Grace Sharkey (Represented by Dunleavy & Barry, Solicitors) V Danny Minnie's Restaurant, Donegal (Represented by Michael Gillespie, Solicitor)
Equal Status Acts 2000-2004
Decision DEC-S2005-200
1. Dispute
This dispute concerns a complaint by Grace Sharkey that she was discriminated against on the race ground, contrary to the Equal Status Act 2000, by Ms Teri O'Donnell, the manageress of Danny Minnie's Restaurant, in her restaurant in Annagry, Co Donegal on 8 August 2002. Ms Sharkey, who has a Scottish accent, claims that following a verbal altercation in relation to the time at which she would be served, the respondent snatched the menu from her hand and called her a "Glasgow bitch".
The respondent denied that she used the term "Glasgow bitch" but accepts that she did mimic Ms Sharkey's Scottish accent after she announced that she was leaving.
2. Delegation under the Equal Status Act, 2000
This complaint was referred 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 has delegated the complaint to myself, Brian O'Byrne, 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.
Conclusions of the Equality Officer
Preliminary Issue
At the Hearing of this case on 4 November 2005, the respondent's representative claimed that the 3 year delay in bringing the complaint to Hearing was prejudicial to his client and referred to the European Convention on Human Rights Act 2003 incorporating Article 6 of the European Convention for the Protection of Human Rights (ECHR) which provides that:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
I note that Section 3 of the European Convention on Human Rights Act, 2003 requires organs of the State to perform their functions in a manner compatible with the State's obligations under the Convention. Section 3 also provides a remedy in damages through the Courts for a contravention of the Convention.
As an Equality Officer, I have to carry out my functions in accordance with the Convention subject to the provisions of Section 3 of the ECHR Act. However, even if I were to accept the argument of the respondent's representative that this claim has not been determined within a reasonable time, neither the ECHR Act nor the Equal Status Act gives me power to dismiss a complaint in such circumstances and, indeed, to do so would set at nought the complainant's rights in the matter.
Furthermore, in considering whether the delay in this case adversely affected the respondent, I note that the basis of this complaint is the allegation that a racist comment was made by the respondent on 8 August 2002. At the Hearing, both parties presented the same evidence and adhered to the same claims that they had originally documented at the time the complaint was lodged in 2002. The fact that neither party had difficulty in recalling the incident at the Hearing leads me to the opinion that neither was adversely affected by the delay in bringing the matter to Hearing.
Having taken this point into consideration, I have formed the opinion that neither party's position has been prejudiced by the 3 year delay in bringing the complaint to Hearing.
Conclusions of the Equality Officer
Main Issue
At the Hearing on 4 November 2005, I heard evidence from the complainant and her companion on the night, Mr Brian O'Donnell that the Manageress referred to the complainant as a "Glasgow bitch" as she was leaving the restaurant. For her part, the Manageress, Ms Teri O'Donnell maintains that she did not make that remark but admits to mocking the complainant by imitating her Scottish accent.
Having considered the evidence of all parties, I have formed the opinion, on the balance of probabilities, that Ms O'Donnell did utter a racist comment towards Ms Sharkey on the night of 8 August 2002, on the lines of what is alleged. I also consider that the uttering of such a remark constitutes discrimination on the race ground under the provisions of the Equal Status Acts.
Decision
8.1 I find that a prima facie case of discrimination has been established by the complainant on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000.
In considering what form of redress to order in this case, I consider that monetary compensation would not be appropriate as I consider, from the evidence before me, that the complainant's behaviour on the night was partly responsible for provoking the Manageress into making a racist comment.
I, therefore, order that the complainant be provided with a €100 voucher for Danny Minnie's Restaurant and, should she ever decide to avail of this voucher and book a table in the restaurant again, that she be seated at her table by the appointed time and afforded the same care and attention normally shown to other customers.
Brian O'Byrne
Equality Officer
21 December 2005