Equal Status Acts 2000 - 2004
Decision DEC-S2008-023
Patrick O'Reilly, Patrick Moloney, Mary Moloney, Kathleen Stokes, Christopher Stokes, Christopher Stokes (a minor) and Michael Stokes (a minor)
(represented by Sullivan Waters & Co. Solicitors )
V
The Auburn Lodge Hotel
( represented by Michael Houlihan & Partners, Solicitors)
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Discrimination on the Traveller community ground, section 3(2)(i) - Supply of goods and services, section 5(1) - Refusal of service in a Hotel - Non-attendance of complainants at Hearing
Dispute
This dispute concerns a complaint by Patrick O'Reilly, Patrick Moloney, Mary Moloney, Kathleen Stokes, Christopher Stokes, Christopher Stokes (a minor) and Michael Stokes (a minor) 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 Auburn Lodge Hotel, Ennis, Co. Clare on the grounds of their membership of the Traveller community.
The complainants maintain that they were discriminated against in not being provided with a meal when they called to the Hotel at 6pm on Friday 18 April 2003. For their part, the Hotel claimed that discrimination was not a factor, that the day in question was Good Friday and that they had closed their carvery after lunch when the chef had finished his shift.
Delegation under the Equal Status Acts, 2000 - 2004
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 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.
Notification of Hearing
Given the length of time before the case was due to go to hearing, a letter issued to the complainants’ solicitors on 22 October 2007 seeking confirmation that the complainants still wished to pursue their complaint and were available to attend a Hearing in Ennis over the coming months. On the same day, a letter also issued to the respondents’ solicitors informing them of the letter to the complainants. On 26 October 2007, confirmation was received in writing from the complainants’ solicitor that the complainants still wished to pursue their complaint and would be available to attend a Hearing in Ennis over the coming months.
On 7 January 2008, both parties were informed by post that the Hearing of the complaint would be held in Ennis on 20 February 2008 and both were asked for details of those who would be attending the Hearing. In that correspondence both parties were alsoexpressly told that the Tribunal could not entertain requests to postpone a Hearing save in exceptional circumstances, and that requests of that nature must be submitted in writing in good time for the attention of the Director.
Two weeks prior to the Hearing date, correspondence was received from the complainants’ solicitors indicating that they were having difficulty contacting their clients. A week before the Hearing the respondents confirmed that they had engaged counsel to attend the Hearing on 20 February and that they would also have 4 or 5 current and former employees available to give evidence.
On the afternoon of 18 February (less than 48 hours before the Hearing) a fax was received from the complainants’ solicitors seeking an adjournment of the Hearing on the basis that they had been unable to contact their clients at the addresses and telephone numbers provided by them, to advise them of the Hearing date. In light of the short notice involved, I informed the complainants’ solicitor by return fax that, in light of the circumstances of the case and the assurances given with regard to the complainants’ availability, that the Tribunal was not prepared to adjourn the Hearing at such short notice.
Report of Hearing 20 February 2008
None of the complainants attended the Hearing on 20 February nor were they represented. The respondents’ solicitor arrived with counsel and 5 staff members. In the event that the complainants may have been delayed, the start of the Hearing was delayed until 10.30am but there were no late arrivals.
At the commencement of the Hearing, the respondents made the argument that, in view of the fact that the complainants had not appeared at the Hearing, that the only appropriate course of action for the Equality Officer to take was to dismiss the complaints for non-pursuit under Section 38 of the Equal Status Acts 2000 - 2004.
Conclusions of the Equality Officer
Section 38 of the Equal Status Acts 2000 - 2004 provides that -
“(1) Where a case is referred to the Director and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.
(2) As soon as practicable after dismissing a reference, the Director shall give notice in writing of that fact to the complainant and the respondent.
(3) Where a reference is dismissed under this section, no further proceedings may be taken in relation to that reference....”
In dealing with cases where a question has arisen as to the whether the complainant still wishes to pursue their complaint, the Equality Tribunal has developed a three stage approach in deciding whether the complaint should be dismissed under Section 38. These steps are as follows:
Firstly, where a year or more has elapsed since the original referral and no correspondence has been received from the complainant in the interim, the Tribunal will write to the complainant seeking written confirmation that they still wish to pursue their complaint. The complainant is normally asked to reply within a 4 week period.
Where no response is received, the next step is to write again to the complainant advising them of the Tribunal’s powers under Section 38 and warning them that their complaint will be considered for dismissal if no response is received by a particular date (usually 4 weeks from the date of that letter).
Where that further 4 week period has elapsed and no reply has been received to the warning letter, the practice then is for the Tribunal to move to Step 3 and issue a formal Dismissal Notice to both sides advising that the complaint has been dismissed under Section 38 for non pursuit. No further proceedings can then be taken in relation to the complaint.
In the case before me, the complainants confirmed at Step 1 that they wished to pursue their complaints and, as a result, never received any formal warning that their complaints might be dismissed under Section 38.
In light of the above, I consider that it would be contrary to the standard practices of the Tribunal and the principles of natural justice, to dismiss the complaints under Section 38 at this point, without the complainants having been forewarned about the provisions of Section 38. Accordingly, I consider that it would not be appropriate to dismiss these complaints under Section 38 at this stage.
Decision
In cases under the Equal Status Acts, the onus is on the complainants 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 the complainants in this case did not attend on 20 February 2008, and I am satisfied that they were given ample opportunity to be heard, it is my opinion that they have failed to establish a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000 - 2004.
Accordingly, I find that the complaints have failed and I find in favour of the respondents in the matter.
Brian O’Byrne
Equality Officer
1 April 2008