Complaint under the Equal Status Act 2000
DEC - S2007 - 019
(Represented by Justin Sadleir)
John Henchy & Son, Cork
(Represented by David Kenny, Solicitor)
Margaret Delaney referred a claim on the Traveller ground to the Director of Equality Investigations under the Equal Status Act 2000 relating to an incident which allegedly took place on 29th January 2002. In accordance with her powers under section 75 of the Employment Equality Act, the Director delegated the case to me, Bernadette Treanor, an Equality Officer, on 16th November 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainant's case
Ms. Delaney lives in Galway and having received a call she traveled to Cork on 28th January 2002 to be with her mother who was ill and in a hospice in Cork. Her sister Bridget Delaney was with her. They spent the night sitting with their mother and some time after midday on 29th their mother suggested that they go and get something to eat. As there was no facility to get food in the hospice the sisters left and went to the nearest pub to have lunch. They entered the respondent premises, having never been there before, and they sat down. A lady came over and asked if she could help them. They replied that yes they wanted something to eat. The lady said that she would be back. A man came towards them, passed them, then returned and said he was not serving them. The complainant said they just wanted something to eat. He would not give her a reason for not serving them but asked them to leave the premises. He ultimately stated that he would call the Gardai. The sisters waited for a while so that they could talk to the Gardai but when they did not arrive they left since they did not want to be away from their mother for a prolonged period. They returned to the hospice without having eaten. Others who were eating in the pub watched the incident. The complainant and her sister each spoke of their distress caused both by their mother's condition and exacerbated by the treatment received from the publican. They had had enough money and had done nothing wrong. As neither the complainant nor her sister can read or write they could not read the menu. In addition they asked someone outside the pub to write down the name over the door for them. The complainant's representative raised a number of preliminary issues at the hearing. He stated that the delay in getting to investigation had added to the complainant's difficulties and distress. In addition the holding of the hearing in Cork reduced the perception of the Tribunal's impartiality as it seemed to suit the respondent. Both of these issues undermined Ms. Delaney's belief in the process being capable of providing adequate vindication.
Summary of the Respondent's Case
Mr. Patrick O'Reilly stated that he did not know the complainant and could not give any information as to the alleged incident. He thinks he stopped serving food in 2001 but he had no way of proving that. He indicated that his pub is not the nearest to the hospice but the third nearest. He stated that he had not received any of the correspondence relating to the case either from the complainant's representative or from the Tribunal until I wrote to him in January this year informing him of my investigation and setting the case for hearing. The Tribunal wrote to him at least three times and the complainant's representative wrote to him once notifying him of the incident. He verified that the address on record was correct. The respondent accepted that the layout of his lounge would be similar to that described by the complainant and also that he may have entered the lounge via stairs. He accepted that had they been in the vicinity it is possible that the sisters had been in the bar. However, he stated that he would have been the only male on the premises and he would not have treated the ladies in the manner described. The respondent's representative stated that the five year delay was entirely contrary to natural justice and that if discrimination took place, which the respondent denies, he would strongly suggest that it was of a very minor form.
Conclusions of the Equality Officer
The complainant's representative confirmed that the reduced perception of impartiality was not such that would require me to remove myself or grant an adjournment to allow him to seek other remedies. While I accept that an occasional letter may go astray in the postal system I am unable to accept the respondent's claim that four letters, from different sources and with the correct address, were not delivered. I am satisfied therefore that the respondent should have been aware of the complaint in 2002 and, based on the evidence presented, if he was not this may have been related to his internal treatment of post received rather than its non-delivery. Having questioned the complainant I am satisfied that she is a member of the Traveller community as she maintains. Having heard the evidence from the complainant as to the layout of the bar and that someone wrote down the name of the pub for her I am satisfied, on the balance of probabilities, that the complainant was in the respondent premises as alleged. With regard to the alleged refusal of service and request to leave I find the evidence presented by the complainant more compelling and as such I am satisfied that she was requested to leave the respondent premises. It was also mentioned in evidence that the sisters were distressed by their mother's illness which must have been exacerbated by their overnight vigil by her side.
No reason was provided to the ladies on the day for the refusal and none was presented in evidence. Therefore in the absence of an objective reason for their refusal an inference of discrimination on the Traveller ground arises. I find that the complainant has established a prima facie case of discrimination and the burden of proof shifts to the respondent.
The respondent did not present any evidence which would rebut the inference of discrimination.
Since the complainant has established a prima facie case of discrimination on the Traveller ground which the respondent has failed to rebut I find that the complainant was discriminated against on that ground when she was refused service on 29th January 2002. I hereby order the respondent to pay the complainant €2000 for the effects of the discrimination.
5th March 2007