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.
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.