James O'Leary (represented by Mr. Pat Purcell, B.L. acting on instructionsfrom Liam Keane & Co., Solicitors) V The Licensee, The Fingal House, , Dublin (represented by Mr. Gordon Duffy, B.L., acting on instructions from Steen, O'Reilly & Co., Solicitors )
1. Dispute
1.1 This is a preliminary issue as to whether a claim by Mr. James O'Leary, complainant, is admissible on the basis that he was discriminated against and/or victimised by the licensee of Fingal House public house, on the Traveller ground, contrary to the provisions of the Equal Status Act, 2000.
2 Background
2.1 The complainant referred a complaint alleging discrimination on the Traveller ground to the Director of Equality Investigations on 21 February, 2002. The referral form indicated that the date of the first incident of alleged discrimination was November 2000, and that a second incident occurred on 16 October, 2001. The first incident had been the subject of a separate complaint to the Tribunal which was deemed to be out of time on the basis that the complainant had not complied with the notification procedures set out in Section 21 of the Equal Status Act, 2000. The second incident arose, according to the complainant, when he asked the licensee's son whether he was still barred on foot of the first incident and was told that he was still barred.
3 Summary of the Complainant's case
3.1 The complainant met with Michael Mulvaney, the son of the licensee of the respondent premises, on 15 October, 2001 in the street. He asked Mr. Mulvaney if he would serve him in his public house. Mr. Mulvaney said to leave it with him. When the complainant rang Mr. Mulvaney the following day he was told that the position remained that he, Mr. O'Leary, was still barred and he was given no reason for the refusal to serve him. This, according to the complainant, constitutes a new incident of discrimination by the respondent.
4 Summary of the respondent's case
4.1 The respondent submits that the approach by the complainant to Mr. Mulvaney was informal in nature and that the complainant simply asked Mr. Mulvaney whether he was still barred on foot of the earlier incident which was ruled out of time by the Tribunal. Mr. Mulvaney confirmed the position to the complainant i.e. that he was still barred on foot of the earlier events. There is no new incident of discrimination involved, no new issues arise and the complainant did not even attend at the respondent premises but is relying on a casual encounter with the respondent's son to ground this complaint.
5 Conclusions of the Equality Officer
5.1 In reaching my conclusions I have taken into account all of the written submissions made to me by the parties and the oral evidence provided by the parties at a Hearing on the preliminary issue of admissibility. Based on the evidence I am satisfied that the complainant, in a casual encounter with Mr. Mulvaney, asked whether the initial barring imposed on him still stood. This was confirmed by the complainant in his own evidence. No new arguments were put forward by the complainant, no new issues arose. The complainant, in a period of almost a year had made no attempt to approach the respondent and clarify matters or seek to have the barring overturned. The respondent had taken no action whatsoever in relation to the complainant.
5.2 The key issue in this matter is whether the barring by the respondent of the complainant was (i) a once off act, (ii) a chain of 2 or more similar acts, (iii) the continuing consequences of a single act, or (iv) a continuation by the respondent of a discriminatory policy which manifests itself on successive occasions. The complainant was clear in his evidence that the respondent had served him for a period of time extending over a number of years and had previously readmitted him after a barring, on foot of discussions between them. The barring in question wasunrelated to the complainant's Traveller status. Based on the complainant's own account of his dealings with the respondent there is no evidence to show that a policy of discrimination on the Traveller ground was ever applied to the complainant in the respondent premises.
Three options remain. In light of the complainant's own evidence that he questioned the continuation of an ongoing barring, I do not accept that this most recent incident was a once off act on the part of the respondent. Nor do I accept that the most recent incident constitutes a chain of two or more similar acts. A clear link was established by the complainant to the original barring. I am satisfied therefore that the inquiry from the complainant to the respondent's son was simply that. An inquiry into the ongoing consequences of an earlier, once off, matter which was deemed to be out of time as the statutory notification requirements were not fulfilled by the complainant.
5.3 The question of distinguishing between a new decision and a repetition of an earlier decision on the part of respondent's is one which frequently arises in discrimination cases and it is helpful in cases of this nature to consider the general principles which may apply. To that end the parties to the instant complaint were asked to consider a number of authorities1 in this matter and to make any submissions which they felt were appropriate.
The majority of authorities in this matter are decisions of the U.K courts and Tribunals and are not therefore binding in this matter. They do, however, serve as persuasive precedents in the absence of binding Irish authority in this matter. In examining this caselaw I am satisfied that the most relevant to the complaint at hand is that in Cast v Croyden College, CA, (1998 ICR 500). In this case it was held that a decision in response to the repetition of an earlier request might amount to a new act of discrimination, even if made on the same facts, where it resulted from a new consideration of the request. In the instant case the complainant did not approach the respondent direct, did not attend at the respondent's premises and made no attempt to put a fresh request to the respondent. He simply asked of the respondent's son, in the course of a casual encounter, whether the current position, i.e. the earlier barring, stood.
The complainant submitted no evidence to show that either he made a new request or that the respondent reconsidered this matter. Instead, he confirms that he casually approached the respondent's son, who did not have the authority to reconsider the matter and sought reaffirmation of an existing matter. While the son, Mr. Mulvaney, states that he mentioned his encounter with the complainant to his mother, he did so by way of repeating the inquiry from the complainant as to whether the barring still stood, to which she immediately replied in the affirmative. There is no evidence adduced to show that any fresh consideration was given to this matter by the actual respondent.
1 Aer Lingus Teo v Labour Court, ( HC and SC, 1990 ELR 113 and 125) Amies v Inner London Education Authority, (1977 ICR 308) Calder v James Finlay Corporation, 1989 (ICR 157) Barclay's Bank PLC v Kapur and others, (HoL, 1991 2 AC) Sougrin v Haringey Health Authority, (Court of Appeal, 1992 ICR 650) Rovenska v General Medical Council, (Court of Appeal, 1998 ICR 85) Cast v Croyden College, (Court of Appeal, 1998 ICR 500)
6 Decision
6.1 For the foregoing reasons and based on the relevant case law I conclude that the most recent alleged act of discrimination / victimisation was simply a reaffirmation by the respondent that the complainant was still barred and that this constitutes the ongoing consequences of a single, time barred, act which occurred in November, 2000. I find therefore that the most recent complain pertaining to matters occurring on 15-16 October, 2001 is inadmissible.
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Dolores Kavanagh
Equality Officer
29 April, 2003