Theresa Cleary V Pinevale Trading Ltd. Trading as The Lantern Inn, Ballybane, Galway (represented by F.M. Fitzgerald & Co., solicitors)
1. Dispute
1.1 This dispute concerns claims by Ms. Theresa Cleary that she was discriminated against by a member of staff of The Lantern Inn, Ballybane, contrary to the Equal Status Act, 2000, on the grounds that she is a member of the Traveller community in that on 9 September, 2001, she was refused service in the premises. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2 Summary of Complainant's Case.
2.1 The complainant states that she went to The Lantern Inn on 9 September, 2001. She was refused service and was given no reason for the refusal. It is the complainant's belief that she was refused service because of her Traveller status.
3. Summary of Respondent's Case
3.1 The respondent no longer operates the premises in question and was not on the premises on the day in question. He had gone to Dublin to see a match. He cannot account for the refusal as those members of staff who were present on the day have now gone. The respondent accepts fully the complainants account and apologises unreservedly to the complainant for any embarrassment caused to her.
4. Evidence of the Parties
4.1. Complainant's Evidence
Ms. Theresa Cleary, Complainant
Ms. Cleary stated that:-
- She had gone to the Lantern Inn on the evening of 8 September, 2001 for a drink. She returned to that premises the following evening, 9 September.
- She sat with a companion while her brother went to the bar to order drinks. She and her companion were approached by the doorman and asked to leave "on managers orders". Ms Cleary went to the bar and asked the barman why they were not being served and were being asked to leave. The barman stated that it was "on the bosses orders" that they were being asked to leave.
- Ms. Cleary asked to speak to the boss and were told by the barman that the boss had gone to Dublin to see a match.
- Two of Ms. Cleary's neighbours who are not Travellers were at the bar when she was speaking to the barman and she found this extremely embarrassing.
- Ms. Cleary noted at the time that three young persons, non-Travellers, who had been involved in a row the evening before were seated nearby and were served without difficulty.
- Ms. Cleary lived in the area for some eleven and a half years and had not been to the Lantern Inn prior to 8 September. She and her companions had chosen to go there on 9 September because it was her birthday and it was too late to go into town for a drink.
- Ms. Cleary normally drinks in another premises (named) which is equidistant with the Lantern Inn from her home.
- Ms. Cleary is aware that members of the large local Traveller community drink in the Lantern Inn and she saw one Traveller couple drinking in the premises on 9 September, 2001.
4.2 Respondent's Evidence
Oral evidence given by the respondent at the Hearing
Mr. Tony Hanley, respondent
Mr. Hanley stated that:-
- He was not present in the pub on 9 September, 2001 as he is the person who had gone to Dublin to see a match. He could state with absolute certainty that he had never given any instructions to staff not to serve Ms. Cleary who is unknown to him.
- Mr. Hanley is a director of the respondent company, i.e. Pinevale Trading Ltd. which was trading as the Lantern Inn at the time of the alleged incident. The pub has never had a policy of refusing or restricting service to any person or group of people unless they were behaving in an unacceptable way.
- Mr. Hanley has never refused anybody service without giving them a reason for doing so and in fact has usually given them a written reason for refusing service if requested to do so. Nobody was ever barred from the premises without good reason.
- Only major incidents were recorded in the bar at the time in question and a refusal of service would not constitute such a major incident. The incident was not therefore recorded.
- Mr. Hanley named a number of Traveller families who drank in the Lantern Inn at the time in question. He wished to state that he could offer no explanation to the complainant for the refusal of service to her and was sincerely sorry for any embarrassment caused to her as a result of it. He fully accepted the complainant's account of what had happened but simply could not explain it and is not in a position to contact staff etc. who have since left the premises. Summary on behalf of respondent by Mr. Norman Fitzgerald, legal representative
- The refusal of service to the complainant is a most unfortunate occurrence but the respondent should not be held vicariously liable for the actions of a member of staff who was not authorised to discriminate.
- The respondent does not have a policy of discrimination and this was borne out by the evidence of the complainant herself about members of the Traveller community who drank in the respondent premises.
5 Matters for consideration
5.1 The matter referred for investigation turns upon whether or not the complainant was directly discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated". 5.3 Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not."
5.4 Section 5 (1) states that "a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ". In this particular case the complainant claims that she was discriminated against because she is a member of the Traveller community.
5.6 At the outset, I would usually first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination. In the instant case, however, as the respondent fully accepts the complainants account of events and states that he simply cannot account for the refusal of service but is unreservedly apologetic for the embarrassment caused to the complainant I find that it is unnecessary to establish a prima facie case when an actual case is accepted by the respondent.
6.5 Conclusions of the Equality Officer
The respondent stated that he was not I a position to respondent to the complaint because of the time lapse since the refusal of service. The company was no longer the licensee of the Lantern Inn and all of the staff members had left long before the Hearing of the complaint. The Equal Status Act 2000 requires complainants to issue a formal written notification to respondents setting out the details of their complaint. This notification must issue to a respondent within two months from the date of the alleged discrimination. The notification requirement affords respondents an early opportunity to establish the facts in relation to any alleged incident of discrimination. In the instant case the complainant issued such notification to the respondent eight days after the alleged incident of discrimination, at which time the respondents had ample opportunity to query the matter with the staff who were on duty when the refusal of service occurred. It does not appear that any attempt was made to do so. In the absence of any other plausible reason for the refusal of service to the complainant I find that the respondent has not rebutted the presumption of discrimination against the complainant.
7 Decision
7.1 I find that the complainant was discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
8 Vicarious Liability
8.1 While the action which constituted discrimination is directly attributable to the barman who refused service to the complainant section 42(1) of the Equal Status Act, 2000 provides that: "Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval" The respondent's representative states that the respondent cannot be held vicariously liable for the actions of a member of staff who was not authorised to discriminate. Section 42(3) of the Equal Status Act 2000 states that "In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent that employee -- (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description." The respondent provided no evidence whatsoever to show that any steps had been taken by him to prevent employees from treating customers less favourable on any of the grounds under the Equal Status Act 2000. As the barman was clearly acting within the scope of his employment in the course of the refusal I find that the barman's employer, Pinevale Trading Limited trading as The Lantern Inn, Ballybane, Galway, is vicariously liable for his actions in accordance with section 42(1) of the Equal Status Act.
9 Redress
9.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that: "the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
9.2 I hereby order that €500 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration (i) the fact that a great deal of needless anxiety was caused to the complainant for a long period of time by the respondent's failure to respond to her requests for an explanation for the refusal of service (ii) that what should have been an enjoyable evening out for the complainant was entirely ruined by the refusal of service and the embarrassment caused to her, and (iii) the loss of amenity to the complainant on the evening in question. The sincere apology proffered by the respondent to the complainant has mitigated the amount of the award considerably.
__________________________
Dolores Kavanagh
Equality Officer
10 September, 2003