(represented by Justin Sadlier Solicitors, Gort)
Dave Finan, The Holiday Hotel, Salthill
(Swaine Solicitors, Salthill)
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, section 3(2)(i) - Supply of goods and services, section 5(1) - Refusal of service in a Pub - Non attendance at Hearing by respondent
Delegation under the Equal Status Acts
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.
This dispute concerns a complaint by John McDonagh that he was refused service in the Holiday Hotel (The Office) by the proprietor, Mr Dave Finan, on 18 May 2002 because of his membership of the Traveller community.
Both parties were notified on 26 May 2006 that the Hearing of the complaint would be held at 10 am on Wednesday 19 July 2006 in Galway. In the notification, the parties were informed that the Tribunal could not entertain requests to postpone a Hearing date save in exceptional circumstances. The parties were also informed that any such requests, stating the nature of the exceptional circumstances, must be submitted in writing for the attention of the Director who was responsible for decisions in relation to such requests for deferral.
On 1 June 2006, I received a phone call from Mr Dave Finan stating that he was no longer involved with the Holiday Hotel and suggesting that the matter should be referred to the new owner whose name he provided. When I informed him that it was he himself who had been personally identified as the respondent in the original complaint documentation, he stated that he "might be away in July". I then informed him that if this was a possibility that he could nominate someone to act on his behalf at the Hearing. He concluded the conversation by saying that he "might let it run in July".
On 12 June 2006, I received a further call from Mr Finan stating that he was asking a friend to "deal with the matter" and asking that he be sent copies of the original complaint documentation. He repeated that the company involved was no longer trading and that he was now "involved in other things". On 14 June, a copy of the original complaint documentation was sent to him with a request that he provide details of those who would be attending the Hearing.
On 23 June 2006, a letter was received from Swaine Solicitors, 112 Lower Salthill, Galway confirming that the company, The Holiday Hotel (The Office) had not been trading for 2 years and saying that it had possibly been struck off the Companies Register. The letter also stated that Mr Dave Finan would not be attending on 19 July 2006. No formal request was made to have the Hearing deferred.
In response, the solicitors were informed by letter that, in light of the fact that the incident had occurred over 4 years previously and also that Mr Finan has expressed a reluctance to attend a Hearing of the complaint, regardless of when it was held, that the Hearing would proceed as planned on 19 July 2006. The solicitors were also informed that, in the absence of any respondent or respondent's representative, that it would be my intention to take the evidence of the complainant at the Hearing and, based on the information provided, I would make my decision as to whether discrimination had occurred.
Hearing on 19 July 2006
At 10.00 am on 19 July 2006, the complainant arrived for the Hearing with his representative. As there was no sign of the respondent, the commencement of the Hearing was delayed for 30 minutes.
When the respondent had not appeared by 10.30 am, I convened the Hearing explaining that, irrespective of whether the respondent was present or not, the onus was still on the complainant to establish a prima facie case of discrimination. I then proceeded to take the evidence of the complainant. At 11.00 am, I closed the Hearing stating that I would issue my decision shortly in the matter.
Mr McDonagh is a settled Traveller living in Galway for over 40 years.
He never drank in the Holiday Hotel prior to 18 May 2002.
He did, however, know Mr Finan by name from discussions he had with him in 2001. At that point, he spoke to Mr Finan with regard to the Holiday Hotel hosting a christening party for his child. Mr Finan rejected the proposal on the basis that it was too near Christmas and there would be too many children on the premises. Mr McDonagh believes that the real reason was that Mr Finan recognised him as a Traveller and did not want a large group of Travellers on the premises.
On 18 May 2002, Mr McDonagh's brother-in-law's child had a Holy Communion. The family met at the church earlier in the day and the child's parents stated that they would contact Mr McDonagh and his wife later that evening to go out for a celebratory drink.
After tea that evening, Mr McDonagh got a call from the brother-in-law to say that they were going to the Holiday Hotel and invited them to join them. Mr McDonagh and his wife, who had not been drinking beforehand that day, went to the Holiday Inn around 8 pm.
When they arrived, they went over to the brother-in-law's table where 5 family and friends were seated. The brother-in-law then went to the bar and ordered a round for everyone. A second round was purchased later by another family member from the bar. There were a number of people working behind the bar that evening.
When Mr McDonagh decided to order a round himself, he went to the bar and, when he recognised Mr Finan, waited for him to serve him.
Mr Finan then approached Mr McDonagh and told him he was not serving him saying that there was a "private party" on. Mr McDonagh said that he could not believe this as there was absolutely no evidence that a "private party" was going on.
Mr McDonagh said that he then turned around and, standing in the middle of the floor, informed customers generally that the management had refused to serve him because there was a "private party" going on. When he asked if anyone was aware of a "private party", no one expressed any knowledge of a "private party" being held that evening.
Mr Finan the decided to call the Gardai and also decided at that point to stop serving the others in Mr McDonagh's group.
Mr McDonagh believes that Mr Finan decided not to serve him and his group because he recognised Mr McDonagh as a Traveller from their previous meeting. Mr McDonagh believes that his group of seven Travellers was also discriminated against as other larger tables of non-Travellers had no problem getting served.
When the Gardai arrived, they spoke to Mr Finan. Garda Liam O'Connor then came to Mr McDonagh, who was outside the premises at this point, and informed him that Mr Finan had admitted to him that there was no "private party" that night. The Garda told Mr McDonagh that his refusal was a civil matter and that he should "see someone about it".
Mr McDonagh and the rest of his group then left the Holiday Hotel and visited another pub where they had no problem getting service.
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. At the Hearing on 19 July 2006, I took the evidence of Mr McDonagh and questioned him on it. Overall, I found Mr McDonagh to be a very credible witness and I find that I have no reason to question the account he gave of the events of 18 May 2002. I am, therefore, satisfied that Mr McDonagh has established a prima facie case of discrimination with regard to the events of 18 May 2002. uNormally in such circumstances, where a prima facie case has been established, the respondent is provided with an opportunity to rebut the allegation of discrimination by showing that there was a genuine non-discriminatory reason for the events that occurred. On this occasion, however, the respondent did not avail of the opportunity to do so by attending the Hearing.
Accordingly, 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 Acts 2000-2004 and that the respondent has failed to rebut the allegation.
I order that the respondent pay the sum of €1000 to the complainant for the hurt and humiliation suffered on the night of 18 May 2002.
18 August 2006