Case Number: DEC-S2016-012. Workplace Relations Commission

• Judgment Date: 01 February 2016
• Year: 2016
• Docket Number: DEC-S2016-012
• Court: Workplace Relations Commission
• Parties: Thomas Flanagan -V- Falls Hotel

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-012

PARTIES

Thomas Flanagan

(represented by Neil Mc Nelis & Co.)

AND

Falls Hotel

(represented by Carmody & Company Solicitors)

File reference: ES/2014/0086

Date: 15th February 2016

1. The Claim

1.1 This claim concerns a claim by Thomas Flanagan (hereinafter the “Complainant”) that he was discriminated against by being subjected to regular occurrences of a female member of staff, hereinafter Ms. A, entering the gents changing room of the Falls Hotel (hereinafter the “Respondent”) which resulted in his discrimination, harassment and victimisation between October 2012 and January 2014 contrary to the Equal Status Acts 2000 and 2012 (hereinafter the “Acts”)

1.2 The Complainant referred his claim to the Director of the Equality Tribunal on 13th May 2014 under the Acts.

1.3 In accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Caroline McEnery, an Adjudicator, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.

1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 30th October 2015 and the 15th December 2015.

1.5 The Complainant and the Respondent attended the hearing along with their representatives.

1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.

2. Complainant’s Submission

2.1 The Complainant stated that he was a member of the Leisure Centre of the hotel and it became a regular occurrence that a female member of staff Ms. A would enter the gents changing room, while it was occupied to clean it or to use it as a thoroughfare between different parts of the building. The Complainant has alleged that at times several men were present in the changing rooms but he was alone with Ms. A on occasion. The Complainant stated that his put him in a precarious situation as he was afraid he could have been accused of obscene acts. In addition the Complainant stated that he was extremely uncomfortable and embarrassed by the intrusions by the Ms. A and there was a palpable sense of discomfort in the changing room due to being partially or completely naked at the time of her presence. The Complainant stated he directly asked the Ms. A, who was the supervisor, to cease her actions but that she chose to ignore his requests. The Complainant states that after raising the matter again with the member of staff in question after his initial requests were ignored, the Respondent terminated his membership. He stated his membership was terminated without investigation into his complaints nor was he given the opportunity to put his version of events forward for consideration prior to his membership been terminated. He stated that this situation continued for a protracted length of time and other members were equally uncomfortable with the situation.

2.2 The Complainant stated that he believes no woman has been, or would be subjected to the same treatment. The Complainant stated that he believes the Respondent finds it acceptable to subject men to such treatment but would not subject women in the same way.

2.3 The Complainant stated that by the repetitive nature of the intrusions, invasions of men’s privacy and the flagrant disregard of the staff for requests to remedy the situation that he was subjected to unfavourable treatment that female members were not subjected to or would be expected to endure.

3. Respondent’s Submission

3.1 The Respondent states that the complaint is made in bad faith, is frivolous, vexatious and misconceived and/or relates to a trivial matter and was brought to embarrass the Respondents. The Respondents stated that on the 29th November 2013 the Complainant approached Ms. A and verbally attacked her to the point that spit was discharged into her face due to his proximity. Ms. A relayed this incident to her employer and the Complainants membership to the leisure facility was terminated. The Respondent states that the Complainant made his complaint to the business owners on foot of the membership cancellation.

3.2 The Respondent states that there are no grounds to substantiate a claim for discrimination within the meaning of Section 3 of the Equal Status Act 2000 and 2004. The Respondent states that Ms. A is an employee of the Hotel and her duties include cleaning the men’s changing room when she is rostered. The Respondent states that the employee is one of 12 of which 2 are male. The Respondent states that it cannot be contended that the role of a cleaner when she is the only staff member rostered can fall within the definition of harassment as set out in Section 11(5) of the Equal Status Act, 2000 and 2004. The Respondent refers to the Complainants awareness of a procedure whereby female staff knock on the changing room door prior to entering to warn all patrons. In addition, the Respondent also states that the complaint is frivolous and vexatious in that the vast majority of cleaning staff are female and that in order to comply with the Complainant’s wishes more male staff would have to be employed, to the exclusion of female staff and calls for the complaint to be dismissed. There was no written procedure in place but they contend that this was the process that was followed.

3.4 The Respondent states that there are no grounds to substantiate a complaint of victimisation within the meaning of the Equal Status Act 2000 and 2004.

4. Findings And Conclusions

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 38(A) of the Equal Status Act, 2000 and 2004 sets out the burden of proof which applies in a claim of discrimination.

38A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. The Complainant has presented evidence through his written and oral submissions which constitute a prima facie case and it is the opinion of this Equality Officer that the Complainant has established the burden of proof in regards to his complaint.

4.1 Discrimination

In line with Section 3 (1) and (2) of...