Equal Status Acts 2000-2004
Tracey O'Brien & Frances McCarthy
(represented by Lees Solicitors)
Ruaraí 's Bar, Tralee
(represented by Downey, Courtney & Larkin, Solicitors)
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 Bar - Compliance with notification procedure, section 21
Delegation under the Equal Status Acts, 2000 - 2004
These complaints were referred to the Director of Equality Investigations 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, the Director has delegated these complaints 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 Acts, 2000 - 2004.
This complaint was lodged on the Traveller community ground. In the original complaint documentation, including the notification form sent to the respondents, the complainants both claimed that they had been refused admission to Ruarai's Bar on 1 February 2002, despite showing acceptable ID to the doorman. On the day of the Hearing itself, however, Ms Frances McCarthy indicated that incorrect information had been provided in the original notification and complaint form and that that she and her co-complainant, Ms Tracey O'Brien, had in fact been refused by a barman inside Ruaraí's Bar on the night in question.
Ms Tracey O'Brien did not attend the Hearing on 1 February 2007 and her representative stated that it was his understanding that Ms O'Brien no longer wished to pursue the complaint.
Ms McCarthy gave evidence that she and Ms O'Brien arrived at Ruarai's Bar around 10.45 pm. She said that there was no one on the door at the time. When they went inside, she said that they were both asked for ID by the barman. However, when they produced their Garda ID Cards, the barman told them they were "not good enough" and refused to serve them. Neither of the ladies had been in Ruarai's Bar previously nor did they know the barman who refused them.
When Ms McCarthy's attention was drawn at the Hearing to the fact that the original notification from her solicitor, dated 11 February 2002, specifically stated that she had been refused at the door, she said that that was definitely a mistake and that she was certain the refusal had taken place in the bar. She said that the reason for the incorrect information on the notification was probably because she had reported a number of instances to her solicitor at the same time and he had probably mixed up the details of the particular cases.
Brian Morgan then gave evidence that he was the Bar Manager at the time and that it was he who was on duty on 1 February 2002. He said that he did not have a specific recollection of the night itself but that he had prepared a note around that time of an incident involving two ladies being refused at the door on 1 February 2002. On seeing Ms McCarthy at the Hearing, though, he said that he could not be definite that Ms McCarthy was one of the two ladies he had met that night. For her part, Ms McCarthy also indicated at the Hearing that she herself was unclear as to whether it was Mr Morgan who refused her a drink on the night.
Mr Morgan said that his recollection was based on an incident report he prepared at the time and he produced a copy of it at the Hearing. The report referred to two ladies being stopped by him at the door and being refused for being loud and abusive towards him and another doorman. The incident report consisted of a photo-copy of a page dated 22 March from a 2002 diary. Mr Morgan insisted, however, that his report would have been contemporaneous in that he would have written it on the day of the incident or the day after at the latest.
The complainants' solicitor then asked whether it was possible that the entry was only made in late March after the complaint notification had been received and enquired whether the original diary was available for inspection. The respondents replied that they were unsure as to the current whereabouts of the original diary as the extract relating to 1 February 2002 had been copied from the diary back in 2002. They undertook, however, to carry out a search for the original diary and to submit it in evidence if found.
Note Subsequent to the Hearing, a letter was received from the respondents stating that a thorough search had been conducted but that the original diary could not be found.
Conclusions of the Equality Officer
Section 21 of the Equal Status Acts 2000 - 2004 requires that a complainant must notify the respondent, within 2 months of the alleged act of discrimination, of the nature of the allegation against them. Otherwise, the complaint may be dismissed for non-compliance with statutory procedures. The purpose of this notification is twofold. Firstly, it is designed to alert the respondent at an early stage to the nature of the allegation and the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.
It would appear, however, from the complainant's own evidence, that the notification form in this case provided incorrect information regarding the alleged act of discrimination in so far as the original notification referred to a refusal of admission by a doorman while it was only at the Hearing that a refusal of service by a barman was cited as the alleged act of discrimination.
Having considered the circumstances of this case and, in particular, the fact that the complainants failed to provide the respondents in February 2002 with a concise and accurate description of the alleged act of discrimination, I consider that the respondents have been placed at a very serious disadvantage. If the proper details had been communicated originally, there is a possibility that the pub may have been able to locate a written record of the incident or a barman may have been able to recall at the time the precise details of the incident in question. The only evidence now available is a diary entry referring to the refusal of two ladies at the door of the pub on 1 February 2002 and there is no evidence in that report that the ladies in question were Ms McCarthy and Ms O'Brien.
I, therefore, find that, by not providing the respondent with an accurate account of the alleged act of discrimination at the time it occurred, that both complainants failed to properly comply with the statutory requirement relating to notification contained in Section 21 of the Equal Status Acts. Accordingly, I find in favour of the respondents in the matter.
By not appearing at the Hearing to give direct evidence in her own right, I consider that Ms Tracey O'Brien has failed to establish a prima facie case of discrimination.
In failing to provide the respondents with an accurate description at the time of the alleged act of discrimination in the notification form, I find that Ms McCarthy failed to properly comply with the statutory requirement relating to notification contained in Section 21 of the Equal Status Acts. Accordingly, I find in favour of the respondents in the matter..
30 March 2007