Jimmy & Bernard Sweeney V The MCR Bar, Sligo (represented by McGovern Walsh & Co, Solicitors)
1. Dispute
This dispute concerns a complaint by Jimmy and Bernard Sweeney that they were discriminated against, contrary to the Equal Status Act 2000, by the MCR Bar, Sligo. The complainants maintain that they were 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 complainants state that they and a non-Traveller male friend of theirs ordered drinks from a member of staff on 5 August 2001 but that only their friend was afforded service. They maintain that this was on the grounds of their membership 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 complainants and their friend were all refused service because their colleague had caused trouble on the premises previously
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
- Bernard Sweeney and Jimmy Sweeney are brothers
- Jimmy Sweeney lives in Sligo while Bernard lives in Mayo
- They are both members of a large Traveller family
- Bernard Sweeney had never been in the MCR Bar before. Jimmy Sweeney had been there two weeks earlier with Brendan Loftus, a non-Traveller, and had got served. Mr Loftus appeared as a witness for the complainants at the Hearing
- Having travelled from Mayo, Bernard Sweeney met his brother and some friends for a drink at 3pm in another pub in Sligo where they played darts for a number of hours.
- Around 8 pm the group decided to visit some other pubs as Brendan Loftus liked to frequent different pubs.
- Bernard Sweeney reckons that he had about 7 pints to drink in the first pub.
- At around 8.30 pm, Bernard Sweeney, Jimmy Sweeney and Brendan Loftus called into the MCR Bar. Mr X was behind the bar
- Mr X offered to serve Brendan Loftus a drink but said "Sorry Lads, I can't serve ye" to the Sweeney brothers. Mr X told them that "word had been left not to serve them".
- Bernard Sweeney believes that Mr X did not know him by name and believes that he was refused solely because Mr X recognised him and his brother as Travellers.
- Following some discussion with Mr X, the group left and returned to the other pub. Mr Loftus did not avail of Mr X's offer to serve him because his friends had been refused.
- None of the three have returned to the MCR Bar since. Mr Loftus said that the reason he did not return was because his friends had been discriminated against
5.2 Evidence of Respondents
- The MCR Bar has been run by the Gallagher family for three generations
- Mr Joe Gallagher, the current manager of the pub, attended the Hearing on 20 November 2002
- The capacity of the pub is 60 approximately
- The pub caters mainly for local customers and has no regular Traveller customers
- Staff are fully aware of the provisions of the Equal Status Act and the Licensing Acts and run the pub in strict accordance with both pieces of legislation. A notice regarding the Equal Status Act is affixed to the wall of the pub.
- The pub has never discriminated against Travellers. On the contrary, Mr Gallagher's father, a former Mayor of Sligo, had always been very supportive of Travellers and, in the 1960s, had been instrumental in ensuring that members of the Sweeney family were rehoused following a fire that destroyed their home
- The MCR Bar employs one fulltime and two part-time barstaff.
- The barman, Mr X, has been employed for twenty years.
- Very seldom has the pub had trouble and the Gardai have never been called to the pub
- Mr Gallagher implements very strict rules as to who gets served and he does not tolerate any "messing"
- If he feels a regular has drunk too much on the premises, he will send him home.
- If a person arrives intoxicated, having been somewhere else, he will not be served and, most likely, will be barred altogether from the MCR Bar.
- Mr Gallagher does not recall seeing either of the Sweeney brothers on the premises before.
- Mr Brendan Loftus is known to Mr Gallagher
- Mr Loftus visited the MCR Bar on several occasions prior to the alleged act of discrimination on 5 August 2001.
- On 29 July 2001, a week before the alleged act of discrimination, Mr Loftus arrived into the MCR Bar "well tanked" at around 6pm. Mr Gallagher refused to serve him and told him not to come back again. This incident was recorded in the pub's incident report book and a copy of the report was submitted in evidence.
- On the basis of the incident on 29 July, Mr Gallagher instructed Mr X not to serve Mr Loftus in future.
- On Sunday 5 August 2001, Mr X was working behind the bar.
- At around 8.30 pm, Brendan Loftus arrived in with the two complainants.
- Mr X recognised Mr Loftus and told him that he had been instructed not to serve him as he was barred.
- When his companions sought a drink, Mr X refused them as well because they were in Mr Loftus' company
- At that point, the three gentlemen became very aggressive and one of them climbed onto the counter and threatened to pull his own pints. Mr X was very concerned for his own safety at that point.
- With the arrival of additional customers, one of the group persuaded the man on the counter to get down.
- After some further comments were made, the group left saying that the pub "would be hearing from us"
- When Mr X reported the incident to Mr Gallagher, he decided that all three should be barred to prevent further incidents.
- The respondents maintain that the fact that none of the three ever returned to the pub, confirms that they knew they had caused trouble and were barred
- At the Hearing on 20 November 2002, Mr Joe Gallagher explained that he had asked Mr X, who is still working for him, to attend as a witness. Mr X was reluctant to do so, however.
- Mr Gallagher attributes Mr X's reluctance to attend to an incident in June 2002, reported to him by Mr X, when Mr X was approached by another member of the Sweeney family in the street and reference was made to the case under investigation. The relative in question had been previously barred himself from the MCR Bar by Mr X.
- Mr Gallagher believes that that incident had an intimidating effect on Mr X resulting in him not wishing to get involved any further in the complaint.
- In light of the above, Mr Gallagher felt that it would have been unfair of him to have compelled Mr X to attend the Hearing.
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 refused service in the MCR Bar on 5 August 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 ofshifting 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 complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents accept that the complainants were refused service on 5 August 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 5 August 2001 was less favourable than the treatment three non-Travellers would have received, in similar circumstances.
7.4 At the Hearing on 20 November 2002, it became clear that the respondent, Mr Joe Gallagher, runs a very strict house and does not condone drunkenness on his premises. On listening to Mr Gallagher, I am satisfied that he has a genuine concern for his customers' welfare and would rather send them home early than serve them too much drink.
7.5 Of interest here is Mr Gallagher's different attitude to people who get drunk on the premises and those who arrive drunk - regulars who get drunk on the premises are sent home but are not barred while people who arrive drunk are usually barred. While this attitude towards non-regulars does appear somewhat harsh, it is not for me to make a judgment in the matter. However, I find that this modus operandi supports therespondents' claim that the MCR Bar is a very strictly run house.I, therefore, accept that Mr Gallagher takes a firm stance against any form of drunken behaviour and I have no doubt that this attitude has been communicated to, and adopted by, his staff, particularly Mr X who has been employed by him for 20 years.
7.6 In this particular case, it is the respondents' assertion that Mr Loftus and the two complainants were refused service because Mr Loftus had arrived drunk in the MCR Bar the previous week. For their part, the complainants maintain that they were refused service because they were recognised by Mr X as Travellers. I, therefore, have two conflicting versions as to what actually happened in the MCR Bar on 5 August 2001 and no independent witnesses to verify either account. I must, therefore, make my decision based on the evidence before me. In this regard, I consider the following points to be the most compelling and persuasive:
Mr Gallagher maintains that he runs a very strict house and does not tolerate drunkenness on his premises
Mr Gallagher states that Mr Loftus was barred from the pub the previous week because he was drunk and has produced an incident report to support this.
One of the complainants has admitted to having been served previously in the MCR Bar
The two complainants and Mr Loftus admit that they had been drinking for over 5 hours prior to their arrival in the MCR Bar on 5 August.
Having deliberated on the above points, I have formed the opinion that, on the balance of probabilities, Mr X's decision not to serve the group was down to the fact that Mr Loftus had been barred previously, coupled with the fact that it would have been clear to an experienced barman like Mr X that the group had drink taken already when they arrived in the MCR Bar. I do not, therefore, consider that the complainants' membership of the Traveller community was a contributory factor in service being refused.
7.7 I, therefore, find that the respondents acted no differently in dealing with the situation on 5 August 2001 than they would have done if a group of non-Travellers had arrived on the premises in similar circumstances. Accordingly, I find that a prima facie case of discrimination on the Traveller community ground has not been established.
7.8 During the course of the Hearing of this complaint, reference was made to an incident where Mr X was allegedly approached in the street by a relative of the Sweeney brothers, who made reference to Mr X's involvement in this complaint. Mr Gallagher stated that he believed that the incident had an intimidating effect on Mr X, resulting in him not wishing to get involved any further in the complaint. I am very concerned at the allegation of intimidation of a potential witness in this case. I note, however, that I have not been provided with any direct evidence about this allegation and that it is only hearsay evidence of the alleged intimidation that is before me. For this reason, I consider that I do not possess sufficient information to enable me to decide on the validity of the allegation in this instance.
7.9 Intimidation of a potential witness in a complaint under equality legislation, is a very serious matter and I would encourage any person who feels that they have been intimidated because of their involvement in a complaint, to immediately report the matter to the ODEI - Equality Tribunal and also to the Gardai.
8 Decision
8.1 I find that the complainants have not established 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 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
8.2 Accordingly, I find in favour of the respondents in the matter.
Brian O'Byrne
Equality Officer
27 January 2003