Michael Corcoran, Tony Corcoran,
Kathleen Ward, Martin Ward,
Francie Stokes, Bridget Stokes
(represented by Oliver Roche & Co., Solicitors)
V
The One Foot Inn,
Burnfoot, Co. Donegal
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Discrimination on the Traveller community ground, section 3(2)(i) - Correct identity of respondent - Supply of goods and services, section 5(1) - Refusal of service in a pub
Dispute
This dispute concerns a complaint by Michael Corcoran, Tony Corcoran, Kathleen Ward, Martin Ward, Francie Stokes and Bridget Stokes that they were discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the staff of the One Foot Inn, Burnfoot, Co. Donegal on the grounds of their membership of the Traveller community. The complainants maintain that they were discriminated against in not being provided with a service which is generally available to the public, contrary to Section 5(1) of the Act.
Delegation under the Equal Status Acts, 2000 - 2004
These complaints were referred to the Director of Equality Investigations under the Equal Status Acts, 2000 - 2004. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated these complaints 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 Acts, 2000 - 2004.
Preliminary Issue Raised by Respondents
At the very outset of the Hearing of this complaint on 9 November 2006, Mr Frank Dorrian B.A. introduced himself and said that he was acting on behalf of his client, who was the proprietor of the One Foot Inn, and who had accompanied him to the Hearing. Mr Dorrian stated that he believed that there was no obligation on him to personally identify his client as, in his opinion, the Hearing proceedings were not properly constituted on the basis that the complainants had only identified the pub name "The One Foot Inn" as the respondent rather than the name of the licensee. Mr Dorrian then argued that, as the name "The One Foot Inn" was not a legal entity, that the Tribunal had no power in law to hear the case and, accordingly, that the Hearing should not proceed.
Having listened to Mr Dorrian's views, I informed the parties that I proposed to proceed with the taking of evidence but that I would address the issues raised by Mr Dorrian as a preliminary matter when making my decision on the case. After a short adjournment for consultations, Mr Dorrian indicated that his client would participate in the Hearing but that his client was still was not prepared to identify himself on the grounds that he still believed that the proceedings were not properly constituted.
Evidence of Parties
At the Hearing, the complainants stated that one of their number, Mr Francie Stokes, was unavailable to attend the Hearing.
The complainants stated that all six of them are directly related to each other and were all living in Derry at the time of the incident in 2003. It was their custom at the time to go out together on Monday nights rather than at weekends when some were not available.
The complainants maintained that they had previously been in the One Foot Inn on a number of occasions and that they had been served by the proprietor himself, who they were able to identify by his first name at the Hearing. They said that they never had any trouble getting served by him before and that, on one occasion, he actually sat and had a drink with them at their table.
On Monday, 23 June 2003, they all met in one of the family's houses around 5 pm and agreed to go to the One Foot Inn. Martin Ward drove the group the 3 or 4 miles to Burnfoot and they arrived at the pub before 6 pm.
When they arrived, they say that there were 6 or 7 customers seated along the bar. The two women went to the Ladies while the men proceeded to the pool table.
Martin Ward then went to the proprietor and asked for drinks but the proprietor said "No" and would not give a reason. He then ran to the end of the bar and instructed the group to leave.
Kathleen Ward said that she asked the proprietor whether it was because they were Travellers and he replied "Yes".
Ms Ward said that at that point the customers at the bar started laughing and the proprietor himself had a "smirk" on his face.
The group left at that point and have not been back to the One Foot Inn since.
The proprietor himself also gave evidence at the Hearing. He stated that he was completely on his own when they arrived on 23 June 2003 and that there was no customers whatsoever in the bar at that time. He said that he did not recognise any of the group when they arrived and that he had never seen any of them in the pub before.
He said that the group immediately went directly to the pool table and started to argue amongst themselves as to who would play pool first. He said that he got the impression that they might attack each other.
Because of the noise they were generating, he decided that he could not serve them under the circumstances. When he refused to serve them, they left very quickly. There was no reference to Travellers made in his conversation with them.
The proprietor stated that he never had any problem with Travellers and that he regularly hosts Traveller weddings and christenings.
The proprietor said that he recalls receiving an official notification under the Equal Status Acts in 2003 relating to the incident. He passed it to his solicitors, P.A. Dorrian & Co. for consideration but a decision was made not to respond to it.
Conclusions of the Equality Officer
Preliminary Matter
In this particular case, the respondents have argued that the proper respondent had not been identified in this case on the basis that "The One Foot Inn" is not a legal entity. Accordingly, they maintain that the Tribunal has no power in law to investigate and hear the case.
As this point does not appear to have been raised by respondents previously, I have reviewed the text of the Equal Status Acts 2000- 2004 as part of my deliberations and note that Section 5 (1) states that
"A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service".
In Section 4 (1), "provider of a service" is defined as "the person responsible for providing a service in respect of which section 5(1) applies".
Section 2(1) interprets the term "person" as follows:
''person'', as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;
Since the Equal Status Act 2000 came into force on 25 October 2000, the Equality Tribunal has received hundreds of complaints relating to pubs where the trading name was identified in the original complaint. In all such cases, the Equality Tribunal has accepted the pub name as an "entity" in its own right on the basis that the Acts do not specifically state that the named respondent be a legal entity (see above). Another reason for adopting this practice was the fact that, unless the complainants were established regulars of a particular pub, it is unlikely that they would be aware of the full name or identity of the pub owner or licensee at the time of the incident. I consider that the case now before me falls into the above category - the complainants were aware of the name of the pub but not the full name of the respondent.
The Equal Status Act is a social and remedial statute which is designed to permit all persons to make complaints to the Tribunal. As a no-cost forum it was envisaged that there ought to be no need in many cases for barristers and solicitors to represent complainants and respondents, and thus the level of informality, or formality, must perforce be different to a courtroom in a formal legal proceeding. Also, in Equal Status cases, there is often no necessary prior relationship between the parties.
These combined factors substantially increase the possibility of a complainant not knowing the exact legal name of a respondent. However, since these are inherent in the circumstances being legislated for in the manner as legislated, a refusal to hear a claim due to an inadvertent misnaming of a respondent, would, in my opinion, amount to a frustration of the aims of the statute. Accordingly, I consider that the Equal Status Acts cannot be interpreted in a fashion that would render them impotent and that requiring an exact identification of a respondent may well render the Acts unworkable.
There is also some existing authority that Tribunals may act in a more informal manner. In Sougrin v. Haringey H.A. [1992] 1 I.C.R. 650 Lord Donaldson MR said:-
"Industrial tribunals are "shop floor" courts whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched."
It would seem that this more flexible and purposive approach would also represent good law with regard to cases brought before the Equality Tribunal.
I, therefore, consider that it would be unduly harsh to dismiss this complaint because of misnaming the respondent and that it would also constitute a possible breach of the rights of the complainant to have access to justice. As stated earlier, given the wide definition of "person" in the Act (see above), I consider that there is no need for a respondent to have a legal personality as would ordinarily by the case in court proceedings. Once there is a clear identification of a respondent by a claimant, it is my opinion that the complaint should proceed, once the Tribunal has clarified the precise respondent for the purposes of permitting that person to make representations and to defend the allegation made against them.
Accordingly, I consider that the owner/licensee of the One Foot Inn is answerable under the Equal Status Acts for the allegation of discrimination in this case.
Deliberations
In considering the evidence before me, I note that there are two conflicting sides to the story. The complainants maintain that there were 6 or 7 customers in the bar on 23 June 2003 while the proprietor maintains that he was all alone. In addition, the complainants state that they knew the proprietor well while he says that he never saw them before.
IWhat is agreed, however, is that the group arrived together around 6 pm and the proprietor's decision to refuse them service was taken even before they had approached him for a drink.
The proprietor has said that he made his decision because of the arguments that were taking place and his concern that the group might attack each other. In considering whether the proprietor may have had sufficient justification for refusing service, I have noted the following:
- this incident happened at 6pm on a Monday evening,
- there is no indication that the complainants had drink taken previously,
- the complainants are all close relatives of each other
- they had just driven 3 or 4 miles together to enjoy a night out in each other's company.
When I consider the above points, I find it extremely difficult to accept how such a group could suddenly become so threatening and argumentative in a pub as to warrant their immediate removal. For this reason, I find that I cannot accept, on the balance of probability, that the conduct of the group was such as to justify immediate refusal of service. Instead, I consider that it was the group's Traveller identity that prompted the proprietor's decision to refuse them service.
When I consider the proprietor's own evidence that he did not know the group and the bar was empty at the time, I find it even more likely that it was the group's Traveller identity that led to the refusal. In such a situation, I consider that the proprietor, on seeing the group as Travellers rather than as previous customers, may have decided that his best option was to refuse service from the outset rather than let them remain on the premises with no other customers present.
Notification Form
Section 21 of the Equal Status Acts 2000 - 2004 requires that a complainant must notify the respondent, within 2 months of the alleged act of discrimination, of the nature of the allegation against them. Otherwise, the complaint may be dismissed for non-compliance with statutory procedures. The purpose of this notification is twofold. Firstly, it is designed to alert the respondent at an early stage to the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.
The notification form in this case provided the proprietor with an opportunity to explain to the complainants what his concerns were on the night. This opportunity was not taken, however, as the publican states that, instead of replying to the notification, he passed it to his solicitors where a decision was made not to respond to it.
Section 26 of the Equal Status Acts provides that the Equality Officer can draw an inference from the fact that a respondent did not reply to a notification under Section 21. In this case, I consider that it is appropriate for me to draw such an inference as, in my opinion, it is possible that the matter could have been resolved amiably between the parties if the respondent had engaged the complainants in correspondence on receipt of the notification form.
Decision
In cases under the Equal Status Acts, the onus is on each complainant to provide evidence establishing a prima facie case and it is essential, in the interests of natural justice and fair procedures, that such evidence is provided in the presence of the respondents to afford them the opportunity to challenge any allegations made against them.
As already indicated, one of the complainants in this case, Francie Stokes, did not attend the Hearing and was, therefore, unable to give evidence. Accordingly, I find that Mr Stokes has not established a prima facie case against the respondents.
With regard to the other five complainants, I find that a prima facie case of discrimination has been established on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000 - 2004 and that the respondents have failed to rebut the allegation.
I order that the five complainants who attended the Hearing be paid the sum of €200 each for the upset and humiliation suffered on the night.
Brian O'Byrne
Equality Officer
30 January 2007