Mr. Anthony Corcoran (Represented by Sherry Solicitors, Dublin) V The Steering Wheel (Represented by Mr Brian Eardly, BL, acting on instructions from Martin C. Ryan & Co., Dublin)
The complainant 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, 2000.
2. Dispute
This dispute concerns a claim by Mr. Corcoran that he was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds that he is a member of the Traveller community in that on 15/3/2001 he was refused service in the respondent's premises. The respondent agrees that service was refused, but states that the refusal was on non-discriminatory grounds.
3. Summary of the Complainant's case
The complainant, Mr. Corcoran, had two appointments with his solicitors on the morning of 15/3/2001, one at 10:30am and the second at 11:00am. In between meetings, Mr. Corcoran left the Solicitor's Office and went to the respondent's premises to use the toilet and to order a drink. He was refused a drink because he is a member of the Traveller community.
4. Summary of the Respondent's Case
The Respondent agrees that Mr. Corcoran was refused service but states that the reason for the refusal was because of his unacceptable behaviour during a previous visit to the premises.
5. Evidence of the Parties
5.1. Agreed Evidence
- Mr. Corcoran is a member of the Traveller Community.
- Between 10:30 and 11am on 15/3/2001 Mr Corcoran went into the respondent's premises, used the toilet and then requested a glass of Guinness.
- He was refused service.
5.2. Complainant's Evidence
5.2.1. Mr. Anthony Corcoran, complainant
- Mr. Corcoran stated he had been in the pub only once before the incident complained of, about two years earlier. He denies the incident described by the respondent which allegedly took place in September 2000.
- On 15/3/2001, Mr Corcoran had appointments with two solicitors, scheduled for 10:30am and 11:00am.
- He denies the respondent's allegation that he had been on the point of leaving after using the toilet and changed his mind, returning to order a drink; and/or that he was "chancing his arm".
- Mr Corcoran was told that the reason for the refusal was that it was management rules - regulars only.
- He was not aware that you had to order on your way in.
During cross-examination:
- Mr. Corcoran denied that since he had not mentioned the visit two years earlier to the premises in his notification, there might be other relevant information that he had not mentioned.
- When he was asked if he had experienced trouble at other pubs, he replied
"Absolutely untrue". - When asked why his witness, (the solicitor with whom he had the first appointment on 15/3/2001) was not present, he replied that the letter submitted from the witness confirmed that he was between meetings with his solicitors when the incident occurred. Respondent's Counsel asked that this letter be ignored since the writer was not available for questioning.
5.3. Respondent's Evidence
5.3.1. Mr. Frank Kelly, Respondent, Owner/Licensee
- The Pub does not have a discriminatory policy towards members of the Traveller community.
- Refusal of service is based on whether the customer had given trouble on an earlier occasion.
- On the date of the incident Mr. Kelly was working upstairs, not in the bar.
- The incident was reported to him by Mr. McNamee, the barman.
- Mr. Kelly said that they keep a log of incidents such as this, which can be produced. He indicated that this incident should be in it.
- His staff knows about the Equal Status Act, 2000 from the newspapers, but might not be aware of all the nine grounds. His staff has no formal training in relation to the Act.
- The complainant was barred because he was a troublemaker. All people would be treated the same way.
During cross-examination:
- Mr. Kelly agreed that no response was sent to the statutory notification by the complainant within six months. This was because other things were more important. He did not just decide to ignore it. The first response was made to the Equality Authority on 8/11/2001, who had written to the respondent on behalf of the complainant. The complainant's representative requested that an inference be drawn from the failure to respond within one month in accordance with Section 26 of the Equal Status Act, 2000.
- In response to a suggestion that the attitude towards the Equal Status Act, 2000 was cavalier, and that it might have been best to get a defence in early, Mr. Kelly responded that the matter had been handled to the best of their ability.
5.3.2. Mr. Patrick Murphy, witness for the respondent
- Mr. Murphy goes into the Steering Wheel for coffee every morning, his business is in Clondalkin.
- During the September 2000 incident in the Steering Wheel he did not feel that he had to leave or to move. He felt it was evident that the group had drink taken and he thought they were just four or five lads out after an all-night party. He did not feel uncomfortable. The group was well dressed.
- He would recognise other members of the group. He maintained that his line of work (details given) lends itself to this type of recall.
- There were about three to four people in the snug. They were a bit noisy and started singing.
- Mr. McNamee asked them to be quiet. They ordered another drink. Beer had been spilled and Mr. McNamee cleaned this up.
- Mr. Corcoran was the person who went to the bar to order the drinks. He was told they would not be served further. Mr. McNamee came out from behind the bar to address those singing, said they wouldn't get any more drink and asked them to leave.
- They were argumentative but Mr. Murphy could not hear what was said. It lasted a few minutes and then the group left.
- On the 15/3/2001 Mr. Murphy heard someone ask for a drink. On hearing the refusal, Mr. Murphy turned around and immediately recognised the complainant, as he was about three feet away from him.
- Mr Murphy's recollection was that Mr. McNamee refused saying that he (the person ordering) had caused trouble last time.
- Mr. Murphy confirmed his identification of the complainant at the hearing. He explained he had confirmed the date, 15/3/01, by reference to the pub's incident log.
5.3.3. Mr. Blackburn, witness for the respondent
A statement was submitted from Mr. Blackburn but since he was unable to attend the hearing and provide oral evidence, the complainant's representative requested that the statement be ignored. Mr. Blackburn's statement related to the fact that he was present during both incidents.
5.3.4. Mr. Padraig McNamee, Assistant Manager
- Mr. McNamee explained that either one of the two owners or himself is present in the pub at all times.
- Service would normally be refused if someone was intoxicated, fighting or causing a disturbance.
- In September 2000, around 11am the complainant entered with four others, a round was requested and the group sat in the snug. After about 30 minutes they had taken two pints but they looked like they had taken much more. They were singing. Mr. McNamee asked them to stop, cleaned up some spilled drink, but when he returned behind the bar they began to sing again.
- He took the decision not to serve them further. Mr McNamee was asked why he was refusing them and he replied that they were intoxicated, singing and had spilt drink. The group responded by talking about discriminatory acts, stating that they knew their rights and one asked for the police.
- Mr. McNamee confirmed that he felt directly intimidated by the group.
- He did not know the group were Travellers until they began singing.
- On 15/3/2001 the complainant entered the bar and went directly into the toilet. When he came out it appeared that he was going to leave but changed his mind. He returned to the bar and ordered a drink.
- Mr. McNamee thought Mr Corcoran was only chancing his arm to see if he would be served after the last occasion. When the complainant ordered a drink he was refused.
- Mr. McNamee clearly told him he had caused a disturbance on a previous occasion.
- In relation to the refusal on 15/3/01 he did not want Mr. Corcoran hanging around since he assumed that the others, from the previous incident, might join him. He thought it strange that he ordered a drink on exit and not entry.
- Mr. McNamee confirmed his identification of Mr. Corcoran.
During cross-examination:
- Mr McNamee stated that if someone was drunk they would know they were put out but might not know they were barred.
- It was put to Mr. McNamee that Mr. Corcoran did not know he was barred and that he had no drink taken that morning, 15/3/2001. Mr. McNamee said he was concerned the group would follow Mr Corcoran into the pub.
- It was put to Mr McNamee that Mr Corcoran was both sober and well dressed on 15/3/2001, but he responded that he did not recall how he was dressed on either occasion. He stated that if someone causes you a problem you remember them.
On that occasion, September 2000, the group were given an opportunity to tidy up their act when they were asked to be quiet. - Mr. McNamee believed that had service continued in September 2000 it could have led to further risk. He did not specify what risk was envisaged.
- The entire group had disobeyed the bar's policy by singing.
- If someone is barred and they subsequently come back requesting admission, each case is treated on its merits. People sometimes get re-admitted. An open mind is kept in relation to this issue.
- The respondent indicated that there was no incident log for the year 2000, but that they have kept a log since. They indicated that the relevant incident in 2001 would be recorded. They undertook to present the logs to the Equality Officer for inspection. Counsel for the respondent pointed out that the receipt of correspondence from the Equality Authority led them to believe that the Equality Authority was representing the complainant and they responded to the Equality Authority on the basis of that belief. They were not aware that this response would not be considered a response to the complainant. They found this situation misleading, and were subsequently surprised that this correspondence had not been submitted by the complainant, or on his behalf. The respondent, and not the complainant, submitted copies of this correspondence to the Equality Officer.
5.4. Evidence produced subsequent to the hearing.
- Diaries used as incident logs for 2001 and 2/002 were produced to the Equality Officer on 2/12/2002. Relevant entries are included in Appendix 1.
- The complainant's representative submitted comments on these, stating that the entries, given that they had been made in the diaries for the wrong year, appeared to have been made specifically for production to the tribunal, and that this reduced the respondent's credibility to zero.
- The respondent responded by rejecting these suggestions and stating that the incident entered on 15/3/01 which mentions that two people were refused actually related to two separate refusals, one of which was Mr Corcoran.
6. Matters for consideration
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 2000 in terms of Section 5 (1) of that Act.
6.1. 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"
6.2. Section 3 (2) provides that: "As between any two persons, the discriminatorygrounds ... are ...(i) that one is a member of the Traveller community and the other is not."
6.3. 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 ".
6.4. 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".
6.5. 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:
6.5.1. Membership of a discriminatory ground (e.g. the Traveller community ground)
6.5.2. Evidence of specific treatment of the complainant by the respondent
6.5.3. Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, received or would have received in similar circumstances.
6.6. 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. Conclusions of the Equality Officer
7.1. Prima Facie case of discrimination
In this case the complainant claims that he was discriminated against on the basis of his membership of the Traveller community when he sought and was refused service on 15 March, 2001.
With regard to 6.5.1 above I am satisfied that the complainant is a member of the Traveller community, and this was accepted by the respondent. With regard to 6.5.2 above both parties agree that there was a refusal of service as submitted by the complainant. In relation to key element 6.5.3 above I must now consider whether the refusal of service was such that a non-Traveller in the same circumstances would be treated more favourably.
The respondent accepted that Mr. Corcoran is a member of the Traveller community. The respondent's case is that Mr. Corcoran is barred from his premises based on an alleged incident where the conduct of a group was considered disorderly. It would be consistent with the Equal Status Act, 2000 to refuse service to a Traveller who has behaved in a disorderly manner if a non- Traveller would be refused in the same circumstances. He maintains that the complainant was part of that group and that he is barred as a result. None of the other members of the group have returned to the respondent's premises since September 2000. The members of the group were identified as members of the Traveller community by Mr McNamee when they began singing.
Evidence, in the form of the incident logs, was presented after the hearing and in the presence of Mr Corcoran's representative. The incident logs produced are in the form of diaries. Most of the entries are made in what appears to be, on the basis of a brief examination, the same handwriting. The diaries had few entries, for example, the first entry in the 2001 diary is 15/3/2001 and the second is August 16. The incident noted in the 2001 log on 15 March is in respect of two people. The incident noted in the 2002 diary on 15 March more accurately describes the incident which is the subject of this complaint. The relevant entries are included in appendix 1.
Having reviewed the original diaries on production, I am satisfied that the incident entered in 15/3/2002 actually relates to the 2001 incident. I am also satisfied that the incident entered in 6/9/2001 related to the alleged incident in September 2000. The respondent suggested that it would be simple to pick up the wrong book when wishing to enter details of an incident late at night. Indeed the entry in the 2001 diary highlighted as being relevant to 2002 would seem to support this. However, I cannot accept that in March 2001, the 2002 diary was already in place and available to staff. Therefore, I cannot accept that these entries were contemporaneous records of the incidents. I am satisfied that these entries were contrived for the sole purpose of presentation in support of the respondent's position in this case.
It is worthy of note that the diaries were presented in the same credible fashion as the respondent's oral evidence. I find that the introduction of these diaries purporting to be contemporaneous records of the incidents has reduced the respondent's credibility considerably. However, the respondent did produce a witness, Mr Murphy. Mr. Murphy is connected to the respondent by virtue of the regularity of his patronage. While I have no reason to suspect that Mr Murphy was involved with the entries in the diaries in any way, Mr Murphy stated at the hearing that he had confirmed the date of the incident by reference to the respondent's incident log. This statement was made when Mr Murphy was asked to verify his identification of Mr Corcoran. Mr Murphy is therefore relying on information contained in a source already discredited. Indeed it is difficult to see how he could have verified the correct date on the basis of the entries mentioned above. Since the incident logs have reduced the respondent's credibility, and the relatively independent witness has stated that he consulted these logs, I find it is not possible to rely on the evidence of either the respondent or their witness to any significant extent.
Mr Corcoran alleges that the reason he was given for his refusal was "Regulars only". On 28/3/2001 Mr Corcoran sent a notification in accordance with the Equal Status Act, 2000 to the respondent. Included in this notification in accordance with the Act were questions to the respondent. These questions were:
"Please explain why you treated me in the manner described above.
Pease state how you normally treat or have treated other people in similar circumstances.
Please define how you define a regular, how would a person become a regular."
I find that the last question is supportive of Mr Corcoran's contention that he was refused with the phrase regulars' only. If it was not given to him as the reason for the refusal, then its inclusion in the notification would make no sense. I find the complainant's evidence is more compelling.
Summary
On 15/3/2001 Mr Corcoran entered the Steering Wheel pub. He was between meetings with his Solicitors, as submitted orally in evidence. He was sober and well dressed. He requested and was refused service. The respondent has presented a reason for the refusal which cannot be relied upon. In the absence of a credible alternative reason for the refusal of service I find that the complainant has established a prima facie case of discrimination on the grounds of his membership of the Traveller community.
7.2. Request to draw inferences
Mr Corcoran's representative requested that appropriate inferences be drawn from the respondent's failure to respond to the statutory notification within the required timefrome. This is provided for in Section 26 of the Equal Status Act, 2000. In fact the respondent did not respond to the notification. Neither did they respond to the first communication sent to them by the Equality Authority on Mr Corcoran's behalf. They did, through their representative, respond on 8/11/2001 to a reminder sent by the Equality Authority. This response could be seen only to respond to Mr Corcoran's first question as it mentions his alleged anti-social behaviour and that he was barred. There is no response to Mr Corcoran's second and third question. In addition, the response states that "he [Mr Corcoran] was told on a previous occasion that he would not be served again on the premises. Mr Corcoran returned to the premises despite being so informed that he would not be served again, leaving the staff with no option but to ask him to leave."
This contradicts the evidence presented orally by Mr McNamee who indicated that he only told the group that they would not be served further that day and asked them to leave. He also indicated at the hearing that in those circumstances a person would know that they had been asked to leave but would not necessarily know that they were barred. Section 26 states:
"If, in the course of an investigation under section 25, it appears to the Director -
(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),
(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
...............the Director may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c)."
The functions of the Director under Section 26 have been delegated to me by the Director, and I am satisfied that the non-response to Mr Corcoran's second and third question is in accordance with section 26(a) and that the claim that Mr Corcoran had been told that he was barred is in accordance with section 26(b). Accordingly I find that I am empowered to draw appropriate inferences in this case.
7.3. Respondent's Rebuttal
It is the respondent's policy to keep an open mind in relation to incidents leading to a barring. People who are barred sometimes get re-admitted. Mr Corcoran stated in his evidence, and I have accepted this as more compelling, that the reason given for the refusal was that "Regulars only" are served. This response would have been entirely misleading to the complainant if the real situation was that he was barred, (as alleged by the respondent at the hearing and stated in the written response from their representative dated 8/11/2001). It would also preclude any request being put forward that the barring should be reconsidered, in line with pub policy, since Mr Corcoran had not been told that he was barred. Assuming that the respondent has no reason to misrepresent their general operating policies to the tribunal, Mr Corcoran was not given the standard facility of appeal afforded other patrons. Indeed he was misled. I am satisfied that a non- Traveller would be given this facility in line with the pub's policy, in similar circumstances.
Since the respondent has not presented reliable supporting evidence that the alleged incident in September 2000 took place and that the refusal on 15/3/2001 was based on misconduct taking place during that incident, I am satisfied that they have not rebutted the prima facie case as established. I find that Mr Corcoran was Corcoran V The Steering Wheel less favourably treated than a non-Traveller would have been in the same circumstances.
While the credibility of the respondent's evidence as presented has been addressed above, it is interesting to consider the following issues which arise from it. In September 2000 the decision was taken not the serve the group after they began singing. It was by the group's singing that they were identified as Travellers, although how this was achieved remains unclear. The decision to stop serving the group was therefore taken just after the group's identification as Travellers. In addition, a large part of Mr McNamee's reason for the refusal on 15/3/2001 was that he did not want Mr Corcoran to delay on the premises in case the group, already identified as Travellers, followed him in. It is also worthy of note that Mr McNamee felt intimidated by the group although Mr Murphy, who was seated near the group, did not. The group did not make him uncomfortable, or feel that he should move or leave, even though he was seated close to them.
Although empowered to draw such inferences as seem appropriate, having arrived at the above decision, I find that it is unnecessary to do so.
8. Decision
I find that the complainant was discriminated against on the Traveller community ground contrary to section 3(1), and section 3(2)(i) of the Equal Status Act, 2000, and in terms of section 5(1) of that Act.
9. Vicarious Liability
While the action which constituted discrimination is directly attributable to the barman, Mr McNamee, who refused service to the complainant section 42(1) of the Equal Status Act,
2000 provides that: Corcoran V The Steering Wheel
"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 Mr McNamee was clearly acting within the scope of his employment in the course of the refusal I find that his employers, Mr Frank Kelly and Mr Martin Reape1, trading as The Steering Wheel, are vicariously liable for his actions in accordance with section 42(1) of the Equal Status Act.
10. Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27.
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."
10.1. Order
I hereby order:
10.1.1. That €200 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration:
the loss of amenity on the day in question, relating to the period between meetings,
10.1.2. That the respondent ensure that within 3 months of the date of this decision all staff, including managers and owners, receive training in respect of the requirements of the Equal Status Act, 2000 and all of the grounds contained therein. 1 Mr Reape was not present at the hearing but his name was given as the joint-owner of the respondent premises.
10.1.3. That the respondent review their policies to ensure compliance with the Equal Status Act, 2000.
10.1.4. That the respondent display a notice, in a prominent position in easy view of the public, stating his commitment to treating people in accordance with the provisions of the Equal Status Act, 2000.
Bernadette Treanor
Equality Officer
11/02/2003