CORRECTION ORDER

ISSUED PURSUANT TO SECTION 29 OF THE Equal Status Act ACT 2000

This Order corrects the original Decision ADJ-00036675 issued on 09/02/2023 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00036675

Parties:

	Complainant	Respondent
Parties	Bernard Ward	The Miners Bar Ltd The Miners Bar

Representatives

Christopher Mc Cann Free Legal Advice Centres

Colm Conway Cathal L Flynn & Co Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00047808-001	21/12/2021

Date of Adjudication Hearing: 23/08/2022

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 21 Equal Status Act , 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant who is a member of the travelling community submitted that he was discriminated against by the respondent on the 20th.July 2021 when he was endeavoring to arrange a get together with his family and friends to mark the first anniversary of his father’s death. The complainant set out in his complaint form the exchanges between the parties about the event and submitted that when the respondent learned that the complainant’s surname was Ward that this precipitated the respondent’s decision to cancel the booking. It was argued that the only discernible difference between the facts that pertained when the booking was taken on the 19th.July 2021 and cancelled on the 20th.July 2021 related to the complainant’s surname. The respondent denied that there was any breach of the Act and asserted that the event could not be accommodated as they were not open on Thursdays and that they were awaiting government guidelines on Covid restrictions to decide whether they could accommodate indoor events into the future as at the time it appeared that only vaccinated customers would be permitted indoors

Time Line of Events since hearing on the 23rrd.August 2022.

In the course of the hearing, the AO requested that the Respondent provide any available booking records for the period material to the complaint within a period of a week. The AO afforded the Complainant a further week to comment upon any such records, should they have been produced.

By email dated 30 August 2022, the Respondent’s representative sent the booking records of the Respondent to the Complainant’s representative.

On 5 September 2022, in accordance with the AO’s directions, the Complainant entered a supplemental written submission set out below:

Summary of Complainant’s Case:

The claimant’s representative furnished the following submission on the 15.08.2022

1. Bernard Ward (the “Complainant”) is a member of the Traveller community. The Complainant considers himself to be identifiable as a Traveller by virtue of his surname, among other factors.

2. The Miners Bar Limited trading as the Miners Bar (the “Respondent”) is a private company limited by shares with a registered address at Deereenavoggy, Carrick-on-Shannon, Arigna, in the County of Roscommon.

3. The Respondent is the licence holder and owner of a public house known as the Miners Bar.

4. During July 2021, the Complainant was researching venues which could host his family and friends to mark the first anniversary of his father’s death.

5. The Complainant contacted the Respondent via WhatsApp instant messaging service at 4.11pm on 19 July 2021 to make a booking for 50 people on 12 August 2021. The Complainant specified that music would not be required, but that he would require sandwiches and drinks.1

6. The Respondent replied at 4.16pm on 19 July 2021 requesting the Complainant’s name and whether he wished to book the Respondent’s lounge.

7. The Complainant replied at 4.18pm on 19 July 2021 and informed the Respondent that his name was Brendan (the Complainant also goes by Brendan) and confirming that he wished to book the lounge for an anniversary gathering of 50 people.

8. The Respondent replied at 4.39pm on 19 July 2021 to say that they would check the bookings and get back to the Complainant. The Respondent further noted that “we depend on the government on regulations”. The Respondent requested the Complainant’s surname and identified himself as Bertrand.

9. The Complainant replied at 4.46pm on 19 July 2021 mistakenly stating that his surname was “Walsh”.

10.The Respondent replied at 6.25pm on 19 July 2021 stating “I’ll pencil that in for 12th August and we can talk closer to the date”. The Respondent noted that they had a different menu but were flexible and requested information from the Complainant regarding the start time of the event and whether the Complainant was aware that the 12th of August 2021 would be a Thursday.

11.The Complainant replied at 6.31pm on 19 July 2021 confirming that he understood that the 12th of August 2021 would be a Thursday. The Complainant stated that his party would arrive after 3pm and requested that the Respondent provide sandwiches but noted that if they were unable to do so, it would not be a problem. The Complainant corrected the mistake from his earlier 1 Appendix 1 of Booklet for Hearing 2 text (paragraph 9) and informed the Respondent that his surname was “Ward”.

12. The Complainant sent a further message at 6.45pm on 19 July 2021 requesting confirmation that the 12th of August 2021 had been marked off for his booking.

13. At 2.37pm on 20 July 2021, the Complainant sent a further message, as no response had been received to his previous two messages requesting the Respondent’s food menu.

14. The Respondent replied at 4.12pm on 20 July 2021 stating: Hi Brendan. Unfortunately, we will not be open on a Thursday. We currently open Friday to Monday. Also, we will probably not be in a position to facilitate indoor for vaccinated people only as per soon to be published government regs, so we may not even be open. Apologies for this but the whole vaccine thing is beyond our control.

15. The Complainant replied at 4.26pm on 20 July 2021 stating: Mate you was fully aware it was a booking for Thursday, you still went ahead and “pencilled” off that date for my request, you hadn’t mentioned anything about indoor vaccinated people, the booking was and still remains confirmed, I did make an error when sending you my details and ever sense I have corrected that error you have seem to go off the idea of accepting my booking, is there a reason for that because the reason you are giving me isn’t good enough because you would have mentioned first otherwise.

16.The Respondent replied at 4.32pm on 20 July 2021 stating: Brendan, I did mention we depend on government regulations. It’s a known fact for the last number of weeks that the government are introducing covid certs to allow only vaccinated people indoors. It’s a big decision for a business like ours to open indoors under these conditions and it’s just not worth it. We could have happily accommodated you on a Thursday but we can’t do that now.

17.The Complainant replied at 4.39pm on 20 July 2021 stating: Yes correct you did mention government etc and that’s when you had asked my surname, for what reason did you need my surname just to check availability in your book? You didn’t need my surname for that, you was happy to confirm the booking and you didn’t even mention about certs etc , and you haven’t even asked me now will all those who are attending be vaccinated and have certs, if you have a problem with me booking there then you would have asked me those questions but instead you just assume we don’t and try to cancel a booking which you already confirm and marked off 3

18.No further messages were exchanged between the Complainant and the Respondent. CORRESPONDENCE WITH THE RESPONDENT

19.By letter dated 30 August 2021, the Complainant notified the Respondent through his solicitor (“FLAC”) that they considered the Respondent’s cancellation of the Complainant’s booking to have constituted discrimination under the Equal Status Acts 2000 – 2018 (the “Equal Status Acts”) and Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the “Race Equality Directive”).2

20.Pursuant to section 21(2)(b) of the Equal Status Acts, the Complainant requested material information in relation to: (a) The Respondent’s bookings, in their original format, for the period 1 June 2021 to 30 August 2021; (b) The information received by the Respondent between 6.25pm on 19 July 2021 and 4.12pm on 20 July 2021 which resulted in the Complainant’s booking being cancelled; and (c) The names of members of the Respondent’s members of staff who messaged the Complainant on 19 July 2021 and 20 July 2021. 18. By letter dated 6 October 2021, FLAC wrote to the Respondent noting that no response had been received to its letter dated 30 August 2021. A response was requested within 14 days.3 19. In circumstances where the Respondent did not reply to either of FLAC’s letters, the Complainant referred his complaint to the Workplace Relations Commission (“WRC”) for adjudication on 21 December 2021.

4 RELEVANT LAW

Personal and Material Scope of Equal Status Acts 20. Section 3 of the Equal Status Acts defines discrimination as follows: 3. — (1) For the purposes of this Act discrimination shall be taken to occur — (a) 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 2 Appendix 3 of Booklet for Hearing 3 Appendix 4 of Booklet for Hearing 4 Appendix 5 of Booklet for Hearing 4 specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which — (i) exists, …

21. The “grounds specified” in section 3(2) include at section 3(2)(i): (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: … (h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”), (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”), …

22. It is submitted that the Complainant, as a Traveller, and a person who considers himself be identifiable as a Traveller through his surname, falls within the personal scope of the Equal Status Acts, as set out in section 3.

23. The distinct ethnicity of Travellers was recognised by then Taoiseach Enda Kenny in a statement to Dáil Éireann on 1 March 2017.5 Accordingly, it is submitted that the Complainant is also afforded protection by the ground of race under the Equal Status Acts which refers to “ethnic … origins”.

24. The contexts in which discrimination on the Traveller community ground and the ground of race are prohibited, in other words, the material scope of the prohibition, are provided for in Part II of the Equal Status Acts.

25. Section 5 of the Equal Status Acts provides that: (1) 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.

26. A service is defined by section 2(1) of the Equal Status Acts as meaning: a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes— 5 Appendix 13 of Booklet for Hearing 5 (a) access to and the use of any place, (b) facilities for— (i) banking, insurance, grants, loans, credit or financing, (ii) entertainment, recreation or refreshment, (iii) cultural activities, or (iv) transport or travel, … (emphasis added)

27. The Respondent operates a public house, which, it is submitted, falls squarely within the definition of service, in particular that part of the definition which refers to facilities for “entertainment, recreation or refreshment”.

28. It is therefore submitted that the Complainant’s case falls within the personal and material scope of the Equal Status Acts. Burden of Proof and Standard of Proof

29. Section 38A of the Equal Status Acts sets out the burden incumbent on a complainant prosecuting a claim under the Acts, it also refers to the mechanism by which that burden shifts. In that regard, it provides: 38A. — (1) 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.

30. Section 38A of the Equal Status Acts was recently considered by the WRC in Francis Eneas Kearney v Workplace Relations Commission. 6 In that case, the Adjudication Officer described the operation of section 38A in the following terms: This means that the complainant has to point to facts that raise an inference of discrimination or harassment. Once this occurs, it falls on the respondent to disprove the inference of discrimination. It is a lower standard of proof than the civil standard of proof: ‘the balance of probabilities’

31. It is submitted that the documentary evidence submitted by the Complainant establishes sufficient facts from which an inference of discrimination may be 6 Appendix 6 of Booklet for Hearing 6 drawn.

32. The WhatsApp exchange between the Complainant and the Respondent shows that the Respondent was willing to “pencil in” the Complainant’s booking for 50 people on 12 August 2021. Notably, the Respondent was at the point of accepting the Complainant’s booking under the impression that his surname was “Walsh”. “Walsh” is not a known Traveller surname.

33. In taking the Complainant’s booking, the Respondent clarified with the Complainant that 12 August 2021 was a Thursday. The Respondent did not indicate that holding an event on a Thursday would pose any problem.

34. It was only after the Complainant clarified that his surname was “Ward” – a surname which would identify him as possibly being a Traveller – that the Respondent stated that he could not honour the booking.

35. In cancelling the Complainant’s booking, less than 24 hours after taking it, the Respondent relied on a number of reasons which are, in our submission, lacking in credibility.

36. First, the Respondent stated that it would not be open on a Thursday and for that reason it could not host the Complainant. However, the Respondent had, just hours earlier, confirmed with the Complainant that 12 August 2021 would be a Thursday, without any indication that this would be problematic.

37. Second, the Respondent relied upon the evolving legislative and regulatory situation with regard to COVID-19 and the anticipated introduction of vaccine passports as a reason to cancel the Complainant’s booking.

38. However, it is submitted that a review of the relevant regulatory changes in the period June 2021 – August 2021, as well as the Respondent’s reaction to those changes, as disclosed by its Facebook page, indicates that rather than turning away business as legislation was introduced, the Respondent was consistently inviting business. Furthermore, the relevant legislative changes in this period were all geared towards opening-up, rather than closing down, commercial life.

9. While it is acknowledged that COVID-19 resulted in the introduction of extraordinary legislative measures restricting normal commercial life, particularly for the hospitality sector; the situation on 19 - 20 July 2021, when the Complainant and Respondent were in contact, was not comparable to the lockdowns which characterised much of the pandemic.

40. By the beginning of Summer 2021, commercial life had begun to open up. For example, from 7 June 2021, the Government had introduced measures easing restrictions, allowing for outdoor dining and alcohol consumption. 7 And from late 7 (S.I. No. 267 of 2021) the Health Act 1947 (Section 31A - Temporary Restrictions) (Covid - 19) (No. 2) (Amendment) Regulations 2021 amended Regulation 13(1)(b) of (S.I. No. 217 of 2021) the Health Act 1947 (Section 31A – Temporary Restrictions) (Covid – 19) (No.2) Regulations 2021 so that with effect from 7 June 2021 persons were permitted to acquire alcohol for consumption at an outdoor table. Appendices 9 and 10 of Booklet for Hearing 7 June onwards, further measures were anticipated to allow for the resumption of dining and alcohol consumption indoors.

41. Indeed, media coverage on 13 July 2021 noted that “the Government has approved the resumption of indoor hospitality for people who present evidence of vaccination or immunity”.8

42. As was widely anticipated, prohibitions on indoor dining and alcohol consumption were removed on 25 July 2021 through the introduction of section 31AB to the Health Act 1947 (as amended) by section 3 of the Health (Amendment) (No. 2) Act 2021. 9

43. On 26 July 2021, the Health Act 1947 (Sections 31AB and 31AD) (Covid – 19) (Operation of Certain Indoor Premises) Regulations 2021 (the “2021 Regulations”) supplemented section 31AB by prescribing certain particulars, such as the conditions to be complied with by operators of indoor premises and matters like the required documents to prove vaccination or immunity.10

44. It is submitted that the Respondent’s attempt to rely on this evolving legislative and regulatory situation does not stand up to scrutiny.

45. The direction of travel of regulatory and legislative changes was towards society and hospitality opening up, which, for a business such as the Respondent, should have been a reason to accept, rather than turn down bookings.

46. Indeed, contrary to the message delivered to the Complainant, posts on the Respondent’s Facebook page from around this period indicate that the Respondent was reopening its business to coincide with the legislative and regulatory changes noted above.11 I. As the posts on the Respondent’s Facebook page illustrate, during June 2021 when outdoor drinking and dining was resumed, customers were invited to attend the Respondent venue to visit the beer garden, watch football and attend barbeques. II. On 26 July 2021, the day of the introduction of the 2021 Regulations, the Respondent posted on its Facebook page saying “we would like to open indoors from next weekend, giving us time to see how best to implement the new rules published late last night.” III. On 16 August 2021, the Respondent posted pictures from the previous weekend (14 – 15 August 2021) of an event held at its premises. The attached photos show a crowd of people sitting at tables, as well as a DJ and a saxophonist. Notably, this event was held 2 – 3 days after 12 August 2021, the date of the Complainant’s booking. 8 Appendix 14 of Booklet for Hearing 9 Appendix 11 of Booklet for Hearing 10 Appendix 12 of Booklet for Hearing 11 Appendix 2 of Booklet for Hearing 8

7. Finally, it should be noted that despite its stated concern as to the implementation of rules concerning proof of vaccination, the Respondent made no effort to enquire as to the vaccination status of the Complainant’s guests before cancelling his booking.

48. In summary, it is submitted that the Respondent relied on COVID-19 as a convenient excuse to dispense with the Complainant’s booking upon realising the likelihood that he and his party were Travellers. This is illustrated, in particular, by the fact that fewer than 24 hours had passed between the Respondent accepting the Complainant’s booking and subsequently cancelling it.

49. The only material difference between the facts known to the Respondent upon accepting the Complainant’s booking, and on cancelling it, was the Complainant’s true surname.

50. In the period between accepting then cancelling the booking, there were no changes in regulation or legislation, nor announcements from Government, which could have prompted the volte face by the Respondent.

51. Furthermore, contrary to the information provided by the Respondent to the Complainant, the Respondent clearly did open up its business to coincide with legislative changes and hosted large events in and around the time of the Complainant’s intended booking date.

52. In the circumstances, it is submitted that an inference of discrimination must be drawn and the burden shifted to the Respondent to explain its actions.

Application for Inferences to be Drawn

53. Section 26 of the Equal Status Acts enables an Adjudication Officer to draw inferences from the failure of a respondent to respond or respond accurately to questions raised by a complainant in their notification pursuant to section 21(2) of the Equal Status Acts. In that regard, section 26 provides: 26.—If, in the course of an investigation under section 25, it appears to the Director of the Workplace Relations Commission— (a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b), (b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or (c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission, the Director of the Workplace Relations Commission may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).

54. It is submitted that in the present case it would be appropriate for the Adjudication Officer to exercise their jurisdiction to draw inferences from the Respondent’s failure to reply to the Complainant’s notification letter dated 30 August 2021 and questions contained therein.

55. In particular, it is submitted that due to the Respondent’s failure to provide details of the information received by it between 6.25pm on 19 July 2021 when it accepted the Complainant’s booking and 4.12pm on 20 July 2021 when it cancelled the Complainant’s booking must render any such reasons provided at or before hearing subject to particular scrutiny.

REDRESS

56. Section 27 of the Equal Status Acts makes provision for the redress the types of redress and the amount of compensation which may be ordered by the WRC. In that regard, it provides: 27.—(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances: (a) an order for compensation for the effects of the prohibited conduct concerned; or (b) an order that a person or persons specified in the order take a course of action which is so specified. (2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.

57. Further guidance as to the appropriate compensation which may be awarded can be derived from Article 15 of the Race Equality Directive.

58. The Race Equality Directive applies to the present case in circumstances where the Equal Status Acts is the national expression of the Race Equality Directive and where the discrimination complained of is asserted to have been based upon the Complainant’s racial/ethnic origin as a member of the Traveller community.

59. Article 15 of the Race Equality Directive provides that sanctions applicable to infringements of national provisions (here, the Equal Status Acts) must be “effective, proportionate and dissuasive”.

60. Further, the Complainant was caused significant distress and disappointment by the manner in which he was treated by the Respondent, which was compounded significantly by its occurrence while he was trying to arrange a sensitive family event.

61. Taking the foregoing into account, it is submitted that the WRC should award compensation at the upper end of its jurisdictional limit and should consider an order that an appropriate course of action be adopted by the Respondent in recognition the of the hurt caused to the Complainant.

In response to the booking records furnished by the respondent’s representative on the 30thAugust 2022, the complainant’s representative furnished the following supplemental submission on the 5th.Sept 2022

PRELIMINARY OBSERVATION A

4 As a preliminary observation, the Complainant notes that the booking records the Respondent has provided are precisely the records sought by the Complainant’s ES1 Notification dated 30 August 2021 (point 1, page 13 of the Booklet for Hearing).

5. These records were evidently at all material times within the possession, power or procurement of the Respondent, yet were not provided in response to requests for same.

6. The provision of these documents following the hearing of the complaint has deprived the Complainant of an opportunity to cross-examine the Respondent’s witness in respect of the contents of the documents.

7. Accordingly, the Complainant reiterates his application for inferences to be drawn from the Respondent’s failure to respond to his ES1 Notification (paragraphs 53 – 55 of the Complainant’s Outline Written Submissions).

8. It is submitted that it would be appropriate to draw inferences as to the Respondent’s credibility in the circumstances.

C. OBSERVATIONS IN RESPECT OF THE CONTENTS OF THE DOCUMENTS SUBMITTED

9. The core of the Complainant’s case is that the Respondent cancelled his booking, to host his family and friends, upon realising the Complainant’s true surname. The Complainant has provided evidence that his surname – Ward – would have identified him as a Traveller.

10.It has been submitted that knowledge of the Complainant’s surname was the only discernible difference between the time when the Respondent accepted the Complainant’s booking and the time at which it was cancelled.

11.The Complainant has argued that the Respondent’s intention was to avoid hosting his event at all. The Complainant has further argued that the Respondent’s intention in this regard can be inferred from, inter alia, the failure of the Respondent to discuss alternative options with the Complainant, such as holding the event in a different location in the Respondent’s venue, or on a different date, before cancelling his booking.

12.The Complainant further argued that the reasons proffered by the Respondent for being unable to host the Complainant’s event do not stand up to scrutiny.

13.It is submitted that the following observations on the documents provided by the Respondent further fortify the Complainant’s arguments.

Respondent’s Opening Hours

14.The Respondent relied upon its opening hours as a reason for not being in a position to facilitate the Complainant’s booking. In the WhatsApp exchange between the Complainant and the Respondent, the Respondent stated “we will not be open on a Thursday” (page 3 of the Booklet for Hearing) and that the Respondent was open from Fridays to Mondays. At hearing on 23 August 2022, the Respondent’s witness, Mr Bertrand Dierckens, stated that the Respondent had only recently, in the last 6 – 7 weeks, reopened outside of these hours.

15.However, the booking documents provided by the Respondent show that, between July 2021 and September 2021, it was open on certain dates outside of its purported normal opening hours. The Respondent has provided booking documents showing that it opened on Thursday 29 July 2021 (pages 77 – 78 of the first attachment); Tuesday 24 August 2021 (pages 40 – 41 of the second attachment); and Thursday 16 September 2021 (pages 69 – 70 of the second attachment).

16.It is respectfully submitted that the Respondent cannot rely upon its purported normal opening times as a credible reason for being unable to host the Complainant. This submission is in addition to those made at paragraphs 33 and 36 of the Complainant’s Outline Written Submission.

Failure to Discuss Alternatives before Cancelling

17.In his ES1 Notification dated 30 August 2021 (page 12 of the Booklet for Hearing), the Complainant stated that: No alternatives were offered to our client by the Miners Bar. The possibility of alternative dates, accommodating a lower number of attendees or hosting our client’s event in a different part of the Miners Bar, were not raised with our client. The absence of any proposed alternatives is notable, as it suggests that the Miners Bar did not wish to host our client’s event under any circumstances.

18.The documents submitted by the Respondent provide an indication as to its capacity to host guests in its outdoor area. Pages 20 – 21 of the second attachment relate to bookings taken for 13 August 2021, which was 1 day after the Complainant’s intended booking date of 12 August 2021. The column on the far left of these pages discloses that the Respondent had capacity to accommodate, at least, 102 patrons in its outdoor area.

19.As the Complainant’s booking was for 50 persons, it is submitted that the Respondent could have accommodated this group in the outdoor areas available to the venue, without exceeding half of its overall capacity.

20.However, the possibility of hosting the event outdoors was not raised by the Respondent’s manager, rather he opted to cancel the Complainant’s booking. It is respectfully submitted that the Respondent’s intention to dispense with the Complainant’s booking entirely may be inferred from the failure to explore alternative means of facilitating the Complainant’s booking.

Indoor Opening

21.The Respondent’s manager, Bertrand Dierckens, stated that “I was not sure whether we would open indoors at all” (page 1 of his Witness Statement).

22.Although Mr Dierckens proffered this as a reason for cancelling the Complainant’s booking fewer than 24 hours after accepting it; in actual fact, the Respondent’s venue reopened indoors from 30 July 2021, with seating in its Front Bar.

23.In the covering letter to the booking documents provided, Mr Dierckens notes that the Front Bar had six tables available. The capacity of these tables is not stated in the documents submitted. However, it is noted that the entry for FB1 on 26 September records five names at that table.

24.Notwithstanding the Complainant’s submission that the Respondent has invoked COVID-19 Regulations as a convenient excuse; as a matter of fact, the Respondent’s venue could have hosted the Complainant’s event indoors subject to a possible reduction in attendees.

25. It is submitted that the Respondent’s failure to inquire into the possibility of hosting the event with fewer attendees reflects the Respondent’s intention to dispense entirely with the Complainant’s booking. 1 The overall capacity is expressed as being “at least” 102 patrons where the tables listed on the document provided do not include a table 15.

CONCLUSION

26.Inferences as to the Respondent’s credibility should be drawn from the failure of the Respondent to reply to the Complainant’s notification and to the questions asked therein.

27.The documents which the Respondent has eventually disclosed, following the date of the hearing, fortify the Complainant’s submission that the Respondent’s decision to cancel his booking was premised on knowledge of the Complainant’s surname, which would have identified him as a Traveller, and no other factor.

28.First, the documents show, contrary to the Respondent’s assertion, that the Respondent did open on dates outside of its normal opening hours.

29.Second, the documents show that the Respondent could have hosted the Complainant in its outdoor areas, without exceeding half the maximum capacity of those areas. However, this option was not offered to the Complainant.

30.Third, the documents show that, contrary to the Respondent’s assertion, the Respondent was open indoors on a limited basis at the date of the Complainant’s booking. However, in common with the Respondent’s failure to inquire as to the Complainant’s willingness to book the outdoor areas of the venue, no effort was made by the Respondent to explore whether or not the Complainant was willing to hold a more limited event than he had initially planned.

31.In the premises, a finding of prohibited conduct contrary to the Equal Status Acts should be made and appropriate redress ordered.

This submission was forwarded to the respondents representative who sought an extension of time to make his submission owing to illness.On the 28th.Nov. 2022 , the WRC furnished the claimant’s representative with the respondent’s replying document and the following written submission was furnished on behalf of the claimant to the WRC on the2nd.Dec. 2022.

1. On 23 August 2022, this complaint was heard remotely before Adjudication Officer (“AO”), Emer O’Shea.

2. In the course of the hearing, the AO requested that the Respondent provide any available booking records for the period material to the complaint within a period of a week. The AO afforded the Complainant a further week to comment upon any such records, should they have been produced.

3. By email dated 30 August 2022, the Respondent’s representative sent the booking records of the Respondent to the Complainant’s representative.

4. On 5 September 2022, in accordance with the AO’s directions, the Complainant entered a supplemental written submission.

5. By letter dated 28 November 2022, Ms Jemma Byrne of Adjudication Services in the Workplace Relations Commission (“WRC”) furnished the Complainant’s Representative with a submission from the Respondent written in response to the Complainant’s supplemental written submission.

6. Ms Byrne requested any observations or comments from the Complainant to be provided within the next 7 days and to be copied to the Respondent’s representative.

B. PRELIMINARY 7.

7. The Complainant’s written submissions dated 12 August 2022 and 5 September 2022 and evidence adduced at hearing are reiterated and repeated.

8. The within submission is in response to arguments raised in the Respondent’s submission received 28 November 2022.

C. OBSERVATIONS ON RESPONDENT’S SUBMISSION

Paragraph 5

9 It is submitted that the size of the Respondent’s business and means have no bearing whatsoever on the question under consideration which is whether a prima facie case of discrimination is raised and, if so, whether the Respondent has rebutted that case. The assertion that the Free Legal Advice Centres is possessed of “unlimited means” is not only patently inaccurate but completely irrelevant and should be disregarded.

Paragraphs 7 - 8 2

10.Contrary to the Respondent’s assertion that the Complainant’s application for inferences to be drawn “was fully dealt with in the Oral Hearing” and that “all evidence was adduced from both the Complainant and Respondent”, the reality is that the Respondent did not disclose booking records until after the date of the hearing. This deprived the Complainant of the opportunity to cross-examine the Respondent’s witness in respect of the contents of the documents.

11.In circumstances where the Respondent failed to produce the relevant records when requested to do so by the Complainant and failed to produce the relevant records as part of its submissions prior to the hearing, it is submitted that it is entirely appropriate for inferences to be drawn as to the reason for those failures pursuant to section 26 of the Equal Status Acts.

Paragraph 9

12.The Respondent’s witness stated in oral evidence that he had previously worked providing healthcare services to Travellers in association with Pavee Point. Evidence was adduced by the Complainant that he was identifiable and had been identified by his surname in the past. It is submitted that it is open to the AO to take judicial notice of the fact that Travellers are routinely identified by their surnames.

13.In the circumstances, it is submitted that it the Respondent’s position is completely lacking in credibility. Furthermore, the assertion that: no evidence of any nature has been adduced to back up the contention that my client was aware because of the name Ward that the Complainant was a member of the travelling community is misconceived as to the applicable rules of evidence in cases under the Equal Status Acts which require a complainant to establish facts from which an inference of discrimination can be drawn. In the within complaint, the Complainant has established that his name is a common Traveller surname, that he has been identified as a Traveller by that surname in the past and that upon providing his surname his booking was cancelled. It is respectfully submitted that from those facts, an inference of discrimination may be drawn.

14.For the avoidance of doubt, it is further submitted that the absence of evidence as to the Respondent’s witness’s knowledge of Traveller surnames does not rebut the inference of discrimination.

Paragraph 10

15.The Complainant’s submissions at paragraphs 32 – 52 of its outline written submissions dated 12 August 2022 are reiterated. In brief, there were no regulations, legislation nor announcements between the Respondent accepting the Complainant’s booking and cancelling it which could credibly explain its change in attitude.

Paragraph 11

16.Contrary to the Respondent’s assertion that the Complainant specifically asked for “the lounge” the reality as disclosed by the WhatsApp exchange is that the Respondent offered the Complainant “the lounge”, which the Complainant accepted. The Complainant cannot be expected to understand, in the same level of detail as the Respondent, the different available rooms or areas of the Respondent venue and their relative capacity.

Paragraph 12

17.The Complainant’s submission that the Respondent has failed to proffer any credible reason or evidence for accepting then cancelling the Complainant’s booking is repeated.

Paragraphs 14 – 17

18.The Respondent’s expansion upon the circumstances in which it did in fact open outside of its asserted normal opening hours and at some remove from the date on which the Respondent’s witness stated at hearing it had reopened only fortifies the Complainant’s case. It clearly demonstrates that the Complainant was treated differently to other customers. The Complainant’s case is that the basis for that differential treatment was his Traveller ethnicity. Notably, the occasions on which the Respondent did open outside of its normal opening hours were all to mark recent deaths, this was the exact purpose for which the Complainant sought to avail of the Respondent’s services and renders the occasions when the Respondent did reopen as comparators for the purposes of the Equal Status Acts.

Paragraphs 18 – 20

19.As noted at paragraph 16, the Complainant opted for “the Lounge” at the prompting of the Respondent.

20.The Respondent submits that “our outdoor area is public so, we would say not appropriate for an event”. However, at paragraph 17 of the Respondent’s submission it is noted that each event held outside of the Respondent’s asserted normal opening hours was held outdoors.

Paragraphs 21 – 25 4

21.The Complainant’s submissions dated 12 August 2022 and 5 September 2022 are repeated.

22.The Respondent’s failure to discuss alternatives with the Complainant, such as hosting his booking outdoors, belies its intention not to host the Complainant under any circumstances.

Paragraph 26 2

3.As noted above, it would be entirely appropriate to draw inferences from the Respondent’s total failure to engage with the Complainant’s notification and requests for material information.

24.The repeated references to the means of the Respondent and the asserted means of the Complainant’s representative are irrelevant and unnecessary and do not approximate to legal argument cognisable by the WRC. As such, they should be discounted in their entirety

. Paragraph 27

25.The submissions at paragraphs 12 – 14 of this document are repeated.

Paragraphs 28 – 29

26.The Respondent’s assertion that the events it hosted outside of its normal opening hours were outdoor events is irreconcilable with its assertion that it did not host events outdoors and therefore could not have offered the Complainant outdoor space as an alternative. The submission at paragraph 18 of this document are repeated.

Paragraph 30

27.The submissions at paragraph 16 of this document is repeated.

Paragraph 31

28.The Complainant’s mistake as to his name was explained at hearing and no evidence was adduced to contradict it. In our submission, the change in attitude evinced by the Respondent, within a space of 24 hours, consequent on the Complainant correcting his name is the only matter of relevance to the within complaint.

29.Appended to this submission are documents, predating the Complainant’s contact with the Respondent, demonstrating that the Complainant routinely uses the name Brendan. 5

Paragraph 32

30.The assertion that the Complainant read from a “prepared statement” is without foundation. This matter was dealt with in the course of the hearing through the Complainant indicating to the AO that the only material he had in front of him was a copy of the WhatsApp exchange between him and the Respondent.

31.The Respondent’s submission that refreshing memory through the use of notes is “totally against the basic rules of evidence” is misconceived as a statement of law. In that regard, we rely on the following passage from Declan McGrath, Evidence (3rd ed. 2020) at 3-176: The general principle is that a witness, while giving evidence, is entitled to refer to a document for the purpose of refreshing his or her memory provided that the document (or the original thereof) was either made or verified by the witness contemporaneously with the events to which it refers.

32.In circumstances where the Complainant was refreshing his memory using the contemporaneous WhatsApp exchange between him and the Respondent, his doing so clearly fell within the parameters allowed by the rules of evidence

Summary of Pertinent Evidence of the complainant:

The complainant set out the background to his approach to the respondent to facilitate an event to commemorate his father’s anniversary in August 2021. He stated that his surname would be identifiable as a traveller name in the Sligo /Leitrim/Roscommon hinterland. He said he was very close to his Dad and that he sent a message via Whats Ap to the Miner’s Bar enquiring about facilities for a party of 50 for the 12th.August .He asserted that he was asked for his name and was told that the bar owner would check the availability .He was asked for his name and he replied Brendan. He was advised that the respondent would be checking government regulations. The complainant was asked for his surname and replied Walsh – he stated he was unaware that his phone had autocorrect switched on and he only discovered this after the Whatsapp exchange. The complainant said the respondent suggested the lounge and he accepted. The respondent later confirmed the arrangement for August the 12th. In responding the claimant said he clarified that his name was Ward and that if possible sandwiches would be appreciated .When he followed up the day after , the respondent replied that the premises would not be open on a Thursday .The complainant asserted the respondent was taking a different attitude and he attributed this to the clarification he made about his surname. The witness said that no options for outdoor dining was offered. The family eventually got a venue in Cavan town – Carrick he said would have been much more convenient for his family. The witness said it was a devastating experience .It had been a long and stressful 12 months and he was forced to tell his family that the event could not proceed because of the respondent’s cancellation.

Under cross examination the witness said the party was made up of his father and mothers’ families, close family members and brothers and sisters. He had not been in the premises before – he grew up in County Leitrim. It was put to him that the respondent could not have ascertained he was a traveller, the witness replied that for the Counties of Sligo, Leitrim and Roscommon you are a member of the traveller community if your surname is Ward. It was put to the complainant that the name was not an indication of membership of the traveller community. The complainant asserted that in 9 out of 10 times, the surname would signal membership of the traveller community. The complainant said that it often happened that autocorrect would reference Walsh rather than Ward The claimant said his father was also Bernard – he stated that he used Brendan if he was booking online events. The witness was asked if he accepted that the respondent was never aware that this was an anniversary occasion. The witness was adamant that he made it clear to the respondent that this was an anniversary occasion. The claimant said he tried 3 or 4 other places at the same time and he eventually got a venue in Cavan. It was put to the claimant that the respondent had indicated that arrangements were contingent on government regulations and that he would pencil the booking in – the claimant accepted this. It was put to the complainant that this was only a preliminary booking and it was contingent on government regulations

The witness denied that he had become aggressive in his exchanges with the respondent. It was put to the claimant that the respondent perceived his reference to “ Mate” as aggressive and the witness replied that 9 out of ten times the term “Mate” is used in London. The witness replied at no time was I aggressive. The witness referenced the cancellation of the booking when he corrected the error about his surname. It was put to the witness that the respondent was a Belgian National living in Ireland since 2017 and could never have been aware that the complainant was a member of the travelling community .The complainant was asked why he did not look for a different date when the booking was cancelled – the respondent’s representative asserted that he – i.e. the complainant – did not ask for an alternative date because he was happy the booking had been refused – it was asserted by the respondent’s representative that this was part of a larger plan to bring a case against the respondent. The complainant responded that if a different date was offered he would have accepted it. The complainant said that when he sent the original text to the landline number, he typed in Ward but Walsh was what had been sent. Autocorrect was what was on all the time. It was contended by the respondent’s representative that the respondent had been put at significant costs in defending the complaint. The complainant confirmed that the family and friends would meet up annually for the anniversary.

The complainant’s representative referenced the burden of proof in equality legislation and submitted that inferences can be drawn from facts in the context of the burden of proof. He asserted that when the booking was made, the complainant’s identity as a traveller was not known. It was submitted that the pencilling in was not relevant to consideration – it was a fact that no changes were advanced between the time the booking was taken and the booking was cancelled. No alternatives or outdoor facilities were offered which the complainant’s representative argued was indicative of an attitude of not wanting to host the event at all. It was submitted that the only change that occurred between the booking and the cancellation was the clarification re. the complainant’s surname - and it was submitted that the suggestion that the respondent was unaware that Ward was a traveller name lacked credibility. Other opportunities were ignored. Documents and booking information sought by the complainant’s representative were not furnished and it was argued that this goes to the credibility of the respondent. It was submitted that the respondent had ample opportunity to reply but there was a steadfast refusal to engage. It was submitted that the burden of proof had shifted and there was a failure to rebut the inference of discrimination. There had been no indication when the complainant made the booking that Thursday would present a problem.

Summary of Respondent’s Case:

At the hearing the respondent ‘s representative referenced the respondent’s record of the exchanges that took place between himself and the complainant and submitted press statements and documents on government Covid Regulations and guidelines on indoor and outdoor dining.

Following receipt of the complainant’s representative supplemental submission of the 5th.Sept. 2022 the following document was furnished to the WRC and copied to the claimant’s representative on the 28th.Nov. 202

SUPPLEMENTAL WRITTEN SUBMISSION OF THE RESPONDENT

A Background

Agreed
Agreed
Agreed
This is a matter for the Adjudicator
As indicated in the Hearing of this case, our client is a small business with limited means and is therefore being forced into defending a case taken by the Free Legal Advice Centre who have unlimited means and therefore would ask the Adjudicator to take this into account in respect of our client who has met this case and engaged legal representation in this regard.
See above
This Application was fully dealt with in the Oral Hearing and we are unsure as to why the Complaint’s Solicitor now feels the need to again try to litigate this matter through Submissions in circumstances whereby at the Oral Hearing all evidence was adduced from both the Complainant and Respondent and Legal Submission submitted.
It is submitted that no inferences should be drawn especially in respect of the Respondents creditability in such circumstances.
Again, as indicated at the Oral Hearing of the case our client stated that he does not know which surnames identify members of the travelling community therefore, he cannot know the specific surnames in the Sligo/North Leitrim Area as was stated by the Complainant in the Hearing. There is absolutely no evidence put forward by the Complainant to back up this Submission that our client had any knowledge that the surname Ward would identify the Complainant as a member of the travelling community. It is submitted that the Complainant here indicates that this is the core of the case but yet, no evidence of any nature has been adduced to back up the contention that my client was aware because of the name Ward that the Complainant was a member of the travelling community.
See above, see response to number 9 this is incorrect the Submission on behalf of the Respondent during the Oral Hearing was clear that the fact that the discernible change which affected the entire industry at large was the fact that there was total uncertainty surrounding operational regulations in the Hospitality Industry that influenced the complainant’s decision in this regard.
The Complainant’s evidence at the Hearing was clear in that, he did not suggest any alternatives as no decision was made on behalf of his business to open indoors and the Complainant had specifically asked for the Lounge as a Venue. Our client submits that he could not offer any other dates as he did not know when and how the operation regulations would affect his business and as stated could therefore not make a decision at that time on indoor opening. This decision was not in anyway connected to the Complainant’s case but was the decision taken in respect of our client’s business as a whole.
We cannot respond to this submission as it is just a general comment but, for the purposes of completeness sake we say that the reasons proffered by the Respondent for being unable to host the Complainant’s event do stand up to scrutiny and we believe there could not be any greater evidence in the history of hospitality in this Country that could stand up to scrutiny better in such uncertain times as a situation whereby the entire hospitality sector was being influenced by Guidelines being issued by the State.
The Respondent submits that this is not the case.
It is submitted that this is taken out of context of the entire Whatsapp conversation and a further Whatsapp dated the 20th July 2022 at 16.33 the Respondent stated we would have happily accommodated you on a Thursday but we can’t do that now.
In respect of these events, the Respondents states that all three of these relate to the facilitation of an afters of a funeral of a local persona and each was small in number and was facilitated outside only.
It is respectively submitted that the Respondent can rely upon his support on normal opening hours as a credible reason for being unable to host the Complainant. The Complainant’s request for the Lounge on the 12th August 2021 we did not know if we would be open indoors at that stage in that area.
On Thursday the 29th July 2021 following the death of a sister of our customer we were asked to provide some tea and sandwiches after the funeral it is was a small family and the event was held outdoors as required and we enclose herewith a copy of the notification of the death of Mary Lahanny and on Thursday the 24th August 2021 upon the death of the grandmother of one of the Complainants of employees who were asked to provide tea and sandwiches after the funeral and the event was held outdoors as required. On Thursday the 16th September 2021 following the death of a mother of one of our customers we were asked to provide some tea and sandwiches after the funeral, it was a small family and the event was held outdoors as required and we enclose herewith a copy of the Death Notice. The Complainant adduced in evidence at the Hearing that the Whatsapp conversation appeared to take a threatening tone by the Complainant when he used the words “mate”. The Complainant’s attitude did not appear to look for an alternative booking. I stated that we were open Friday to Monday that we simply do not know if we would be open indoors in the Lounge on the 12th August 2021. That is in a whatsapp message dated the 27th July 2021 at 16.12 and 16.33.
It is submitted that the Complainant requested the Lounge which is not an outdoor area. Also, our outdoor area is public so, we would say not appropriate for an event and he then requested the Lounge which is not an outdoor area. At no point in any of the conversations did the Complainant make any request and specifically requested an indoor area which we could not facilitate.
See response to 18
See response to above – indoor opening.
This is a Statement of Mr. Deirckens attitude at the time and is based on the lack of information on operational Guidelines which had not been published by either the Government or Failite Ireland.
The Complaints states On the 30th July 2021at that stage the government had made clear what its intentions were with regard to opening indoors. Our front bar is small and at that time could only accommodate about 12 people as were still not allowed to see customers at the counter or have them stand while consuming as our Facebook post on the 26th July shows which is contained in the Booklet of Evidence, we were only looking at opening indoors. Maximum seating capacity could have been 19 however, we were not actually able to seat as many customers due to the requirement of two metre social distancing between the tables and this reduced the capacity to 15 or less.
The Complainant submits that as a small business they did not consider Covid19 and the prohibited regulations that they had to operate under as convenient. At no stage did the Complainant state he could reduce the number of attendees having stated that the would be 50 and at the time of the request we did not know if we could open indoors and to what extent.
It is submitted that this is not correct and that the Complainant’s request was specific in nature and our client at the time like numerous small businesses in similar situations could simply not provide the service that was required due to the prevailing circumstances in the Country at the time. It is extremely unfair to use our clients trepidation and concern on how to run his business as a reason to ground a complaint of this nature against him.
As adduced at Hearing there can be no inferences drawn to the Respondent’s creditability in circumstances whereby as a small business who has to pay for his legal representation it is totally unacceptable to have issue with creditability in circumstances where he has to pay for legal advices in circumstances where this complaint was bought with the benefit of the Free Legal Advice Centre who I presume provide legal advice for free.
It is submitted that this has been dealt with time and time again both in written submissions and also at the Oral Hearing and again and the Complainant specifically gave evidence that he did not know the Complainant was a traveller but yet, the Complainant and the Complainant’s free legal advice centre seem to constantly make the Statement that by mere fact of the name Ward our client would have had to have know that the Complainant was a traveller. There has been no evidence of any shape way or form provided in this regard and it is entirely unfounded that use of the name Ward our client would know that they were dealing with a member of a travelling community. Time and time again, this evidence has been adduced with no backing or supporting grounding material or expertise to back same.
It is submitted that these were all to do with outdoor events.
The specific request for the Complainant was for the Lounge and at no point was there any indication that outdoors would be proffered and again, as was indicated at the Hearing outdoors is a public area.
It is submitted that this is not contrary to any ascertain on behalf of the Respondent at Trial and that given the operational regulations allowed us to open indoors at that stage. The Lounge as was indicated at the Hearing our client made a business based decision that the Lounge was not a viable option to them due to staffing and regulatory provisions in place.
As indicated at length and we fully resubmit all of the arguments made in closing of the Oral Hearing that there is no prohibited conduct contrary to the Equal Status Act and indeed again, the Complainant has indicated that the core of their case is based on circumstances whereby our client was automatically in their view aware that Mr. Ward was a member of the travelling community by virtue of the fact that he used the surname Ward. It also of note that Mr. Ward seems to have had extreme difficulty in not alone indicating his first name but also indicating his second name and it appears that he used four different names in the process of this booking. This in itself I would say should draw inferences as to the claimant’s creditability in respect of this case as a whole.
It is further submitted on behalf of the Respondent that at the hearing of this matter the Complainant in his direct evidence was clearly reading from a prepared Statement which was noted by the Adjudicator and is totally against the basic rules of evidence. Therefore it is our submission that the Complainants creditability should be called into question in light of this and in the prosecution of the case as a whole.

Summary of Pertinent Evidence of respondent :

In his direct evidence Mr.Dierckens confirmed his position as respondent and recalled in the initial exchanges with the complainant that an anniversary was mentioned .He referenced the uncertainty in the hospitality sector at the time and the guidelines and S.I .s that were due for publication on the 6th.August.There was talk about opening up and requiring vaccination certs but it was not clear. He said the full name of the person booking was required in case someone else came along and he accepted the name Walsh that was given to be true. The witness said he pencilled in the date but this was not necessarily confirmation. The respondent was not familiar with autocorrect. He referenced the uncertainty at the time in the hospitality sector – it was a big decision for the premises to open indoors and he would have to set up a separate team to manage indoor events and staff would require training up . He said they were unsure if the Regulations would require checking of vaccination certificates and felt they could not manage that .The respondent said when he reverted to Mr.Ward he i.e. Mr.Ward addressed him as “Mate” .Mr.Dierckens said he felt intimidated and felt from the complainant’s reply that he was going to show up anyway on the date – 12th.August .

The witness was adamant that he made no distinctions regarding minority groups – as a gay man himself, he would not support discrimination and doesn’t discriminate against minorities. The witness referenced having worked with travellers on health projects – he denied that experience would have given an insight into the range of traveller surnames. When asked about how the business proceeded after the 6thAugust, the witness stated that outdoor only events were stipulated – when referred to a mid-August event that was captured on Facebook , the witness said this was the afters after a wedding and not a function. He repeated we had no indoor functions. They continued to put up posts on their social media platforms whether the business was indoor or outdoor. He stated that older clientele were accommodated in the small bar. When asked to explain how he felt to be accused of discrimination, the witness said that at no stage would he have wanted to discriminate – it was not in his nature and they wanted to grow the business. The witness said he felt targeted towards the end of the conversation with the complainant.

Under cross examination the witness was questioned as to why a phone number and name was insufficient, he replied that generally when taking a booking it was normal to have the first name and the surname. When asked what use the surname was the witness replied it was normal hospitality principle to have the full name. He reiterated that no bookings were taken for the lounge as they were not sure how things would work out with Covid guidelines. It was put to the witness that he had suggested the lounge and he was asked did he see any problems after having discovered that the 12th.August was a Thursday. The witness said he would have been slow to facilitate the Thursday as they weren’t opening anywhere else. He was asked about referring to Covid Regulations in the exchange with the complainant and what he was talking about , the witness replied we were not allowed to have an indoor gig at that time. He confirmed pencilling in the booking – they thought they would have clarity by the 12th.August on indoor booking – he decided not to go ahead because of the uncertainty. The witness was questioned about offering alternatives to the complainant - he referenced no announcement or change in Regulations .The witness said the decision to cancel the booking was nothing to do with the complainant’s surname – he thought it prudent not to give the complainant false hope .It was put to him that nothing had changed since he had first engaged with the complainant except the complainant’s correction of his name.

The witness referred to his background as a Belgian national and referenced his familiarity with the travelling community when he worked at Pavee Point. When asked of his awareness of how travellers were identified, the witness replied that his work focused on health and health outcomes and he had no familiarity with travellers and their surnames. The witness was referred to the facebook and social media extracts furnished with his submission about S.I’s , Covid Guidelines and Failte Ireland and it was put to him that he had some knowledge of what the law was saying – the witness said there was no information about numbers. It was put to him that there was no change in the law at the time he unpenciled the complainant’s booking – it was advanced that the evidence showed that the witness was not relying upon on Failte Ireland guidelines – it was asserted that the only difference that arose between the pencilling and unpencilling of the booking was the knowledge of the surname. The witness said it was uncertainty about what decisions the government would make on opening for functions. The witness said pencilling in is not the same as confirming a booking. The witness said when Failte Ireland published their guidelines on 25/26July they did not do a full reopening – they took bookings for the front bar only .The witness said that they only started opening on a Thursday about 6 weeks ago.It was advanced that regardless of the change of name , the respondent did not discriminate.

The respondent’s representative submitted that their main defence was that they did not discriminate – the complaint had led to the respondent incurring significant costs in defending the case – they were not in a position to fund an investigation into the technicalities around auto correction.

It was contended that the burden of proof had not been shifted – it was submitted that the respondent knew nothing of the significance of the surname Ward and its association with travellers. This was a small rural business – it was argued that the respondent did nt have legal advices ; he was trying his best – it was submitted that the respondent would have been happy to host the event but the lounge was not available – there had been no discrimination and it was submitted that no real evidence was advanced to say the complainant was treated any differently or less favourably -It was submitted that the decision to cancel the booking was nothing to do with the change of name from Walshe to Ward.

Findings and Conclusions:

I have reviewed the evidence presented at the hearing as well as the submissions made by the respective parties. The matter for decision is whether the respondent discriminated against the complainant by refusing to accept his booking for the family get together on the 12th.Augst 2021 on the basis that the complainant was a member of the Traveller community

I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination : 38A.—(1) 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.

(2) 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

. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the F85[Director of the Workplace Relations Commission] under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

It requires the complainant to establish, in the first instance , facts upon which he can rely in asserting the prohibited conduct has occurred in relation to him .It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

Section 3(1)(b) provides that discrimination shall be taken to occur where

(a)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) or if appropriate subsection (3B) in this Act referred to as the discriminatory grounds….

Section 3(2) of the Acts provides that:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:
		(a) that one is male and the other is female (the “gender ground”),
		(b) that they are of different marital status (the “marital status ground”),
		(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),
		(d) that they are of different sexual orientation (the “sexual orientation ground”),
		(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),
		(f) subject to subsection (3), that they are of different ages (the “age ground”),
		(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),
		(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),
		(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

I am satisfied that the complainant, as a Traveller, and a person who considers himself to be identifiable as a Traveller through his surname , falls within the personal scope of the Act as set out in Section 3.I am also satisfied that the Miners Bar falls within the definition of service as defined by Section 2(1) .

The text messages exchanged between the parties chronicles the initial approach by the complainant to make the booking, the initial response of the respondent and the ensuing exchanges, ultimately resulting in the booking – provisional or otherwise - being cancelled. The facts demonstrate that it was only after the clarification by the complainant that his name was Ward as opposed to Walsh that the arrangement was cancelled by the respondent. I accept that Ward is a known traveller name in the Midland / Northwest region.

I have considered the respondent’s defence to the complaint. While I acknowledge that the respondent did reference “government regulations” in his initial response, I do not accept that the uncertainties in relation to the hospitality industry at the time and the anticipated changes of restrictions are convincing in circumstances where there was no change in restrictions in the period between the booking was pencilled in and subsequently withdrawn within a period of 24 hours. I accept the claimant’s contention that at the time it was a relaxation of restrictions that was being anticipated as opposed to any further curtailment. I find the evidence presented by the claimant of the respondent’s social media posts indicate that they were preparing for opening up as opposed to restricting their service into the future.

It is noteworthy that the respondent did not indicate any difficulty with a Thursday booking in his initial exchanges with the claimant.

I accept that the booking documentation furnished by the respondent after the hearing supports that claimants contention that the premises did open on dates outside of its purported opening hours. I also find the assertion by the claimant’s representative that the respondent’s failure to offer any alternative dates for indoor or outdoor service to the complainant was indicative of a wish not to entertain the booking.

I note that the respondent has not furnished a compelling explanation for failing to respond to the claimant’s ES1 form and in this regard consider it reasonable to draw inferences from such failure in the context of examining the motivation of the respondent in cancelling the arrangement.

The text messages demonstrate that the only material difference between the facts known to the respondent upon accepting the booking – all be it provisionally – and on cancelling it, was the disclosure of the surname Ward.

I have concluded that the complainant has established a prima facie complaint that he was discriminated against by the respondent when he clarified that his surname was Ward – a known Traveller surname in the area. I find that the respondent did not convincingly rebut the inference of discrimination raised and accordingly I declare the complaint to be well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

In accordance with Section 27 of the Equal Status Act, I find that the complaint is well founded. I require the respondent to pay the complainant €3,000 compensation in respect of the finding of discrimination on the grounds of membership of the Traveller community.

Dated: 09th February 2023