Mr. Michael McCarthy, Cork (Represented by Noonan Linehan Carroll Coffey, Solicitors, Cork on behalf of the Equality Authority) V The Blarney Tavern, Cork
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.
2. Dispute
This dispute concerns a claim by Mr. McCarthy 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 29/12/00 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. McCarthy was refused service on 29/12/00 and stated that there was no reason for the refusal other than his membership of the Traveller community.
4. Summary of the Respondent's Case
The respondent stated that Mr. McCarthy had behaved in a disorderly manner on theoccasion of his previous visit to the Blarney Tavern. Service had been refused based on that previous incident.
5. Evidence of the Parties
5.1. Complainants Evidence Mr Michael McCarthy
- Mr. McCarthy stated that at 1pm on 29/12/00 he entered the Blarney Tavern and ordered a pint of Guinness. He was told that locals only would be served. Mr. McCarthy pointed out that he is a local. He then turned and walked out.
- Mr. McCarthy had been in the pub, about four or five times the week before the refusal. He had been served without any difficulties on those occasions. He had been alone on some of these occasions and sometimes in the company of his wife.
- Before going to the Blarney Tavern on 29/12/00 he had been at home. There were four other men present when he was refused. Mr. McCarthy does not believe that the respondent operates a locals only policy. On that occasion he had been well dressed and had no drink taken.
- Mr. McCarthy was asked to explain why he thought the refusal was because he was a Traveller. He stated that he had "made out in his own mind it is because I am a Traveller". The man that refused him had served him previously.
- In response to the respondent's evidence, Mr. McCarthy stated that he had joined his brother as described but had not argued. He meets this particular brother very seldom.
5.2. Respondent's Evidence Ms. O'Sullivan, Licensee
- Refusals normally occur where the customer has a lot of drink taken, has a history of troublesome behaviour, or is underage. They are sometimes sceptical ofstrangers but where they are not drunk they would be served.
- About 10% of the regulars in the Blarney Tavern are Travellers.
- Ms. O'Sullivan agreed that Mr. McCarthy was refused on 29/12/00 and said that he was known to her.
- A brother of the complainant is a long term regular of the bar. Mr. McCarthy had been in his company during the week before the refusal.
- On the final occasion before the refusal, Mr. McCarthy had been loudly argumentative with his brother. They had been together for about two hours andby closing time Mr. McCarthy had begun arguing with his brother. His brother had not been argumentative in return. They were told to go home and they left. Mr. McCarthy had been difficult only on this last occasion.
- When asked if any indication has been given to Mr. McCarthy that he would not served in future, Ms. O'Sullivan stated that it was the end of the night when the argument occurred and they just went home. Sometimes, in relation to such behaviour and refusal, a cooling-off period is allowed for regulars who might have caused small difficulties. In this case, however, the behaviour was too bad and once was enough. The behaviour was such that it was upsetting other customers and this cannot be allowed.
- On the following occasion Mr. McCarthy was told "Sorry I can't serve you". He just turned and walked out.
- Ms. O'Sullivan stated that they treat all customers the same.
- Ms. O'Sullivan confirmed that she received the notification sent by Mr. McCarthy and a copy of the complaint received by ODEI. No response was sent. Mr. O'Sullivan
- Mr. O'Sullivan confirmed that Mr. McCarthy had been in the Blarney Tavern several times before the refusal. He was unclear whether all of these previous occasions took place before Christmas.
- Mr. McCarthy's brother (named) and his wife are regulars in the pub. Mr. McCarthy was with his brother on the night of the fight. They had not arrived together.
- They could hear the argument at the bar but did not know what was said. The bar was very busy and Mr. McCarthy and his brother were seated near the door.
- Asked what was disorderly about the behaviour, Mr. O'Sullivan said it was the shouting. Asked to confirm that they were not shouting loudly enough to be heard, Mr. O'Sullivan stated that there were approximately 60 people in the family run bar. The argument lasted about five minutes, and both were told to go home.
- Mr. O'Sullivan stated that they have no problem with Mr. McCarthy's brother, and have told him not to bring troublesome individuals into the bar.
- Mr. O'Sullivan agreed that on 29/12/00 Mr. McCarthy was alone, sober and that he ordered a drink. When refused, Mr. McCarthy did not ask for a reason.
- Mr. O'Sullivan stated that himself and Ms. O'Sullivan knew that Mr. McCarthy was a Traveller. They had known this during the previous visits when he had been served.
- Asked if he thought that Mr. McCarthy had been getting too accustomed to the bar, Mr. O'Sullivan stated that that was not the case, everyone is okay as long as they behave themselves.
- Asked if there had been any danger to staff or others, Mr. O'Sullivan stated that it is necessary to nip such behaviour in the bud, it cannot be allowed to continue.
- Mr. McCarthy will not be served again.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant/s was/were 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 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". 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 someone who is not a 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
Mr. McCarthy asserts that he is a member of the Traveller community. This was not disputed by the respondent who stated that they were aware that Mr. McCarthy was a Traveller before the refusal took place. This satisfies (a) above. It is common case that the complainant was refused service on 29.12.00, which satisfies (b) above.
In respect of (c) above, it is necessary to assess whether or not the refusal was such that is was based on Mr. McCarthy's membership of the Traveller community, or if there was another basis for the refusal. Both parties agree that the complainant had begun to drink in the Blarney Tavern during the week before the refusal. Both parties agree that the complainant was, at least on the last visit to the pub before the refusal, in the company of his brother. The two versions of events differ only in relation to what happened on that last occasion while Mr. McCarthy was in his brother's company.
Mr. McCarthy stated that there was no disagreement or fight, while the respondent stated that Mr. McCarthy had become very argumentative with his brother who had remained calm.
Mr. McCarthy also stated that he had been in the bar a number of times, possible five, before the refusal. On all of these occasions he was served without any difficulty. He was served at least on some of these occasions by the same person who refused him. He has presented no evidence to explain this sudden turn around on the part of the respondent. In addition, he has presented nothing that would indicate that the refusal was because of his membership of the Traveller community. Alternatively, the respondent has presented an explanation which is consistent with a withdrawal of service, that is, that Mr. McCarthy's behaviour during the penultimate visit was such that, in the respondent's opinion, further service would have been inappropriate. I found the respondent's version of events, as presented at the hearing, entirely more consistent and convincing. I am satisfied that Mr. McCarthy did have a loud disagreement with his brother during his penultimate visit to the Blarney Tavern. Section 15(1) of the Equal Status Act, 2000 provides that where a reasonable person, with the knowledge and experience held by the person refusing service, in this case Mr. O'Sullivan, believes that to serve a person would lead to disorderly conduct, the Equal Status Act, 2000 cannot be construed as requiring such service. In this case, the respondent had previous experience of conduct described as disorderly on the part of the complainant. It is therefore, in my view, entirely reasonable for the respondent to be concerned that such conduct would be repeated should service be provided to the complainant. Section 15(1) therefore provides that where such a refusal takes place, it cannot be construed as less favourable treatment on the basis of one of the discriminatory grounds, in this case the Traveller ground.
I am satisfied that the refusal of service to Mr. McCarthy was based on previous unacceptable behaviour by Mr. McCarthy in the Blarney Tavern and not on his membership of the Traveller community. I am also satisfied that a non-Traveller who had behaved in a similar manner would be treated in the same way and therefore Mr. McCarthy has not satisfied (c) above. On that basis, I am satisfied that Mr. McCarthy has not established a prima facie case of discrimination on the Traveller ground.
8. Decision (DEC-S2003-074)
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 29/12/00.
Bernadette Treanor
Equality Officer
26 August 2003