Thomas Mongan, Eileen Mongan, Tom Mongan, Simon Mongan, Edward Mongan, Martin Mongan and John Mongan V The Waterside Hotel, Donabate (represented by Early & Baldwin, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Thomas Mongan, Eileen Mongan, Tom Mongan, Simon Mongan, Edward Mongan, Martin Mongan and John Mongan that they were discriminated against, contrary to the Equal Status Act 2000, by the Waterside Hotel, Donabate, Co Dublin The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that they went into the Waterside Hotel on the afternoon of 22 May 2001 to have a meal and a drink. They say that they ordered food but before it was served they were asked to leave. The complainants believe that service was refused because they were recognised as Travellers.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that a very large group of Travellers arrived unexpectedly at the hotel and that, fearing for the safety of staff, the manager took a decision to ask the group to leave.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred 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 1998 and under the Equal Status Act 2000, the Director has delegated these complaints to myself, Brian O'Byrne, 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.
5.1 Evidence of Complainants
Note
The Hearing of this case took place on 30 January 2003 and was attended by only two of the seven complainants, Thomas and Eileen Mongan, who are husband and wife. Notification of the date of the Hearing issued to all seven complainants at their last known contact address. Prior to the Hearing, I received confirmation that Thomas and Eileen Mongan would be in attendance. It was also confirmed to me by Edward Mongan that he and his son, Simon Mongan were living in England and that it was unlikely that they would travel to Dublin for the Hearing. In the case of Martin Mongan, the Post Office informed me that he had "gone away". With regard to Tom Mongan and John Mongan, I received no information whatsoever. However, as the registered letters notifying them of the Hearing were not returned, I can only presume that they received notification but chose not to attend the Hearing.
5.2 Evidence of Thomas and Eileen Mongan
- Neither Thomas nor Eileen Mongan had ever been in the Waterside Hotel before.
- To the best of their knowledge, none of the other complainants had been there before either.
- All seven complainants had attended a family wedding reception in Enniskillen the day before, after which they had travelled back to Dublin
- As the weather was particularly good at that time, nine of the wedding group arranged to meet on the beach in Donabate around lunchtime the next day, 22 May 2001
- The group of nine arrived in two vans and spent a few hours on the beach
- Around 3 pm, they decided to look for something to eat
- Thomas and Eileen Mongan, with another married couple, decided to walk to the Waterside
- The rest of the group followed about 10 minutes later in the vans
- On arriving in the hotel, the men ordered a round of drinks and asked if they could get food
- The two women went to a telephone as Eileen Mongan wanted to ring her mother who was minding her young baby
- The four then sat down in the bar area and ordered food from a waitress
- Soon afterwards, the other five friends arrived and sat at a table beside the four.
- Ms Baldwin then approached the group and told them she would not serve them "because of a disturbance before". Ms Baldwin also made a reference to "your kind" when addressing them (this was disputed by the respondents, at the Hearing, who pointed out that no reference to "your kind" was included in the original complaint)
- Thomas Mongan said to Ms Baldwin that he thought "there was a law against this" and asked for the Gardai to be called
- Ms Baldwin informed them that she had already called the Gardai
- The five friends left before the Gardai arrived 20 minutes later
- Thomas Mongan said to the Gardai that he thought there was a law against what had happened to them
- The Gardai advised the group about the new equality legislation and suggested they contact "the equality office" in Clonmel St
- Neither Thomas nor Eileen Mongan have had any recent contact with the other complainants nor are they sure where they are currently residing
5.3 Respondents' Evidence Ms Paula Baldwin, Hotel Manager
- The Waterside Hotel has been under Ms Baldwin's control since 1998
- As the hotel is near the beach, the hotel's trade varies depending on the weather
- Its customer base mainly consists of groups of golfers or family groups during the summer
- Business is usually quiet during the winter
- The hotel serves bar food from 10 am to 7.30 each evening
- The hotel has an arrangement with local golf clubs that advance notice be given if a group of golfers want to have lunch or dinner in the hotel
- Occasionally the hotel has catered for groups of up to 10 who arrive unexpectedly seeking food
- Ms Baldwin does not apply a discriminatory policy against Travellers
- The hotel has accommodated Traveller weddings and christenings in the past
- The hotel has a number of regular Traveller customers from the Swords area
- The hotel has experienced trouble on its premises in the past. On two of those occasions, Travellers were involved.
- On one occasion a family row broke out late one evening and one Traveller was hit by a stool thrown by his brother.
- On another occasion, a large group (20/25) Travellers had gathered in the hotel late one night. After closing time, some money went missing from the till and one of the Travellers was recorded on video tape, taking the money. There was no violence involved on that occasion
- There are a number of people currently barred from the hotel but none of these are Travellers
- On Tuesday 22 May 2001, Ms Baldwin only had a skeleton staff on duty as the school holidays had not started.
- All the staff that day were female (this was disputed by the complainants who contend that a male barman served them)
- Ms Baldwin's first recollection of the complainants was when she saw four of them sitting in the bar area.
- She did not recognise them personally but immediately knew they were Travellers. This did not cause her any concern. They were in good humour and did not appear to have drink taken beforehand
- When she returned to the bar area a few minutes later, she noticed that the group of Travellers had expanded to nine.
- Shortly afterwards, she overheard two Traveller women informing someone on the phone that they were in the Waterside Hotel
- She immediately thought that the women were inviting other Travellers to join them, leading her to think that more Travellers would soon arrive
- At that point, she recalled the previous incidents involving Travellers and began to get afraid for herself and her female staff's safety
- She was also conscious at that time, of the fact that the local Gardai had been having problems in the area with Travellers who were seeking to park illegally on local lands and in carparks
- In the belief that the situation was going to worsen she took a decision to ask the group to leave
- Before she approached the group, she rang the Gardai in Swords and told them that there was a group of Travellers on her premises, that she believed that more were on the way and that she was afraid of what might happen. The Gardai agreed to send someone over.
- She then approached the group herself and requested that they leave as she was "afraid of what might develop"
- When she did not give them any other reason, they asked for the Gardai, at which point she told them she had already called them
- By the time the Gardai arrived only the original four remained. Ms Baldwin remembers the group speaking with the Gardai and referring to equality matters
- The group left peacefully shortly afterwards
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being asked to leave the Waterside Hotel on 22 May 2001.
6.2 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case 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) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, 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.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b) and (c), the respondents accept that the complainants were asked to leave the hotel on 22 May 2001 and acknowledge that their Traveller identity was a factor in this request being made. On the basis of the above, I am satisfied that a prima facie case has been established and that it now falls on the respondents to rebut the allegation of discrimination.
Key Points and Factors
7.4 In deliberating on the case be before me, I consider the following pieces of evidence to be the most important and persuasive:
The complainants had never been in the Waterside Hotel before.
There is no evidence to suggest that the complainants were drunk or troublesome
The incident happened at 3pm in the afternoon
Ms Baldwin has admitted that her decision to ask the group to leave was because she recognised them as Travellers
Ms Baldwin has stated that she has served food to similar-sized groups of non-Travellers in the past, who had arrived unannounced in the Hotel. On the basis of the above, it is clear that Ms Baldwin's decision to ask the complainants to leave was taken solely because they were recognised as Travellers. It also appears clear that Ms Baldwin would not have treated a similar group of non-Travellers in the same manner if they had arrived in similar circumstances.
7.5 In her defence, the respondent has made reference to her obligations to run a peaceful and orderly house. I note that the licensing laws oblige publicans to run orderly houses, and that they are also obliged to recognise their obligations under health and safety laws and under their contracts of insurance to avoid liability. Ms Baldwin is, therefore, claiming that her actions were taken "in good faith". In light of the above, I consider that it is appropriate to consider the respondent's actions in the context of Section 15(2) of the Equal Status Act 2000.
7.6 Section 15(2) states 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". In considering what constitutes "action taken in good faith", I have considered a previous Equal Status decision where this defence was considered. In the case of Delaney and others v The Harp Bar (DEC-S2002-53/56), the Equality Officer found that the respondent refused four Traveller women, whom he had never seen before, on a totally unfounded suspicion that they might be related to four unidentified male Travellers who had assaulted him previously. In that case, The Equality Officer decided that the respondent's actions could not be construed as "action taken in good faith".
7.7 The above case has striking similarities to the current case. In both cases, the complainants were unknown to the respondent, they displayed no signs of being drunk or troublesome but, on being recognised as Travellers, were refused service. There is also the added similarity to the Harp Bar case in that the refusal was based on an unfounded suspicion that the complainants' presence might lead to some form of disorderly behaviour. In considering Section 15(2) further, I note that it also requires that "action taken in good faith" is taken "for the sole purpose of ensuring compliance with the provisions of the Licensing Acts". In this respect, I note from the respondent's evidence that she was also motivated by Garda concerns about Travellers parking illegally in the area. As this concern cannot be related to any risk of a breach of the Licensing Acts, I cannot accept that her motivation was solely because of a concern that the Licensing Acts might be breached.
7.8 Another reason why I consider that Section 15(2) is not satisfied in this case, is that, for an action to be taken "in good faith", it must be done honestly and without prejudice. This was not the case in this instance as the respondent has stated that her decision was influenced by the fact that the complainants were Travellers. A parallel can be drawn with the case of Conroy v Costello (DEC-S2001-014) where a similar situation arose. In that case, the Equality Officer commented that "In order to take an action in good faith it has to be free from any discriminatory motivation, and in this case, I am of the view that the fact that the complainant was a member of the Traveller community had a major influence on the respondent's decision not to serve him."
7.9 On considering the above points, I simply cannot accept that the respondent acted "in good faith" in accordance with Section 15(2) of the Equal Status Act 2000 on 22 May 2001. I am satisfied, therefore, that the complainants were treated less favourably by Ms Baldwin on 22 May 2001 than non-Travellers would have been treated in similar circumstances.
8 Decision
8.1 I find that a prima facie case of discrimination has been made by Thomas and Eileen Mongan (Decision No DEC-S2003-008 and DEC-S2003-009) in establishing that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act. I also find that the respondent has failed to rebut the allegation of discrimination made by Mr and Mrs Mongan.
8.2 With regard to the other 5 complainants, I find that their non-attendance at the Hearing placed the respondents at a disadvantage in that they were not afforded the opportunity to which they are entitled, in accordance with the principles of natural justice, to hear these complaints at first hand and to defend themselves against any allegations made. I have, therefore, decided that, in not attending the Hearing, the other five complainants, namely Tom Mongan, Simon Mongan, Edward Mongan, Martin Mongan and John Mongan, have failed to establish prima facie cases of discrimination and I find in favour of the respondents in relation to these five complaints (Decision Nos DEC-S2003-010/014).
8.3 This decision touches on the issue of whether publicans are complying with their obligations under the Licensing Acts, in having a policy of not serving large groups on the basis that they may become troublesome. The point to be made here is that the Equal Status Act does not prevent publicans from adopting such a policy if it is applied consistently and publicans can defend their actions by showing that groups of Travellers and non-Travellers are treated equally in all circumstances.
8.4 In considering what level of redress would be most appropriate in this case, I am mindful of the fact that Ms Baldwin does not appear to have any personal bias against Travellers. She states that the hotel has hosted Traveller weddings and christenings and has a number of regular Traveller customers. This is also supported by the fact that Thomas and Eileen Mongan had no problem getting served drinks when they first arrived with the other married couple on 22 May 2001.
From the evidence before me, it is clear that Ms Baldwin's decision to ask the group of nine people to leave was brought about by an over-reaction on her part to the presence of nine Travellers on her premises and the fear that others may be on the way.
I can also understand that she may have been fearful for her staff and that memories of previous incidents probably played heavily on her mind at the time. The incident on 22 May 2001 did not, however, occur at night nor did it involve people who had been drinking already. If non-Travellers had been involved on 22 May and circumstances had been the same, I suspect that service would have been provided and the situation monitored closely as the afternoon progressed.
This did not occur in this instance. Instead, on recognising the complainants as Travellers, Ms Baldwin made an early decision to remove them and, in my opinion, her actions constituted discrimination on the Traveller community ground.
8.5 I order that the respondents pay both Thomas and Eileen Mongan the sum of €500 each for the humiliation, loss of amenity and distress suffered by them on 22 May 2001.
Brian O'Byrne
Equality Officer
25 February 2003