Complaint under the Equal Status Act 2000
DEC - S2007 - 018
Francis & Bridget McCarthy
(Represented by Emmet O'Brien, BL, on instruction from Lees Solicitors)
O'Dwyers Public House
(Represented by Mannix Solicitors)
Francis and Bridget McCarthy each referred a claim of discrimination on the Traveller ground 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, the Director then delegated the cases to me, Bernadette Treanor, 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.
The first hearing took place on 26th July 2006. Initially the respondent did not arrive as she was busy but was represented by her solicitor. There was a suggestion that the pub had changed hands. However, the complainant's representative had previously produced a court document showing the licensees including Laura Moore. Ms. Moore attended the hearing on request. An adjournment was subsequently granted.
When the hearing re-convened on 27th September 2006, the respondent's representative presented a number of other preliminary issues.
- That the Tribunal should decline jurisdiction to hear the case at all.
o This was because of the delay in getting to hearing, that the lack of resources in the Tribunal were not the respondent's fault.
o Some pub staff were no longer available.
o High Court and Supreme Court cases were submitted in which the respondents bore no responsibility for the delays.
- That the applicants should have gone to the District Court.
- That the complainants had not used the prescribed forms.
- That the remedies now available are limited.
The complainant's representative responded by stating that the delay stops in 2003 when the respondent was notified of the complaint as required by the Act. They accepted that there had been a delay but the complainants have a right of access to the courts and to dismiss the case would be grossly prejudicial to the complainants.
I indicated Section 25 which reads "the Director shall investigate" the case. There is no scope for deciding not to investigate a case. Cases can be dismissed but only in the very particular circumstances listed in Sections 22 and 38. Therefore I found that I had no jurisdiction to set aside what appeared to be a valid claim.
Access to the District Court for cases such as these began in 2004. As this incident took place in 2003 this was not relevant.
The forms offered by the Tribunal are not prescribed. While Section 21(5) states that the Minister may prescribe forms this has not been done to date.
The remedies are only considered by an Equality Officer where discrimination is found to have occurred. The remedies to be considered are a matter for the Equality Officer in the circumstances of each case.
Having heard my responses the respondent representative took some time to consult with his client and subsequently indicated that he did not require an adjournment to address the issues in another forum.
Summary of the Complainant's case
On 3rd May 2003 at about 10:10 pm the McCarthys had attempted to enter the respondent premises for an evening with relations. They had been in the bar a number of times before without difficulty. When they arrived at the pub, having come directly from home, they noticed as they left the car that there was a doorman on duty at the door of the pub. They and their relations decided to enter separately to have more chance of getting in. The complainants were of the opinion that a group of Travellers would be refused by pubs generally on principle. The complainant's relations, who were not from or known in Tralee, gained access without difficulty. When the McCarthy's arrived at the door they were refused entry and told that there was a private party on that night. They were asked for an invitation but they did not have one. They pointed out that their relations had not had an invitation either but they had been allowed in. The complainants knew the doorman and had previously had difficulties with him. They had not noticed a doorman on duty at the respondent premises on their previous visits. When the complainants stated that they would take the matter further the doorman replied "Do - doesn't matter anyway". He stood them aside and allowed settled people in without asking for identification or telling them there was a private party on. The complainants left and went home. The complainant's representative stated in summary that they had tried and failed to get in while their relations, who were not known as Travellers, had gained entry. They were refused because they are members of the Traveller community. It was accepted that such refusals were not the policy of the respondent but the respondent is vicariously liable for the actions of those who refused the complainants. The McCarthy's are entitled to redress in accordance with the Equal Status Act 2000.
Summary of the Respondent's Case
Ms. Moore, due to her personal situation, had not dealt with the complaints in any substantive way until the cases came to hearing. She asserted that there was a private function booked for 3rd May 2003. There was a reference to it in their work diary. The pub was closed like this about 10 times a year. None of the staff saw the complainants on the night. Ms. Moore was unable to say how often the relevant doorman might have worked there. Directions were given to the security company as to how the door should be managed. Directions were not given to individual door staff. Ms. Moore's daughter was on duty on the relevant date. She was not aware of the refusal. She knew the client whose party was on and stated that there were many of the client's friends and family there on the night. They still allowed regulars in as the client holding the party was a regular herself. Care was always taken to ensure that the food could be distributed as appropriate. She was unaware how many were refused but what usually happened when the pub became full was that as some people left others would be allowed in. The respondent's representative stated that the respondent cannot be held responsible for the actions of the doorman. The doorman may have been exercised by the private function and some may have been lucky to get in. The previous incident and case between the security man and the complainants is relevant.
Conclusions of the Equality Officer
I am satisfied that the complainants are members of the Traveller community and I am satisfied that they were refused entry to the respondent premises on 3rd May 2003. As others, who were not known as Travellers, were allowed in to the premises I am satisfied that the complainant's were treated less favourably than non-Travellers were in the same circumstances. Therefore I find that the complainants have established a prima facie case of discrimination on the Traveller ground.
The entire incident was handled by a doorman on duty on behalf of the respondent. None of the pub staff were involved. It appears that there may have been a history between the doorman and the complainants. The detail of any such history was not submitted in evidence at the hearing. In any event, the complainants had been served in the pub on earlier occasions and they accept that the respondent did not routinely discriminate against them. However, on 3rd May 2003 the doorman while acting as an agent of the respondent refused the complainants. No evidence was presented which would justify that refusal in terms of the Act. I find that the respondent has failed to rebut the prima facie case of discrimination on the Traveller ground. Since the doorman clearly had the authority of the licensee to allow or refuse access, I find the respondent vicariously liable for the actions of the doorman in accordance with Section 42.
I find that the complainants were discriminated against on the Traveller ground when they were refused access to the respondent premises on 3rd May 2003. I hereby order the respondent to pay the complainant's €600 each for the effects of the discrimination.
5th March 2007