Delaney v Jamesons Hotel
OFFICE OF THE DIRECTOR OF EQUALITY INVESTIGATIONS
Equality Officer Decision DEC-S2002-102
File Ref: ES/2001/569
Equal Status Act 2000
Equality – Direct discrimination – Burden of proof – Mistaken identity – Membership of the Traveller community – Action taken in good faith – Whether complainant discriminated against – Equal Status Act, 2000.
The complainant contended that he was discriminated against by the respondent on the Traveller community ground contrary to the Equal Status Act, 2000 when he was refused service and asked to leave the respondent's premises. The respondent submitted that the complainant was not discriminated against on the grounds that he was a Traveller, but was refused service because the bar manager genuinely believed that the complainant had previously been involved in a violent incident in the bar.
Held by the Equality Officer in finding that the complainant had established a prima facie case of discrimination which the respondent had failed to rebut. There was an inconsistency in the respondent's evidence and the respondent had failed to exercise due care and consideration before identifying the complainant as the person involved in the violent incident. The respondent had not acted in good faith and the refusal was motivated by a discriminatory reason connected to the complainant's membership of the Traveller community. The complainant had been discriminated against under the Equal Status Act, 2000 and 750 Euro would be awarded as compensation for the distress and embarrassment suffered.
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 25 April, 2001 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 then delegated the case to me, Marian Duffy, 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.
1.1 The dispute concerns a claim by Mr. Myles Delaney that he was discriminated against by Jamesons Hotel on the grounds that he is a member of the Traveller Community. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2.1 The complainant's case is that he entered the respondent's hotel bar at about 6:30pm on 13 May 2001 with his wife and two friends. The complainant went to the bar to order drink but was refused service by the barman and was given no reason. He believes that the refusal of service was due to the fact that he is a member of the Traveller community. The respondent submitted that the complainant was not discriminated against on the grounds that he is a Traveller, but was refused service because the manager of the bar genuinely believed that the complainant had been involved in a violent incident in the bar on Christmas Eve 2000.
3 Summary of the Complainant's Case
The complainant stated the following:
that he is a member of the Traveller community living in a halting site in Salthill in Galway for 6 years. On 13 May, 2001 he visited the hotel with his wife and two friends, Mr. Tom Barrett and Mrs. Caroline Barrett. They were celebrating the confirmation of Mr. and Mrs. Barrett's daughter. It was the complainant's first time in the hotel bar.
- The complainant went to the counter to order the drink and his wife and two colleagues sat down at a table. The barman proceeded to fill the drinks but as he was doing so he was continuously watching the table where the complainant's wife and friends were sitting. The barman stopped filling the drinks and went to the back of the bar out of the complainant's sight. The complainant could hear the barman having a discussion with another person.
- The barman returned and told the complainant that he was not serving him or his three friends. He asked for a reason but the barman refused to give him one. The complainant returned to his friends and told them what had happened.
- The complainant said that there was a large crowd of customers in the respondent's premises, some of whom also had children who had made their confirmation. They were the only members of the Traveller community in the hotel bar. He said it was a humiliating experience and he was deeply upset and embarrassed by the incident as he felt the other customers knew they were asked to leave.
- The complainant went to the hotel next day to seek an explanation for what had happened. The receptionist made an appointment for him to meet the manager at 6pm but the manager was unavailable to meet him. The complainant said that the manager failed to keep two further appointments made by the receptionist to meet him. The complainant also left his telephone number and asked that the manager telephone him, but the manager did not do so.
- The complainant submitted that he was refused service because he is a Traveller. He disputes the respondent's contention that he was genuinely mistaken for a person who had been previously involved in a violent incident in the pub.
- Mr. Tom Barrett, who is a Traveller and who was with the complainant in the hotel, submitted that in general that there is persistent discrimination against Travellers in getting service in pubs. He stated he does not drink alcohol and he still has difficulty in getting served. He believes that the person involved in the Christmas Eve incident in the respondent's premises was over six foot tall, much taller than Mr. Delaney, and that there could be no question that Mr. Delaney could be mistaken for him.
4 Summary of the Respondent's Case
4.1 The respondent's case is that the complainant was mistaken for a person who was
involved in a disturbance in the hotel bar on Christmas Eve 2000.
- Mr. Jonathan Powell Manager stated that he was in an office in the hotel bar on 13 May 2000 and he looked out and saw the complainant at the bar counter. He thought he was the same person who had caused trouble in the hotel bar on Christmas Eve 2000. He called the barman and instructed him not to serve the complainant. He did not see the other people in the complainant's company.
- Mr. Powell said that he did not have much contact with the two people on Christmas Eve as he spent about 20 minutes on the telephone to the Gardaí.
- Mr. Powell said that he was about 45 feet away from the complainant on 13 May but he believed he was one of the people involved in the violent incident. He said that he had a clear view of the complainant and he believed that he was the same height and build.
- Mr. Powell said that following the notification of the complaint by the complainant he learned from the Gardaí that the complainant was not the person involved in the incident.
- Ms Elaine Boyle, Managing Director, said that she was on duty with Mr. Powell on Christmas Eve 2000 when two Travellers came into the bar looking for service. They were drunk and were refused drink. As a result they started shouting and refused to leave. One of them had a broken bottle behind his back.
- Mr. Powell called the Gardaí. Ms. Boyle said that the two people were very violent and the Gardaí had to use batons to remove them from the premises. The Gardaí informed the respondent at a later date that they were Delaneys from Salthill.
- Ms. Boyle said that she had been present throughout the fracas and would not have mistaken the complainant for any of the people involved. She was not on duty when the complainant was refused service on 13 May.
- The respondent's representative submitted that Mr. Powell was convinced that the complainant was the person involved in the incident and he feared there would be a similar incident. The people involved in the fracas would not be allowed back into the pub again and, as Mr. Powell believed at the time that the complainant was one of the people involved, he was refused service for this reason and was asked to leave.
5 Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainant was
directly discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds are ...
that one is a member of the Traveller community and the other is not".
Section 5(1) provides inter alia that:
"A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public."
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000
must first demonstrate that a prima facie case of discrimination exists.
I have identified the three key elements which need to be established to show that a
prima facie case exists as follows:
- is the complainant covered by the...
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