Patrick O'Brien (Represented by Lydon & Co, Solicitors) V The Imperial Hotel, Tuam (Represented by O'Connor Leddy & Holmes, Receivers)
1.1 This dispute concerns a complaint by Mr Patrick O'Brien that he was discriminated against, contrary to the Equal Status Act 2000, by the Imperial Hotel, Tuam. The complainant maintains that he was discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainant states that when he sought entry to a disco in the Imperial Hotel, Tuam on 24 June 2001, he was informed by the doorstaff that "only a certain amount of you are allowed by management". The complainant took this to be a reference to his Traveller identity and believes that he was refused admission on the grounds of his membership of the Traveller community.
3. Summary of Respondent's Case
3.1 Receivers, acting for the respondents, rejected that a discriminatory policy against Travellers was in operation. They maintain that non-regulars were usually refused admittance and only those who were identifiable to the doorstaff were admitted.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5 Background Information - Mr Gary Lennon, Receivers
- Pirbright Ltd purchased the Imperial Hotel in Tuam in October 1999
- The Directors of the company are Mr Thomas Connolly and Mr Declan Cahill
- Pirbright Ltd operated the hotel for 20 months, during which time the business declined
- On 10 July 2001, Conor, Leddy, Holmes, Accountants were appointed Receivers over the assets of the Hotel by the debenture holder, ICC Bank plc
- At the Hearing on 9 April 2003, Mr Lennon said that the company had no assets to its name and that there is still an estimated deficit of over £1m owing to the Bank.
- Although the incident complained of occurred on 24 June 2001, prior to the receivers being appointed, the receivers agreed to send a representative to the Hearing.
- When the receivers took over the Hotel in July 2001, all existing staff were retained with the intention of selling the business as a going concern
- The only exception was the then manager, Mr A, who left the Hotel's employ around that time
- To ensure continuity, the Receivers appointed Mr Michael Dempsey as Manager of the Hotel. Mr Dempsey had previously worked in the hotel for a number of years as Restaurant Manager and other positions up until mid 2000
- Mr Dempsey's role was to sustain the hotel as a viable entity.
- The Receivers disposed of the Hotel in December 2001 after which the new owners closed it down for renovations The Hotel still remains closed
Evidence of Complainant Patrick O'Brien
- Mr O'Brien works away from home a lot and very seldom socialises in Tuam itself
- He has been in the Imperial Hotel before but not immediately prior to the incident.
- On those occasions he had no problem with the doormen.
- Mr O'Brien is aware of a number of younger Travellers who drank in the Imperial prior to July 2001 but understands that they usually visited the hotel before the doorstaff came on duty at 8 pm.
- Mr O'Brien understands that a new set of doorstaff were employed by the management about 6 weeks before the incident on 24 June 2001
- At 10 pm on 24 June 2001 he decided to go out for a drink with his brother Richard. As it was late they chose to go to the Imperial Hotel where a late disco was usually on
- They arrived at the Hotel at 10.30 pm and met 3/4 doormen on the door
- He noticed that the doormen were wearing earpieces and presumed that they were in contact with someone monitoring the security cameras upstairs
- One of the doormen said "Sorry not tonight - there are enough of ye in tonight already"
- Another doorman remarked that it was "Regulars only" and announced that "only a certain amount of you are allowed by management".
- Mr O'Brien and his brother left peacefully
- He said that he felt highly embarrassed by the incident.
- As they walked from the Hotel, he waved down a Garda patrol car and spoke to a Garda.
- The Garda told him that he could not get involved but informed him that he would be happy to confirm that Mr O'Brien was not drunk if called upon to do so.
- Some weeks later, Mr O'Brien called to the hotel at lunchtime and met one of the doorstaff from 24 June. That man confirmed to him that the doorstaff had been told to only permit a limited number of Travellers on to the premises at any given time.
- He also confirmed that he was only new to the job and would not know who the "regulars" were.
- The doorman also told him that the man on the cameras was responsible for deciding who was admitted
- Mr Richard O'Brien appeared as a witness at the Hearing and confirmed the events of 24 June, as described by his brother
- Some time after 24 June 2001, Patrick O'Brien said that he had a discussion with a local publican, who is also a member of the Vintners Federation of Ireland. The publican told him that local publicans were currently reviewing their position with regard to Travellers and that, at a recent local Vintners meeting, it had been agreed that publicans in Tuam would adopt a policy of admitting up to 10 Travellers at a time.
- Mr O'Brien also made the point that financial reward was not his primary objective in lodging a complaint, he simply sought to highlight the injustice he felt had been done to him
- Mr Gary Lennon explained that he had been unable to obtain any witnesses for the Hearing
- He said that he had interviewed Mr A, the then hotel manager, some months after the incident and obtained some details from him. Mr A is no longer living in Ireland
- Mr A had told him that the hotel did not have any policy against Travellers. He said that doorstaff had been instructed to only admit regulars or those who were identifiable to the doormen
- Mr A had also said that doorstaff had been told to seek ID if they were in doubt abut a person's age
- Mr A had told him that, on the night in question, Mr O'Brien had been refused admission because the doorstaff "did not like the look of him"
- Mr Lennon made the point that the complainants original notification of the complaint stated that they arrived at the hotel at 11.30 pm and not 10.30 pm as stated at the Hearing.
- If this had been the case, Mr Lennon suggested that the disco could have been reasonably full at the time and that the doormen may have been concerned about numbers
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on the grounds of his membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused admission to the Imperial Hotel on 24 June 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that he is a member of the Traveller community. In relation to (b), the respondents acknowledge that the complainant was refused admission on 24 June 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 24 June 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In considering this case as a whole, I note that much hearsay evidence has been put before me. This includes the complainant's evidence that a Garda agreed to testify that he was sober, that a doorman later confirmed to him that the hotel had a policy of limiting Traveller numbers, that a publican told him of an anti-Traveller policy in Tuam and also the respondents' evidence of what the ex-manager, Mr A, had said about the doorman's alleged conversation with the complainant. As none of the individuals concerned have been produced before me to authenticate what actually was said on the occasions referred to, I have decided not to take any of this hearsay evidence into consideration in making my decision.
7.5 In deliberating on the case be before me, I find that I have no reason to doubt the evidence of the complainant or his brother. I am satisfied that neither had drink taken on the night and that they acted in a responsible manner throughout. I am, therefore, prepared to accept their evidence that comments were made by doorstaff on the lines of " there are enough of ye in tonight already" and "only a certain amount of you are allowed by management". I am also satisfied that the complainant would have interpreted these comments as referring to his membership of the Traveller community. Accordingly, I find that a prima facie case of discrimination has been established by the complainant and that the burden of proof has shifted to the respondents.
7.6 As stated earlier, the only attendee at the Hearing for the respondents was Mr Gary Lennon of Conor, Leddy, Holmes, who were only appointed as Receivers some weeks after the incident. While having no direct involvement in the incident, Mr Lennon has attempted to establish whatever facts were available relating to the incident on 24 June 2001 and hisefforts have proved helpful in establishing some background information. However, the fact of the matter is that no first-hand evidence has been produced to rebut the allegation that the complainant was discriminated against. While Mr Lennon has put forward some possible reasons as to why admission was refused, no hard evidence has been provided to support his theories.
I, therefore, find that the respondents have failed to rebut the allegation of discrimination and, accordingly, I find in favour of the complainant in the matter.
8.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation.. Accordingly, I find in favour of the complainant and I order that the respondents pay Mr O'Brien the sum of €1000 for the humiliation and distress suffered by him.
8.2 On the question of redress, I note that the receiver has stated that there are no assets available to the company, which means that it is likely that the complainant, as an unsecured creditor, may not benefit financially from this decision. If this does in fact turn out to be the case, I note that the complainant has said that his main concern was to vindicate his rights and hopefully, therefore, the outcome will at least have served to give him some moral satisfaction?
4 June 2003