Equal Status Acts 2000-2011
File Reference: ES/2011/020
Date of Issue: 30th May 2012
Equal Status Act, 2000 - 2011, Direct discrimination, Section 3(1) - less favourable treatment, Gender - 3(2)(a), Race - 3(2)(h), Section 6(1)(c) - provision of accommodation, Section 38A - burden of proof, no prima facie case.
Delegation under Equal Status Acts, 2000-2011
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2011 on the 8th of February 2011. On the 12th December 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 to 2011 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 this date my investigation commenced. A submission was received from the complainant on the 8th of February 2011 and the 31st May 2011 and from the respondent on the 17th February 2012. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 11th of May 2012.
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the gender and race ground by the respondent in relation to the provision of night accommodation for homeless people. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status and contrary to Section 6(1)(c) of that Act.
2 Complainant's Case
2.1 The complainant, a German national, referred a complaint to the Equality Tribunal claiming that the respondent discriminated against him when they failed to provide him with night shelter on the 3rd of January 2011. The respondent operates a hostel for homeless people in Chester House which is located in Phibsborough and the complainant had used it on a nightly basis from 18th of November 2010. He said that on the 3rd of January 2011 he was in the library in the ILAC centre up until 7:30 and then he walked up to Phibsborough arriving at the hostel shortly after 8pm. There were about ten people in the queue mostly Russian nationals but also a number of Polish nationals and one or two females. He said that he joined the queue and there were no Irish in the queue at this time. The hatch opened at about 8:45 and the staff started taking names for accommodation. The complainant said that some Irish people jumped the queue when they arrived and they got ahead of him on the list. The staff then called out the names of the people who had got a bed for the night and the complainant's name was not called out. He said that Irish people and women were let in ahead of him. A staff member then informed him and about five other people that the hostel was full but that she would try and get them on to the Nightbus service run by Dublin City Council. The complainant said that he asked her why people who arrived after him got ahead of him on the queue and she did not answer. He said that he then asked her three to four times if she was racist. He said that he was then told that he was barred from the hostel without any explanation. He said that she then closed the door and went inside the hostel. The complainant said that he then left and had to sleep on the street for the night. The complainant submitted that he was discriminated against on the gender ground in that all the females got a place in the hostel and on the race ground in that Irish nationals who arrived after him and had jumped the queue also got a place and he was forced to sleep on the street for the night.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against either on the race or the gender ground. Crosscare provides a number of homeless services in the Dublin area. Dublin City Council asked them in October 2010 to set up a cold weather hostel for the winter months at Chester House in Phibsborough. The respondent agreed as the facility in Chester House was far superior to those used for previous cold weather initiatives and they were in a position to provide a good quality service to those most in need in Dublin during the winter. The originally opened catering for 20 people but due to high demand Crosscare increased the number of beds to 40. There were a number of reasons for the high demand, the fact that no fee is charged, the high quality of the accommodation and the very cold weather in the winter of 2010/2011. The facility has accommodation for 32 single men, 4 single women and two couples. As the facility is a cold weather initiative people are only accommodated for one night and they have to re-present themselves each night and the beds are allocated on a first come first served basis. Due to the demand for services and the transitory nature of those who present for accommodation, the house is divided into two sections. One section contains accommodation for 32 males and in order to provide a safe environment for vulnerable women four beds are allocated close to staff supervision for women and two double rooms for couples. As people presented the beds are filled in accordance with their gender and status. If there were vacant beds either in the female or couple area these beds are not filled by males due to the need to protect vulnerable female clients. If the beds assigned for couples are not filled they can be assigned to females if the demand is there. Females are given priority in the queue because of the small number presenting and the number of beds.
3.2 It was submitted that the complainant was well known to the service and he had stayed in Chester house on a total of 43 out of the previous 45 nights prior to the night of the 3rd of January when he presented and did not get accommodation. The complainant did not make any complaint that he was subjected to threatening or anti social behaviour at the hands of other residents. He was very familiar with the admission policy and practice for Chester House and he was not subjected to any form of discrimination on the basis of his gender or nationality. On the 3rd January the records of the hostel show that a total of 39 clients stayed at the hostel and 22 were not Irish born. The complainant arrived too late and the beds were allocated. There were 7 clients outside who could not be accommodated and two members of staff came outside to speak to them. They were informed that the hostel was full and accommodation would be found for him for the night at an alternative hostel possibly Amiens Street and the Dublin City Nightbus would bring him and the other people they were not able to accommodate to that accommodation. The complainant became verbally abusive and started shouting at the staff. He was asked to stop shouting because they could not hear what the other clients were saying. His behaviour continued and he was warned that if his behaviour continued he would be put on the exclusion list. He continued to shout and the staff closed the door of the hostel to avoid further confrontation. A few minutes later the staff opened the door again and the complainant had left. As is the usual practice they took the names of the people outside and called the D.C.C. nightbus service to arrange collection and then they brought the people inside to have some refreshments and to wait for the bus.
3.3 It was submitted that the complainant was never put on the exclusion list and that he could have continued to use the hostel. There is a process which has to be followed in relation to excluding people from the hostel and any decision to exclude can be appealed. During the winter of 2010/2011 a total of nine people were excluded having been gone through this process and 5 of them appealed.
3.4 The respondent submitted that they are a human rights based organization which has at its very core the principles of equality, integrity, fairness and care for those most in need. It has a charter of rights and responsibilities for each service it provides and this charter also applies to Chester House and if a person has a complaint or believe they have been treated unfairly they can process it through the complaints process.
4 Conclusion of Equality Officer
4.1 Discriminatory Treatment
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(a) and (h) of the Equal Status Act and in terms of Section 6(1)(c)of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the gender and race grounds).... A person is treated less favourably than another person is, has been or would be treated.
S. (2)(a) provides: "As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
(a) that one is male and the other is female (the ''gender ground''),
S. 3(2)(h) provides that: as between any two persons, the discriminatory grounds ... are ... that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")," and
Section 6. -- (1) provides: "A person shall not discriminate in -- .......
(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities."
4.2 The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. The matter for consideration is whether the failure of the respondent to provide accommodation to the complaint on the 3rd January 2011 amounts to discriminatory treatment on the gender and race grounds contrary to the ES Acts.
4.3 In relation to the gender ground, the complainant submits that the women in the queue were given preference over the men. The respondent submits that females make up a small proportion of homeless people and the 4 beds provided are ring fenced for women and 2 beds for couples which also can be used by women. These women are very vulnerable and some of them may be pregnant so as soon as they arrive at the hostel they are let in to the reserved rooms and in general they are not required to queue. Men have to queue because usually the demand for beds is greater than the number available. Given the nature of the services that the respondent provides, I am satisfied that the respondent is entitled to reserve beds in a part of the hostel separated from the male area for the exclusive use of homeless women and couples and it is not discrimination on the gender ground to do so.
I note that S.6(2)(e) provides that it is not discriminatory treatment where "the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender."
I am also satisfied that it cannot be construe as discriminatory treatment on the gender ground to admit homeless women on their arrival at the hostel given their vulnerable circumstances and the fact that there is also a bed available for them immediately. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the gender ground.
4.4 In order for the complainant to establish that he was discriminated against on the race ground he has to submit some evidence that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances. The complainant submitted that Irish homeless people are usually drunk and misbehave and jump the queue and that the respondent did not ensure that these people queued in the order of arrival at the hostel. He submitted that the hostel preferred to admit Irish people over other nationalities and when he asked the staff about their policy he was exclude from the hostel without good reason. The respondent stated that they open the hostel at 9pm and they admit people in the order they take the names. There are 2 staff on duty one taking names the other assigning beds and they cannot go outside supervising the queue. They have security inside and a CCTV camera outside and if they notice any problem on the CCTV they go out and ask people to queue properly.
4.5 It is clear that the respondent provides a very commendable service to homeless people some of whom are difficult and have various health and addiction problems, but the policy of the hostel is to provide night accommodation to homeless people in so far as possible and the people they cannot accommodate are provided with a service to access other hostels. It is not possible given the nature of the service provided for the respondent to ensure that the queue waiting to avail of the services forms in an orderly fashion and that people give their names in order of arrival at the hostel. I am satisfied that the respondent has no policy of admitting Irish nationals before other nationalities. I note that on the night in question the hostel had 22 beds allocated to nationalities other than Irish. Likewise I note that the complainant had stayed in the hostel 43 out of the previous 45 nights prior to the date of the incident and he did not appear have any difficulty because of his nationality. I am satisfied therefore the respondent did not discriminate against the complainant because of his nationality. He was not admitted on the night in question because the hostel was full. He became abusive to the respondent staff when he learned he could not get a place and he left before the staff could accommodate him in another hostel. I am also satisfied he was not excluded from the hostel because of his nationality or for any other reason as he suggested and he could have returned any other night to seek a bed. I am satisfied therefore that he has presented no evidence to establish less favourable treatment on the race ground. I find therefore that the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.
5.1 I find that the complainant was not discriminated against on the gender or race grounds in terms of S. 6(1)(c) and contrary to the Equal Status Acts.
30th May 2012