Mr. Michael McCarthy junior, Mr. Patrick "Ter" McCarthy (Represented by Mr. Brian Kavanagh) V The Local Bar (Cork) (represented by Mr. Terry O'Driscoll BL instructed by Kevin Crowley & Co., Solicitor)
The complainant referred a claim to the Director of Equality Investigations on 28 January, 2002 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. Michael McCarthy junior and Mr. Patrick "Ter"McCarthy that they were discriminated against by the Local Bar on the grounds that they are members of the Traveller Community. The complainants alleges that the respondent discriminated against them 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 complainants' case is that they were refused service in the respondent's pub at about 4.45 p.m. on 6 September 2001. They believe that the refusal of service was due to the fact that they are members of the Traveller community. The respondent submitted that the complainants were not discriminated against on the grounds that they are Travellers, but they were refused service because the respondent believed that one of them had too much alcohol consumed.
3 Summary of the Complainants' Case
3.1 The complainants stated the following:
- That they are members of the Traveller community living in Cork about one mile from the respondent's pub. On 6 September, 2001 Mr. Patrick "Ter" McCarthy was in the centre of Cork buying shoes and he decided together with Mr. Michael McCarthy, at about 4:45 p.m. to go into the respondent's premises to get a drink. This was the first time they had visited this pub.
- Mr. Michael McCarthy ordered two pints of Heineken from the barman. The barman refused them service saying "sorry lads, not today". Mr. Michael McCarthy said he enquired the reason for the refusal and the barman repeated the same thing.
- The complainants said that they were embarrassed and immediately left the premises They believe they were refused because the barman recognised them as members of the Traveller community .
- In response to questions at the hearing, the complainants said they are not sure if the pub serves Traveller and none of their friends drink there.
- They said that they have had difficulty in getting service in pubs as not all pubs serve Travellers and they can only drink where they are served.
- In response to the respondent's case the complainants denied that Mr. Patrick "Ter" McCarthy had too much to drink. They said that they had been refused service in a number of pubs that day and had in fact failed to get service in any pub.
- In response to questions at the hearing the complainants said that they were not sure if they enquired why they were refused service. They said they presumed it was because they are Travellers and they were embarrassed and left the pub immediately.
- The complainants said that they were dressed normally on the day and could see no other reason for their refusal other than the fact that they are members of the Traveller community. They said they are recognised as Travellers by their talk and their looks.
- The complainants' representative submitted that the complainants had a problem getting service on the day and therefore had no drink consumed. He submitted that the respondent was only using the excuse of too much to drink to disguise discrimination against Travellers.
- He further submitted that Travellers have great difficulty in getting service in pubs. The complainants were tired of being refused because they are Travellers and this was the reason they left the respondent pub without questioning the refusal, but in any event they already knew the reason.
4. Summary of the Respondent's Case
4.1 The respondent submitted that the complainants were not discriminated against on the Traveller community ground and submitted the following evidence:
- Mr. Tim Sheehan the proprietor of the pub stated that between 4pm and 4:30 pm the two complainants came into the pub and approached the bar. He noticed that one of them, whom he now knows to be Mr. Patrick "Ter" McCarthy, was standing behind Mr. Michael McCarthy. He said that he observed them for a minute and he came to the conclusion that he had too much drink taken.
- Mr. Michael McCarthy called for two pints and he said "sorry not today lads". Mr. Sheehan said that he took over the pub about 5 years ago and at that time the pub had a bad reputation. There were a lot of problems with drugs and customer behaviour in the premises. He said that he introduced a very strict policy to ensure that the reputation of the pub improved. He has barred over 300 customers since he took over the pub. His clientele generally consists of locals, people who work in the area and from the nearby army barracks. To enforce his strict policy in relation to customer behaviour and to ensure he does not let in anyone who is barred or drunk he has a policy of observing customers very carefully before serving them.
- On this occasion after observing Mr. Patrick "Ter" McCarthy he noticed he was hiding behind Mr. Michael McCarthy and that he was unsteady on his feet. He said that he did not smell drink off him but he was of the opinion that he had too much alcohol consumed.
- After the refusal of service neither complainants enquired why service was refused. They turned around and left the pub without saying anything.
- Mr. Sheehan said that he served Mr. Patrick "Ter" McCarthy in the pub previously but he had never seen Mr. .Michael McCarthy before. He said that he did not recognise either the complainants as Travellers.
- He said that Travellers are regularly served in the pub. There are a large number of Travellers in settled accommodation in the area and some are regulars in the pub. The previous Sunday night he had five or six Travellers in the pub.
- In response to questions at the hearing Mr. Sheehan said that he is aware that Travellers are not served in certain pubs in the area because they are Travellers, but he denied that he operates this policy.
- He said that on this occasion one of the complainants had too much to drink, but he would have no problem in serving them in his pub on another occasion provided that neither of them not got too much drink consumed.
- He said that he is aware of the provisions of the Equal Status Act, 2000 and his staff have also been made aware of the Act.
Evidence of the Respondent's Witness
- Mr. Sean Twohig said that he was a customer in the bar on 6 September, 2001. He said that he was sitting at the counter and two men (the complainants) entered the premises. They came up to the counter and one of them ordered two pints. He noticed that one of them (Mr. Patrick "Ter" McCarthy) was crouching behind the other (Mr. Michael McCarthy). He said that it struck him as unusual, his experience is that two people would normally walk up to the bar together. He believed that Mr. Patrick McCarthy had an amount of drink consumed.
- Mr. Twohig said that he heard Mr. Sheehan say to them "not today lads". They complainants turned and walked out. He was not aware why they were refused. He thought that the complainants and Mr. Sheehan knew each other by the way the conversation between them took place. There was no argument, the complainants did not say anything after they were refused. As Mr. Patrick "Ter" McCarthy was going out the door he noticed a bit of a wobble. Mr. Twohig said that he did not recognise either complainants as Travellers.
- The respondents representative submitted that the complainants had failed to establish that they were discriminated against. They assumed once service was refused that it was connected to their membership of the Traveller community .The onus of proof in on the complainants and they failed to discharge that onus.
- He further submitted that Mr. Sheehan concluded either rightly or wrongly that one of the complainants had consumed too much drink and it was solely for this reason service was refused. There is a legal onus on the respondent not to serve further alcohol to a person in such a situation. The respondent takes his responsibility seriously, he has built up a reputable business and he is determined to maintain the reputation. To that end Mr. Sheehan observes all customers very carefully before serving them. In this instance he concluded after observation that one of the complainants had too much to drink.
- He further submitted that the respondent serves Traveller does not make a distinction between Travellers and non- Travellers in making his decision to serve customers. The complainants have to show that the respondent did not serve them because they are Travellers and they have failed to provide any evidence to support this contention.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3(l)(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(l)(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
2 The Rotunda Hospital v. Noreen Gleeson DEE003/2000
1 Dublin Corporation v. Gibney EE5/1986
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
5.3 I have identified the key issues for decision as follows:
(i) are the complainants covered by the discriminatory ground? ( in this case are they members of the Traveller community?)
(ii) were the complainants refused service by the respondent on 6 September, 2001?
(iii) is there evidence that the treatment received by the complainants 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 complainants have 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 complainants 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
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 complainants are members of the Traveller community as defined by the Act. 3 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011
5.6 It was accepted by both the complainant and the respondent that service was refused so the second element of the test has been established.
5.7 I am now going to examine the evidence to see if the complainants have produced sufficient hard evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that discrimination had occurred. The complainants case is that they were refused service for no good reason and believes this occurred because they are members of the Traveller community. The respondent's case is that the complainants were refused service because he believed that one of them namely Mr. Patrick "Ter" McCarthy had too much drink consumed.
5.8 In considering the totality of the evidence I note that the complainants evidence in relation to certain aspect of the case was contradictory. For example Mr. Michael McCarthey said that he is not aware if Travellers are admitted to the respondent's pub as non of his friends drink there. Later in the hearing he sought to introduce evidence about his Traveller friends being refused service in the respondent's premises. Mr. Michael McCarthy also said that after service was refused he asked for the reason and was not given any by the barman. In response to further questions at the hearing he said that he did not ask for a reason and left immediately after being refused. The respondent in evidence was very clear that the complainants did not ask for a reason and he was supported in this by his witness. The complainants said that they were embarrassed and were convinced that the barman recognised them as Travellers. They said while they were never in the bar before, they have been regularly refused service in others bars and they no longer query why they are being refused because they know from experience it is because they are Travellers. Nevertheless I find it very unusual given that the complainants were not in this pub previously that they did not enquire about the reason for the refusal of service. The complainants have put no hard evidence to support their case other than to say that service was refused because they are Travellers.
5.9 In considering the totality of the evidence put forward by both parties, I found the evidence put forward by the respondent to be more convincing evidence than that given by the complainants. The respondent's witness Mr. Sean Twohig who was a customer in the bar gave very convincing evidence concerning the condition of Mr. . Patrick "Ter" McCarthy. I am satisfied from the evidence that Mr. Sheehan believed that Mr. Patrick "Tour" McCarthy had too much alcohol consumed when he entered the pub and refused service for this reason. Likewise I am satisfied that a non- Traveller customer would not be served in such circumstances either as there is a legal obligation on the respondent under the licensing laws not to serve customers who have too much alcohol consumed. I find that the complainants have not established that they were treated less favourably than non- Travellers would have been treated in a similar situation. I find therefore on the evidence that the complainants have not succeeded in establishing a prima facie case of discrimination.
6. Decision
6.1 On the basis of the foregoing I find that the complainants were not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act.
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Marian Duffy
Equality Officer
15 December, 2003