David Sweeney (represented by the Sligo Citizens Information Service) V The Yacht Inn, Sligo (Represented by Robert Walsh, Solicitor)
1. Dispute
This dispute concerns a complaint by David Sweeney that he was discriminated against, contrary to the Equal Status Act 2000, by the staff of the Yacht Inn, Sligo. The complainant maintains that he was discriminated against on the Traveller community ground in terms of sections 3(1)(a) 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 complainant states that he, his wife and another married couple were refused service on 7 October 2001 on the grounds that he and some nephews of his had been disorderly in the pub the previous night. The complainant denies that any trouble had been caused the night before and maintains that he was not served because he is a member of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainant and his wife were not served because the complainant and some nephews of his had engaged in disorderly behaviour the previous evening and had intimidated other customers who wished to play pool.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint 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 the complaint 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 Complainant
- David Sweeney had visited the Yacht Inn a couple of times prior to 7 October 2001, the date of the alleged act of discrimination. On those occasions, he was with his nephew and had gone to the pub to play pool.
- He had no difficulty getting served on those occasions
- On Saturday 6 October 2001, Mr Sweeney went to the pub with two of his nephews. The two nephews spent most of the evening in the pool room where they played with some non-Traveller friends of theirs.
- As Mr Sweeney himself was on crutches, he did not play. Instead he alternated between the bar and the pool room during the evening, ordering drinks as required.
- Mrs Joan Monaghan was serving behind the bar for the night
- The pool games were played in a good humoured manner and there was no loud or boisterous behaviour involved.
- No reference was made to a pool competition being held that night.
- The nephews finished playing pool around 11 pm and came back to the bar.
- No comments whatsoever were made to them by staff before they left at midnight
- On Sunday 7 October 2001, Mr Sweeney and his wife met with another nephew, Martin Sweeney and his wife, as they do every Sunday.
- As Mr Sweeney had enjoyed the previous evening in the Yacht Inn, he suggested that they call there for a drink around 8.30 pm.
- On arrival in the pub, the group went to the bar to order drinks.
- Mr Eugene Monaghan was behind the bar.
- When Mr Sweeney approached him, Mr Monaghan said that he was not serving him because of "the hassle" the previous night.
- When Mr Sweeney asked him whether he personally had been involved, Mr Monaghan said "No" but still refused to serve him.
- Mr Sweeney believes that Mr Monaghan was only using the previous night's events as an excuse not to serve the two couples who he recognised as Travellers.
- Mr Sweeney maintains that his group were refused service because publicans in general have a particular bias against serving Traveller women
- Martin and Margaret Sweeney, who were with the complainant on 7 October 2001, appeared as witnesses at the Hearing. Neither of them had been in the Yacht the night before nor had they ever caused any trouble in the pub.
- The couple confirmed that Mr Monaghan had refused David Sweeney service because of "the hassle" the previous night.
5.2 Evidence of Respondents
- The Yacht Inn has been run by the Monaghan family for 40 years
- The pub is relatively small, accommodating 20 customers in the bar and a further 15 in the pool room at the rear
- The pool room is down a hallway in a separate room. The pool room door is usually closed
- The family live on the premises. Their kitchen adjoins the pool room at the rear
- The pub has some regular Traveller customers
- Most of those barred are non-Travellers
- Mr Eugene Monaghan, the current manager, was on duty with his wife on 6 Oct 2001
- Mr Monaghan recognised the complainant on 6 Oct from previous visits. He also knew him to be a member of the Traveller community.
- Mr Monaghan recalls that there were 5 members of the Sweeney family in the pub that night.
- He knew them from having been in before. None of the Sweeney family had proved troublesome before
- The Sweeney group spent most of the night in the pool room.
- A pool competition for locals is normally held in the pool room every Saturday night with a €1 entry fee
- Several of the regular players arrived that evening but left soon afterwards complaining to Mr Monaghan about the "intimidating atmosphere" in the pool room
- The usual pool competition did not take place that night
- Mrs Joan Monaghan stated at the Hearing that, when she was visiting the Ladies, she heard loud voices and bad language from the pool room.
- Mrs Marcella Monaghan, the manager's mother, was in the kitchen at the rear of the premises that night. She described how, near closing time, she heard a "racket" from the adjacent pool room.
- Mrs Monaghan said that it most unusual for sound in the pool room to be heard in the kitchen
- She could hear people arguing loudly over money and thought it sounded as if a fight had started.
- Mrs Monaghan immediately phoned her son in the bar to alert him to the situation.
- Eugene Monaghan immediately went down to the pool room from where he could hear noise. When he opened the door, things went quiet. He asked what was going on and was told that nothing was happening.
- Mr Monaghan recalls that, at that point, there were 5 or 6 members of the Sweeney family present and no one else.
- As it was near closing time and drink had been taken, Mr Monaghan made an "on the spot decision" not to take any action at that point. Mentally, however, he decided that he did not want any of the group on the premises again after that night.
- The group ordered one last round and left peacefully soon afterwards.
5.3 At the Hearing of this complaint on 20 November 2002, the respondents drew attention to the complainant's representative's submission which incorrectly stated that the two Traveller couples had visited the Yacht Inn on both Saturday 6 October and Sunday 7 October 2001. The respondents complained that this submission had only served to confuse the issue and had made it more difficult for the respondents to prepare their defence. The representative form the Citizens Information Centre acknowledged that she had misinterpreted the information given to her by Mr David Sweeney, as to who was on the premises on 6 October 2001, and apologised to the respondents for the confusion caused.
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 complainant claims that he was discriminated against on the grounds of his membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service in the Yacht Inn on 7 October 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is 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 complainants. 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 complainant has satisfied me that he is a member of the Traveller community. In relation to (b), the respondents accept that the complainant was refused service on 7 October 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 7 October 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In this instant, the respondents argue that Mr Monaghan's decision to refuse service on Sunday 7 October 2001 to Mr Sweeney, his wife and friends was not discriminatory but was driven by the behaviour of Mr Sweeney and his nephews the previous night. Mr Monaghan is, therefore, claiming that his decision to refuse Mr Sweeney service was made "in good faith" with a view to ensuring compliance with the Licensing Acts and that he is entitled to do so under the Equal Status Act 2000. 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".
7.5 The Licensing Acts
In order to consider whether Mr Monaghan was complying with the provisions of the Licensing Acts, I consider that it is appropriate for me to examine the various statutory provisions that relate to a publican's obligation to run an orderly house.
Licensing Act 1872, section 13: provides that it is an offence "If any licensed person permits drunkenness or any violent, quarrelsome, or riotous conduct to take place on his premises, or sells any intoxicating liquor to any drunken person".
Licensing Act 1872, section 18: provides that "Any licensed person may refuse to admit and may turn out of the premises in respect of which his licence is granted, any person who is drunken, violent, quarrelsome, or disorderly and any person whose presence on his premises would subject him to a penalty under this Act. " (this provision is, however, only discretionary and, therefore, not as strong as section 13).
Refreshment Houses (Ireland) Act 1860, section 31 provides that "every person licensed to sell wine by retail who shall permit any person to be guilty of drunkenness or other disorderly conduct in the house or premises mentioned in such licence....... shall for every such offence forfeit the respective sums following..." The section continues to provide that on a second or third such conviction, the licenseholder shall be "disqualified from selling wine by retail for any term not exceeding five years next ensuing such conviction..." Courts (No 2 ) Act 1986, section 4(7)(b) provides that the two main criteria for annual renewal of a publican's licence are:
"(a) the good character of the licensee, [and]
(b) the peaceable and orderly manner in which the licensed premises were conducted in the year ending on the expiry of the licence" Dublin Police Act 1842, section 7, which only applies to the Dublin Metropolitan district, provides that it is an offence for anyone keeping a place of public resort which serves liquors or refreshments of any kind to "willfully or knowingly permit drunkenness or other disorderly conduct" on the premises.
7.6 It is clear from examining the above pieces of legislation, that there is a requirement on publicans to conduct their premises in a peaceable and orderly manner and not to permit violent, disorderly or quarrelsome behaviour to occur. In considering this point, I have had recourse to Cassidy on the Licensing Laws (2nd Edition) and McGrath on the Liquor Licensing Law which are the standard works on Irish licensing law.
7.7 In Cassidy on the Licensing Laws, the author notes that "permitting drunk or disorderly conduct on a premises .... may constitute an offence resulting in some instances in the forfeiture of a licence". Cassidy adds that under the Intoxicating Liquor Act 1927, the offence of permitting disorderly conduct is one where the court must endorse a conviction on the licence. Such an endorsement runs for two years for a first offence, longer for subsequent offences. Three endorsements render the licence permanently forfeit, meaning that no licence can ever again be granted in respect of any part of the premises. It is clear, therefore, that there are severe penalties in place under the Licensing Acts for publicans who do not comply with their obligations to run a peaceable and orderly house.
7.8 Definition of " Disorderly Conduct"
McGrath on the Liquor Licensing Law notes that, although a number of Acts use the expression "disorderly conduct", that no clear statutory definition of this term appears to exist. From this, it would appear that, in very broad terms, "disorderly conduct" would seem to be related to a breach of the peace, also a very loose and general term. Reference is also made to the Criminal Law (Public Order) Act 1994 section 5, which defines "offensive conduct" as "any unreasonable behaviour which, having regard to all thecircumstances, is likely to cause serious offence or serious annoyance to any person.". There is a marginal note labeling this as "disorderly conduct".
7.9 From the above, I consider that "disorderly conduct" could be construed as conduct which persons in the vicinity, could find unpleasant or disturbing and could reasonably take exception to. It could include bad language, offensive comments, quarrelsome behaviour, noisiness, as well as fights. As no clear definition has yet emerged as to what constitutes "disorderly conduct", it is, therefore, a term which, in my opinion, needs to be interpreted in a broad and common sense way.
Accordingly, it would seem that the Courts have a wide discretion to refuse the renewal of a licences on the grounds that "disorderly conduct" was permitted. I, therefore, consider that the pieces of legislation referred to above make it incumbent on a publican to ensure that he does not permit disorderly, drunk, violent or quarrelsome conduct to occur on his premises, as to do so could result in his publican's licence being endorsed, ultimately leading to the possible loss of the licence.
7.10 Application of the Equal Status Act 2000
As stated earlier, 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".
From my examination of the licensing legislation outlined above, I am satisfied that action taken in good faith by publicans to ensure that "disorderly conduct" does not occur on their premises, is covered by Section 15(2). Therefore, I am satisfied that publicans may refuse or limit service to any person who they know to have been involved in disorderly conduct in the past or whom they honestly believe would engage in such conduct if permitted on to their premises.
Of importance here is that, for a publican's actions to be covered by Section 15(2), he must be able to show that his actions were honestly intended ("action taken in good faith"), and solely for ensuring compliance with the Licensing Acts.
7.11 As stated earlier, it would seem that the respondents defence is centred on the claim that Mr Monaghan was acting "in good faith" for the sole purpose of complying with the Licensing Acts, in accordance with Section 15(2), in refusing service on 7 October 2001.
In order to decide, therefore, whether Mr Monaghan was "acting in good faith", I must consider the evidence before me regarding the events of Saturday 6 October 2001 and decide whether Mr Monaghan honestly believed that a risk of disorderly conduct existed in admitting Mr Sweeney and his group on 7 October.
7.12 Having deliberated fully on the evidence before me, I find the following facts to be the most persuasive:
Mr Monaghan recognised Mr Sweeney and his nephews as Travellers and had no difficulty serving them previously.
A local pool competition normally took place in the Yacht Inn every Saturday but did not happen on Saturday 6 October.
Three separate members of the Monaghan family have given evidence of raised voices, bad language and heated arguments taking place in the pool room.
Mr Sweeney has confirmed that only 3 or 4 other customers were in the pool room on the night
7.13 Of these four points, the one I find the most compelling is that no pool competition took place that night and Mr Sweeney has confirmed this. This fact indicates to me that events that night did not follow their usual pattern. This is supported by the complainant's evidence that very few locals were present in the pool room. For the pool competition not to have taken place, I consider that circumstances that evening must have been very different to other Saturdays. As the only factor that distinguished that evening from other Saturdays was the presence of the Sweeney family in the pool room, I must conclude that their presence in the pool room was a major factor in the pool competition not being held.
7.14 The other reason I have for thinking that circumstances were different that night, is the testimony of the publican's mother, Mrs Marcella Monaghan. Mrs Monaghan firstly commented on how unusual it was to hear any sound from the pool room from the kitchen where she resided. However, on 6 October 2001, she said that the noise was so loud that she could hear people clearly quarreling over money and how it seemed to her that a fight had started.
Having considered these points, I am satisfied that a situation did develop on 6 October 2001 in the Pool Room which was different than normal and that that situation was such as to give Mr Monaghan serious cause for concern.
7.15 I have, therefore, come to the conclusion that members of the Sweeney group did engage in loud and quarrelsome behaviour in the Pool Room on 6 October and that their conduct was serious enough to constitute "disorderly conduct" as set down in the Licensing Acts and the other aforementioned provisions. Accordingly, I consider that Mr Monaghan was acting "in good faith" on 7 October, in accordance with Section 15(2) of the Equal Status
Act 2000, in deciding not to readmit Mr Sweeney to the pub, on the grounds that, to do so, could result in further "disorderly conduct". Having considered all of the evidence before me, I consider that the respondents have shown that they had sufficient reason for refusing service to Mr Sweeney on 7 October 2001, and that they were acting in accordance with Section 15(2) of the Equal Status Act 2000, in endeavouring to keep within the law with regard to the keeping of a peaceful and orderly house.
I, therefore, find that the complainant was not treated any differently than a non-Traveller would have been treated in similar circumstances. Accordingly, I find that a prima facie case has not been established.
8 Decision
8.1 I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1), and 3(2)(i) of the Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
8.2 In this particular case, I am accepting that Mr Monaghan acted "in good faith" in accordance with Section 15(2) of the Act in refusing service to Mr Sweeney on 7 October 2001, on the basis that the previous night's incident would have been fresh in Mr Monaghan's mind and he may have thought that there was a possibility that Mr Sweeney's two nephews were also about to arrive in the pub.
I would, however, question whether the incident in the Pool Room on 6 October 2001 justifies David Sweeney's barring on a permanent basis. From the evidence before me, it appears that Mr Sweeney only had a peripheral involvement in the events of 6 October and did not spend much time in the Pool Room himself.
I would suggest, therefore, in the interests of fairness, that Mr Monaghan reconsider his position with regard to David Sweeney in the event that he and his wife, and their friends Martin and Margaret Sweeney, should decide to visit the Yacht Inn again .
Brian O'Byrne
Equality Officer
28 February 2003