Mr. Michael McCarthy, Mr. Patrick McCarthy & Mr. James McCarthy (represented by Mr. David McCarthy, Traveller Visibility Group Ltd) V The Berehaven Bar (Cork) (Represented by O'Donnell Breen-Walsh O'Donoghue Solicitors)
The complainant referred a claim to the Director of Equality Investigations on 11 December, 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. Michael McCarthy, Mr. Patrick McCarthy and Mr. James McCarthy that they were discriminated against by the Berehaven Bar on the grounds that they are members of the Traveller Community in that they were refused a service in the respondent's pub which is generally available to the public. 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.
1.2 The respondent denied the claims of discriminatory treatment and submitted that the complainants had too much alcohol consumed and hence the reason for refusing service.
2 Summary of the Complainants' Case
2.1 The complainants' case is that they were refused service in the respondent's pub between 10pm and 10.30pm on 13 June 2001. They believe that the refusal of service was due to the fact that they are members of the Traveller community. The complainants submitted that they ordered 3 pints of Heineken and the barman shook his head and walked away. The complainants did not query the reason for the refusal and assumed it was because they are members of the Traveller community. In response to the respondent's case the complainants denied that they had any drink consumed at the time they entered the respondent's premises. They said that they had tried to get service in 3 other pubs on the day, but had been refused service. After the respondent refused them service they went to another pub where they were served.
3. Summary of the Respondent's Case
3.1 The respondent submitted that the complainants were not discriminated against on the ground that they are Travellers, but that they were refused service because the barman was of the opinion that they had too much drink consumed. The barman stated that he told the complainants that he could not serve them because they had too much to drink. He said that the complainants did not question him and left the bar immediately. A customer of the bar gave evidence that he was sitting at the bar and he observed the complainants entering the pub and he believed from their demeanour that they had an amount of alcohol consumed.
4. Conclusions of the Equality Officer
4.1 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.
4.2 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." A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. I have identified the following the key conditions to be satisfied to establish a prima facie case:
(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 13 June, 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?
If and when 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.
4.3 I am satisfied that the complainants are Travellers and that they were refused service by the respondent on 13 June 2001. Therefore conditions (i) and (ii) have been satisfied. In considering condition (iii) above I have examined the evidence to see if the complainants produced sufficiently hard evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that they were treated less favourably than a non-Traveller customer in similar circumstances. For the following reasons I am satisfied that the complainants have not succeeded in establishing a prima facie case of discriminatory treatment:
- The complainants did not produce any witnesses to corroborate their case.
- They did not query the reason for the refusal, but merely assumed it was for discriminatory reasons.
- I found certain aspects of the complainants' evidence to be contradictory and the recollection of two of the complainants as to what had occurred to be unclear.
- The evidence of the barman and the customer was more compelling than the evidence given by the complainants.
- The evidence of both of the respondent's witnesses has convinced me that on the balance of probabilities the complainants had too much to drink when they came into the bar on 13 June, 2001.
5. Decision
5.1 On the basis of the foregoing I find that the complainants were not discriminated against by the respondent 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
16 December, 2003