Regulars only
The Irish Human Rights and Equality Commission has recommended that urgent steps be taken to bring the complaints mechanism for discrimination claims at the point of entry to a licensed premises into line with the mechanism available for other discrimination complaints. ‘You’re barred!’ says Áine Bhreathnach
Before September 2003, complaints of discrimination that occurred on or at the point of entry to licensed premises could be made under the Equal Status Acts 2000.
However, the law changed with the introduction of section19 of the Intoxicating Liquor Act 2003 and, thereafter, complaints of discrimination had to be filed in the District Court.
This transfer of jurisdiction placed practical difficulties and challenges in the path of persons discriminated against in a licensed premises, including requiring a knowledge of the areas on the premises covered or not covered by the liquor licence and the name of the licensee; the filing a notice of application and the payment of a fee; and crucially, at the hearing of the case, the standard court practice of proving a civil case on the balance of probabilities.
This compares to a complaint filed under the Equal Status Acts, which requires the completion of a simple complaint form without a fee and, most importantly, the shifting of the burden of proof once a prima facie case has been established.
Over the last number of years, IHREC has represented many individuals who have been refused service in a licensed premises.
This has included families with young children who have been refused entry to a bar for dinner, couples refused entry to a premises for dinner and drinks, and a group of young people refused entry to a nightclub – resulting in feelings of embarrassment and humiliation.
Clients have informed IHREC that the refusal of service by licensed premises has had an impact on all areas of their lives – from a regular night out to special occasions such as weddings and funerals.
Clients have advised that there is a constant undercurrent of fear that they will be refused service when they engage with licensed premises, and that this can often lead to anxiety.
Take five
In 2022, IHREC represented five women from the Traveller community – Mary O’Driscoll, Margarita McCarthy, Theresa McCarthy, Margaret Meehan and Annie McCarthy.
They were celebrating a birthday on 5 March 2022 and went out for dinner and a drink in Charleville, Co Cork. After dinner, all five women were refused service in O’Connell’s bar on Main Street, Charleville.
Mary, Margarita and Margaret ordered a drink at the bar – however, they were told that there was no room, due to a private function being held on the premises. Theresa tried to order a drink – again she was refused.
There was no evidence of a private party in the bar, and other customers continued to receive service. Mary, Margarita, Theresa, Margaret and Annie believed that the refusal of service was an act of discrimination owing to their membership of the Traveller community.
IHREC provided the women with legal representation before the District Court, claiming that the refusal of service constituted prohibited conduct by a licensed premises within the meaning of section 19 of the Intoxicating Liquor Act 2003.
At Mallow District Court, before Judge Roberts, the women argued that Travellers, as a distinct ethnic group, enjoy protections under EU law, specifically under the Race Equality Directive.
IHREC argued on behalf of the women that, while section 19 of the Intoxicating Liquor Act does not explicitly refer to the issue of the burden of proof, as a matter of EU law it must be interpreted in conformity with article 8 of the Race Equality Directive, which provides for the reversal of the burden of proof.
The importance of reversing the burden of proof was explained by the Labour Court in Ntoko v Citibank, which stated: “This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement.
“Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach, and which may only be in the respondent’s capacity of proof.”
Giant steps
In Mallow District Court on 9 January 2024, Judge Roberts ruled on a preliminary application made by IHREC on behalf of their five clients that the Race Directive has direct effect and, therefore, the reversal of the burden of proof applies once a prima facie case has been made out.
At the same hearing, Judge Roberts heard evidence from the women (one of whom was eight months’ pregnant at the time of the incident) of discrimination, and was satisfied that facts had been established from which discrimination could be presumed and, therefore, that the burden shifted to the respondent to prove the contrary.
The court ruled that O’Connell’s Bar failed to rebut the presumption that discrimination had occurred. The court held that the women had been discriminated against as members of the Traveller community when accessing the services of the pub.
The court made individual orders of compensation to each of the women. In addition, the court also directed that a statement be published on the Facebook page operated by O’Connell’s Bar, providing the details of these proceedings and the finding of the court.
The court also directed the licensee for O’Connell’s Bar to engage in Traveller cultural-awareness training provided by the Travellers of North Cork group within a period of six months of the making of the court’s order.
The court indicated that it made these orders and directions with a view to ensuring that the sanctions for the respondent’s prohibited conduct were effective, proportionate and dissuasive, in line with the requirements of the Race Directive.
It could happen to you
IHREC is aware of other cases in the District Court where the Race Directive has not been given effect. It would appear that there is now an element of uncertainty in the District Court, where different burdens may be applied in different courts dealing with Intoxicating Liquor Act cases.
IHREC published a review of section 19 of the Intoxicating Liquor Act in February 2022.
In the review, the commission recommended that urgent steps be taken to bring the complaints mechanism for discrimination claims occurring on, or at the point of entry to, a licensed premises into line with the mechanism available for other discrimination complaints.
In particular, the commission recommended that such claims be brought back within the jurisdiction of the Workplace Relations Commission (WRC), as opposed to the District Court.
IHREC welcomes the publication of the Equality and Family Leaves (Miscellaneous Provisions) Bill, which proposes to transfer jurisdiction in relation to prohibited conduct on, or at the point of entry to, a licensed premises from the District Court to the WRC.
IHREC’s commitment to strengthening the human-rights and equality infrastructure in the State is a key element of the IHREC Strategy Statement 2025-2028.
To this end, IHREC is currently drafting an updated review on the effectiveness of section 19 of the Intoxicating Liquor Act relating to the protection and promotion of human rights and equality.
The review will examine the implementation of relevant EU directives and any issues affecting access to justice when alleging discrimination in a licensed premises.
Áine Bhreathnach is senior solicitor at the Irish Human Rights and Equality Commission.
LOOK IT UP
CASES:
- Ntoko v Citibank [2004] 15 ELR 116, Labour Court Determination DEE045
LEGISLATION:
- Equal Status Acts 2000
- Equality and Family Leaves (Miscellaneous Provisions) Bill
- Intoxicating Liquor Act 2003
- Race Equality Directive (2000/43/EC)
LITERATURE: