People being forced into the Courts by current bar, restaurant and club discrimination complaints procedures
The Irish Human Rights and Equality Commission (the Commission) has recommended the urgent need to bring the complaints mechanism for a refusal to enter a licensed premises into line with other discrimination complaints.
The Commission says the law, as it stands, disproportionately impacts groups such as disabled people and members of the Traveller and Roma Communities who are turned away from the doors of licenced venues such as pubs, restaurants and clubs.
The recommendation is contained in the Commission’s detailed review of the adequacy and effectiveness of Section 19 of the Intoxicating Liquor Act 2003 against human rights and equality standards.
While the vast majority of discrimination issues are heard by the Workplace Relations Commission (‘WRC’), there is an exception in Section 19, which sees alleged discrimination in entry to bars, restaurants, nightclubs and other places that serve alcohol forced into the District Courts rather than the WRC.
This sees the complainant having to hire lawyers and proceed through the more adversarial and challenging atmosphere of a court to seek redress. This makes the enforcement of important rights excessively difficult and in some cases virtually impossible.
One example case legally supported by the Commission in 2019 saw a pub customer with a brain tumour who was asked to leave the premises where he had been celebrating the end of rehabilitative treatment. The man’s condition causes a limp, and this was interpreted by staff as signs of intoxication. Despite explaining his disability directly to staff, the man was asked to leave, which caused him significant distress and embarrassment. The Commission provided direct legal representation to the man in his application to the District Court for redress under the Intoxicating Liquor Act 2003. The matter was settled without court hearing. (Learn more)
Data provided by the Courts Service also reflects that a vast majority of the proceedings instituted in the District Court under the ILA 2003 were either struck out or withdrawn. An extremely small number of cases resulted in an Order for compensation – 11 in total during the period of 2017-2019. Under the old regime (whereby discrimination claims in respect of licensed premises were dealt with by the Equality Tribunal, which preceded the WRC) the Tribunal issued 20 decisions concerning licensed premises in 2001, 45 decisions in 2002, and 64 decisions in 2003
In particular, these instances disproportionately impact members of the Traveller and Roma Communities and other groups such as disabled people who are effectively prevented from receiving adequate access to justice.
Speaking today, Chief Commissioner Sinéad Gibney stated:
“We need to ask why there is a different legal approach for being discriminated against at the door of a pub, restaurant or club than in any other type of shop or service. This is a systemic equality issue which must be removed if we are to achieve equal access to justice.”
“We maintain our longstanding position that the current mechanism is not fit for purpose. Multiple international human rights monitoring bodies, including the Committee on the Elimination of Racial Discrimination, have also criticised the State for failing to take actions to effect this change.”
“We have made it clear to Government that victims of discrimination deserve access to efficient and clear mechanisms to seek justice. Anything less is unacceptable.”
ENDS/
For further information, please contact:
Brian Dawson, IHREC Communications Manager,
01 8589601 / (087) 0697095
Follow us on twitter @_IHREC
Editor’s Note
The full report from the Irish Human Rights and Equality Commission, and the covering letter to the Minister are available at the following link:
IHREC’s review of the adequacy and effectiveness of Section 19, Intoxicating Liquor Act 2003, was undertaken pursuant to its powers under section 30 of the Irish Human Rights and Equality Commission Act 2014.
Further information on IHREC’s recommendations: The Commission is of the view that there should be no delay in bringing these claims within the jurisdiction of the WRC. If immediate steps are not taken to implement a transfer of jurisdiction from the District Court to the WRC two matters should be given immediate attention:
First, the Government should introduce an explicit statutory whereby, in claims for discrimination arising on or at the point of entry to a licensed premises, a reversal of the burden of proof occurs where facts are established by a complainant from which it may be presumed that prohibited conduct has occurred, as required by the Race Equality Directive and the Gender Goods and Services Directive
Second, while the commencement of the Workplace Relations (Miscellaneous Provisions) Act 2021 has resulted in the starting position being that claims of discrimination under the ESA 2000-2018 are heard in public, adjudication officers retain a significant discretion to direct that proceedings be conducted in private where special circumstances require it.
In the event that the Commission’s principal recommendation is not immediately acted upon, steps should be taken to introduce a similar provision in respect of District Court proceedings under the ILA 2003, which would permit only the complainant to apply for proceedings to be heard in private and which would provide discretion for the District Court to so direct in certain circumstances.
Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act 2014 to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.