John and Mary Ellen Stokes V Polly Hops, Dublin
1. Dispute
1.1 This dispute concerns a complaint by John and Mary Ellen Stokes that they were discriminated against, contrary to the Equal Status Act 2000, by the management of Polly Hops, Lucan Road, Co Dublin The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that they went into Polly Hops on 27 December 2001 with their children for a meal but, when they sought service, a barman informed them that they were not being served. The complainants believe that service was refused because they were recognised as Travellers.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that John Stokes was refused because he was recognised as someone who had been barred from the pub previously.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred to the Director of Equality Investigations 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 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 Act, 2000.
5.1 Evidence of Complainants, John and Mary Ellen Stokes
- John and Mary Stokes had been frequenting Polly Hops for 6 years prior to the refusal on 27 December 2001
- Usually once a fortnight the couple and their children had their lunch in Polly Hops
- They never had any problem getting served prior to 27 December 2001
- The couple recall visiting Polly Hops around 7 pm one Sunday evening in Jan 2000. On arrival, they joined some relatives of theirs who were already present.
- During the evening, they learned that a problem had arisen earlier with a young relative of theirs who had been refused service because of his age. Their understanding was that the youngster was being difficult and moving around the pub in an attempt to get served
- The youngster was still on the premises when the complainants arrived but left around 8 pm
- They did not witness any incidents themselves that night nor were they involved in any.
- They remained with a small group of relatives for the night and all left peacefully.
- At no point were they told that they were not welcome back into the pub.
- Mr and Mrs Stokes continued to frequent Polly Hops after that, principally during the daytime
- On 27 December 2001, the family visited Polly Hops for a lunch-time meal with their children
- John Stokes ordered four meals from the carvery and then went to the bar where he ordered two drinks
- The barman, who he did not recall seeing before, told him he was not serving him
- The barman then came outside the bar and took their meals back from the carvery counter
- The barman refused to give them a reason
- The couple asked for the Manager and James Spratt arrived. The couple recognised Mr Spratt from seeing him in the pub before
- Mr Spratt informed them that he "cannot go against" the barman's decision and declined to give them a reason
- The couple felt extremely embarrassed in front of other customers and their children, especially as they were given no reason
- The complainants have not visited Polly Hops since
- The complainants were surprised to learn at the Hearing that a general bar had been put in place on all members of the Stokes family who had been present on the night in January 2000.
- The complainants state that the alleged bar which was allegedly implemented on 21 January 2000, was never properly adhered to by the respondents who regularly permit members of the Stokes family on their premises
- John Stokes said that he knows that some of the younger Stokes family members, who were apparently barred in January 2000, are currently drinking in Polly Hops
- John Stokes said that he knows that a brother of his is barred from Polly Hops at the moment and that the brother bears a close resemblance to himself
5.2 Respondents' Evidence
Note Due to the non-availability of the respondent's witnesses on the same day, it was necessary to hold separate Hearings in order to obtain the evidence of Mr Spratt and Mr McGaurty
Mr Joe Patton, Owner
- Polly Hops has been run by him since 1999
- It is a large pub with a varied clientele
- It is a "Theme Pub" providing a variety of entertainment
- Travellers are regular customers in the pub
- The pub does not discriminate against anyone
- Only people who misbehave are refused service
Mr James Spratt, General Manager - Hearing 1 April 2003
- Mr Spratt worked for Polly Hops from August 1999 to July 2002
- Prior to 21 January 2000, many members of the Stokes family drank in Polly Hops.
- The staff knew they were Travellers as they had introduced themselves as such.
- Apart from one or two isolated incidents, staff had no problem in serving the Stokes family up until then
- On Sunday 21 January 2000, a large group of Travellers were drinking in the pub from early on. Most of the group were Stokes while some were from other Traveller families. These gatherings were not uncommon and staff had had no real problems in the past in such situations.
- On that particular day, a number of unsavoury incidents occurred. In one incident, a member of the Stokes family who was barred appeared and caused trouble when service was refused.
- In another incident a young Traveller was refused because he could not produce ID. An attempt was then made to purchase drink for him by an older relative. Later in the evening some young female Travellers arrived and caused hassle at the door when asked for ID.
- On account of the problems that day, Mr Spratt took a decision that night not to serve any of the group in future.
- As it was the pub's policy not to tell someone they had been barred after they had drink taken, Mr Spratt informed the leader of the Stokes group of his decision the next day
- This decision was also communicated to all staff at the time
- As new staff were recruited, those barred were pointed out to them in the course of their duties
- Sometimes it happened that a person who was barred did get served by a new barperson who did not recognise them. In such situations, the pub's policy was to let them finish their drink and say nothing to them. New staff would however be advised not to serve them in the future should they return.
- Mr Spratt accepts that, due to the ongoing turnover of staff, that some members of the Stokes family have been served inadvertently in Polly Hops since January 2000
- On 27 December 2001, Mr Spratt was working upstairs in the Office.
- He received a call that Mr McGaurty, the barman on duty, required him downstairs.
- On his arrival, Mr McGaurty told him that he had refused service to a member of the Stokes family who had been barred previously and that the man had asked for the manager.
- On meeting him, Mr Spratt recognised John Stokes from the night of the incident in January 2000
- He has no recollection of seeing Mr Stokes on the premises at any other time
- He immediately decided that Mr McGaurty's decision to refuse service was the "right and proper" one to make
- Mr Spratt reaffirmed Mr McGaurty's decision to refuse service to Mr Stokes.
- On being asked for a reason, he declined to give one but said that he would respond if a written request for a reason was received
- Mr and Mrs Stokes became loud and boisterous and complained to other customers about discrimination.
- Mr Spratt had to ring the Gardai before they agreed to leave
- Mr Spratt accepts that it is likely that the couple had not been informed by staff prior to 27 December 2001 that they had been barred
- Mr Spratt also accepts that the Stokes family may have been served at lunch-times in Polly Hops since January 2000 by other barstaff, who may or may not have known that they were barred
- Mr McGaurty was not employed by Polly Hops on 21 January 2000
- When asked how Mr McGaurty would have recognised Mr Stokes as someone who had been barred, Mr Spratt said that it was normal for experienced staff to pass on such information. Mr Spratt suggested that perhaps another member of staff had pointed out Mr Stokes to Mr McGaurty.
- Mr Spratt also made the point that Mr McGaurty would have known some of John Stokes brothers.
- One brother, in particular, who closely resembled John Stokes, regularly came in seeking service in Polly Hops during 2000 and 2001, despite knowing that he was barred
- Mr Spratt accepted that it was possible that Mr McGaurty mistook Mr Stokes for his brother.
- Mr Spratt said, however, that the important fact about Mr McGaurty identifying Mr Stokes as someone who was barred, was that he had done so correctly, in that Mr Stokes had been present on 21 January 2000 when the group were barred
Evidence of Sean McGaurty, Barman - Hearing 14 May 2003
- Mr McGaurty worked for Polly Hops from October 2000 to April 2002
- He was an experienced barman when he joined Polly Hops
- During his first few months in Polly Hops, he was made aware of people who had been barred by the more experienced barmen, who pointed them out to him
- He was made aware during that time of a member of the Stokes family who was barred. He cannot remember exactly which barman had told him but believes that it was either James Spratt or the Assistant Bar Manager at the time
- Mr McGaurty was on duty himself on 27 December 2001
- He remembers John Stokes arriving with his wife and children
- When he saw him, he took him to be the member of the Stokes family that he had been told was barred
- He immediately went over to Mr Stokes, who was in the process of ordering meals from the carvery.
- Mr Stokes had two plates of food in his hands when Mr McGaurty approached him
- Mr McGaurty took the two meals from Mr Stokes and told him he was not being served
- He did not give him a reason as it is the pub's policy not to do so
- He remembers Mr Stokes asking for the Manager and saying he wanted the Gardai
- James Spratt arrived soon afterwards (he cannot remember who called him). He told him he had refused service to Mr and Mrs Stokes as he believed Mr Stokes was barred. Mr Spratt then spoke to the couple out of earshot of Mr McGaurty
- After the complainants had left, Mr Spratt spoke with him about the incident and they discussed how Mr McGaurty had identified John Stokes. It then came to light that Mr McGaurty may have mistaken John Stokes for a brother of his who was barred and who closely resembled John Stokes.
- Mr Spratt explained to him that the reason he had not questioned Mr McGaurty's decision, on seeing John Stokes, was because he recognised Mr Stokes as having been present in January 2000 when a decision was taken to bar a group of Stokes who had been troublesome
- Mr McGaurty accepts that it is possible that Mr Stokes may have been served by him on other occasions when he had not recognised him as someone who was barred
- Mr McGaurty said that he was not aware of the incident in January 2000 when a group which included the complainants, were barred. He was not employed by Polly Hops at that time.
- Mr McGaurty did serve other members of the Stokes family, who he knew to be Travellers, during his time in Polly Hops
Note Having heard the evidence of all parties, Mr Joe Patton acknowledged at the end of the Hearing on 14 May 2003 that it was, in all likelihood, a case of mistaken identity on Mr McGaurty's part, that led to John Stokes being asked to leave the pub on 27 December 2001. Mr Patton said that it was most unfortunate the way things had happened and offered an apology to Mr Stokes for the events that had occurred. Mr Patton again reiterated that the pub does have a number of regular Traveller customers and that the incident on 27 December 2001 was simply a case of mistaken identity and not an act of discrimination as alleged.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service in Polly Hops on 27 December 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. 7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents accept that the complainants was refused service on 27 December 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 27 December 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
Key Points and Factors
7.4 In deliberating on the case be before me, I consider the following pieces of evidence to be the most important and persuasive:
- The complainants accept that they were in the company of other members of their extended family in Polly Hops on 21 January 2000, a day on which several incidents occurred leading to a decision being taken to bar the whole group
- Staff informed some members of the group of their decision but not , it would seem, the complainants
- The complainants continued to visit the pub for meals for over a year without any trouble
- On 27 December 2001, the barman, Mr McGaurty, thought he recognised John Stokes as someone who had been barred previously and refused him service. When Mr Spratt was called, he reinforced the decision based on Mr Stokes presence in the pub on 21 January 2000.
- While the pub felt that they were justified in refusing service, they gave no reason for the refusal to Mr Stokes, in accordance with their policy on such matters.
- The manager and barman subsequently concluded that Mr Stokes may have been incorrectly identified by Mr McGaurty in the first instance
- The pub accept that the complainants are Travellers but argue that the refusal was not because of their Traveller identity
- Polly Hops maintain that Travellers still frequent their premises. This is borne out by the complainants who state that some members of their family are still regulars there.
- The respondents now accept that a case of mistaken identity probably initiated the refusal and have apologised to the complainants
7.5 In considering the above points, the evidence suggests that Polly Hops were happy to serve members of the Stokes family for many years until 21 January 2000, when a series of incidents in the one day changed their perspective of the situation. This resulted in a decision being taken to refuse service to the whole family group in future. Both John and Mary Ellen Stokes were present on that occasion although there is no accusation that they had beeninvolved in any of the incidents. It would appear, therefore, that the decision to bar the group was taken, not because the group were Travellers, but because the group had become a source of trouble to the staff of Polly Hops.
7.6 The evidence before also suggests that a brother of John Stokes, who closely resembles him, had also been barred from Polly Hops prior to December 2001. I have also formed the opinion that, on 27 December 2001, Sean McGaurty mistook John Stokes for the brother who was barred and who had been pointed out previously to Mr McGaurty. In addition, I consider that, while a mistake may have been made by Mr McGaurty, that Mr Spratt did have reason, based on the events of 27 January 2000, to uphold the decision to refuse service.
7.7 I am, therefore, satisfied that Mr McGaurty's initial decision to refuse service to the complainants on 27 December 2001 can probably be attributed to a case of mistaken identity but that Mr Spratt's subsequent decision, reinforcing Mr McGaurty's decision, was taken because he recognised John Stokes as having been part of a group who had been barred for causing trouble on 21 January 2000.
I, therefore, consider that Mr McGaurty and Mr Spratt were both acting "in good faith" in accordance with the provisions of Section 15(2) of the Equal Status Act 2000 which states that " Action taken in good faith by or on behalf of the holder of a licence ... for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination".
Accordingly, I find that John Stokes was not treated any differently than a non-Traveller would have been treated in similar circumstances on 27 December 2001. Accordingly, I find that discrimination was not a factor in this case.
8 Decision
8.1 I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1), and 3(2)(i) of the Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
8.2 In this particular case, it would seem that Mr and Mrs Stokes had no personal involvement in any of the trouble caused on 21 January 2000 and that John Stokes simply had the misfortune of initially being mistaken for his brother on 27 December 2001, leading to him and his wife being refused service and suffering humiliation and embarrassment in not being given a reason for their refusal. While I have found that discrimination was not a factor in the refusal on 27 December 2001, I do consider that the events of 27 December 2001 were most unfortunate and note that Mr Patton has apologised to Mr Stokes for what happened.
In the circumstances, I would suggest that it might be appropriate, as a gesture of goodwill, if the respondents were to consider lifting any bar that might be still in place on Mr and Mrs Stokes and invite the complainants and their children back to Polly Hops for a meal "on the house" in the near future.
Brian O'Byrne
Equality Officer
25 August 2003