John O'Driscoll (represented by Mr. Vincent Harrington) V Kiely's Pub, Cork (represented by MacGeehin Toale Nagle, Solicitors)
This complaint was 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 delegated the complaint to me, Dolores Kavanagh, 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.
1. Dispute
1.1 This dispute concerns a complaint by John O'Driscoll that he was discriminated against by the respondent 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.
2. Summary of the Complainant's Case
2.1 The complainant states that he was refused service in the respondent premises on the evening of 8 July, 2001 because he is a member of the Traveller community. The complainant denies that he or any of his companions were behaving in an unacceptable manner.
3. Summary of Respondent's Case
3.1 The respondent states that the pub manager observed the complainant and his companions on the evening in question. They were seated apart. Some were seated at the bar while others were seated across from the bar. They conducted a very loud conversation which included foul language. Some of the group had their feet up on seating and were asked to remove them. They were also stubbing cigarettes out on the floor of the premises.
4 Evidence Provided by the Parties
4.1 Complainants' Evidence
Written submissions prior to Hearing
Submission by Kerry Travellers Development Project
- The complainant, John O'Driscoll had never been to the respondent's premises prior to 8 July, 2001. He lives in Tralee and was visiting in Mallow at the time.
- There were four men in the complainant's company on the day in question, two from England and two from Mallow.
- Service was refused to the entire group, but direct through the complainant as he was the only one who went up to the bar.
- No other member of the group had ever been to the premises before as two of the complainant's companions are from England and the other two had only recently returned to Mallow.
- None of the complainant's party were known to the staff/management of the pub.
- The group had been in a relative's house prior to going to the respondent's premises.
Submission by John O'Driscoll, Complainant.
- If Mr. O'Driscoll's party had been behaving in the manner described in correspondence by Mr. O'Sullivan, manager, Kiely's Pub, Mr. O'Driscoll is surprised that a man of his experience never approached the group to request that they behave in a more appropriate manner or ask them to leave before they had a second drink.
- It is the complainant's experience that that publican's who do not wish to have Travellers on their premises, serve them one drink in the belief that this will avoid them being challenged under the Equal Status Act, and then ask them to leave.
- As Mr. O'Sullivan noted, when he asked one of the party to remove his legs from the seating the individual did so immediately. This in itself demonstrates a willingness on the part of the group to comply with any reasonable requests from Mr. O'Sullivan. The complainant is surprised that Mr. O'Sullivan did not use this opportunity to also discuss any behaviour that he felt was "inappropriate". The complainant's only conclusion is that there was no other
"inappropriate behaviour" and that Mr. O'Sullivan simply did not wish to have Travellers on the premises. - While the complainant was not the first member of the group to be refused a second drink he was in fact informed by Mr. O'Sullivan that he was also refusing him service . Mr. O'Sullivan's statement acknowledges this fact in the second paragraph of his correspondence, however he denies it in the third paragraph.
- The complainant is surprised that Mr. O'Sullivan felt that there was a "substantial risk of further disorderly conduct/behaviour" as the only request from him (the issue regarding feet on seating) had been carried out without any hesitation.
- When the complainant approached Mr. O'Sullivan to ask why they were not going to be served a second drink, it was the perfect opportunity for him to challenge any behaviour that he felt was inappropriate. However he simply refused to give any reason, a response that is surprising considering his ten years of experience of bar management.
Evidence provided at Hearing
John O'Driscoll, Complainant
Mr. O'Driscoll stated that :-
- On the day in question he attended at the blessing of a grave just outside Mallow, following which he went to the house of a relative (named).
- Kiely's pub was the closest pub to where he and his companions were located. The group drove from Summerhill area of the town, passed a park and went to a supermarket car park. The group was seeking a pub close by, ideally with a pool table. They entered a lane way near the car park with a bungalow at the entrance to the lane way. The complainant does not recall any other buildings/features which the group passed by en route to the pub.
- The complainant's two cousins are from Mallow, they led the way to the pub. The complainant has no idea why they chose Kiely's pub, he simply tagged along with them. Someone led the way to the pub, the complainant is unsure as to who did so.
- The complainant's cousin Paddy O'Driscoll had been served regularly in the pub.
- When the group entered the pub the complainant and one other sat at the bar and the others in the group sat at a table across from the bar. They were not conversing in a loud tone and they did not use foul language in the course of conversation.
- The group was served one drink. Mr. O'Sullivan was not there when they entered. He appeared about ten minutes later behind the bar.
- The complainant was not speaking to the members of the group who were seated away from the bar at all, he was facing away from them, facing the bar itself.
- The group were not using inappropriate language.
- One of the complainant's cousins asked for a drink. He was refused by Mr. O'Sullivan. The complainant then asked if he was also going to be refused if he ordered a drink and was told that he would be refused.
- When the complainant asked for a reason for the refusal he was not given one. Mr. O'Sullivan told him that he did not have to give him a reason for the refusal.
- When the group left the pub one of the complainant's cousins (named)stated that he had had his feet on the seats and that this was probably the reason for the refusal. This was the cousin who had been directly refused service when he asked for a drink.
- The complainant does not accept that this was the reason for the refusal and feels that the group were refused because they are Travellers. The complainant was only intending to have two drinks in the premises and then leave as he was driving, he was not therefore annoyed with his cousin for having had his feet on the seating.
- The complainant accepts that one of his cousins is served regularly in the pub, but cannot say whether this was the reason why Kiely's was the pub which the group chose to go to.
- The complainant does not accept that Mr. O'Sullivan was in the bar area when the group entered the premises because he did not see him at that time.
- Mr. O'Sullivan had also stated that the group were drunk. That was not the case.
4.2 Respondent's Evidence
Submissions by representatve prior to Hearing
- Mr. O'Driscoll and a group of 5-6 companions entered the respondent's premises at approximately six o'clock in the evening of 8 July, 2001.
- They ordered drinks and were duly served by Mr. O'Sullivan's colleague, after which a number of them sat at the counter area while two or three others sat at a table opposite the counter.
- As Mr. O'Sullivan was walking outside the counter area he noticed that one of the party had his legs on the seating and he asked him to remove them from the seating which he duly did.
- The two groups were speaking loudly to each other and using language which in Mr. O'Sullivan's view was inappropriate, particularly as at that time of the evening there were a number of families with children on the premises.
- One of the group ordered a second drink and when he was refused the complainant asked whether that meant that he was not going to be served either, to which Mr. O'Sullivan replied "yes".
- Mr. O'Sullivan was at all times conscious of all customers present and attempted to deal with the matter discreetly. However, the complainant raised his voice thus attracting the attention of other customers and asked Mr. O'Sullivan if he knew about discrimination to which Mr. O'Sullivan replied that he had a certain knowledge.
- It is the respondent's submission that an individual with Mr. O'Sullivan's experience (10 years as a bar manager) would have vast experience of dealing with problem situations which might arise in a licensed premises. In the particular instance he had acted in a reasonable manner as Manager who had responsibility, knowledge and considerable experience of dealing with similar situations. He believed that there was substantial risk that further disorderly conduct/behaviour would ensue if the complainant had been served further alcohol.
- It should be noted that Mr. O'Driscoll was not the actual individual who was refused but rather the person who interjected in the conversation between Mr. O'Sullivan and the person who was actually refused.
Evidence provided at Hearing
Mr. Donal O'Sullivan, manager, Kiely's Pub
Mr. O'Sullivan stated that:-
- He was in the bar on the evening in question when the complainant and his companions entered the pub. He had been collecting glasses etc. out on the floor. When the group entered he was seated, chatting with a family who regularly attend at the premises on Sunday afternoons, in the bar area across from the bar counter. He saw the group enter from where he was seated. The family in question became alarmed when the complainant's group began to hold a very loud conversation interspersed with foul language. The family left the premises.
- Mr. O'Sullivan made his way to the bar area. On passing the group who were seated opposite the bar counter he noticed that one of them had his feet on the seating and asked him to remove them. The man complied. Mr. O'Sullivan also asked that the group quieten down.
- Some minutes later he noticed that the man again had his feet up on the seating and that the group were smoking and extinguishing their cigarettes on the floor of the premises.
- The man who had his feet on the seating approached the bar and ordered a drink. Mr. O'Sullivan told him that he would not be served. The man in question accepted this without argument and left the premises shortly after.
- While telling the man that he would not be served, the complainant interjected and asked whether he would also be refused. When Mr. O'Sullivan said yes, that he would also be refused. The complainant began to talk about discrimination in a loud tone of voice. He asked Mr. O'Sullivan for a reason for the refusal but it is Mr. O'Sullivan's experience that to give a reason can lead to heated discussions/arguments when a person does not accept that reason. He declined therefore to give a reason.
- Mr. O'Sullivan felt that the group had some drink already taken because of the way in which they were conversing and behaving. Mr. O'Sullivan is familiar with one member of the group who appeared to have drink taken already.
- Mr. O'Sullivan felt that the behaviour at that time of the evening was entirely inappropriate for the atmosphere in the establishment. The group were not aggressive or threatening to him in any direct way, but were causing a bad atmosphere in the pub.
- The pub does not have, and has never had, a policy of restricting or refusing service to any person or group of persons unless there is very good reason for doing so.
- Mr. O'Sullivan would not know whether any patron is a Traveller or not.
- Mr. O'Sullivan felt, given that he had asked the man to remove his feet from the seats and that the man had again put his feet on the seats, and that the group had not quietened down, that there was a risk of a confrontation as the evening progressed if more drink was to be served to the group. Mr. O'Sullivan wished to avoid any such confrontation and therefore "nipped it in the bud" before it got started.
- Mr. O'Sullivan could have refused the group initially if it were a simple matter of not wanting to have the group on the premises. He did not do so. He refused further service only after he had observed the group's behaviour and saw the reaction of other customers to it (specifically the family that left).
- There are on average 2-3 refusals in the bar in any week. Mr. O'Sullivan has in the past refused family members of his own when he felt that they had sufficient drink taken. He does not discriminate in any way in that regard and relies on his experience when making judgements in such cases.
- The other barman on duty at the time was of the same opinion as Mr. O'Sullivan in relation to the behaviour of the group and the potential for trouble if they continued to be served. (The barman in question had attended at an earlier Hearing that was cancelled but was unable to attend at this Hearing).
- The complainant did not conduct himself in a discreet or courteous manner when speaking to Mr. O'Sullivan but, rather, seemed intent on ensuring that everybody around the bar would hear him.
Mr. & Ms. Kiely, Licencees.
Mr. & Ms. Kiely made the following points:-
- The complainant and his companions had to pass a number of pubs and other licensed premises while driving to the location which the complainant states they parked in. Also, on leaving their car they had to pass three pubs and a hotel to get to Kiely's. The latter is located in an out of the way side street. It is not visible from the entry to the street and it would be necessary for a person going to the pub to know of its precise location. (This was accepted by the complainant but he could not recall passing any other premises after parking the car as he was "not paying attention").
- The licensees wished it to be noted that the group appeared to have headed directly for Kiely's pub. In order to do so someone in the group would have had to be aware of its location. Also the fact that they headed there with the group indicates that they did so in the expectation that they would be served there.
- While the complainant had indicated in initial correspondence that none of his companions had ever been to the premises before, he had confirmed at the Hearing that one of his cousins, who was a member of the group, had attended at the pub regularly both before and since the refusal of service to the group. The respondent's representative submitted that the actions of the manager in refusing service to the complainant and his companions was in accordance with Section 15(1) and Section 15(2) of the Equal Status Act, 2000.
5 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.
5.2 Section 3 (1) provides that discrimination shall be taken to occur where: (a) "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
5.3 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."
5.4 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 ".
5.5 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 would produce 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".
5.6 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".
5.7 In this particular case the complainant claims that he was discriminated against because he is a member of the Traveller community, while the respondent maintains that there was no discrimination.
5.8 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 of the complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5.9 In considering what constitutes a prima facie case, I have examined definitions from other sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred." In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) the following definition appears: "when persons who consider themselves wronged..... establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination". In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: " This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. "
6 Conclusions of the Equality Officer
6.1 I am satisfied that the complainant is a member of the Traveller community in accordance with (a) at 5.8 above and this is not disputed by the respondent. The complainant has provided evidence that he was refused service in the respondent's premises, which has been confirmed by the respondent, and this fulfills (b) at 5.8 above. In relation to key element (c) at 5.8 above the complainant states that the only reason for the refusal of service to him was that he is a member of the Traveller community. The respondent states that the complainant and his group were behaving in a manner which was unacceptable and was having a bad effect on the atmosphere of the pub to the extent that other customers had left the premises.
6.2 In the complainant's initial submissions he stated that neither he nor any other member of his group had ever been to the pub in question. However, in the course of the Hearing he confirmed that one member of the group had been to the premises on a regular basis. He also stated initially that it was he who was refused service directly as he was the only one of the group who had "gone up to the bar". This appears to indicate that he was seated elsewhere but the bar counter, yet he repeatedly stated in the course of the Hearing that he was seated at the bar counter.
The complainant stated that he was not aware that any member of his group behaved in the inappropriate manner claimed by the respondent but goes on to state that when one of the group was asked to remove his feet from the seats that he did so immediately. On leaving the premises following the refusal of service the complainant states that he had a conversation with one of his cousins, who stated to the complainant that the probable reason for being asked to leave was because he, the cousin, had had his feet on the seats. The complainant does not accept this as the reason for refusal.
The complainant also confirmed in the course of the Hearing that the group had passed a number of licensed establishments in the car on the way to the car park ultimately chosen by them. Yet earlier in the Hearing he had clearly stated that the group was seeking the nearest establishment, ideally one with a pool table. On leaving the car the group passed three licensed premises and a hotel to get to the respondent premises. The complainant does not know who chose to go to Kiely's and does not recall passing any licensed premises on the way, as he was unfamiliar with the area. Yet he was able to describe the journey to the car park in some detail including the names of areas passed, and he described the car park itself, and a bungalow he passed when leaving the car park in some detail.
Because he did not see the manager of Kiely's on entering the premises the complainant is adamant that the manager was not present in the bar when he entered. Some ten minutes later the manager " just appeared" behind the counter. Given that the complainant also stated that he was facing into the bar at all times and was not involved in any interaction with those of his group who were seated away from the bar , I find it difficult to understand how he did not see the manager arrive behind the bar, unless the manager came from an area behind the complainant, i.e. the bar floor area, which would support the manager's account of where he was located when the group entered. If this were not the case an alternative explanation might be that the complainant was not facing the bar and was in fact facing away from it when the manager arrived behind the bar, in which case this would support the manager's claim that the complainant was interacting with the others in the group who were seated away from the bar counter.
In any event it is clear that a member of the complainant's group had regularly visited the premises prior to the evening in question. It is likely that it was this person who directed the group to the premises in the belief that they would be served in the premises. It is also clear that one member of the group accepted that he had his feet on the seats in the premises, and the complainant has confirmed that this was told to him. This also supports the manager's version of events.
The complainant has provided no evidence to show why he felt that his Traveller identity was in question in relation to the refusal, nor, I am satisfied, do the circumstances allow any significant inferences to be drawn in that regard. On balance I am satisfied that the pub does not operate a policy of discrimination against Travellers and that the manager refused service to the complainant not because he is a Traveller but because of the observed misbehaviour of the complainant's group, which the manager deemed unacceptable. I am satisfied that service would be refused to non-Travellers in the same or similar circumstances . The complainant has not therefore established a prima facie case of discrimination on the Traveller community ground.
7. Decision
I find that the complainant has not established a prima facie case of discrimination on the Traveller community ground. I find, therefore in favour of the respondent.
_____________________________
Dolores Kavanagh
Equality Officer
16 April, 2003