Margaret Rainey (represented by Michael McDarby & Co., Solicitors) V Regan’s Pub, Galway (represented by MacSweeney & Co., Solicitors)
1.1 This dispute concerns a complaint by Margaret Rainey that she was discriminated against, contrary to the Equal Status Act 2000, by Regan’s Pub, Clonboo, Co Galway in being refused service on 3 August 2002.
The complainant maintained that she 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 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 the 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.
3 Background Note
The incident complained of occurred on 3 August 2002 and a complaint was submitted to the Equality Tribunal in November 2002 on behalf of the complainant by Michael McDarby & Co., Solicitors. The complaint was acknowledged and it was explained to the solicitors that there would be a delay in assigning the case to an Equality Officer due to the high volume of complaints received.
In October 2003, Michael McDarby & Co wrote to the Tribunal enquiring as to the present status of the investigation and were informed that every effort was being made to minimise the delay in assignment and that an Equality Officer would be assigned in due course. That was the last time correspondence was received from Michael McDarby & Co. in the matter.
In August 2004 the case was assigned to myself, Brian O’Byrne, an Equality Officer, for investigation. On 16 August 2004, I issued letters to both the complainant’s solicitors, Michael McDarby & Co., and the respondent himself, Mr Regan, informing them that the case had been assigned to me and inviting them to submit any further observations they wished to make by 10 September 2004. I also informed the parties that I proposed to hold a Hearing of the complaint over the coming months and that I would be in touch with them again shortly with regard to a specific date and location. Neither party responded to my invitation to submit further observations.
On 18 February 2005, I notified both parties by registered post that the Hearing of the complaint would be held on Wednesday 6 April 2005 in a named hotel in Galway and asked that I be provided with the names of those who would be attending, two weeks in advance of the Hearing. To facilitate their response, I provided the parties with my own personal mobile phone number in the letters.
When neither party contacted me within the time stipulated regarding their attendance at the Hearing, I checked An Post’s website to confirm that the registered letters of 18 February 2005 had been delivered. In both cases, the website said “Delivery record available” which I took as confirmation that the letters had been delivered.
On the day before the Hearing, the respondent’s representative contacted me by phone to provide details of those who would be attending for the respondent. No contact whatsoever was made on behalf of the complainant.
At 10.00 am on Wednesday 6 April 2005, the respondents arrived for the Hearing as arranged. In the absence of the complainant, I indicated that I would defer commencement of the Hearing for 45 minutes in case they had been delayed.
When the complainant had not appeared by 10.45 am, I convened the Hearing and explained that, to my knowledge, the Hearing notification had been delivered to the complainant’s representative and that I intended to proceed with the Hearing. I indicated, however, that I intended to double-check with An Post before making a final decision in the matter.
I then explained that, in cases under the Equal Status Act, the onus was on the complainant to provide evidence establishing a prima facie case in the presence of the respondents to afford them the opportunity to challenge any allegations made against them. I also explained that, in the absence of Margaret Rainey to give evidence and allow the respondents to cross-examine her, it would be my opinion thatno prima facie case had been established and that a decision to this effect should issue.
At 11.00 am, I closed the Hearing stating that I proposed to issue a decision shortly on the lines of the above, on receiving confirmation from An Post that the registered letter notifying the complainant of the Hearing date had been delivered to her representative.
On contacting An Post by phone that same day, it was confirmed to me that the registered letter in question had been accepted by the complainant’s solicitors on 21 February 2005.
4.1 In complaints such as this, the onus is on the complainant to establish a prima facie case by appearing at the Hearing to give evidence. As the complainant in this case did not attend on 6 April 2005, and I am satisfied that she was formally notified of the Hearing date, I find that a prima facie case has not been established on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000.
Accordingly, I find in favour of the respondent in the matter.
17 May 2005