Lena O’Brien, Thomas O’Brien, Theresa Keenan, James Keenan (Represented by Hugh P.J. Byrne & Co Solicitors) V Barry’s Hotel (Represented by Noel Smyth & Partners Solicitors)
Delegation under the Equal Status Act, 2000
These complaints were 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 these complaints to me Mary O’Callaghan, 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. The hearing of the cases took place on Thursday 16th June 2005.
1. Dispute
1.1 This complaint concerns complaints by Lena and Thomas O’Brien and Theresa and James Keenan that they were subjected to discriminatory treatment on the ground of their membership of the Traveller Community contrary to section 3 (2)(i) of the Equal Status act 2000 and in terms of section 5(1) of the Act when they went to Barry’s Hotel in Dublin on 19th July 2002.
2 Summary of the Complainants Case
2.1 The complainants had travelled to Dublin from outside the city to meet up for a social evening out with other friends. They went to Barry’s Hotel. The men of the group arrived some minutes before the women and went into the bar where they ordered a drink and it was served to them. The women of the group arrived at the hotel some short time later and as they attempted to enter, a named doorman rushed towards them and prevented them from entering the premises. They said that the doorman said that he was not letting them in because they were Travellers. When the women indicated that their husbands were inside the premises the doorman went into the bar approached the men of the group and removed their drinks and told them to leave. The complainants said that one of them then contacted the Garda Siochana and a number of Gardai arrived and took details of the incident. They then left and went to another licensed premises, where they were served. The complainants said they believe they were discriminated against because of their membership of the Traveller community
3 Summary of the Respondent’s Case
3.1 The respondent said that the hotel had no record or recall of the incident complained of but did say that the named doorman was working for the security company providing security services for the hotel on the date in question and agreed that he was likely to have been the person encountered by the complainants on that evening. The respondent said that the security man had stopped working at their hotel shortly after the date of the incident complained of as the hotel had received many complaints regarding his treatment of customers and the hotel was not satisfied with the way he was carrying out his duties. The door man was, therefore, not available to attend the hearing and the security company was no longer providing security at the hotel. The respondent said that if the Gardai attended an incident at the hotel it would normally be recorded in the incident book and there was no record of the incident complained of. The respondent said that members of the Traveller community are regularly served in the hotel and attend the country and western nights there. A well known member of the Traveller community was named by the respondent as a regular customer.
4 Conclusions of the Equality Officer
4.1 First, I must assess whether the complainants have succeeded in establishing prima facie cases of discrimination on the Traveller co ground. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish they are covered by a discriminatory ground (in this case the Traveller community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants was less favourable than the treatment someone who was not covered by the discriminatory ground would have received in similar circumstances.
4.2 It has not been disputed that the complainants are members of the Traveller community this satisfying the first of the three criteria above. Regarding the second of the criteria, the evidence of the complainants is that the women of the party were refused entry to the hotel. The men, although initially admitted and served, had their drinks taken from them and were told to leave the premises. There was some confusion as to the time the incident occurred but the evidence was fairly consistent to the extent that it was early in the night.
4.3 The respondent has said that there is no record of the incident and that the respondent had no knowledge of it. However, the respondent has acknowledged that the named doorman was working at the premises that night and may have been encountered by the complainants. I consider on the balance of probabilities that the specific treatment did occur and that the second of the criteria has been satisfied.
4.4 In considering the third of the three criteria there has been evidence that the complainants were told it was because they were Travellers that they were being refused service. No evidence was provided by the respondent of other customers, who were not Travellers, being asked to leave the premises that night. The respondent has said that Travellers are served in the hotel regularly.
4.5 The evidence, however, has been that the particular doorman on duty that night had not been providing a satisfactory service in his dealings with customers and from the evidence presented by both parties to the complaint I conclude that is likely on the balance of probability that some remarks regarding the complainant’s Traveller status were made by the doorman in the course of the refusal of service. This leads me to the conclusion that the third criterion has been satisfied by the complainants and that they have established prima facie cases of discrimination.
4.6 Although the doorman involved in this incident was not directly employed by the respondent, Section 42 of the Equal Status Act 2000 states:
“(1) 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.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”
I conclude therefore that the respondent is vicariously liable for the actions of the doorman during the incident complained of.
4.7 As the respondent has no recall or record of the incident, there has not been a rebuttal of the complainants’ case.
5 Decision and redress
5.1 I find that the complainants did suffer discriminatory treatment contrary to the Equal Status Act 2000 when they visited Barry’s Hotel Dublin on 19th July 2002 The complainants have established prima facie cases of discrimination which have not been rebutted by the respondent. In determining the appropriate redress for the effects of the discriminatory treatment I have considered the fact that this incident occurred early in the evening of the date in question and that the complainants succeeded in being served in another licensed premises shortly after leaving Barry’s Hotel that night. Accordingly I award the complainants, Lena O’Brien (DEC- S2005-094), Thomas O’Brien (DEC-S 2005-095), Theresa Keenan (DEC-S2005-096) and James Keenan (DEC-S2005-097), €200 each as redress for the effects of the discrimination suffered.
Mary O’Callaghan
Equality Officer
7th July 2005