A Customer
V
The Licensee, A Bar, Dublin
(Represented by O'Leary Maher Solicitors)
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Harassment, Section 11(5) - Sexual Harassment, Section 11(4) - Victimisation, Section 3(2)(j) - Gender Ground, Section 3(2)(a) - Marital Status Ground, Section 3(2)(b) - Sexual Orientation Ground, Section 3(2)(d) - Religion Ground, Section 3(2)(e) - Age Ground , Section 3(2)(f) - Race Ground, Section 3(2)(h) - Disposal of goods and supply of services, Section 5(1) - Prima facie case.
1. Delegations
1.1 The complainant 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. The Hearing of this complaint was held on 16 January, 2007.
2 Summary of Complainant's Case.
2.1 The complainant states that he went to the respondent premises on the 4 May, 2003 and was subjected to discrimination, harassment, sexual harassment and victimisation on the grounds of gender, marital status, sexual orientation, religion, age, and race. This took the form of having his drinks tampered with by bar staff in that "bitters" and lemonade were added to his drink, staff and customers made physical threats and were violent towards him, customers sexually harassed him as they passed him by in the premises and all staff members repeatedly touched their noses and then passed their hands over the glasses containing his drinks. The complainant alleges that all acts of prohibited conduct against him were orchestrated by the respondent.
3. Summary of Respondent's Case
3.1 The respondent has owned and managed the premises in question for in excess of twenty years and has no recollection of the complainant ever having attended at the premises. The respondent also made exhaustive enquiries with all staff members with regard to the notification sent to him by the complainant and no member of staff had any recollection whatsoever of the complainant.
4. Background
4.1 Complainant
The complainant states that in 2003 he had attended at the respondent premises, at weekends, for a number of months on a regular basis but he had no recollection of precisely how many months. In the course of doing so he states that
- staff of the respondent bar persistently rubbed their noses with their fingers and then proceeded to serve drinks to him, and only him. This would occur up to thirty or forty times in one evening This is in breach of hygiene legislation.
- he often had to stand at the bar and wait for up to ten minutes to be served
- as customers of the respondent premises passed him they would touch his backside as they had been instructed to do by members of staff.
- his drink was interfered with by staff of the respondent premises who had added "bitters" and lemonade to his beer
- When using the toilet facilities in the respondent premises he was subjected to violent assaults when a person or persons would hold the door of the toilet cubicle which he was using closed when he attempted to exit. They would then let the door go suddenly as to hit him in the chest with the door. The complainant could not see who was holding the door in this manner as he could not see out from the toilet cubicle. He asserts that persons using the toilet cubicle before him did not have difficulty opening the door, and it therefore follows that somebody was holding the door and preventing him from opening same. The complainant states that customers of the premises "were in on this" and had been instructed to assault him in this manner by staff of the respondent premises who are conducting a co-ordinated campaign of intimidation against him.
- he had been informed by a Garda Inspector (in a named Garda Station), whose name he could not recall, that the Catholic Church was behind the conspiracy against him.
- The complainant had stated in his complaint that a particular individual (a patron of the respondent premises) who he thought was of a specific (stated) nationality had intimidated him and threatened violence against him by staring at him all night and following him outside the premises. The complainant had assumed the stated nationality of the individual in question based on his attire but later, on hearing the individual speak, realised that he was, in fact, Irish.
- he faces intimidation and threats on a daily basis and had, in fact, experienced hundreds of such incidents on his way from the bus stop to the Hearing of his complaint.
- the Equality Officer and others in attendance at the Hearing had broken the law by touching their noses in the course of the Hearing.
- the staff and customers of the respondent premises spoke openly of his private affairs including matters contained in correspondence with Equality Officers of the Tribunal and discussed in confidence with other (named agencies).
- the same circumstances had obtained in a number of pubs, shops, supermarkets, chemists, post offices, buses, trains, doctors offices, hospitals and Government Departments.
- He was barred from the respondent premises by the manager when he tried to complain about various matters.
4.2 Respondent
The owner of the respondent premises is also the manager and has been for in excess of twenty years. He has no recollection of the complainant whatsoever. On receiving written notification of the complaint from the complainant he made exhaustive enquiries with all members of staff, none of whom have any recollection of the complainant.
The respondent maintains an incident book for insurance purposes and he also checked this incident book for references to any of the matters raised in the complaint. There were no references to any such matters.
5 Prima Facie Case
5.1 Section 38A(1) of the Equal Status Act 2000 (as amended by the Equality Act 2004) states that
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the contrary". (1)
Section 38A(2) states that
"This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person".
6 Prima Facie Case - Complainant
6.1 In the course of providing oral evidence at the Hearing of his complaint the complainant made a number of statements that brought the accuracy and validity of his evidence into question. When setting out the basis for his claims of harassment, sexual harassment, discrimination and victimisation the complainant altered some details of his original complaint in order to bring them within the scope of particular grounds under the Equal Status Act 2000.
For example, when asked if he had reported the various matters complained of to anybody the complainant was adamant that to do so would have put him in physical danger, yet he claims that he was barred from the premises after he had complained of such matters. Also, in writing the complainant had stated that the sexual harassment had taken the form of staff members touching his backside as they passed him in the pub. In oral evidence he initially stated that all of the customers, not the staff in the premises, had indulged in this behaviour and later stated that only male customers had done so.
6.2 The complainant had also stated in writing that matters which were the subject of correspondence between him and Equality Officers of the Tribunal had been openly discussed in the respondent premises by members of the staff. He stated that this was done deliberately to intimidate him. When it was pointed out to the complainant that he had allegedly been barred from the premises in Summer of 2003 and that correspondence with Equality Officers had not commenced until some years later, the complainant retracted his initial statement and named another agency whose correspondence had allegedly been openly discussed in the premises. However, the complainant could not say whether this named agency had ever corresponded, or had any contact, with the respondent.
6.3 The complainant did not produce any witnesses to any of the alleged incidents complained of but states that there were dozens of witnesses who would simply lie about the matters in question as they were part of the conspiracy against him.
6.4 I am satisfied, based on careful consideration of all of the evidence provided by the complainant that many of his assertions simply lack credibility. He has not established to my satisfaction, on the balance of probabilities, that a coordinated and orchestrated campaign of intimidation against him, initiated by the Catholic Church and implemented by all members of staff and customers of the respondent premises, and various other establishments, actually exists.
6.5 Indeed the complainant has failed to satisfy me that, on the balance of probabilities, any of the events described by him actually occurred or, that where they may have occurred, that this had any direct relevance to the complainant. For example in relating how one individual had allegedly intimidated him the complainant stated that this individual had followed him out of the premises into the street. After some questions in this regard the complainant indicated that everybody was leaving the premises at the time in question because it was closing time but that, as far as he was concerned, the individual in question was following him out of the premises.
6.6 This is not to say that the complainant does not genuinely believe that the incidents did happen, and it is clear that he perceives that he is the target of a complex and widespread conspiracy designed to intimidate him.
7 Decision
7.1 I find that the complainant has failed to establish a prima facie case of discrimination, harassment, sexual harassment or victimisation on the grounds of gender, marital status, sexual orientation, religion, age or race.
__________________________
Dolores Kavanagh
Equality Officer
30 January, 2007
notes
(1) See also Igen Ltd. V Kay Wong and Chamberlin Soliictors v Ms. I Emokpae and Brunal University v Ms. Gurdish Webster (Equal Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission - interveners), ref EWCA Civ 142 [2005] Cases No: A2/2004/1141, A2/2004/1397, A2/2004/2758.