DEC-S2016-068

EQUAL STATUS ACTS 2000-2015

DECISION NO. DEC-S2016-068

PARTIES

Donna McGauley

(Represented by MacGuill & Company Solicitors)

-AND-

Roy Bracken Trading As ‘Jackie Murphy’s Bar & Restaurant’

File Reference: et-159618-es-15

Date of Issue: 2nd November 2016

1. DISPUTE

1.1 This dispute concerns a complaint by the Complainant, that she had been discriminated against by the Respondent on the ground of membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts (hereinafter also referred to as ‘the Acts’).

1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 23rd September 2015, a notification having been sent to the Respondent on 11th September 2015 and the subject-matter of this complaint arising on 12th August 2015. On 12th April 2016, in accordance with his powers under Section 16 of the Workplace Relations Act 2015 and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated the case to me, Aideen Collard, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General. This is the date that my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hearing on 12th May 2016. Written submissions had been submitted on behalf of the Complainant who was legally represented. The Respondent did not appear but his Accountant, Mr E appeared in his place. The Complainant was legally represented and a number of witnesses also gave evidence on her behalf. All oral and written evidence presented has been taken into consideration in my decision. I also indicated that I would be relying upon the key statutory provisions and relevant case law on the area.

1.3 This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

2.1 The Complainant outlined the background to this complaint and confirmed that she is a member of the Traveller community and resides in Dundalk. At the material time, the Respondent ran a Public House and Restaurant known as ‘Jackie’s Bar & Restaurant’ located at Dublin Road, Dundalk, County Louth, (hereinafter referred to as ‘the establishment’). She confirmed that she and her family would have been known to the Respondent as members of the Traveller community as they had frequented the premises in the past. Additionally, references to their membership of the Traveller community had been made to her in the course of her dealings with the Respondent’s staff giving rise to this complaint. She confirmed that there had been no history of her family having any trouble with the establishment in question.

2.2 On 5th June 2015, the Complainant telephoned the Respondent’s establishment to make a booking for her son’s christening party on 29th August 2015. She spoke to a barman, Mr A, who confirmed the booking for a group of approximately 50 people. On 6th June 2015, she attended at the establishment to pay a deposit of €100 for her booking. Again she dealt with Mr A who confirmed her booking for 7pm on 29th August 2015 and wrote the details at the top of that date page in a book. He told her that the establishment does not provide receipts and therefore she did not receive any receipt for this deposit.

2.3 On 8th August 2015, the Complainant telephoned the establishment and spoke to another member of staff, Ms B, who confirmed the booking. She asked Ms B whether she would be able to arrive early on the day to bring a cake and balloons and Ms B said that she would check with management and call her back. Ms B telephoned her back and confirmed that this was in order. Ms B also asked her to contact the establishment should she intend to have more than 50 people at the function and she agreed to this.

2.4 On 12th August 2015 at approximately 11.30am, the Complainant received a telephone call from a barman from the establishment, Mr C, who told her that her booking had to be cancelled owing to a double booking. She told him that this could not be the case as she had seen the list of bookings and her name had been the only one for that date. Also at the time of booking, she recalled that Mr A had checked two different books and had confirmed that the date was available. She was told that the manager would call her back. Upon not receiving a call back, at approximately 4pm, she telephoned the establishment again and was told yet again that the manager would call her back. At approximately 7.30pm, the Complainant telephoned the establishment again and on this occasion she got to speak to the bar manager, Ms D. The Complainant told Ms D that she wanted to obtain an explanation as to why her booking had been cancelled. Ms D replied that she could call in if she wished but the fact remained that the booking was cancelled. The Complainant found Ms D’s attitude to be
dismissive and rude.

2.5 Later the same evening, being 12th August 2015, the Complainant called into the establishment along with her sister-in-law and asked to see Ms D. Ms D recognised her sister-in-law and greeted her. She then took the Complainant and her sister-in-law into a function-room. Mr C, the barman whom she had spoken to earlier in the day was also present for parts of the conversation. Ms D told her that as the venue had been double-booked, they had to cancel the Complainant’s booking. She said that the other booking for a 21st had been made for the restaurant section and so would be in a separate booking list. She showed the Complainant and her sister-in-law two books, one larger one which she said was for restaurant bookings and a smaller book for the function room bookings. In respect of the book for the function room bookings, she noted that her name now appeared in the middle of the page, whereas it had been at the top of the page at the time of booking. Ms D told them that the restaurant booking had been made prior to her booking and she did not have a contact number for the other booking party. There was also suggestion that one of the books had been missing at the time of booking giving rise to the double-booking. However, as the other booking was apparently for the restaurant and the Complainant had booked the function room, she did not understand how the double-booking arose. At that point in the interaction, Ms D asked the Complainant that if she “could 100% guarantee that there would be no trouble on the day” she might be able to sort out the situation for her. The Complainant found this comment highly offensive and immediately asked Ms D what she meant by this. Ms D merely replied that she would telephone her the next day. Throughout this interaction, the Complainant found Ms D to be extremely dismissive of her and as if she did not want her there. The Complainant’s sister-in-law gave evidence corroborating her account of this particular interaction and Ms D’s comments. She also confirmed that she was not a member of the Traveller community and had married the Complainant’s brother. Ms D would have known her to see but not of her relationship by marriage to the Complainant.

2.6 On 14th August 2013, Ms D left a voicemail for the Complainant on her phone, stating that she had confirmation that as the other party wanted to go ahead she would definitely have to cancel the Complainant’s booking. Along with a voicemail from another member of staff confirming cancellation of the Complainant’s booking, this voicemail was played at the hearing to verify its contents. This was the final interaction between the Complainant and the establishment. She did not have any direct dealings with the Respondent contrary to that suggested in the letter on his behalf. The Complainant found the entire episode to be very upsetting, distressing and humiliating. She was unable to find an alternative venue up until two days before her son’s christening and with three young children, this episode caused her considerable stress during that period. She found Ms D’s comments offensive and humiliating, particularly in front of her sister-in-law, and her treatment in general by the establishment to be hurtful and discriminatory. She confirmed that to date the Respondent has not offered a satisfactory explanation for the cancellation of the christening party, apologised, or returned the booking deposit.

2.7 Another witness, also a non-member of the Traveller community gave evidence on behalf of the Complainant to rebut the Respondent’s contention that the Complainant would have received a receipt in respect of the €100 booking deposit if a booking had been made, as contained in a letter on his behalf to the WRC on 28th January 2016. She confirmed that she had booked her child’s christening at the establishment in April 2015, but when she sought a receipt for the booking fee she was informed by the same barman who had taken the Complainant’s booking, Mr A, that they do not issue receipts as a matter of practice. She also confirmed that the christening in question had gone ahead without any issue.

2.8 It was submitted on behalf of the Complainant that she had clearly been directly discriminated against on the ground of membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts. In particular, in cancelling her booking owing to her membership of the Traveller community, the establishment had treated her less favourably than a non-member of the Traveller community in a comparable situation. This is supported by all the evidence which indicates that the purported double-booking was not genuine as confirmed by the discriminatory comments made by Ms D, clearly indicating a discriminatory view in relation to the character and behaviour of members of the Traveller community. The Respondent further failed to respond to the Complainant’s notification pursuant to Section 21(2)(a) of the Acts. Reliance was also placed on relevant authorities including decisions of the Equality Tribunal / WRC in Arundel McCarthy -v- Planet Leisure Ltd DEC-S2016-005, Anne Joyce -v- Michael Ryan Funeral Directors DEC-S2014-012, Ann Pratt -v- Majella Gleeson t/a Jella’s Tots DEC-S2013-012, Martin McDonagh -v- Flynn Brothers Rentacar Ballygar T/A Budget Car Rental DEC-S2013-011 & Louise Ward -v- Menlo Park Hotel DEC-S2011-042.

3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE

3.1 A firm of Accountants confirmed that they were acting in place of the Respondent as he no longer operated the establishment and in response to a request from the WRC for a written statement from the Respondent, sent a letter to the WRC dated 28th January 2016, written on his behalf and setting out his position. It confirmed that a number of the staff concerned no longer worked for the establishment, that Ms B would not have been taking or making calls and that nobody by the name given for Ms D had ever worked there. It also stated: “The establishment always provided receipts for any deposits paid.” and “Mrs Donna McGauley did attempt to make a booking at the premises and I, Mr Roy Bracken advised her that I would call her back if that was possible on the date she required. Mrs Donna McGauley assumed that she had secured a booking and contacted the premises a number of times to make arrangements for her event. I contacted Mrs McGauley back and advised her that her event could not be accommodated on the date required as I had an event booked in. Mrs Donna McGauley informed me that she had already made arrangements to have her event there and I informed her that she should have waited until I confirmed her booking.” Finally it stated: “I was not aware that Mrs Donna McGauley was even a traveller I just thought she was from Dundalk.” No further documentation was submitted.

3.2 An Accountant from the firm, Mr E, appeared in place of the Respondent at the hearing. He confirmed that his client, Mr Roy Bracken had been operating the establishment at the material time but no longer ran it as the establishment had since been taken over by a receiver. He said that Mr Bracken had left the jurisdiction and that he was looking after his affairs. Mr Bracken had instructed him to attend the hearing on his behalf. He confirmed that he had no direct knowledge of the circumstances giving rise to this complaint and his instructions were based on what he had been told by Mr Bracken. He consented to an amendment of the Respondent’s name from ‘Jackie Murphy’s Bar’ to ‘Roy Bracken Trading As Jackie Murphy’s Bar & Restaurant’. I outlined the legal position in relation to complaints under the Equal Status Acts in lay terms and the operation of the burden of proof. In particular, I explained that if the Complainant raises a prima facie case of discrimination, the onus then shifts to the Respondent to rebut the inference of discrimination raised and this entails calling actual evidence in defence to the complaint being made. I asked Mr E whether he had any witnesses or other evidence such as the books used for the bookings in question and he replied that he had no evidence to call. As there had been some confusion as to Ms D’s identity which was clarified at the hearing, I gave him the opportunity to call rebuttal evidence at a further hearing date to be scheduled for that purpose. I confirmed that if no further evidence was being called, I would proceed to make a decision on the evidence already presented. Mr E was given a week to consider the position and later confirmed in writing that the Respondent did not wish to call any evidence in defence of this complaint. At the hearing, he was given an opportunity to question the Complainant and her witnesses and nothing of note turned on same. Essentially he repeated the Respondent’s position that the establishment had been double-booked and that was the reason for the cancellation but was unable to proffer any specifics of how it was contended the double-booking arose.

4. FINDINGS AND CONCLUSIONS

4.1 The issue for my decision herein is whether the Respondent and/or his employees cancelled the Complainant’s booking for her son’s christening party owing to her membership of the Traveller community within the meaning of the Acts. The facts adduced must be assessed in relation to the relevant legal provisions. Section 3(1) of the Equal Status Acts provides that discrimination shall be taken to occur “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)..." Section 3(2)(i) defines the discriminatory ground of membership of the Traveller community as arising in circumstances when as between any two persons “that one is a member of the Traveller community and the other is not (the ‘Traveller community ground’).” In relation to the disposal of goods and provision of services, Section 5(1) provides 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, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” Section 38A of the Acts sets out the burden of proof which applies to all claims of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

4.2 Firstly, I am satisfied that although the establishment in question is a licensed premises, this complaint has been properly brought under the Equal Status Acts as the prohibited conduct complained of herein did not take place “…on or at the point of entry to, licensed premises”, which may have brought it within the jurisdiction of the District Court under Section 19 of the Intoxicating Liquor Act 2003. There is no issue that the alleged refusal of service took place over the telephone to the Complainant. In this respect, I am guided by the findings in Arundel McCarthy -v- Planet Leisure Ltd DEC-S2016-005. I am also satisfied that the provision of the function room for the purposes of a christening party constitutes a service to the public within the meaning of Section 5(1) of the Acts. Based upon Mr E’s confirmation that Mr Roy Bracken ran the establishment at the material time and consent to the amendment of the Respondent’s title, I am further satisfied that he is correctly named as the Respondent. Regardless of his direct involvement or knowledge of the Complainant’s status as a member of the Traveller community, he was still responsible for the actions of his employees pursuant to Section 42(1) of the Acts which provides: “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.”

4.3 Secondly, I found the Complainant and her sister-in-law to be impressive witnesses and their detailed evidence supported with the recordings of voicemails to be wholly credible in relation to the circumstances giving rise to this complaint and fully accept their version of the events giving rise to this complaint. Whilst I have noted the contents of the letter of 28th January 2016 written on behalf of the Respondent by his Accountants, in the absence of his own evidence or that of any other witnesses which could be tested at the hearing, I am unable to attach any evidential weight to its contents. I also note that this letter directly conflicts with the voicemails played at the hearing. Whilst the letter tends to suggest that a booking was never confirmed with the Complainant, the voicemails support her position that a booking was in fact made but was cancelled by the Respondent’s staff owing to ‘double-booking’. I am also satisfied that the bar manager, Ms D was aware that the Complainant was a member of the Traveller community based upon the unrefuted evidence of the Complainant and her sister-in-law that Ms D had said to her, if she “could 100% guarantee that there would be no trouble on the day” she might be able to sort the situation out for her. I also accept the Complainant’s evidence that she had paid a €100 deposit thereby confirming the booking but was not issued with a receipt as supported by the evidence of her other witness who was informed that receipts for deposits were not issued as a matter of course.

4.4 In the absence of any evidence from the Respondent, I find that the reason given for the cancellation of the booking by the Respondent’s staff some months later, being that the establishment was double-booked simply does not stand up. In particular, the Complainant had made her booking on 6th June 2015, a number of months in advance of the christening party on 29th August 2015 and therefore it is incredible that another booking would have come to light just a few weeks beforehand. If the establishment had genuinely been double-booked owing to some oversight, it is inconceivable that Ms D would not have a contact number for the other booking party or have tried to accommodate both parties, particularly if that booking was for the restaurant whilst the Complainant’s booking was for a function room. I also accept the Complainant’s evidence that when shown the book for the function room by Ms D, her name appeared in the middle of the page instead of at the top where she remembers it being placed when making the booking. Overall, the explanation as to how the double-booking came about as given by Ms D to the Complainant and her sister-in-law when they met simply does not make sense.

4.5 Whilst I appreciate that Mr E was standing in for the Respondent in his absence from the jurisdiction, the Respondent’s appearance was not essential for the purposes of defending this complaint as no direct dealings had been alleged against him. However, no effort was made to call any witnesses or have the books used produced at the hearing notwithstanding my offer to accommodate same. Neither was any reason given as to why the main witness, Ms D was unavailable. Rarely is discrimination so overt but in this case, the evidence adduced overwhelmingly supports the Complainant’s contention that her son’s christening party was cancelled owing to her membership of the Traveller community. Overall, I am satisfied that she was treated less favourably than a non-member of the Traveller community would have been in a comparable situation and in this respect, her witness, a non-member of the Traveller community whose christening party went ahead without issue provides an excellent actual comparator. I therefore find that the Complainant has made out a prima facie case of direct discrimination on this ground and in the absence of any evidence on behalf of the Respondent, same has not been rebutted.

5. DECISION

5.1 I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of direct discrimination on the ground of membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts, which has not been rebutted by the Respondent.

5.2 In accordance with Section 27 of the Acts, I order the Respondent to pay the Complainant €7,500 in compensation in respect of this finding of direct discrimination on the ground of membership of the Traveller community. This award is arrived at having regard to the seriousness of the discrimination imposed and upset, distress and humiliation caused to the Complainant, particularly by the comments in the presence of her sister-in-law. I have also factored in the Respondent’s failure to return the booking deposit and stress caused by the inconvenience of having to arrange an alternative venue at short notice.

____________________

Aideen Collard

Adjudication Officer

2nd November 2016