DEC-S2004-118/119 Full Case Report

Siobhan Hughes and Michael Ward (represented by the Equality Authority ) V Mr David Finan, The Music Bar, Wards Holiday Hotel Ltd, Salthill

1. Dispute
This dispute concerns a complaint by Siobhan Hughes and Michael Ward that they were discriminated against, contrary to the Equal Status Act 2000, by the Music Bar, Salthill. Michael Ward, who is a Traveller, maintains that he was discriminated against on the Traveller community ground in terms of sections 3(1)(a) 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. Ms Hughes, who is not a Traveller, claims that she was
discriminated against by association, in terms of section 3(1)(b) of the Equal Status Act, because she was in the company of a member of the Traveller community,.

2. Summary of the Complainants' Case
2.1 The complainants state that they saw an advertisement in the Galway Advertiser before Christmas 2000 indicating that the Music Bar in Salthill was open every night from "St Stephen's to New Year's Nite", that there was no cover charge and that a DJ would be providing music "to suit all tastes". On foot of this advertisement, the complainants arranged to meet Mr Ward's sister in the Music Bar on St Stephen's night but when they got there at 7.30 pm they were told it was "regulars only". They maintained that the refusal occurred because Michael Ward was recognised as a Traveller by the doorman.

3 Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainants were refused service because there had been trouble outside the bar earlier that evening and that the manager had instructed that only regulars should be admitted.

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. Complainant's Evidence Michael Ward

• Michael Ward had previously visited the Music bar on 2/3 occasions and had no problem getting served
• In the week leading up to Christmas 2000, Mr Ward saw an advertisement in the Galway Advertiser for the Music Bar which stated "Open every nite from St Stephen's to New Year's Nite - No Cover Charge - Live DJ - Music to suit all tastes - All parties catered for" (A copy of this advert was produced in evidence at the Hearing)
• On foot of this advert, Mr Ward and his girlfriend Siobhan Hughes arranged to meet Mr Ward's sister in the Music Bar on St Stephen's night, 26 December 2000.
• The couple arrived at the Music Bar between 7pm and 8 pm. At the door they were met by a doorman, Mr A, who informed them that it was "regulars only".
• Mr Ward recognised the doorman from seeing him on duty as a doorman outside several premises in Salthill around that time
• Mr Ward said that he was sure that Mr A would have known him to be a Traveller from the fact that he had often passed Mr A in the street outside those other premises, while he was in the company of other Travellers
• Mr Ward said that he could not accept that the Music Bar was operating a "regulars only" policy that evening as his sister and brother-in-law, who were also not regulars, had already been admitted.
• On being refused, Mr Ward asked to be admitted in order to tell his sister what had
  happened. He was told by Mr A that he could go in for 2 minutes but Ms Hughes was not admitted
• When he got in, Mr Ward explained to his sister what had happened. While inside he
  noticed that the pub was "more empty than full"
• He then left the pub and went into Galway for a drink about 8 pm
• Mr Ward said that it was "bitterly cold" that evening, the streets of Salthill were very
  quiet and there was no trouble or Gardai to be seen

Complainant's Witness John McCarthy

• Mr McCarthy is an acquaintance of Michael Wards
• He is not a member of the Traveller community
• He was not a regular of the Music bar and had only visited the pub once or twice in the three years previously
• On 26 December 2000, he and a friend arrived at the Music Bar at around 8.30 pm. They decided to go into the Music Bar and had no problem getting past the doorman who Mr McCarthy had never seen before.
• While inside, they met a relative of Michael Ward, who they knew, who mentioned to
  them that Mr Ward had been refused admission earlier.
• Mr McCarthy said that he had no arrangements made to meet Michael Ward personally that night and they did not actually meet on the night in question.
• He and his friend had two drinks in the Music Bar and left at 9.30 pm.
• Mr McCarthy said that the pub was not busy that night and that some sections of the pub were empty
• Salthill was quiet that evening and he cannot recall seeing or hearing of any trouble on the streets.

Evidence of Respondent Mr David Finan

• David Finan managed the Music Bar from Oct 1998 to Sep 2003. The bar was alsoknown locally as "The Office Bar"
• The business was operated by Wards Holiday Hotel Ltd of which David and Bernard
  Finan were Directors
• The premises was open every night between St Stephen's Day 2000 and New Years Day and an advertisement to this effect had been placed in the Galway Advertiser to attract custom over the Christmas period. He said the advert was designed to attract "some locals that were regulars"
• On St Stephen's night, Mr Finan said that he expected a big crowd and that he gave
  instructions to the doorman only to let in regulars
• Mr Finan said that his decision to restrict access to regulars only was also influenced by the fact that he had heard that there had been some fighting on the street earlier that evening in Salthill.
• At around 7.45 pm, the doorman said to him that he had had some "hassle at the door" and that someone had mentioned discrimination. The people who had been involved had already left when Mr Finan spoke to the doorman
• Because of the incident, Mr Finan decided to report it to the Gardai in Salthill. He then visited the Garda Station himself and reported the incident at 8 pm
• Mr Finan stated that he had never operated a policy of discrimination against Travellers and that he had accommodated a few Traveller functions in the past
• Mr Finan said that the pub had been very busy on 26 December 2000 and that the place was full by 7.30 pm
• Mr Finan said that he had recorded the incident in an Incident Report Book that night and undertook to submit the book to the Equality Officer after the Hearing together with a copy of the publican's licence he held at the time

Additional Information
At the Hearing, I indicated that, as part of my investigation, I would be seeking a report from the Gardai on the events of 26 December 2000 in Salthill. In response to my request, I
subsequently received a report from the local Garda Superintendent quoting the following
extract from their official records, recorded at 8.20 pm: "David Finan, c/o The Office Bar, reported that he is holding a private party in the bar. A group of people arrived at the door and tried to gain admittance. They were refused and are now threatening to take legal action". The Superintendent also reported that the only other recorded incident that evening was of a disturbance which occurred at another pub in Salthill at 8.20 pm.

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, Michael Ward claimed that he was discriminated against on the grounds of his 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 admission to the Music Bar on 26 December 2000. Siobhan Hughes claimed that she was discriminated against because she was associated with a member of the Traveller community contrary to Sections 3(1)(b) of the Equal Status Act, 2000

6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which discrimination could be inferred. 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.

6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub
DEC-S2002-097/100).

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 complainants. 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 complainant 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 In this particular case, Siobhan Hughes did not attend the Hearing on 7 May 2004. Her representative confirmed that Ms Hughes had been made aware of the date but, at the Hearing, the representative could not explain her non-attendance. In complaints such as this, the onus is on the complainant to establish a prima facie case, in the presence of the respondents, to afford the respondents the opportunity to challenge any allegations made against them. As Siobhan Hughes was not available to give evidence at the Hearing, I consider that she has not established a prima facie case of discrimination in this instance.

7.4 In the case of Michael Ward, with regard to (a) above, the complainant has satisfied me that he is a member of the Traveller community. In relation to (b), the respondent acknowledges that the complainant was not admitted on 26 December 2000. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded Michael Ward on 26 December 2000 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.

7.5 In considering whether Michael Ward suffered discrimination on the Traveller community ground, I consider the following to be the key factors:

• The evidence before me indicates that neither Michael Ward, John McCarthy nor MrWard's sister were regulars in the Music Bar yet it was only Michael Ward that was
  refused admission on 26 December 2000.
• Michael Ward has stated that the doorman, Mr A, would have known him to be a
  Traveller from the fact that, while in the company of other Travellers, he had often
  passed Mr A while Mr A was on duty outside other premises. In the absence of Mr A at the Hearing, the respondents were unable to provide any evidence to contradict this allegation.
• In support of their assertion that the pub did not discriminate against Travellers, the
  respondents have pointed to the fact that the complainant's sister had gained admission earlier that night. On considering this point, I note that there is no clear evidence to say whether or not the doorman knew the sister to be a Traveller and, therefore, I find that I cannot reach any clear conclusions on this point.
• Mr Finan claimed that his decision to restrict access to regulars only was guided by the fact that there had been trouble earlier on the streets of Salthill. According to the Gardai, however, the only reported incident of trouble elsewhere occurred after the refusal at the Music bar.
• Further confusion also arises from the fact that the Garda report states that Mr Finan
  informed them that that he was holding "a private party" in the bar. No reference to this "private party" was made by Mr Finan at the Hearing.
• Mr Finan also claimed that his decision to restrict access to regulars only was guided by the fact that the pub was very busy that evening. This is contradicted, however, by both Mr Ward and Mr McCarthy who said at the Hearing that the pub was not very busy when they were on the premises.
• Despite giving an undertaking at the Hearing that he would submit his Incident Report Book and publicans licence, Mr Finan failed to do so subsequent to the Hearing.

7.6 Having deliberated on the totality of the evidence before me and, having taken the above factors into account, I consider, on the balance of probabilities, that Mr A's decision to refuse admission to Mr Ward was influenced by the fact that he was recognised as a member of the Traveller community on 26 December 2000. I, therefore, find that Michael Ward has established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed to rebut the allegation.

8 Decision
8.1 In failing to attend the Hearing of this complaint on 7 May 2004, I find that a prima facie case of discrimination has not been established by Siobhan Hughes on the grounds of association with a member of the Traveller community in terms of section 3(1)(b) of the Equal Status Act 2000 (DEC-S2004-118).

8.2 In the case of Michael Ward, I find that a prima facie case of discrimination has been established on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation (DEC-S2004-119).

8.3 In considering the level of address to award, I am cognisant of the fact that Michael Ward has said that he was served previously in the Music Bar without any problem and that the management have indicated that they have facilitated Traveller functions in the past. This would indicate to me that the Music Bar did not have an ongoing policy of discrimination in operation and that the refusal of the complainants was probably an isolated incident. For this reason, I consider that redress of €500 is appropriate in Mr Ward's case and I order that the respondents pay the complainant this amount for the humiliation and loss of amenity suffered on 26 December 2000.

Brian O'Byrne
Equality Officer
6 September 2004