McDonagh v. Navan Hire Ltd. DEC-S2004-017. 

The Complainant argued before the Equality Tribunal that he was refused permission to hire equipment from Navan Hire Ltd, on the grounds that he is a member of the Traveller Community. This was in relation to his permanent address being a halting site. The Equality Officer found in favour of the Complainant and stated that the respondent had failed to rebut the claim of direct and indirect discrimination made against him.

Facts:  

Martin McDonagh, the Claimant, submitted that he was discriminated against by Navan Hire Ltd on the ground that he is a member of the Traveller Community, in respect of their refusal to hire out a sander to Mr. McDonagh on the 1st of August 2001. 

On that day, the complainant spoke to the shop assistant, Mr. Chris Baxter and explained his needs. Mr. Baxter recommended a sander to the complainant, but the sander would not fit in the complainant’s car so he returned later with a jeep. Upon returning, Mr. Baxter showed the complainant how to use the sander and it was working at that stage. Mr. Baxter asked the complainant for his name and phone number and the complainant complied, and gave his address as being at a halting site. The complainant said Mr. Baxter was called by a woman in a back office, who asked him to take a telephone call. Mr Baxter then returned, took the sander behind the counter and informed the complainant that it was no longer working, and a mechanic would need to inspect it. A mechanic arrived, inspected the sander and said that a part was required to fix it, which he would need to order in. Mr Baxter informed the complainant that the other sanders were unavailable as they were reserved. He was not told when the sander would be fixed and was not told when to return. 

The complainant believes that it was after giving his address that it became clear that the sander would not be hired out to him.  

Issues:  

The complainant made a claim to the Director of Inequality Investigations on the 4th of October 2001 under the Equal Status Act 2000. The Director of Equality, under powers provided by Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000 then delegated the case to Marian Duffy, an Equality Officer for investigation, hearing and decision under Part III of the Equal Status Act 2000. 

Brendan Donegan, the respondent and proprietor of Navan Hire Ltd, denied that the complainant was discriminated against on grounds of being a member of the Traveller Community. He stated that the prerequisite criteria for hiring out equipment were as follows; A registered number of a vehicle, a permanent address and a landline phone number are all needed. They would only hire to people living locally, and if not, then a check would be carried out on the individual before hiring. Mr. Donegan states that they would not hire to anyone living in a halting site as they do not consider this a permanent address. 

He states that the sander was discovered to be broken following a routine inspection by the mechanic, and that there is video evidence available to show that the complainant’s version of events is false. 

At a resumed hearing, Mr. Donegan provided security footage. Mr Baxter was not available to give evidence as he had left the employment of the respondent. 

The video evidence showed that Mr. McDonagh arrived at the shop at 10.30am and spoke to Mr Baxter. He then left and returned at 12.39pm. Mr Baxter showed Mr. McDonagh the sander in question, how to use the machine and attach the sanding disks. The machine was brought behind the counter and Mr. Baxter disappeared off camera. There is no indication that Mr. Baxter was filling out any form. The video switches to the door and shows Mr. McDonagh leaving the premises 7 minutes later. There are two other sanders visible on the shop floor and a diary provided by Mr. Donegan shows that one sander was hired out at 11am and another for 1.20pm. 

Reasoning of the Court: 

The Equality Officer states that the matter turns on whether the complainant was discriminated against contrary to Section 3(1)(a), 3(1)(c) and 3(2)(i) of the Equal Status Act 2000. A person making a claim of discrimination under the 2000 Act must demonstrate that a prima facie case of discrimination exists. The Equality Officer describes this as "Evidence which in the absence of any convincing contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred." 

Once this is established then the burden of proof shifts to the respondent to rebut the presumption of discrimination under the test outlined in Mitchell v. Southern Health Board  

The Equality Officer identified three key issues. (i) is the complainant covered by the discriminatory ground? (in this case is he a member of the Traveller community?) (ii) was the complainant refused a service by the respondent on 1st August 2001? (iii) is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances? 

Traveller identity is defined in the Equal Status Act 2000 as "the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, (The Rotunda Hospital v. Noreen Gleeson DEE003/2000, Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011) culture and traditions including, historically, a nomadic way of life on the island of Ireland". The Officer was satisfied here that the complainant was a member of the Traveller Community as defined above. 

Both the complainant and respondent accept that service was refused, but the reason for said refusal is disputed. This establishes the second element of the test. 

In terms of the 3rd element, the Officer did not believe that the video evidence supports Mr. McDonagh’s version of events. They did however acknowledge that the camera angle changes, and Mr Baxter may well have commenced filling out the form off camera.  

Mr Baxter did not attend the hearing and evidence provide by the respondent must be considered as hearsay in relation to the interaction between the complainant and Mr. Baxter. There is no evidence to show that the other bookings in the diary were made prior to Mr McDonagh arriving at the shop that day. 

The complainant left the shop 12.45. at that time one of the sanders visible in the video was pre-booked. The Officer is satisfied that there was a sander available that could have been hired out to the complainant. 

The Officer states that the only evidence available regarding the availability of a sander for hire was the evidence provided by the complainant. They conclude that there was a sander available and was not hired out to the complainant and that if the complainant was not a member of the Traveller Community, then they would not have been refused. 

The Officer found that Mr. McDonagh was treated less favourably than a non-Traveller customer would have been. As he had successfully established a prima facie case of direct discrimination which the respondent, Navan Hire Ltd., failed to rebut. 

The Officer also looked at indirect discrimination under Section 3(1)(c) of the 2000 Act. This was in relation to the company policy of not hiring to customers who do not have a permanent address. The Officer was satisfied that this falls within the above Section, with the policy being one that substantially fewer Travellers than non-Travellers would be able to satisfy. This establishes a prima facie case of indirect discrimination under Section 3(1)(c). The Officer cited the test to be applied in considering cases of indirect discrimination set out in the case of Nathan v Bailey Gibson & Others, that being that:

"In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff's sex." 

The respondent then had to show that the condition was justified as being “reasonable in the all the circumstances of the case”, as required by Section 3(1)(c)(iv) of the 2000 Act. The condition in this case, according to the Officer, cannot be justified as reasonable in the circumstances of the case. The complainant had bought a house and was willing to provide that address as security for the hire of the sander, as well as the other information requested by the respondent. 

Findings: 

The Officer finds that the respondent did unlawfully discriminate against Mr. McDonagh on the Traveller community ground contrary to Section 3(1)(a), 3(1)(c) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act. 

Section 27(1) of the 2000 Act allows for redress where a finding favours the complainant. The Officer took into account the effects the discrimination had on Mr. McDonagh and ordered Navan Hire Ltd to pay the complainant the sum of €1,500 to compensate him for the distress and inconvenience caused by the discriminatory treatment.  

The respondent was also ordered to revise his hiring conditions within 3 months of the decision under Section 27(1)(b).