Mr. Con McCarthy (represented by Mr. Ross O'Driscoll B.L. instructed by Murphy Ramsay Walsh Solicitors) V O'Looney's Bar (Kilrush) (represented by McMahon & Williams Solicitor)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 19 September, 2001 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 then delegated the case to me, Marian Duffy, 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 The dispute concerns a claim by Mr. Con McCarthy that he was discriminated against by O'Looney's Bar on the grounds that he is a member of the Traveller Community. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2 Background
2.1 The complainant's case is that he was refused service in the respondent's pub at about9:40 p.m. on 6 August, 2001. He believes that the refusal of service was due to the fact that he is a member of the Traveller community. The respondent submitted that the complainant was not discriminated against on the ground that he is a Traveller, but was refused service because his appearance was untidy and unkempt and there was an unpleasant odour off him, and his presence would interfere with other patrons enjoyment of the pub. It was also submitted that the complainant was aggressive. The respondent states that for these reasons the complainant was refused service.
3 Summary of the Complainant's Case
3.1 The complainant stated the following:
- That he is a settled member of the Traveller community living in Tralee, Co. Kerry.
- He went to Kilrush for the weekend with a friend of his, Mr. John McCarthy, a Traveller, who was home from England on holidays. At about 9:50 p.m. on 6 August, 2001 they went to the respondent's premises to have a drink.
- They went through the first bar into a bigger bar and they both went to the counter.
The complainant ordered two pints of Heineken from the bar person, Ms. Nicola O'
Brien. Ms. O'Brien said that she couldn't serve them and refused to give them a reason. - The complainant asked her a number of other times for service and Ms. O'Brien
refused. The complainant again asked her for a reason and she told him she didn't
have to give him a reason. - Mr. John McCarthy then left the bar to call the Gardaí. The complainant stayed at the
bar and Mr. McCarthy returned accompanied by a Garda. - The complainant again asked for drinks and was again refused by Ms. O'Brien. The
Garda advised them, there was nothing he could do, and told them that they should
leave. The complainant left the bar and went to another bar up the street and got
served. - In response to the respondent's case the complainant denied that he was not properly dressed or that there was an unpleasant odour off him. He said that he was wearing new jeans and a sweat shirt and a pair of kickers. He said that he always dresses smartly when he goes out. He went on to say that he is very insulted at the allegation that there was an unpleasant odour off him.
Evidence of Garda O'Herlihy
- Garda O'Herlihy said that he was in duty in the Square in Kilrush on 6 August, 2001.
- The ladies football team had won a title and a civic reception was being held in the
Square. - He was approached by a man who told him he had been refused service in
O'Looney's Bar and he was a bit upset about it. He went with this man into the back bar in O'Looney's. There were 3 people in the bar and the complainant. - The complainant and his friend complained that they would not be served. He told
them to ask for their drinks. Ms. O'Brien told them that they would not be served.
The complainant asked for a reason and she gave them no response. - Garda O'Herlihy told the two customers there was nothing he could do if Ms.
O'Brien wouldn't serve them and he advised them to leave which they did. - Garda O'Herlihy said that he didn't notice anything unusual about the two men. He
said that they were dressed very well and he did not notice any objectionable odour
or anything unusual about them. He also said that he did not think that either of the two men had drink taken.
Submission by the Complainant's Representative
- The complainants representative submitted that the complainant has established thatthe refusal of service was connected to his membership of the Traveller community.
- e submitted that the neutral evidence of the Garda did not support the respondent's
case that the complainant was badly dressed and that there was an unpleasant odour off him. There was no complaint of aggression in any of the written replies provided by the respondent and this allegation was only belatedly made. The respondent has failed to provide a credible explanation for the refusal of service and the only credibl explanation is that the complainant was excluded from the pub because he is a member of the Traveller community.
4 Summary of the Respondent's Case
4.1 The respondent submitted that the complainant was not discriminated against on the Traveller community ground and submitted the following evidence:
- Mr. Liam O'Looney said that it is a family run pub, which he took over from his father in 1995. The pub consists of three bars one of which accommodates a pool table. The pub holds two hundred and fifty to three hundred people in total.
- Mr. O'Looney is a town commissioner and on 6 August, 2001 he was attending a
civic reception taking place in the Square for the successful ladies football team. - He has three employees and he has instructed them not to serve customers whom they
would feel uncomfortable to serve. He said that most of his custom is local and his
policy is that if a stranger comes into the pub whom staff would feel uncomfortable to
serve, they should observe them first while filling drinks for other customers. If they
still feel uncomfortable they should refuse service. - He said that he also refuses to serve customers who are drunk, rough looking or
unkempt. - On his return from the civic reception, Ms. O Brien, the only bar person on duty that
night, told him that she had refused service to two men after observing them while
she was filling drink for other customers, she was very uncomfortable with them and
decided to refuse service. She also mentioned that they were unkempt untidy and that there was an offensive odour off them.
Evidence of Ms. Nicola O'Brien
- Ms. O'Brien said that two men came into the back bar. She was filling drink in thefront bar at the time and when she was at the till, which is situated between the back and front bar, the two men called her. The front bar was busy at the time. They called "Miss Miss" and she told them she was serving people. She continued to serve people in the front bar. She said that they kept calling her and she became uncomfortable with them. She said that they should have known that they would have to wait their turn. She said that she was watching them for about 5 minutes and she observed that they were untidy. Their hair was tossed, their clothes were messy, and she detected a bad odour off them.
- She said that she continued serving people and they continued to shout for 2 pints of
Heineken. Then they shouted at her to stop ignoring them and one of them banged
his fist off the counter. She then made up her mind at that time not to serve them.
She said "sorry I am not serving you". - The complainant asked for a reason and she refused to give him the reason for not
serving him. The complainant's friend left the bar and the complainant continued to
ask for a reason. - The complainant's friend returned with Garda O'Herlihy. The Garda asked her why
she would not serve them and she told him she would not give a reason. The Garda
told the complainant that there was nothing he could do about it and they all left the
bar. - Ms. O'Brien said that she did not give the complainant a reason for refusing service
because she was afraid they would become violent and she didn't want to make the
situation worse. - On Mr. O'Looney's return to the bar she told him about refusing service to the
complainant and his friend. She told Mr. O'Looney that they didn't look pleasant,
they were untidy and unkempt and they had a bad odour off them. - In response to questions at the hearing, Ms. O' Brien said that she told Mr. O'Looney
about the aggressive behaviour of the complainant after the notification of the hearing arrived. - Ms. O'Brien stated that other people whose appearance was unkempt have been
served in the bar. In this case she would have served the complainant and his friend
if they had not become aggressive. An unkempt appearance would not be a reason
for refusing service but aggressive behaviour is certainly a reason for refusing
service. She would have no problem in serving the complainant if she had not felt
threatened. - Ms. O'Brien said that she did not recognise the complainant or his friend as members of the Traveller community. She said that she would not recognise members of the Traveller community, but she knows a number of settled Travellers and they are served in the pub.
Submission by the Respondent's Representative
- The respondent's representative submitted that it is the policy of the pub to serveTravellers. It is also the policy of the pub to exclude customers who are dressed inappropriately as they would interfere with other customers enjoyment of the pub. She submitted that the complainant and Mr. McCarthy looked untidy, unkempt and there was a bad odour off them. Ms. O'Brien became more concerned when they became aggressive, abusive and threatening and this caused her to feel intimidated and threatened. The respondent had a right under Section 15 of the Equal Status Act, because of this behaviour to refuse service in order to comply with the Licensing Acts.
5. Conclusions of the Equality Officer
5.1 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 and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated". Section 3(2)(i) provides that: " as between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not".
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as: "Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred."1 Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In more recent employment discrimination cases the Labour Court has applied the test and stated: "The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination".2 And in another case stated: "...the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed."3
3 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011
2 The Rotunda Hospital v. Noreen Gleeson DEE003/2000
1 Dublin Corporation v. Gibney EE5/1986
The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson4 and referred to by the High Court in Conlon v University of Limerick.5 In Nathan v Bailey Gibson the Supreme Court stated: "In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant's sex." While these were both indirect discrimination cases, it seem that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
5.3 I have identified the key issues for decision as follows:
(a) is the complainant covered by the discriminatory ground? ( in this case is he a member of the Traveller community?)
(b) in what circumstances was the complainant refused service by the respondent on 6 August, 2001.
(c) evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances.
5.4 I am now going to examine issues I have identified above and consider whether the complainant has established a prima facie case. If those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is not necessary for the complainant to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not.
5 Conlon v. University of Limerick [1999] ILRM 131
4 Nathan v. Bailey Gibson [1998] 2 I.R. 162
5.5 Issue of Traveller Identity
In the Equal Status Act, 2000 the Traveller community ground is defined as follows: "means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland". I am satisfied that the complainant is a Traveller as defined by the Act and is covered by the discriminatory ground.
5.6 It was accepted by both the complainant and the respondent that service was refused but the reason for the refusal is in dispute. Therefore the second key element at (b) above has been established.
5.7 I am now going to examine the third key element identified above. The complainant case is that he was refused service for no good reason and he believe this occurred because he is a member of the Traveller community. The respondent gave a number of reasons for refusing service. Firstly Ms. O'Brien stated that the complainant and Mr. John McCarthy were untidy, unkempt, wore messy clothes and there was a bad odour off them. The complainant denied that Ms. O'Brien's description of his appearance on the night was accurate. He said that he dresses very well and theclothes he had on him on the night in question were new. He also stated he was very offended about the allegation that there was an offensive odour off him. I note from the evidence of Garda O' Herlihy that the complainant and Mr. John McCarthy were well dressed and that he did not notice any offensive odour or anything unusual about them. I also note that Ms. O'Brien stated in evidence that she would have served them if they had not been aggressive. I note in response to the notification of the complaint, the reason given by the respondent for the refusal of service stated that the complainant's appearance was untidy and unkempt, and there was an unpleasant odour off him, consequently his presence would interfere with other customers enjoyment. While there was a conflict in the evidence at the hearing I am satisfied on Ms. O' Brien's own evidence that the complainant's appearance, dress and personal hygiene was not the reason for refusing service. I am also satisfied on the independent evidence of Garda O'Herlihy that the complainant's dress and personal hygiene did not give rise to a reason to refuse service.
5.8 The next issue I am going to consider is whether the complainant and his friend Mr. John McCarthy were aggressive. The complainant said that he was not aggressive and neither was Mr. McCarthy. After Ms'OBrien refused service he asked her a number of times for the reason and Ms. O'Brien ignored him. He denied that she was busy and said that she was at the other end of the bar chatting with two customers. I note that in the respondent's response to the notification of the complaint the only reason given to the complainant for the refusal concerned his appearance and unpleasant odour. Likewise I note that in Mr. O'Looney's evidence he stated that, Ms. O' Brien told him on his return from the civic reception that she did not serve two people, because she did not feel comfortable with them, and also they were unkempt, untidy and had an offensive odour off them.
5.9 I note that the first time the allegation that the complainant was aggressive was made at the hearing of the case. I also note in response to questions at the hearing that Ms. O' Brien stated she only told Mr. O'Looney about the aggressive behaviour after Mr. O' Looney got the notification about the hearing. In my opinion, if Ms. O'Brien's only reason for refusing service was because the complainant and Mr.John McCarthy were aggressive to her, I believe she would have made Mr. O'Looney aware of their behaviour on his return to the pub after the civic reception and furthermore that this reason would have been in the response to the complainant's notification. Ms. O'Brien's evidence was that she made Mr. O'Looney aware of the refusal of service on the grounds of appearance and bad odour. I am also of the view that if the aggressive behaviour was the reason for the refusal of service that Ms. O'Brien would have told Garda O' Herlihy and sought their removal from the pub. She said that her explanation for not giving the reason for refusing service to the complainant and Mr. McCarthy in front of Garda O'Herlihy was that she was afraid that it would start another argument. I believe that if the aggressive behaviour was the genuine reason for the refusal of service stating that fact in front of Garda O'Herlihy could have posed no security problem for Ms. O'Brien.
5.10 Ms. O'Brien's assertion that the refusal of service arose from aggressive or abusive behaviour on the part of the complainant does not, in my opinion, hold up. It would appear from the evidence that such behaviour if it did occur was a consequence of him not being served. I am satisfied therefore from the totality of the evidence that Ms O'Brien ignored the complainant's request for a drink and this gave rise to the complainant's persistence in seeking service. Likewise I am satisfied that if the complainant or Mr. John McCarthy had behaved in an aggressive or abusive manner it is unlikely that they would have sought the assistance of the Gardaí to get service in the pub. I am satisfied therefore that the complainant's behaviour in the pub was not afactor which influenced the refusal of service and the decision was based on other reasons. The complainant's evidence was that two non-Traveller customers were in the bar and they were served drink. I am satisfied from the evidence and on the balance of probabilities that the complainant was treated less favourably than non-Traveller customers would have been treated in similar circumstances. I find that the complainant has established a prima facie case of discrimination.
5.11 The respondent representative submitted that because of the complainant's threatening and abusive behaviour the respondent had a right under Section 15 of the Act to refuse service in order to comply with the Licensing Acts. I am now going to consider Section 15(1) of the Equal Status Act, 2000, to see if the respondent was entitled to invoke this Section. Section 15(1) provides that: "nothing in this Act prohibiting discrimination shall be construed as requiring a person to provide services in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than the discriminatory grounds, that the provision of the 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." To invoke this Section the respondent must show that there was a substantial risk of criminal or disorderly conduct or behaviour if the complainant was to be served. The complainant denies that he was aggressive. Ms O'Brien's evidence is that the complainant kept asking to be served while she was busy serving other customers. He called her "Miss" and banged his fist off the counter and she felt uncomfortable with him and decided to refuse service. I am not satisfied that this behaviour could be considered as a "substantial risk of criminal or disorderly conduct or behaviour "if the complainant was to be served. As I have found above at paragraph 5.8 -5.10 that the refusal of service was not due to aggressive behaviour I am find that the defence under Section 15(1) of the Equal Status Act does not apply in the circumstances.
5.12 I am also going to examine if the action taken by the respondent on 6 August, 2001 was taken in good faith. The licensing laws requires publicans to keep an orderly house and 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 purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination."
I have to consider whether the action taken by Ms. O'Brien was taken in good faith.In considering the meaning of "good faith" I have examined a number of definitions. Murdoch's Dictionary of Irish Law, Revised 3rd Edition states : "In relation to contract for the sale of goods, 'good faith' means done honestly, whether negligent or not". In Words and Phrases legally defined Third Edition Volume 2 "good faith" is defined as "a claim is made "in good faith" when it is made honestly and with no ulterior motive". In the New Shorter Oxford English Dictionary "good faith" is defined as "honesty of intention, sincerity". I have therefore to consider whether Ms. O'Brien's decision was"honestly" made or made "with no ulterior motive". As I have found above the respondent did not satisfy me that the refusal of service was due to the complainants dress, appearance or unpleasant odour or his behaviour in the pub and the respondent has put forward no other convincing reason for refusing service. I find therefore that Ms. O'Brien did not convince me that her decision to refuse service was made for the sole purpose of ensuring compliance with the Licensing Acts. In considering the "good faith" argument I have considered an Equality Officer decision Delaney v Jamesons Hotel DEC-S2002-102 in which good faith was considered and the Equality Officer stated: "I would hold that in order to take an action in "good faith" the action must be free from any discriminatory motivation". I am not satisfied that the decision of Ms. O'Brien to refuse service to the complainant was without a discriminatory motivation and consequently taken in good faith. I believe that when Ms O' Brien saw the complainant and Mr. McCarthy she recognised them as Travellers and this was the reason for refusing service. I find therefore that the respondent has failed to rebut the prima facie case raised by the complainant and that he was discriminated against contrary to the Act when he was refused service by the respondent.
6 Vicarious Liability
6.1 The responsibility for the discriminatory treatment was attributable to Ms. OBrien. In considering whether the respondent is vicariously liable for the discrimination, I have taken into account Section 42(1) of the Equal Status Act, 2000 which provides that: "Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval" As Ms. O'Brien was clearly acting within the course of her employment, I find therefore that the respondent is vicariously liable for the actions of his employee in accordance with Section 42(1) of the Act.
6. Decision
6.1 On the basis of the foregoing and on the balance of probabilities, I find that the respondent did unlawfully discriminate against the complainant contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
6.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that: "the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
6.3 Under the above Section the maximum amount of compensation I can award is €6,349 but the maximum award would not be appropriate in this case. In considering the amount of compensation which would be appropriate, I have taken into account the effects the discrimination had on the complainant. I order O'Looney's Bar to pay the complainant Mr. Con McCarthy the sum of €1,000 to compensate him for the distress, embarrassment and loss of amenity caused to him by the discriminatory treatment.
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Marian Duffy
Equality Officer
29 August, 2003