ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009176
A female golfer
A golf club
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 05/02/2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
In accordance with Section 25 of the Equal Status Act, 2000, 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
Summary of Complainant’s Case:
The complainant and her husband had booked into an hotel for 3 nights from the 23rd of May 2017. They arrived on the Tuesday evening of the 23rd of May. They hoped to play golf in a nearby club open day on the 24th and 25th of May. They did not necessarily want to play side by side, maybe just around the same time. The complainant checked the Golfnet website. This is a website run by the golfing unions to which golf clubs upload and advertise their open days. There are a lot of reasonably priced open days in nearby clubs. To her dismay only one of these reasonably priced ones, would allow her to play. On the other hand, her husband could play in all the open days bar the one in which she was allowed to play.
On looking at the Respondent golf-club website she saw that there was a facility to book into an open day on the 25th of May. This open day was not advertised on golfnet. Even though it stated that the open day was “men-only”, she thought that she would be allowed to play, even if not in the competition.
At 22.00hrs on the Tuesday 23rd of May she booked and paid online for a tee-time at 13.10 for the 25th of May in the respondent golf club for herself and her husband. The cost of the green fee was €20 each.
She was shocked to receive a phone-call at approximately 5.15 on Wednesday evening the 24th of May. She was told that she couldn’t play because she was female. She concluded that the man had looked at the timesheet and considered that she was female. She was informed that her husband could play. She was told that she could play at another time for €30. She accepts that the men only completion was from 8.30am – 13.20pm and again from 2pm to 2.50pm. The course was open to all others male and female after that. The green fee for those not in the competition was €30.00 for all, men and women. However, she felt discriminated against because she was excluded from the course during the competition and had to pay €30.00 to play at a different time.
During a phone call on Thursday morning the 25th of May, she was told that she could not play with her husband or mark his card. The Pro also mentioned something about ladies having a separate day. She was very upset, as she considered this blatant discrimination because of her gender. She did not wish to pay the extra fee. She was informed that she would get her money back. Her money arrived back into her account on Friday the 26th of May. The complainant and her husband were very upset during their stay at the Hotel. Even though there were lots of open days They could not find any suitable open day that would allow her to play. It was all about looking for a place that would allow her, a woman, to play. She notified the Golf Club. She was not at all happy with the reply.
Summary of Respondent’s Case:
The respondent agrees generally with the factual background as outlined by the complainant.
The Complainant states that she and her husband had booked into an hotel for three nights on May 23, 2017 with a view to playing golf at local golf clubs on the 24th and 25th. Having looked up the Respondent Golf Club website and having known that the particular competition to which the Complainant had signed up to had been advertised as “men-only”, booked into a tee-time for 13.10 on May 25 with her husband. On the evening of May 24, the Complainant received a phone call, to inform her that she would be unable to take part in the men-only open competition as she was female. The Complainant was informed that she could play alongside her husband at a different time but that she would have to pay the standard green fee rate which would have to be paid by men and women alike not competing in the open competition.
The Complainant has sought redress pursuant to section 21 of the Equal Status Acts, 2000-2015 (hereinafter referred to as “the Acts”) as she believes that prohibited conduct has been directed against her.
S5(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”
However, subsection (2) of section 5 provides twelve (12) different exceptions in which section 5(1) will not apply and where the discrimination complained of will be deemed lawful. Subsection (2)(f) states that, “(f) differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,”
This subsection renders it lawful to provide or organise a sporting event on the gender ground in circumstances where the differences are reasonably necessary having regard to the nature of the event. This statutory exception is not particular to Ireland but exists in numerous jurisdictions across the globe and a common theme is apparent from a reading of these acts. In the UK Equality Act 2010 for example, allowance is made for separate sporting competitions to be organised for men and women where physical strength, stamina or physique are major factors in determining success or failure, and in which one sex is generally at a disadvantage in comparison with the other. In Australia under the Sex Discrimination Act 1984, it is lawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant (section 42).
The basis for this complaint centres around a specific event for a specific time that was open to male competitors only, was pre-organised and the course was laid out and the competition administered for male competitors only. The club did not exclude women from playing the course later on in the day nor does it prohibit women from playing the course. The club provides and caters for women-only open competitions as well as mixed competitions throughout its sporting calendar and while the mixed event is open to both sexes, on occasions where a female-only competition is taking place, men are refused entry. The same principles would apply in respect of another protected ground under the Acts - age. If, for example a junior competition was taking place, senior members would be prohibited from playing in the event simply because the Acts provide for lawful discrimination on this basis and such acts would not and should not be considered prohibited conduct.
The ability for a golf club to provide and support gender-specific open competitions remains an important feature for the fair running of the sport. In recognition of this, the law has provided for justifiable discrimination by way of the exception alluded to above and as such the complaint of the Complainant cannot be seen to be prohibited conduct in contravention of the Equal Status Acts, 2000-2015.
The club has been only breaking even for the last five years save for one year where they lost money. Without the income from the open days they would be in deficit. The setting of the time table is demand lead. The scheduling of the competitions, tee times are based on their financial statistics. At the moment, the club can’t afford to trial different scenario. They are sailing that close to the financial wind.
Findings and Conclusions:
The complainant states that a prohibited conduct has been directed against her based by the respondent on grounds of her gender.
The complainant in this case wanted to play golf with her husband, on a particular day, at a particular time, in a particular club. On that day, at that particular time, the course was designated for a male only open competition. Females were excluded from this competition and from being on the course during this male only competition. The entrance fee for the competition was €20. There were times available for the complainant to play on her own, or with her husband on that day. The green fee for everyone not playing in the competition was €30, regardless of gender. The complainant feels that she has been discriminated against by the golf club by not allowing her to play with her husband during the male only competition and by charging her €10 more to play at the time designated to both genders. It is important to note that the complainant was not a member of this club but simply a visitor who wanted to play in an open day. On that basis section 8 to 10 of the Act do not apply and neither do club membership based precedent. The applicable section of the act is Section 5.
5.—(1) Equal Status Act, 2000 states:
“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
(2) Subsection (1) does not apply in respect of:
(f) differences in the treatment of persons on the gender, age or disability ground or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or sporting event to the extent that the differences are reasonably necessary having regard to the nature of the facility or event and are relevant to the purpose of the facility or event,
I agree with the Respondent when it states that Section 5 (2) ( f) renders it lawful to provide or organise a sporting event on gender grounds in circumstances where the differences are reasonably necessary having regard to the nature of the event. The respondent gave evidence that during it's open weeks it holds male only competitions, female only competitions and mixed competitions. For gender-specific competitions the course is laid out in a particular way, having regard to the gender of the competitor in that particular competition. The respondent contends that it is perfectly entitled to run its open weeks in this way and are in no way breaching the Act by doing so. The respondent has been under enormous financial pressure since the recession in 2008. It has carried out a financial analysis of the what combination of open week competitions bring in the most revenue. Last year, open days brought in a total revenue of €29,500. Of that, the men seniors brought in €12,500 euro. The Ladies senior brought in €3,500. The balance of income came from mixed competitions. The respondent has tried to come up with a combination that will fill up as many slots as possible. They have found that certain times suit certain demographics better. They have used the information gathered from their analysis to make the club as financial sound as they can.
The complainant states that the respondent’s interpretation of section 5 (2) (f) is way too liberal. She states that there are no reasons why male and female competitions cannot be run simultaneously given the very nature of the game of golf, the handicap system and the tee box system.
I find that the complainant was not discriminated against on grounds of gender in not allowing her to play in the male only competition. It was open to her to play at a different time on the day in question, with or without her husband. The green fee for the non-competition slots was the same for males and females. The club is entitled to hold gender specific competitions and has justified its reasons for doing so. I find that the complainant was inconvenienced when she was not allowed to play at the time she wanted to play at. It goes no further than that.
The complaint fails.
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.
The complaint fails.
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly