Mr. Thomas Lawrence & Mr. Tom Lawrence V. Hogan's Bar (Ballina) (Represented by Michael G. Bohan & Co., Solicitors)
Delegation under Equal Status Act, 2000
he complainants respectively referred their claims to the Director of Equality Investigations on 5 October, 2001 and 9 October, 2001 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 Marian Duffy, 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, 2000.
1. Dispute
1.1 The complainants, Mr. Thomas Lawrence and Mr. Tom Lawrence (father and son) alleges that they were discriminated against by the respondent on the Traveller community ground when they were refused service in Hogan's Bar on 4th July, 2001. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2. Summary of Case
2.1 The complainants lodged their complaints with this Office and any correspondence received in connection with the matter was passed between the parties. A hearing of the cases was arranged for 30th July, 2004. Mr. Michael Lawrence, a brother of Mr. Thomas Lawrence, telephoned the secretariat of this Office on 26th July and confirmed the attendance of the complainants at the hearing on 30th July. On 27th July Mr. Thomas Lawrence telephoned to say that he would attend another case arranged for 29th July, but he could not attend this hearing on 30th July. He did not apply for an adjournment, nor did he give any reason for his inability to attend. I wrote to Mr. Murphy and explained as he had
not provided a reason for his inability to attend and as he had not applied promptly for an adjournment the hearing was taking place as scheduled on Friday 30th July. I sat to hear the cases as arranged on 30th July, 2004, the respondent and his legal representative attended, however the complainants failed to attend.
2.2 Subsequent to the hearing I sought a written explanation from the complainants for their non-attendance. Mr Thomas Lawrence replied on behalf of all the complainants and stated that due to a family illness they had to go to England the afternoon before the hearing. They forgot to inform the Tribunal about their absence. Mr. Murphy also stated that he had informed the Tribunal by telephone that he would not be attending this hearing on 30th July.
3. Conclusions of the Equality Officer
3.1 I am satisfied from Mr. Thomas Lawrence's correspondence and the sequence of telephone calls made to the Office that all the complainants had notification that the hearing was taking place on 30th July, 2004. I am not satisfied however that the complainants have provided me with an adequate explanation for their failure to attend the hearing. Mr. Tom Lawrence made no attempt to notify this Office of his intention not to attend. Mr. Thomas Lawrence simply notified the Tribunal that he could not attend and made no valid application for an adjournment of the hearing prior to the Tribunal sitting.
3.2 The complainants only provided an explanation a week after the scheduled hearing date and only then following a letter from the Equality Officer. Also the complainants did not produce any evidence of the family illness claimed. According to Mr. Thomas Lawrence's letter he would not be attending the hearing on the 30th July in any event. He stated in his letter he had cancelled the hearing but he still did not provide a reason.
3.3 I am concerned that the respondent turned up with his solicitor and incurred legal costs and expenses. I am also conscious that there is a cost to the public, in that the Tribunal's time has been wasted and unnecessary costs have been incurred, resulting from the complainant's non-appearance.
3.4 Section 37A of the Equal Status Act, 2000 as amended by the Equality Act, 2004 empowers the Director to award expenses. Section 37A provides that: "the Director may, if of the opinion that a person is obstructing or impeding an investigation, order that the person pay to another person a specified amount in respect of travelling or other expenses incurred by that other person in connection with the investigation." Since the circumstances which gave rise to considering section 37A took place entirely after the Equality Act, 2004 came into effect, I am satisfied that the section is applicable here. I find that in the circumstances of this case that the complainants by their actions impeded my investigation and an award of expenses to the respondent would be warranted. However, I have decided given that this is a new power under the Equality Act 2004, which only came into effect on the 19th July, 2004, just 11 days before this matter came to hearing, that it would be inappropriate to impose such an award on this occasion, given that the complainants were unlikely to be aware of this power to award expenses against them when they failed to turn up for the hearing.
4 Decision
4.1 In the circumstances I find that the complainants, having failed to appear at the hearing, did not establish a prima facie case of discriminatory treatment on the Traveller community ground. I find therefore that the respondent did not discriminate against the complainants contrary to Section 3(1)(a), and 3(2)(i) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
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Marian Duffy
Equality Officer
18 August, 2004