THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Trailfinders Ireland Limited
(Represented by Fiona Gallagher BL, instructed by Hegarty & Associates, Solicitors)
File References: ES/2008/062 & ES/2008/063
Date of Issue: 15th March, 2011
Equal Status Acts 2000-2008 - Discrimination, section 3(1) - Marital Status ground, section 3(2)(b) - Disposal of goods and provision of services, section 5(1) - Vicarious liability, section 42 - Tour operator - Travel agency
1. Delegation under the Equal Status Act 2000 to 2008
1.1 These complaints were referred to the Director of the Equality Tribunal under the Equal Status Acts on the 29th May 2008. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaints 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 the 29th October 2009. The hearing of these cases took place on the 2nd December 2010 and final correspondence on the matter was received on the 18th January 2011.
2.1 This dispute concerns a complaint made by Ms. Frances Comerford, where she claims that she was discriminated against by the respondents on the marital status ground in terms of sections 3(1)(a) and 3(2)(b) and contrary to section (5)(1) of the Equal Status Acts in relation to the respondents' refusal to sell her a cabin on a voyage because of her marital status. She claims that she was legally separated at the time in question.
3. Summary of the Complainant's Case
3.1 The complainant claims that she had seen "a once in a lifetime holiday" in an Irish edition of a brochure provided by Hurtigruten, a tour operator which offered cruises to the Arctic and Antarctica. She claims that she sourced this brochure from Hurtigruten's Irish website. She claims that she visited the first named respondent, Trailfinders Ireland Limited, a travel agency, on the 7th April 2008 and met with Mr. A. She said that they discussed the various options available to her including the price based on one person travelling requiring a single occupancy cabin. She claims she left to consider the various options available to her and would contact him.
3.2 She claims that on Thursday the 10th April 2008 she contacted Mr. A and said that she decided on a particular cruise, the Polar Circle Quest (FM Fram) voyage to Antarctica, operated by Hurtigruten for a trip in January 2009. She claims that Mr. A gave her an estimate of the cost of the trip based on single occupancy and said he would check availability and would get back to her. She claims that later that evening Mr. A left a voice mail for her where she claims he said that there was one cabin available for a trip on the 21st January 2009 and asked her to confirm if she wanted him to book it for her.
3.3 She claims that on Friday the 11th April 2008 she rang Mr. A at his office to confirm that she wished to avail of the option discussed for the 21st January 2009. She claims that Mr. A was not available so she spoke with Ms. B who confirmed that Mr. A "was holding a place for her" on that trip. She claims that Ms. B took her credit card details for a deposit of €750, which was required to secure the booking. She claims that later that day she received a call from Mr. A where he outlined that Hurtigruten had decided that they would not sell her the cabin on the basis that it was for a single booking and that they told him that as it was the last cabin available on that trip, and they felt they would definitely get a double booking for the cabin. She claims that Mr. A told her that it was Hurtigruten's decision and if she was not satisfied that she should take the matter up directly with them.
3.4 The complainant claims that she rang Hurtigruten that Friday evening and spoke with a member of the customer service team who she claims told her that she could do nothing for her as "it was company policy"; Ms. Comerford was then transferred to one of its managers, Ms. C. The complainant claims that she told the manager that its decision to refuse to accept her booking was discriminatory under Irish Legislation and that she would be taking the matter further. She claims that Ms. C said that it had reached its limit for single occupancy cabins on that trip and that she could have a cabin if she paid the full fare for it on the basis of dual occupancy. The complainant claims that she feels that the respondent cancelled her holiday reservation because it was for single occupancy. She claims that the requirement to be accompanied on holiday would be more easily met by persons of a different marital status and therefore it discriminated against her on the marital status ground.
3.5 In reply to the second named respondent's submission that she had incorrectly named it as Hurtigruten and not Hurtigruten Limited and now cannot take a claim against it as it is out of time, the complainant said that she named the respondent on the complainant form sent to the Equality Tribunal on the basis of the information provided to her about the company. Firstly, its website is www.hurtigruten.ie; secondly, the name on its brochure just referred to the name Hurtigruten and finally, from her discussions with both respondents at the time.
3.6 The complainant, in response to the claim by the first named respondent, Trailfinders Ireland Limited, that it cannot be held responsible and is not the correct respondent, claims Trailfinders Ireland Limited acted as the travel agent for the tour operator and therefore was providing a service to the public on its behalf. Therefore they are jointly responsible. Accordingly, she claims that the refusal by the respondents to sell her the holiday amounted to discrimination on the marital status ground.
4. Summary of the first named Respondent's Case
4.1 The respondent, Trailfinders Ireland Limited, is a travel agent based in Ireland since 1997. It has about 26 travel agency centers throughout Ireland and the United Kingdom. It claims that it attempts to assist all its customers with their travel requirements and on receiving a request for a particular holiday it simply passes the request on to the tour operator for confirmation of availability before a booking is made. The respondent claims that it did not discriminate against the complainant in any way. It claims that it treats all its customers in the same manner irrespective of marital status or otherwise.
4.2 Mr. A was presented as a witness on the day of the oral hearing. Mr. A said he recalls Ms. Comerford visit to its office on the date in question. He also recalls that she already had information and a copy of the brochure of the various Hurtigruten cruises available. He confirmed that Ms. Comerford had picked out the trip in January 2009 and he agreed that he would contact Hurtigruten to check availability and get back to her. Mr. A agrees that he did contact Hurtigruten and confirmed that there was one cabin available on the trip. However, he claims that no booking was ever made in Ms. Comerford's name. The respondent claims that when Ms. Comerford rang to speak with Mr. A on Friday the 11th April 2008, he was not available and that she was told that he would get back to her. The respondent claims that credit card details were taken to pass on to Mr. A so he could make the booking but no option was held for her at that stage. Mr. A claims that when he made enquires to book the cabin on the basis of single occupancy paying the additional single supplement he was informed by Hurtigruten that that option was not available for the cabin in question on that particular trip. He claims that he then rang the complainant and informed her of Hurtigruten's position and invited her to consider other options. The respondent claims that her credit card was never debited, there was no confirmation of the booking and that it does not have a facility to "hold" bookings; it said that it is either a booking or its not a booking.
4.3 Mr. A claims that he was not aware of Ms. Comerford's marital status. He claims that this was never discussed in any of the dealings with him. Trailfinders Ireland Limited claims that a person's marital status is not a piece of information that it requires as it is irrelevant in relation to the service that it provides. It claims that it did not in any way discriminate against the complainant on any grounds not least the marital status ground.
4.4 The respondent claims that as a travel agent it cannot be held responsible in this case and Ms. Comerford made an error in naming it as a respondent. It claims that it did not make the decision to refuse the complainant the service. It claims that it receives the request from the customer and simply passes on the request to the tour operator and if it is told that there is availability it completes the booking. It claims that the decision to sell the holiday rests completely with the tour operator and not it. Accordingly, it claims that it has no case to answer.
5. Summary of the second named Respondent's Case
5.1 This respondent is a tour operator that offers cruise holidays through out the world including the designation sought by the complainant in this case. It claims that it has a limited number of cruises to Antarctica and it is obviously restricted by the capacity on its cruise ships on each particular trip. It claims that the particular trip in question attracts a lot of interest and is usually quite busy, as was the case for the trip in January 2009.
5.2 The respondent raised a number of preliminary issues at the hearing. Firstly, it claims that the complainant named the wrong respondent. It claims that Hurtigruten was named as the respondent in this case whereas the complainant was purporting to book a cruise with Hurtigruten Limited, an entirely different legal entity and as the 6 month time limit under Section 21(6) of the Acts to bring an action has now expired, the complainant is precluded from bringing proceedings against Hurtigruten Limited.
5.3 The respondent claims that the Equality Tribunal has no jurisdiction to deal with a complainant against Hurtigruten Limited as the company, incorporated in the United Kingdom, is a wholly owned subsidiary of Hurtigruten ASA, a Norwegian company, neither of which has either a subsidiary company or a trading office in this State. It goes on to claim that the Oireachtas cannot have intended that the Acts apply to persons/bodies not resident within the State. It states that it is clear that the only connection to this State is that its products/services are sold or supplied in the State by another individual or company. It makes reference to the special provision in Section 46 of the Acts, which makes particular applicability to aircraft and ships which are outside of the State and are operated by persons who has a principle place of business or ordinary place in the State. It claims that by implication in the event that when such ships or aircrafts are not registered in the State nor are they operated by persons who have a principle place of business in the State, so as is the case here, the Acts have no application.
5.4 The respondent denies that it discriminated against the complainant on the marital status ground. It claims that at no stage was it aware of the complainant's marital status; it claims that this was never discussed as part of its direct dealings with the complainant or with its dealings with Trailfinders Ireland Limited and therefore could not discriminate on the basis of something that it did not know. It claims that the fact that an individual may be travelling alone in no way indicates that person's marital status. It claims that all the cabins on the cruise ship are double cabins, designed to accommodate two people and the price of the cabin accommodation is based on two people sharing. The respondent claims that no booking was made and therefore the complainant is incorrect to state that she was "refused a service". She was told that there was no single occupancy cabins left for sale on that trip. However, she was given the opportunity to pay the full fare for the cabin and she did not take up that option.
5.5 This respondent claims that it does offer a certain amount of its cabins on each trip on the basis of a single occupancy with the customer paying an additional single supplement and for commercial reasons it places a limit of approximately 10% of the entire cabins on board to be sold on this basis. It claims that it is required to cover its own business costs and maximise its profits. The respondent did provide documentary evidence to support this claim where it showed that from the January 2009 trip of the 125 passenger cabins available for sale to customers, 16 cabins were sold as singles, 4 of which were sold at full price and 12 were sold with the single supplement charge.
5.6 The respondent claims that no additional conditions are placed on unaccompanied travellers on any of its cruises. It claims that it does not require travellers to be accompanied. It claims that prices for the cabins are based on two people sharing a twin cabin and in a certain category of cabin; unaccompanied travellers can have a full cabin to themselves on payment of a fee for one person plus an additional single supplementary fee. However, if that option is sold out, as was the case here, the unaccompanied traveller can have the cabin on payment of the entire price for the cabin. It claims that unaccompanied travellers are welcome to travel with it and that it provides such travellers with options which are listed on its brochure. It claims that charging the double occupancy rate does not put persons who are separated at any disadvantage as compared to married, single, divorced or widowed persons. The respondent claims that it allows a limited number of cabins to be sold as single occupancy on the payment of a single supplement fee. It claims that its policy is clear and in line with a perfectly legitimate commercial decision on the part of the company in the interest of maximising occupancy. Accordingly, it claims that it has no case to answer.
6. Conclusions of the Equality Officer
6.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. As the Equality Officer, I 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, 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 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.
Preliminary issue - Identifying the correct respondent - Vicarious Liability - Trailfinders Ireland Limited
6.2 The first question that I must address is whether the respondent Trailfinders Ireland Limited is correctly named as a respondent in this case. Trailfinders Ireland Limited claims that it is not the correct respondent as it is not the tour operator, and it submits that the tour operator is responsible for all decisions in relation to the particular voyage sought by the complainant. In making a determination in relation to the question raised here by Trailfinders Ireland Limited, I am obliged to consider the provisions of Section 42 of the Equal Status Acts 2000-2008. This section of the Acts deals with vicarious liability, where section 42(2) states,
"Anything done by a person as an agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person."
I am satisfied that it is now settled law that agents acting on behalf of third parties may themselves be named as respondents to answer cases such as is before me for consideration. In support of this I refer to a decision of this Tribunal in addressing a similar question in relation to the determination under section 42(2), here the Equality Officer found,
"5.3. The issue of whether Marsh Ireland Ltd. is the correct respondent to defend the allegation of discrimination needs to be decided. It was argued by the respondent that Cigna Europe Insurance Company - as the provider of the insurance - is the correct respondent. Marsh Ireland Ltd. submits that they only act as third party administrators to any claims made by insured persons for payment. That is, the respondent is not responsible for the selling of the insurance nor does it collect monies in relation to the premiums. They have no responsibility when it comes to the design of the insurance forms, terms and conditions, etc.
5.4. I had referred to section 42(2) in correspondence prior to the hearing and referred to it again at the hearing. Section 42(2) - which defines vicarious liability - states: [...] It is clear that the respondent were acting as an agent for Cigna International on 8 April 2005 when they wrote to Mr. Jordan informing him that, based on information they had received from the complainants doctor, he was eligible for inclusion in the insurance plan. It is clear that the respondent had the authority to make decisions concerning the policy holder and was willing to implement the conditions albeit subsequent to the policy having been sold to the complainant. While I accept that Cigna is the actual insurer and, as such, the complainant could have, subject to notification requirements set out in section 21(2), named them as co-respondents in this complaint, I am, having considered the relevant section of the legislation, satisfied that Marsh Ireland Ltd. is a correct respondent for the purposes of this complaint."
6.3 It is clear from the evidence presented that Trailfinders Ireland Limited is the travel agent and not the tour operator, nevertheless as travel agent it carried out the administration duties as an agent on behalf of the tour operator, including interacting with the customers, advising them of the various options available, the costs involved and the collection of payment for bookings. Having regard to the provisions of Section 42(2) and in light of relevant case law, I am satisfied that Trailfinders Ireland Limited were clearly acting as an agent on behalf of the tour operator and accordingly, it is correctly named as a respondent for the purposes of this complaint.
Preliminary issue - Identifying the correct respondent - Hurtigruten Limited
6.4 Hurtigruten Limited claims that the complainant has lodged the claim against an unknown legal entity, Hurtigruten, and therefore it has no case to answer on the ground of the complainant's failure to correctly identify the respondent within the time scale prescribed by the Acts. I note that the complainant identified the respondent from a combination of sources, namely, its brochure, its website, its travel agent in Ireland and by her direct contact with it both over the phone and in writing. I note that all these contacts refer to the respondent by the name Hurtigruten only. The complainant sent the notification of this complaint as per the requirement under Section 21(2) of the Acts to Hurtigruten at an address in London and she received a reply from Hurtigruten from that address dealing with her issues. I note that Ms. Comerford has taken this case by herself without legal representation.
6.5 The Equal Status Acts is a remedial social statute to be widely and liberally construed. In the long title the 2000 Equal Status Act is expressed to be remedial legislation and as such it is submitted that the Tribunal must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell  1 I.R. 327 ".. As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done." This approach has been adopted by further decisions through time. That said, I note the complainant has identified the tour operator from the information available to her. I note the requirement under Section 21(2) on the complainant to notify the respondent of the complaint, which she met. I note that the respondent's name was never corrected by Hurtigruten Limited on receipt of that notification and that this issue was only raised by Hurtigruten Limited a very short period - two days- before the hearing.
6.6 I am satisfied that the complainant has correctly identified the tour operator who provided the service to her, and in doing so gave notice of her complaint to it. In its submission the respondent has outlined that there is no legal entity called Hurtigruten whereas it has engaged with the complainant in all correspondence about this case, it assumed the position as respondent and defended that position as the de facto respondent. I am satisfied that no other party is prejudiced by the complainant referring to the respondent on the complaint form as Hurtigruten and not Hurtigruten Limited. I am satisfied that I must adopt in this case a purposive approach in relation to the complainant's identification of the respondent, as it is the fairest approach. Accordingly, I do not accept the respondent's position in this case and I am satisfied, in the circumstances of the present case, which the complainant has correctly identified the respondent and its proper title, now clarified, is Hurtigruten Limited.
6.7 The respondent, Hurtigurten Limited, has also submitted that this Tribunal does not have jurisdiction to investigate the present case on the basis that it does not have a subsidiary company or trading office in the State and that the services it offers are not provided to the public directly but through another individual or company. In considering this issue, I accept the complainant's evidence that she sourced the holiday brochure which advertised a service to the Irish public via an Irish website, all belonging to the respondent. On review of the provisions of Article 5 and 15 of Council Regulation (EC) No. 44/2001, I note that contracting parties to the EU Council Regulation entitle persons domicile in that contracting state to take actions against other parties in other contracting states, which allows for the recognition and enforcement of Judgements in civil and commercial matters. I am satisfied that Ms. Comerford was domiciled within the State when she engaged with the respondent and is therefore entitled to bring proceedings against the respondent, a company incorporated in the United Kingdom, which is also a contracting State, in relation to the present matter in the Courts of this State. Accordingly, I find that I do have jurisdiction to investigate the present complaint under the Equal Status Acts.
Direct Discrimination - Marital Status Ground
6.8 The question that I must now address is whether the complainant was treated less favourably in the service she received from the respondents because of her marital status. I note from the evidence adduced at the hearing that the complainant met with Mr. A and that they looked at the various holiday options available to her on the basis that she was looking to book a cabin on her own. I note that she was willing to pay the cost associated with that option on the basis of the price for single occupancy cabin included an additional single supplement payment. I note that this option is cheaper than the dual occupancy accommodation option which is based on two people sharing the accommodation. I note that the parties were in contact by phone a number of times after the initial meeting and I note from the evidence of the parties that at no stage did either respondent ask or were informed of the complainant's marital status.
6.9 The complainant claims that the respondents had been interacting with each other in relation to the booking of the holiday cruise on her behalf and it is clear to her that their refusal to allow her take up the holiday was based on the fact that it would be unable to sell the cabin accommodation to her as she was not going to pay the full price for the cabin based on dual occupancy. It is quite clear that there is no evidence to show that either of the respondents made a decision to refuse to grant the complainant the cabin accommodation directly on the basis of her marital status, when this information was not available to either of the parties concerned. It is clear that she was not facilitated to book the cabin accommodation she wanted because she was not willing to pay the full fare for the cabin on the basis of two people sharing rather than one person paying the single occupancy supplement. I am satisfied that there is no evidence to suggest that there was direct discrimination on the prohibited ground under the meaning of Acts. Accordingly, I am satisfied that the decision not to allow the complainant book the cabin accommodation on the trip in question was not linked in any way to the complainant's marital status.
Indirect Discrimination - Marital Status Ground
6.10 The complainant submitted that the respondent's policy of selling its cabin accommodation on the basis of dual capacity would be more easily met by someone who had a different marital status as compared to her, i.e. "a married couple". Therefore, I have to establish whether "an apparently neutral provision" which would put separated persons at a particular disadvantage as compared to persons of a different marital status exists. Section 3(1)(c) of the Equal Status Acts states:
"3.- (1) For the purpose of this Act, discrimination shall be taken to occur -
(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary"
6.11 In considering the provisions of Section 3(1)(c) of the Equal Status Acts, I am of the view that in order for a person to establish a case of indirect discrimination, it is necessary for that person to demonstrate that the apparently neutral provision, which is referred to in this section, puts a person at a particular disadvantage, in effect, compared to other persons. If the person succeeds in this regard, it is then a matter for the respondent to successfully rebut the allegation of indirect discrimination, by way to prove that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. Therefore, in the case before me for consideration, I am of the view that in order for the complainant to establish a case of indirect discrimination, she must demonstrate that it is in some way more advantageous for a person of a different marital status to book a holiday with the respondent, than it is for Ms. Comerford, a separated person, - the apparently neutral provision- and therefore this places her at a particular disadvantage compared to person of a different marital status.
6.12 In considering whether the complainant was subjected to indirect discrimination in the present case, I have noted that the complainant has made a broad claim of indirect discrimination based on the marital status ground. However, she has not presented any evidence in support of her claim. I note the evidence that the second named respondent provides various options to customers wishing to avail of its service, including options for accompanied and unaccompanied travellers. I note its evidence that it had sold its full capacity of cabins to travellers wishing to book single occupancy cabins and paying the single supplement payment on this particular trip. However, it was gladly willing to allow Ms. Comerford purchase the cabin accommodation on the basis of paying the dual occupancy price and therefore it cannot be said that she was refused permission to take up the holiday option to buy the last remaining cabin of that type on the trip in January 2009. This evidence in relation to this option is consistent from all the parties.
6.13 I have noted the second named respondent's submission that it would rely on the defences of section 3(1)(c) - objective justification - in relation to its policy should I find that the complainant establishes a prima facie case of discrimination. However, based on the evidence presented, I am satisfied that the complainant has failed to establish that the "apparently neutral provision" i.e. is it easier that a person of a different marital status to the complainant, to avail of the respondents' services. Accordingly, I find that the complainant has failed to establish a prima facie case of indirect discrimination in terms of Section 3(1)(c) of the Equal Status Acts, 2000 to 2008.
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of sections 3(1)(a), 3(1)(c) and 3(2)(b) of those Acts. Accordingly, I find in favour of the respondents in this case.
15th March, 2011