DEC-S2003-059 Full Case Report

Mr. Martin Collins, Dublin V Doran's Bar, Dublin

Mr Martin Collins referred a claim 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, the Director then delegated the case to me, Bernadette Treanor, 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.

2. Dispute
This dispute concerns a claim by Mr Martin Collins that he was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of his membership of the Traveller community in that on 13/11/01 he was denied service in the respondent's premises. The respondent does not deny that service was not provided, but states that it was on grounds other than the complainant's membership of the Traveller community.

3. Summary of the Complainant's case
Mr. Collins was in Doran's Pub on 13/11/01 with friends, when another group of Travellers arrived. This group were refused service and one of the group threw furniture around. Although this second group left before the Gardaí arrived, Mr. Collins and his group were subsequently also asked to leave. Mr. Collins believes that members of the settled community would not have been treated in this manner.

4. Summary of the Respondent's Case
The respondent, Doran's Pub, had served Mr. Collins and his group when the second group arrived. This group included a person who had previously been barred. When this person ordered drinks for his group he was refused. Members of this group became threatening and aggressive. Mr. Collins interceded on behalf of the group. One of the group began to throw furniture around and an ashtray became wedged in the wall after it was thrown. Some of the group left before the Gardaí arrived but others joined Mr. Collins' group. Since the groups were indistinguishable they were all asked to leave.

5. Evidence of the Parties
5.1. Complainants Evidence
Mr. Martin Collins, Complainant

• Mr Collins and his companions had been to a funeral in Mullingar on 13/11/01. Some friends had wanted to go to a different pub where the average age is 19, but Mr Collins felt that it would be more comfortable in Dorans where they normally were treated with respect and courtesy.
• There were four people in his group. They sat in the corner beside the door. There was two bar-staff on duty.
• Four to six people entered subsequently. One or two approached the bar and were refused. Mr. Collins tried to negotiate. He could feel the group getting agitated as they were embarrassed. He could see that two were getting angry. Mr Collins approached the bar twice. On his second approach, one member of the second group got aggressive and damaged property. Mr. Collins felt helpless but tried to indicate that the behaviour was unacceptable. However, the situation was outside his control.
• He returned to his original group and the others left quickly. When the Gardaí arrived a member of staff indicated to them that the behaviour of the second group was unacceptable.
• Mr. Collins knew a number of the members of that second group but had no association with them. He had had no arrangements to meet them, although they had also been to the funeral.
• When the second group arrived, Mr. Collins thought their demeanor was normal and they were well behaved. When they were refused he felt that the bar staff saw that there was four Travellers there already and that they got panicky when another four to six arrived.
• Mr. Collins was the only member of his group to speak to the bar staff in respect of the second group, although another of his group can be seen in the video trying to stop a Traveller in the second group from annoying a settled customer.
• Mr. Collins stated that it was the Gardaí who asked him and his group to leave the premises. Although he gave his account to the Gardaí, they spoke with the bar-staff and returned asking Mr. Collins's group to leave. Information passed back and forth via the Gardaí. The bar-staff did not address the group directly in respect of a request to leave.
• Mr. Collins's friends asked for their money back in respect of the drinks they were required to leave behind and the bar staff acceded to this.
• Mr. Collins himself could not agree to this because he felt there was a greater principle behind the issue. He felt that he should be allowed to finish his pint and to order another one if he so wished. Ultimately Mr. Collins left the pub with the Gardaí.
• Mr. Collins stated that there was no heated exchange between himself and the Gardaí, that he was making the point in respect of the Equal Status Act, 2000. He has worked for 18 years on Traveller's rights, with Pavee Point and with a Human Rights group. He cannot afford to be involved in difficulties.
• He undertook a mediator's role. The people responsible for the difficulties should be accountable but that is not his role. When he approached the bar the first time, he explained that they had all been to the same funeral that day, and that he would vouch for the group.
• The allegation that his group tried to make money in respect of the refund was refuted by Mr. Collins, who stated that this would not be done in front of the Gardaí.
• Mr. Collins did not kick a stool. While the situation was getting very tense, he would never do that. He felt that this allegation was defamation of his character. There were four in his group and they behaved impeccably. The stocky man was not in his group and he does not associate with him. He was part of the second group.
• When he went to the bar he spoke with Niall. On the second attempt to intervene he did not get a chance to talk to anyone.
• He feels that his reputation is in disrepute, the incident was embarrassing and the pain of it went on.

5.2. Respondent's Evidence
Mr. Patrick (Damien) Glavin, Manager of respondent premises

• The respondent premises comprises of a Youth Hostel, off-licence and bar. Mr. Glavin oversees the stock and ordering system, staff management and manages the entire complex.
• Mr Glavin knew Mr. Collins for three to four years as a customer. He had never caused any difficulties.
• Mr. Glavin was not in the bar when Mr. Collins entered. Although when he did enter the bar, Mr. Glavin noticed him with about five or six others. There was nothing unusual in this as he had seen them there many times. While in the bar, he noticed a group talking to Niall, (Mr. Niall Tuohy), one of whom he had personally barred.
• When Niall told the man that he was barred he met with immediate hostility. When he, Mr. Glavin, took over he was also treated to hostile behaviour.
• Someone from Mr. Collins's group explained that they were back from a funeral and asked that the group be served.
• Mr. Glavin stated that he would not serve anyone who was hostile and that due to this man's personal insults he would not serve him in future either. He then asked him to step out from behind the bar. He was asked 'who is going to put me out'.
• Mr. Glavin stated that the phone in the bar was broken and it was necessary for him to go to the office. He felt that it was best for him to leave and make the call as he felt that he was the focus of the aggression, and also that it was necessary for whoever was leaving to pass the individual who had moved behind the bar. It took about four minutes to get the Gardaí and another five to six for them to arrive.
• The stocky man who had been in behind the bar almost at the till had returned to sit with Mr. Collins's group.
• While standing beside Mr. Collins's group, the Gardaí indicated that he, Mr. Glavin, would have to request them to ask the group to leave. He had to stand beside the group and say this loud enough for the group to hear. After speaking to Mr. Collins the Gardaí said that it was a hostile situation and suggested that the group might leave without any trouble if a refund was made.
• Mr. Collins's group did not leave with the second group. There was a certain amount of confusion in relation to the refund of money for the drinks. One emptied some of the drink into another glass to get the price of two and another customer complained that they had taken his drink. There was heated exchange between Mr. Collins and the Gardaí and he had to be physically removed. Mr Niall Tuohy, bar-staff in respondent premises
• Mr Collins arrived at 9:30 on 13/11/01. Mr. Tuohy knew him and found him to be pleasant. He served him as usual.
• When the second group arrived, the barred man ordered first for the whole group. Mr Tuohy told him that he could not serve him since he was barred.
• It was clear to Mr. Tuohy that the two groups knew each other.
• Another, larger member of the second group came to the bar and ordered. When he was refused he insulted and threatened Mr. Tuohy. The group sat down. This large man came behind the bar and Mr Tuohy backed away. Mr Glavin arrived at that point. The large man then insulted Mr Lavin and said he was going to sort him out. Mr Tuohy understood this to mean that he was going to attack.
• At this point one person knocked a table (after removing the ashtray) and then Mr Collins kicked over a stool. Mr Tuohy said that at this point the two groups had started mixing. Mr. Collins involved himself by kicking the stool.
• The ashtray was thrown and it stuck in the wall.
• Mr Fitzpatrick arrived from another area of the complex and Mr Tuohy put up his arm to protect both of them and moved back.
• When the Gardaí arrived they went through what happened.
• A short time after this incident Mr Tuohy left Dorans and left the bar business. Mr John Fitzpatrick, bar-staff in respondent premises
• Mr Fitzpatrick was working in the off-licence when he heard the commotion.
• When he came into the bar he could see the large man well in behind the bar. He tried to get him out and put down the bar top but he refused, gritting his teeth.
• Mr Fitxpatrick only saw snippets of the incident since he could not leave the off-licence unattended. However, he did see Mr. Collins kick the stool.

Mr Noel Tynan, Owner/Licensee

• Mr. Tynan was not present during the incident.
• He received a call to say that the Collins' are after breaking up the bar. He called his other bar and said that Mr. Collins's group should not be served. Another group who arrived in this other bar were refused by mistake.
• Mr. Collins arrived in the second pub, after 1am, and was refused.
• Mr. Tynan said that his customer base is very mixed. He is not a racist nor is he anti-Traveller. He cashes their cheques and has the daughter of a Traveller on his staff.
• Mr. Collins is known to him and he has often bought him a pint. Mr. Collins never caused any difficulties before.
• Mr. Tynan asked Mr. Collins why he allowed the stocky gentleman to join him, and why he had not attempted to mediate on behalf of the publican. He suggested that the fact that Mr. Collins felt he would be comfortable in Dorans suggests that Dorans is open to all cultures and people and that other premises are not so open.

6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated" . Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not." Section 5 (1) states 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 ". Section 15(1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer wouldproduce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought". Section 15(2) of the Equal Status Act 2000 states that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination". 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) Applicability of the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment a non-Traveller received, or 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.

7. Conclusions of the Equality Officer
7.1. Prima Facie Case
I am satisfied that Mr. Collins is a member of the Traveller community. Both he, and his position as a representative of Traveller rights are well known to the respondent. This satisfies (a) above.
It is agreed that Mr. Collins was required to leave Doran's pub on 13/11/01 which satisfies (b) above.
The non-Travellers in the bar on 13/11/01, who can be seen on video, were not asked to leave as a result of the incident. However, it is necessary to consider the circumstances surrounding the request to Mr Collins to leave, in order to assess whether the request was because of his membership of the Traveller community or if it was based on something else.
On 13/11/01, Mr. Collins had been to a funeral outside Dublin. On his return he went with three friends, on preference, to Dorans being well known there and having always been treated normally. Mr. Collins and his group were served several times without difficulty. After some time another group of Travellers, who had also been to the funeral, entered Dorans. On video, they seem to scatter with some sitting down at a table, some sitting alone and some at the bar. While there is a gap on the video of some 10-12 seconds, after this break some of this group who had been sitting at a table just inside the door have moved or left, but Mr. Collins' group is larger. It is not possible to tell if the group simply moved, but it is clear that the group in the window seat with Mr. Collins now number 6 to 8. One man remains seated alone. Mr. Collins can be seen approaching the bar, presumably to intercede on behalf of the group. This discussion is off-camera and Mr. Collins was unable to reverse the refusal decision on behalf of the group. He returned to his seat. In spite of being refused the second group remained in the pub, dispersed as above. During this time, the large man was behind the bar threatening staff. This can be seen on the video from the camera filming behind the bar. In my view it is not necessary to question whether he verbally abused or threatened staff since on video his demeanor and particularly his position, behind the bar and almost at the till, was threatening in itself. After he did finally leave the bar area, Mr. Collins can be seen approaching the bar again, this time at the entrance to the counter area. He is not seen to talk to anyone and while he is standing there waiting one can see stools that had beenthrown passing behind him. When the video shot moves to the other camera showing the length of the bar, the man who had remained sitting alone can be seen throwing a table up and over on to its side. He then proceeds to throw stools across the premises in thedirection of the side of the bar. These are the stools that can be seen when Mr. Collins is at the bar for the second time.
During the hearing the respondent alleged that Mr. Collins had himself kicked over a stool. This was alleged to have happened after the violence broke out. However, it is not clear to me how staff could have identified this from their positions and it seems likely that the stool referred to was one of those thrown by the other individual which moved behind Mr. Collins. In addition, the video evidence does not support the respondent's allegation that Mr. Collins was physically removed from the premises by the Gardaí. It is useful to try to establish where all the members of the two groups are at this point. One of Mr. Collins' group is at the bar in conversation. Mr. Collins maintains that this was to restrain the large man from annoying a settled person. Mr. Collins' group itself is still more than four people. It was not possible for me to establish, with the benefit of the video, who belonged to which group at all times. It is clear that the two groups were known to each other.
Mr. Collins stated that he believed that the incident would not have arisen had the second group been served. However, I have no reason to doubt the evidence given that one of the second group was barred. It is not reasonable in my view to expect a publican to serve a group, one of whom is barred, simply because the group may cause trouble if s/he does not. The immediate response of members of the group was one of aggression and threatening behaviour. Aggressive and threatening behaviour intended to extract service from an unwilling service provider is intimidation. Section 15 of the Equal Status Act provides for refusals in such circumstances.
On 13/11/01, the bar staff of Dorans were presented with two groups of Travellers. One group was made up of people they knew to be regulars, another included one person who was barred. Members of the second group were threatening, while another member was violent. It is not possible to identify on video different members of the groups as they moved around, so in my view it must have been extremely difficult for the staff, as the incident unfolded, to identify them and track them while also trying to monitor a dangerous situation and ensure their own safety. Since Mr. Collins' group had grown from its original four to around seven to eight at around the time the second group arrived, I am satisfied that while Mr. Collins may not have intended to socialise with this group, some of the group joined his original group. I am also satisfied that Mr. Collins attempted to intercede twice on behalf of this group. Although in evidence Mr. Collins suggested that his aim was to mediate, he stated that he explained that the second group had been to the same funeral as he had that day and that he would vouch for him. No evidence was presented to suggest that Mr. Collins attempted to represent the respondent's position to the second group. Therefore I am satisfied that his intervention was not as a mediator but as an advocate for the second group. However, Mr. Collins may not have been aware that one of this group was already barred. On his second attempt, Mr. Collins was still trying to intercede on behalf of the group until one of their number began throwing furniture around, even though another had been in behind the bar in a threatening manner. Mr. Collins clearly associated himself with the group in so far as he was willing to intercede on their behalf, in spite of this threatening behaviour. I am satisfied that Mr. Collins was asked to leave, not because he was a Traveller, but because the respondent associated him with others who had behaved in an unacceptable manner. I am satisfied that had the non-Travellers present been indistinguishable from a group who were behaving in an unacceptable manner they would also have been asked to leave. While the others with whom he was associated were Travellers, their refusal does not appear to have been discriminatory, and therefore the refusal of Mr. Collins cannot be deemed to be discriminatory by association in accordance with section 3(1)(b). Had the two groups remained entirely separate throughput the incident with no significant intermingling, and had Mr. Collins' group been asked to leave, the circumstances would have been different.
I find that Mr Collins was not treated less favourably on the grounds of his membership of the Traveller community. Collins v Doran's Bar

8. Decision DEC-S2003-059
I find that the complainant was not discriminated against on the Traveller ground by the respondent in accordance with Section 3 of the Equal Status Act, 2000 and in terms of section 5 of that Act, in respect of the incident on 3/01/01.

Bernadette Treanor
Equality Officer
3 July 2003