Categories
Consumer Rights

Discrimination Claim About AIB Campaign Featuring “Abusive Teller Machine” Misconceived But Not Vexatious

The complainant in this case brought a claim under the Equal Status Act, 2000 (amended by the Equality Act, 2004) claiming that a YouTube video campaign of AIB bank, featuring a video entitled “Abusive Teller Machine”, was grossly offensive to men. 

The claim was brought to the WRC (Workplace Relations Commission) which is the appropriate venue for all complaints about discriminaiton in the provision of goods and services.

Was there a service?

However, the first problem this man faced in winning any claim of discrimination was that he had not actually attempted to avail of a service offerd by AIB and therefore was not entitled to bring the claim. That is to say, he did not have “locus standi” to bring the case as he had not been refused any goods or services as part of the AIB marketing campaign.

The bank also claimed Mr. Walsh had no locus standi to bring a claim on behalf of a group (men) and relied on Gloria (Ireland’s Lesbian and Gay Choir) vs Cork International Choral Festival (DEC-S 2008-078) as authority for the proposition that an orginsation or public body could not bring a claim under the Equal Status legislation.

Moreover, the bank claimed that Mr. Walsh did not put forward a prima facie case and failed to discharge the burden of proof on him. This burden of proof required him to show facts from which a reasonable inference of discrimination could be shown. If he could not establish a prima facie case the bank had no obligation to defend it and no case to answer.

The Complainant was unable to put forward any such facts because he did not try to avail of any service of the bank.

The bank also argued that the complaint was misconceived because the WRC could not deal with it if it was made in bad faith or was frivolous or vexatious.The Bank argued that the meaning and scope of the word ‘misconceived’ has been set out by the High Court in Keane v The Minister of Justice (1994)3IR347 wherein this case it was found that a claim is misconceived if it is incorrectly based in law.

Decision

The adjudicator found that the posting of the video on YouTube was not itself an offering of a service but was part of a campaign about financial abuse. No discrimination could have been suffered, therefore, and the adjudicator so found.

Regarding the burden of proof on the complainant it was found that the complainant never sought the service from the bank and could not establish facts from which  prima facie case could be shown.

Regarding whether the claim was misconceived or frivolous the adjudicator found that the complainant felt strongly about the issues he had raised and was genuine in his belief that the campaign was offensive to men.

From a legal perspective “frivolous and vexatious” means the complaint had no chance of succeeding and the complaint was a hardship on the defendant to have to defend something that had no chance of success. 

The bank relied on jurisprudence Thomas Whelan vs The Football Association of Ireland (DEC-S2018-001) in identifying that the meaning and scope of the words frivolous and vexatious were succinctly articulated by a decision of the supreme court by Barrow in Farrelly vs Ireland and ORS (1998)ELR256 which stated that “so far as the legality of the matter is concerned frivolous and vexatious are legal terms. They are not pejorative in any sense or possibly in the sense that Mr Farrelly may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance in succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious”.

The Adjudicator found that the complaint was not found to be vexatious as Mr Walsh had sincerely held views about the matter of which he complained.

But the adjudicator did find that the complaint was misconceived as, according to Keane v The Minister of Justice (1994) 3IR347, it was incorrectly based in law and had no merit and could not succeed.
Read the full decision here.

Categories
Consumer Rights

Discrimination in the Provision of Goods and Services in Ireland-the Essentials

equal status discrimination

Not a lot of people know this..

Most people think the WRC (Workplace Relations Commission) only deals with employment and/or industrial relations issues.

That’s not the case, at all.

The Workplace Relations Commission also deals with complaints about discrimination in the provision of goods and services, accommodation, and access to education under the Equal Status Acts 2000-2015.

Discrimination in the context of employment has 9 grounds of discrimination. But under equality legislation there is now 10 grounds of discrimination, thanks to the Equality (Miscellaneous Provisions) Act 2015, which created a 10th ground in respect of housing assistance.

The main thrust of the Equal Status acts is to prevent discrimination in relation to the provision of all services, including entertainment, banking, transport, travel, insurance, and more.

The 10 grounds of discrimination covered by the Equal Status acts are

  • Gender
  • Civil status
  • Race/colour/nationality
  • Family status
  • Sexual orientation
  • Age
  • Membership of the travelling community
  • Disability
  • Housing assistance in relation to the provision of residential accommodation
  • religion.

How to Make a Complaint to the WRC

The first thing you must do is to complete and send a form-ES1-which is a notification in writing to the person/company who you are complaining about. This form must specify the act of alleged discrimination and must be received by the other party within 2 months’ of the incident.

The other party does not have to respond, but if he chooses to do so may use form ES2.

If the other party ignores you and does not respond within 1 month, or you are not happy with the reply, you can then refer the complaint to the WRC for adjudication. This referral must be made within 6 months of the alleged discrimination.

In due course an adjudication hearing will be heard and both parties can put their side of the story forward and the adjudicator will make a decision.

Equal Status Acts in Ireland

The relevant legislation is:

  • The Equal Status Act, 2000
  • The Equality Act, 2004
  • The Equal Status (Amendment) Act, 2012
  • The Equality (Miscellaneous Provisions) Act, 2015.

The Law Reform Commission has published a consolidated version of the Equal Status Acts which you can access here.