Stephen & Philomena McCarthy V Galeport Limited t/a Mr. D's Bar, Cork
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a public house - Prima Facie case.
1. Dispute
1.1 This dispute concerns claims by Stephen and Philomena McCarthy that on 9 September, 2001, they were denied service in the respondent premises on the grounds that they are members of the Traveller community. The respondent has failed to respond to any correspondence in this matter. The complainants each 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 Complainants' Case
2.1 The complainants state that they were refused service by a member of the respondent's staff on 9 September, 2001 because they are members of the Traveller community. They found the refusal of service to be deeply embarrassing and humiliating.
3. Summary of Respondent's Case
3.1 The respondent has failed to respond to all correspondence in this matter. The complainants have established to my satisfaction that the respondent was correctly served with the required statutory notification in this matter, and I am further satisfied that all documentation was correctly served on the respondent at its registered address. The respondent was therefore on notice of the proceedings in this matter.
4 Prima Facie Case
4.1. At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 complainants was less favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
4.2 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.
5 Prima Facie Case - Complainants
5.1 The complainants are Travellers. This fulfils (a) at 4.1 above. The complainants state that they were refused service on 9 September, 2001 by a member of the respondent's staff (named). This fulfils (b) at 4.1 above. In relation to key element (c) above the complainants state that they were well dressed on the night in question, were polite to the staff member in question and were simply told that the barman, who deferred to a lady behind the bar, that he was only doing as he was told and would not serve them as he did not know them. The complainants state that four other persons, non-Travellers were in the premises at the time in question.
5.2 Furthermore the respondent has failed to respond to any correspondence in this matter, either from the complainants or from the Tribunal. In accordance with Section 26 of the Equal Status Act 2000 I deem it appropriate to draw inferences from this failure to respond to any correspondence and I am satisfied that it is appropriate to draw an inference of discrimination on the part of the respondent.
5.3 The complainants have, therefore established a prima facie case of discrimination on the Traveller community ground. As the respondent failed to attend at the Hearing of this complaint no rebuttal of the inference of discrimination is forthcoming.
6 Decision
I find that the respondent discriminated against the complainants on the Traveller community ground 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.
7 Vicarious Liability
While the refusal which constituted discrimination is directly attributable to the barman in Mr. D's Bar on the night in question, 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"
As the barman was clearly acting within the scope of his employment in the course of the refusal of service I find that his employer at the time, the licensee of Mr. D's Bar, acting as a nominee for Galeport Limited, is vicariously liable for the barman's actions in accordance with section 42(1) of the Equal Status Act.
8 Redress
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." I hereby order that the respondent pay to each of the complainants the sum of €1000 for the effects of the discrimination.
______________________________
Dolores Kavanagh
Equality Officer
22 July, 2004