Michael and Christopher McCarthy (represented by Lees Solicitors) V Ms Anne Flynn, Licensee, The Harp and Lion, Listowel
1. Dispute
This dispute concerns a complaint by Michael and Christopher McCarthy that they were discriminated against, contrary to the Equal Status Act 2000, by the Harp and Lion pub in Listowel. The complainants maintain that they were 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.
2. Summary of the Complainant's Case
2.1 The complainants state that, when they entered the Harp and Lion on 23 December 2001, they were refused service with no reason given. They maintain that this was on the grounds of their membership of the Traveller community.
3 Summary of Respondent's Case
3.1 The respondents totally reject that they operated a discriminatory policy against Travellers. They maintain that the complainants were refused service because, on their arrival, another customer recognised one of the complainants as someone who had been involved in an incident at a garage some days previously, and informed the landlady accordingly. On the basis of this information the landlady decided to refuse service
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 theEqual Status Act, 2000.
5.1 Evidence of Complainants
- Christopher McCarthy and Michael McCarthy are brothers
- Both have lived in Listowel all their lives
- They are both members of a settled Traveller family
- Michael McCarthy has visited and has been served in the Harp and Lion on several occasions since Mrs Flynn took over in 1998. He had no difficulty in getting served before but cannot recall whether Anne Flynn was the person who served him.
- Neither complainant has caused any trouble in the pub before.
- Michael McCarthy knew the landlady herself from seeing her around the town
- Christopher McCarthy said that he was not a regular drinker and that he had never been in the Harp and Lion before
- The complainants are not aware of any other Travellers having had problems in the Harp and Lion before
- When they entered the Harp and Lion on 23 December 2001 at 8.30 pm, Anne Flynn was behind the bar serving other customers.
- Michael McCarthy waited at the bar for service but Ms Flynn did not approach him. Instead, she went out the back of the bar.
- He waited for a few minutes and talked to other customers.
- When no one came to serve him, Michael McCarthy said that he knew he was not being served.
- He and his brother then left peacefully
- Michael McCarthy says that he does not remember speaking to anyone belonging to the pub that night
Note At the Hearing of this complaint on 24 April 2003, the complainants' solicitor made reference to the notification procedure provided for under the Equal Status Act 2000. In particular, he referred to the respondents reply to the notification, in which they alleged that Michael McCarthy had been involved in a "potentially volatile situation at a local garage" and to the respondents non-provision of specific details of this incident, when subsequently asked for same by the solicitor. Because this information was not provided, the solicitor said that the complainants were left with no option but to proceed with the submission of the complaint. The solicitor asked the Equality Officer to draw an inference under Section 26 of the Equal Status Act 2000 from the respondents non-provision of these details.
5.2 Evidence of Respondents - Ms Anne Flynn
- The Harp and Lion was leased by Ms Flynn from March 1998 to March 2003.
- Ms Flynn herself and a part-time barwoman ran the pub
- The pub had a capacity of about 150
- The Harp and Lion caters mainly for local customers and has a few regular Traveller customers.
- Approximately 30 people were barred, none of whom were Travellers.
- The pub had never encountered trouble with Travellers in the past
- Ms Flynn ran the pub in a very strict manner
- She was always very careful about who was admitted and believed that "prevention was better than the cure"
- Ms Flynn said that she had become very wary about who she served following an incident in September 2000 where a customer who was intoxicated fell and broke his ankle and won a court case against the pub subsequently.
- The Harp and Lion does not operate a policy of discrimination
- Ms Flynn knew Michael McCarthy from seeing him around town over the years.
- She said that she regarded him as a settled person rather than as a Traveller.
- She recalls serving Michael McCarthy on several occasions previously in the pub
- Ms Flynn does not recall Christopher being in the pub before
- She never had any problem with Michael McCarthy before but recalls one incident where he was in the company of some youngsters from whom she had to take back drink because they could not produce ID. Ms Flynn recalls the McCarthy brothers arriving on 23 December 2001. She was dealing with other customers at the time
- On their arrival, Anne Flynn was standing near a female customer, a non-Traveller, who was sitting at the bar, and who worked in a local petrol station.
- On seeing the McCarthy brothers, the female customer referred to Michael McCarthy and said "Anne, that lad caused hassle at the Garage the other day and we had to call the Gardai". No other information was provided by the customer at the time.
- On hearing this remark, Ms Flynn says she became nervous and took a decision not to serve Michael McCarthy who was standing at the bar, waiting for service
- She went into the room behind the bar and told her husband what the customer had said and asked him to go behind the bar
- Her husband then dealt with the situation and the complainants left
- After the complainants left, Ms Flynn learned from the female customer that the incident at the garage involved a situation where Mr McCarthy had allegedly tried to leave the petrol station without paying for his petrol
- Some weeks later, she received a notification from the complainants' solicitor indicating that the complainants were considering lodging a complaint under the Equal Status Act 2000.
- On receiving this, she visited the Garage owner to seek information about the incident and confirmation that Michael McCarthy was the person involved
- She described Michael McCarthy to the Garage owner who said that the man involved in the garage incident fitted her description of Michael McCarthy
- She then responded to the complainants' notification stating that Michael McCarthy had been refused because he had been involved in "a potentially volatile situation at a local garage"
- Ms Flynn did not consider checking with the Gardai about the garage incident
- Shortly afterwards she received a further letter form the complainants' solicitor asking for details of the "volatile situation"
- At that point, she sought advice from her local Vintners Federation representative, who advised her not to reply to the letter
- Subsequently, she heard from another local publican that the McCarthys had been refused in another pub because of a disturbance on the street.
- Ms Flynn says that her decision to refuse Michael McCarthy was in keeping with previous decisions where other people were barred on the word of a customer
- She claims that her actions were in keeping with her obligations under the licensing acts to run an orderly house
- Two days prior to the Hearing on 24 April 2003 ( of which she had received notice on 3 February 2003), Ms Flynn called again to the Garage owner to ask him to appear as a witness.
- When she met him, he told her that the Gardai had recently confirmed to him that it was a different person altogether who had tried to steal the petrol and not Michael McCarthy.
- As it was the wrong man, the Garage owner said that he was not prepared to appear as a witness
- Ms Flynn also asked the female customer to appear as a witness but she told her that she did not want to get involved
- Ms Flynn now accepts that it was a case of mistaken identity on the female customer's part that led to Michael McCarthy being refused on 23 December 2001
- Ms Flynn also stressed that Christopher McCarthy was not refused in his own right and that he would have been served himself if he had sought a drink
- At the Hearing, Ms Flynn offered an apology to Michael McCarthy for the case of mistaken identity that had occurred
Evidence of Respondents -- Mr Stephen Flynn
- Stephen Flynn knew the McCarthy brothers from seeing them around. He regarded them as settled people who came from a Traveller background
- On 23 December 2001, he was in the back of the bar when his wife, Anne, came in and told him about the customer's account of the garage incident involving Michael McCarthy
- He then went out to Michael McCarthy at the bar and told him "I'm not serving you"
- Mr McCarthy made the remark "Am I black ?" in a raised voice and got aggressive
- After arguing for a few minutes the two brothers left. Mr Flynn did not give a reason for his refusal to serve
- At the Hearing, Mr Flynn insisted that he had spoken to Michael McCarthy that night and said that other customers would confirm that he had if the need arose. In response, the complainants' solicitor acknowledged that, in all probability, Mr McCarthy was probably mistaken in saying that Mr Flynn had not spoken to him
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 the Harp and Lion on 23 December 2001.
6.2 In cases such as this, the burden of proof lies with the complainants who are 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.
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 Lion 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 caseexists. 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 McCarthy 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 were refused service on 23 December 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 23 December 2001 was less favourable than the treatment two non-Travellers would have received, in similar circumstances.
7.4 In deliberating on the evidence before me, I consider the following points to be the most important and persuasive:
- Both parties agree that Michael McCarthy was served previously in the Harp and Lion and that he personally had not caused any trouble
- The respondents say that they regarded the complainants as settled people but acknowledged that they knew that they came from a Traveller background
- On the night in question, Ms Flynn was prepared to accept the word of a non-Traveller that Michael McCarthy had been involved in an incident at a local garage. On the basis of this information, Ms Flynn decided to refuse him service.
- Before submitting a complaint to the Equality Tribunal, the complainants sought clarification as to the alleged incident in the local garage. The respondents, however, chose not to provide this information, which could have helped resolve the matter at an early stage.
7.5 In their defence, the respondents have stated that the decision to refuse service to Michael McCarthy was taken for the purpose of ensuring compliance with the Licensing Acts. Section 15(2) of the Equal Status Act 2000 provides 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 purposes of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination." The nature of "good faith" in the Section 15(2) defence was considered in Conroy v Costello (DEC-S2001-014), where the Equality Officer commented that "In order to take an action in good faith it has to be free from any discriminatory motivation" In that case, the Equality Officer found that the respondent knew the complainant to be a member of the Traveller community and found that this fact had influenced the respondent's decision not to serve him. Accordingly, the Equality Officer found that discrimination had occurred.
7.6 In the past, Equality Officers have noted in a number of decisions that various provisions of the Licensing Acts impose an effective obligation on publicans and other licensees to prevent drunkenness, violence, disorderly conduct, or quarrelsome behaviour on their premises at the risk of losing their licence or having it endorsed. In previous cases, as in this one, the Equality Officer has considered situations where a decision to refuse service was made on the basis of hearsay evidence. In Burke v Ned Kelly's Tavern (DEC-S2001-106), for example, the issue was raised about the reliability of information used in deciding to bar a customer. The complainant, a Traveller, was refused service after several customers, on different occasions, had mentioned to the respondent that the woman had been involved in a serious disturbance in another pub, which had led to court proceedings. The complainant admitted, at the Hearing, that she had been involved in an incident in another pub and agreed that her husband was charged and given probation over it. The Equality Officer observed that "reliance on information obtained through word of mouth as a defence against an allegation leaves the respondent in a somewhat tenuous situation if they are unable to substantiate the information concerned subsequently with hard evidence." In the above decision, the Equality Officer noted that the respondent had considered the information reliable as it came from a number of unrelated sources, and had been substantiated afterwards. On balance, he was satisfied that the respondent had reasonable and credible concerns at the time for refusing service.
7.7. The case currently under consideration is different in a number of respects. Firstly Ms Flynn, relied totally on the word of one customer that Michael McCarthy had been involved in "an incident" at a local garage. She had no corroborating evidence to support this allegation yet was prepared to refuse service to Mr McCarthy on the basis of it. Secondly, Ms Flynn had the opportunity to clarify the position relating to the alleged incident in the Garage directly with the complainants before a complaint was lodged against her. This opportunity was presented to her by the complainants' solicitor when he asked her to provide him with the name of the Garage and the date the incident had allegedly occurred. Ms Flynn chose, however, not to avail of this opportunity and did not respond to the solicitor's request. If she had provided the clarification sought, it is likely that Ms Flynn would haveestablished early on that Michael McCarthy had not been involved in the Garage incident and the matter could probably have been resolved between the parties without it having to go to investigation. Section 26 of the Equal Status Act 2000 provides that the Equality Officer can draw an inference from the fact that a respondent did not reply to a notification under Section 21 or did not reply to questions put by the complainant prior to the submission of the complaint. In this case, I consider that it is appropriate for me to draw such an inference as, in my opinion, it is likely that the matter could have been resolved between the parties if Ms Flynn had responded to the request for information regarding the garage incident.
7.8 Another factor arising in this case is that Ms Flynn's defence is heavily reliant on hearsay evidence of what the female customer allegedly told her. In the absence of the customer herself as a witness, such evidence would normally be deemed inadmissible as the complainants were not afforded an opportunity of questioning the female customer. However, in view of the circumstances of the case and the fact that Ms Flynn now acknowledges that the customer's information was false, I am prepared to accept the hearsay evidence in this instance.
7.9 The evidence before me shows that Ms Flynn chose to accept the word of a non-Traveller that a man, who I am satisfied she knew to be from a Traveller background, had been involved in an incident in a garage. Despite the fact that this man had been served before by her and had not personally caused trouble in the pub, she chose to refuse him service based on the customer's unsubstantiated report which was later shown to be unfounded. On considering this point, I cannot accept that Ms Flynn was acting in accordance with her obligations under the licensing acts. As stated earlier, in order for an action to be deemed to have been taken "in good faith" in accordance with Section 15(2) of the Equal Status Act 2000, the action has to be free from any discriminatory motivation. In the case before me, I consider that, on the balance of probabilities, Ms Flynn's decision was influenced by the fact that she knew Michael McCarthy to be from a Traveller background. I cannot, therefore, accept that Ms Flynn's decision constituted "action taken in good faith" as provided for under Section 15(2). I, therefore, find that Michael McCarthy has established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed to rebut the allegation.
7.10 With regard to Christopher McCarthy, I note that the respondents argue that he was not discriminated against as he personally did not seek service. They maintain that he would have been served if he had sought a drink for himself. On considering Christopher McCarthy's position, I am prepared to accept that the respondents did not directly discriminate against him on 23 December 2001 as he did not seek a drink in his own right. However, I have no way of knowing whether or not he would have been served if he had sought a drink for himself. Regardless of whether Christopher would have been served or not, the reality is that his enjoyment of the evening was adversely affected by his brothers refusal in that he was not afforded the opportunity to enjoy a drink because of the treatment afforded his brother, which I have found to have constituted discrimination.
7.11 Section 3(1)(b) of the Equal Status Act 2000 states that discrimination shall be taken to occur where "a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and ... similar treatment of that other person on any of the discriminatory grounds would .... constitute discrimination." On considering the evidence before me, I find that Christopher McCarthy was less favourably treated on the night because of his association with his brother in that he was prohibited from enjoying a drink with his brother because of the pub's refusal to serve Michael McCarthy, an action which I have already found to be discriminatory under the Equal Status Act 2000. Accordingly, I find that Christopher McCarthy suffered discrimination by association, on the Traveller community ground, in accordance with Section 3(1)(b) of the Equal Status Act 2000.
8 Decision
8.1 I find that the complainants have established a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1)(a), 3(1)(b) 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. I also find that the respondents have failed to rebut the allegation.
8.2 In considering the level of redress to award, I note that there is no evidence that the pub operated a discriminatory policy against Travellers on an ongoing basis. I have also taken into account the fact that Ms Flynn was prepared to acknowledge at the Hearing that a case of mistaken identity had occurred and that she was prepared to apologise to Michael McCarthy for what had happened. In the circumstances, I consider that redress of €300 for Michael McCarthy and €100 for Christopher McCarthy is appropriate in this case for the loss of amenity suffered by them on 23 December 2001.
Brian O'Byrne
Equality Officer
1 August 2003