This decision is therefore in favour of the respondent.
5th February 2007