Mr. Michael McCarthy, Mr Patrick McCarthy & Mr. James McCarthy V The Bridge Inn Bar (Cork)(represented by J.W.O'Donovan, Solicitors)
Delegation under Equal Status Acts, 2000-2004
The complainants referred a claim to the Director of Equality Investigations on 9th October 2001 and 11th December, 2001 under the Equal Status Acts, 2000-2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2004, the Director then delegated the case to me, Marian Duffy, 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.
1.1 The dispute concerns a claim by Mr. Michael McCarthy, Mr. Patrick McCarthy and Mr. James McCarthy that they were discriminated against by the Bridge Inn Bar, on the ground that they are members of the Traveller Community, in that they were refused a service in the respondent's pub which is generally available to the public. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
1.2 The respondent denied the claims of discriminatory treatment and submitted that the complainants had too much alcohol consumed and this was the reason for refusing service.
2 Summary of the Case
2.1 The complainants lodged their complaints with this Office and any correspondence received in connection with the matter was passed between the parties. A hearing of the cases was arranged for 20th October, 2004. The complainants' representative Mr. David McCarthy TVG informed me that he was sick and would be unable to represent the complainants, but that the complainants would attend. The complainants confirmed to me on the date of the hearing that they would attend the hearing as arranged. I sat to hear the cases on 20th October, 2004. The respondent and his legal representative attended, however the complainants failed to attend. The complainants or their representative did not contact the Tribunal to offer any explanation for their non-attendance.
3. Conclusions of the Equality Officer
3.1 The burden is on the complainants to establish a prima facie case of discriminatory treatment and must appear to give to the Tribunal. In this case I am satisfied that all the complainants had adequate notification that the hearing was taking place on 20th October, 2004 as the complainants had confirmed to me earlier that day that they knew the hearing was taking place in the afternoon. I am also satisfied that the complainants did not make an application for an adjournment or provide me with an adequate explanation for their failure to attend the hearing.
3.2 I am concerned that the respondent turned up with his solicitor and incurred legal costs and expenses. I am also conscious that there is a cost to the public, in that the Tribunal's time has been wasted and unnecessary costs have been incurred, resulting from the complainants' non-appearance. I have no power to award expenses under the Equal Status Act, 2000, but I would like to draw the complainants' attention to new provisions in the legislation which came into effect on the 18th July, 2004. Section 37A of the Equal Status Act, 2000 as amended by the Equality Act, 2004 empowers the Director to award expenses. Section 37A provides that:
"the Director may, if of the opinion that a person is obstructing or
impeding an investigation, order that the person pay to another person a
specified amount in respect of travelling or other expenses incurred by
that other person in connection with the investigation."
It could be construed, in my opinion, that failure to attend a hearing without an
explanation is obstructing and impeding an Equality Officer investigation. It is unclear whether I have power such expenses in a complaint referred before 18th July, 2004 and it would be preferable to reserve that issue to a case where I had the benefit of legal argument from the parties. However if this case concerned a complaint to which the Equality Act, 2004 clearly applied I would have seriously considered awarding expenses in accordance with Section 37A against the complainants. Expenses under this Section excludes legal costs.
4.1 In the circumstances I find that the complainants, having failed to appear at the hearing, did not establish prima facie cases of discriminatory treatment on the Traveller community ground. I find, therefore, that the respondent did not discriminate against the complainants contrary to Section 3(1)(a), and 3(2)(i) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
29th November, 2004