The Equality Tribunal
3 Clonmel Street
Equal Status Acts, 2000-2008
(Represented by Fair & Murtagh, Solicitors)
Paddy Keane, Auctioneer and Valuer
File ref: ES/2005/0118
Date of Issue: 23rd December, 2008
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, section 3(2)(i) - Supply of goods and services, section 5(1) - providing accommodation, section 6(1)(c).
1. Delegation under the Equal Status Acts, 2000 to 2008
1.1 The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004 on the 12th May 2005. On the 23rd June 2008 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 Acts on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on the 10th December, 2008.
2. Summary of claim
2.1 This dispute concerns a complaint by Mr. Collum Ward that he was discriminated against by Paddy Keane, Auctioneer and Valuer by being refused access to information and service on numerous dates between the 14th and the 21st January 2005 because of his membership of the Traveller community contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Acts 2000 to 2004.
3. Complainant’s Case
3.1 The complainant claims that between the dates of the 14th January 2005 and the 21st January 2005 he made contact with the respondent by telephone and by email with regard to potential properties for rent in the Ballinasloe area, in particular in relation to a property in the Derrymullen area, which had been advertised by the respondent as being available for rent. The initial contact was by telephone where the complainant maintains that the respondent freely discussed property options that were without doubt available, however when the complainant gave his name and contact details this is where he felt there was a change in the attitude towards him. Mr. Ward received no follow up contact about the property he had expressed an interest in and subsequently attempted to make contact with the respondent on a number of occasions both by email and by telephone, but to no avail. The respondent did not reply to any of his emails and when the complainant finally managed to speak to the respondent by telephone on the 21st January 2005 the respondent said that he had no property available for rent in the Ballinasloe area.
3.2 The complainant claims that he became frustrated and somewhat suspicious as to why he was not getting any reply from the respondent. Accordingly, he approached a family friend, Mr. A, and asked him to contact the respondent and to request information about properties for rent in the Ballinasloe area. Mr. A, who was presented as a witness at the hearing, claims that he made contact with the respondent on two occasions via email and received a prompt reply by email from the respondent, on both occasions, with information about a variety of houses for rent in and around the Ballinasloe area and this included houses for rent in the Derrymullen area. Copies of these emails between Mr. A and the respondent were presented to me as evidence.
3.3 The complainant claims that after his telephone conversation with the respondent on the 21st January 2005 he felt that he was not getting the truth and asked his sister Ms. B, who has a different surname to the complainant, to telephone the respondent and ask if he had property to rent in the area. Ms. B was presented as a witness at the hearing and she states that she telephoned the respondent shortly after the complainant’s conversation with the respondent; she claims she spoke directly with Mr. Keane and he provided her with information about a variety of housing options available to rent in the Ballinasloe area at that time.
4. Respondent’s Case
4.1 Neither the respondent nor a legal representative on its behalf attended the oral hearing. The respondent did send a fax to the Tribunal on the eve of the hearing indicating that due to ill health that he, Mr. Paddy Keane, was unable to attend the oral hearing. The Tribunal Secretariat staff made contact with Mr. Keane at his office telephone number that evening and outlined the formal procedure for requesting an adjournment of the hearing. On the day of the hearing, five minutes before the scheduled start time, the respondent faxed a covering letter and a copy of a doctor’s note to the Tribunal’s office. However, having examined the documents furnished I am satisfied that that respondent did not request an adjournment of the hearing. I am also satisfied that the documents submitted do not constitute a request for an adjournment of the hearing to a later date nor does the doctor’s note certify that Mr. Keane was unfit to attend the scheduled hearing due to his ill health. Accordingly, the hearing proceeded.
5. Conclusions of the Equality Officer
5.1 In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2 The complainant claims that both he and his family are settled members of the Traveller community, and that the surname ‘Ward’ is commonly recognised as a Traveller name particularly in the Ballinasloe locality. I am therefore satisfied that the complainant is covered by a discriminatory ground under section 3(2) of the Equal Status Acts, namely the Traveller community ground. Mr. Ward claims to have been treated less favourably in the provision of a service, on account of his membership of the Traveller community.Therefore, the question that I must decide, in the present case, is whether the complainant was treated less favourably and denied access to information in relation to the rental of property by the respondent on the grounds of his membership of the Traveller community.
5.3 I am satisfied that the complainant presented his case at the oral hearing in a balanced and credible manner and I accept the version of events that he alleged took place on the dates in question. I have also taken cognisance of the evidence presented by the complainant’s witnesses at the hearing, both of whom claim they were immediately successful in obtaining information from the respondent in relation to properties that the complainant was refused, all in and around the same dates and times.
5.4 Therefore I am satisfied that on the balance of probabilities from the evidence presented that the complainant has established a prima facie case of discrimination on the basis that the respondent refused to provide him with a service based on his membership of the Traveller community. As the respondent was not present to offer a rebuttal of the inference of discrimination in relation to the claim, I find in favour of the complainant.
6.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Acts 2000 - 2008 and I also find that the respondent has not attempted to rebut the allegation of discrimination.
In considering the issue of redress I am mindful of the need to ensure that it is effective, proportionate and dissuasive. Therefore, in accordance with section 27(a) of the Equal Status Acts, I award the complainant the sum of €850 in compensation for the discrimination and embarrassment experienced, and for the loss of amenity suffered.
Further, in accordance with section 27(b) of the Acts, I order the respondent to immediately review all customer service practices and ensure that they are fully compliant with the obligations set out in the Equal Status Acts.
The Equality Tribunal
23rd December 2008