Complaint under the Equal Status Act 2000

Headnotes

Equal Status Act, 2000 – Direct Discrimination, Section 3(1)(a) – Membership of the Traveller Community, Section 3(2)(i) – Disposal of goods and supply of services, Section 5(1) – Refusal of service in a pub – surrender of tenancy

DEC – S2005 – 135-136

Charles & Theresa McDonagh(Represented by the Equality Authority) V The Golden Eagle Bar (Mr. Tony Lane)

Charles & Theresa McDonagh 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, the Director then delegated the cases to me, Bernadette Treanor, 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.

Summary of the Complainant’s case

The complainants were visiting relatives in Kilmallock on 6/8/2001 when they went to the Golden Eagle Bar just before 11pm.  Ms. McDonagh sat down while Mr. McDonagh went to the bar to order drinks.  He was refused service and rejoined his wife.  She suggested that they ask for a reason why they were refused, as they had never been previously refused in any premises.  When they asked at the bar the barmaid, Catherine Doonagh said it was bosses orders.  While the barmaid was acquainted with Mr. McDonagh and knew his background, Mr. Lane the lessee of the premises did not.  The group of customers who were present and the barmaid were quietly talking and laughing and the complainants were certain that this was in relation to their refusal.  One of the group of customers was a settled person who had in fact attended the complainants’ wedding but he was unable to look at the couple being refused.  The complainants left the bar and walked to the nearby Garda Station where Garda Grey recorded their complaint but told them that it was a civil matter.  Garda Grey gave evidence at the hearing stating that the couple were with him at about 11pm and that there was no evidence of alcohol consumption on them. 

Summary of the Respondent’s Case

The respondent did not appear for the hearing.  In a response dated 5/9/2001 to the notification from the complainants dated 14/8/2001, required of the complainants in accordance with Section 21 of the Act, he stated that the complainants were refused as it was 11:30pm and all customers had left the bar.  He stated that they were told this on the night.  This is the only communication received by the Tribunal from the respondent or any representative of his.

Conclusions of the Equality Officer

At the outset, I must 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) Applicability of the discriminatory ground (in this case the Traveller 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 a non-Traveller received, or would have received, in similar circumstances.

If and when those elements are established, the complainant has established a prima facie case and 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. 

I am satisfied that the complainants are members of the Traveller community and since it is unlikely that they would have made an immediate complaint to the Gardai unless the incident occurred and since the respondent responded to the notification, I am also satisfied that they were refused service on 6/8/2001.  This satisfies (a) and (b) above.

Since

Ø     The complainants were given two different reasons for their refusal, ie. bosses orders and closing time,

Ø     Mr. McDonagh was known to the barmaid who refused service as he grew up in Kilmallock,

Ø     The complainants were not intoxicated, as attested to by Garda Grey, and

Ø     Other settled customers remained drinking in the bar at the time,

I am satisfied that the complainants were less favourably treated because of their membership of the Traveller community.  I find therefore that the complainants have established a prima facie case of discrimination on the Traveller ground.

I was unable to engage the respondent in any form of communication.  The solicitor who handled the initial response to the notification on advice from the ‘proprietor’, informed the Tribunal on 6/2/2002 that they had responded on Mr. Lane’s behalf but that Mr. Lane had since surrendered his tenancy and that they were unaware of his whereabouts.  Attempts at contact by the Tribunal, including information relating to the scheduling of hearings, were returned, if registered post, or ignored.  The Equality Authority finally got confirmation from local Gardai as to the currant address of the respondent Mr. Lane.  Notification of the hearing was sent by both registered mail and ordinary mail.  Other correspondence was also copied to the respondent and the covering letter referred to the date of the hearing.  Section 18 of the Interpretation Act 1937 states:

Where an Act of the Oireachtas or an instrument made wholly or partly under any such Act authorises or requires a document to be served by post, whether the word "serve" or any of the words "give", "deliver", or "send" or any other word is used, then, unless the contrary intention appears, the service of such document may be effected by properly addressing, prepaying (where requisite), and posting a letter containing such document, and in such case the service of such document shall, unless the contrary is proved, be deemed to have been effected at the time at which such letter would be delivered in the ordinary course of post.

While the Equal Status Act, 2000 does not specifically require the ‘service’ of a notification of the date of a hearing, it would be impractical to hold a hearing without informing the parties involved and so notification of some form is required.  I am satisfied that the address was correct, as attested to by local Gardai, and that the letters not registered were delivered in the normal course of post.  Therefore I am satisfied that the respondent was aware of the proceedings and chose to ignore them.  I am satisfied therefore that he chose not to present a defence or rebuttal of the case being made.

Decision DEC-S2005-135-136

I find that the complainants were discriminated against on the grounds of their membership of the Traveller community when they were refused service on 6/8/2001.

Vicarious Liability

The Act provides, in Section 42, that anything done by a person in the course of his or her employment shall be treated as done also by that person’s employer. Therefore I find that Mr. Tony Lane as lessee is vicariously liable for the discrimination described above.

Redress

I order Mr. Tony Lane, lessee of the Golden Eagle Bar on 6/8/2001, to pay each of the complainants €1000 for the effects of the discrimination.

Bernadette Treanor
Equality Officer
4 October 2005