Mr. James McCarthy (Represented by the Traveller Visibility Group) V The Fox and Hounds Bar, Cork (Represented by David J. O'Meara & Sons, Solicitors)
Headnotes
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Membership of the Traveller Community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub
Mr. McCarthy 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.
Summary of the Complainant's case
The complainant's case is that he and four of his friends met at the halting site where helives and went to have a drink on Christmas Eve. Mr. McCarthy took his son with him. They entered the respondent's premises at 3.30pm. Drinks were ordered for the adults and a soft drink and crisps for the child. While they were drinking this first drink the owner approached the group and told them that they would not be served further and asked them to finish up. They asked for a reason but none was given. The group left. Mr. McCarthy states that the reason for this refusal of service was his membership of the Traveller community.
Summary of the Respondent's Case
The respondent's case is that Mr. McCarthy's group was served a drink. While this was being taken the children with the group began running up and down the seats along the wall. The group was asked to keep the children quiet. Subsequently the children drew a high stool up to the cigarette machine and began to insert beer mats into the money slot. The stool was leaning against the machine on two legs. The group was again asked to control the children. The children were running around again within a few minutes and the group was asked a third time to control them. When the group attempted to order a second round of drinks they were informed that they would not be served while the children were there. The owner was threatened with physical violence and the extraction of €5000. The owner gave his name and address. The group sat, finished their drinks and left.
Conclusions of the Equality Officer
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 complainants 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 complainant has established a prima facie case and 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. I am satisfied that the complainant is a member of the Traveller community, which satisfies (a) above. Both parties agree that there was a refusal of service, satisfying the requirement at (b) above.
In their descriptions of the incident the parties differ greatly. There is agreement only in relation to the number of adults in the group and to the complainant being in the bar only once, i.e. the incident in question, during that Christmas period. There is, also, a dispute as to the date of the incident. The complainant stated that the incident took place on 24/12/2001, while the respondent stated that it took place on 21/12/2001. The respondent allegedly has a note of the incident in a diary but was unwilling to enter the diary in evidence as it contained details of takings etc. The respondent had taken control of the premises only a number of days before the incident. The incident is allegedly noted under the 21/12/2001 but the respondent was not concerned that this suggested that they had not been appropriately notified as required by the Equal Status Act, 2000. The complainant asserted that his group looked like Travellers and spoke like Travellers; they were readily identifiable as such. He has presented no evidence as to why the respondent should serve one drink and then refuse to serve the complainant's group further. The respondent, on the other hand, has presented a scenario that provides a reason for such change in approach to the complainant's group. On the balance of probabilities, I find the respondent's evidence more compelling. I am satisfied that the respondent identified more than one child as being with the complainant's group, rightly or wrongly, and refused further service on the basis of the unacceptable behaviour of those children. I am satisfied that, due to insurance and other requirements, a group of non-Travellers associated with children who were misbehaving would be treated in asimilar fashion. While some statements made by the respondent at the hearing were of concern, (for example a connection made between Travellers and people with criminal convictions) I am satisfied that in this case the reason for refusal, on the balance of probabilities, was not discriminatory. The refusal does not, therefore, constitute less favourable treatment on the Traveller ground, and as a consequence the complainant has failed to establish a prima facie case of discrimination on that ground.
Decision DEC-S2003-128
I find that the respondent did not discriminate against the complainant on the Traveller community ground.
Bernadette Treanor
Equality Officer
21 October 2003