DEC-2003-051 Full Case Report

Michelle Feighery (represented by John M. Spencer, Solicitor) V MacMathunas Pub, Nenagh (represented by McGrath & Co., Solicitors)

1. Dispute
This dispute concerns a complaint by Michelle Feighery that she was asked to leave a pub for challenging a decision by the manager to refuse service to a group of Travellers. The complainant maintains that she was discriminated against by association on the Traveller community ground in terms of sections 3(1)(b) 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 she was asked to leave McMathunas Pub on Wednesday 17 October 2001 after she challenged a decision by the owner to refuse a second round of drinks to a group of Travellers she knew. She claims that the decision constituted discrimination by association on the Traveller community ground.

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 was asked to leave because she got involved in a situation which did not concern her, between staff and other customers who had been asked to leave because they were talking loudly and making a nuisance of themselves.

4 Delegation under the Equal Status Act, 2000
4.1 The complaint was 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 Background Note
This case involved two separate complaints about an incident which occurred in MacMathunas Pub, Nenagh on the same night, 17 October 2001. One of the complaints involved 3 complainants who were refused service in the pub. These three complainants, William Keenan Snr, William Keenan Jnr and John O'Brien, were all members of the Traveller community. The other complainant, Michelle Feighery, was not a Traveller but claimed she was discriminated against because she associated with the three aforementioned Travellers after they were refused service.
As the complaints were submitted some months apart, no direct linkage between the two complaints was made until the Hearing of Michelle Feighery's complaint on 29 May 2002. When the connection between the two complaints was made at the Hearing, it was decided by all involved that both complaints needed to be heard together. For this reason, all four complainants were invited to a second Hearing on 12 March 2003. One of the complainants, John O'Brien was unable to travel from England for the Hearing on 12 March 2003 but was represented by his solicitor. Mr O'Brien's son James did attend the Hearing as a witness.
At the second Hearing on 12 March 2003, the two Keenans gave their evidence and Michelle Feighery and the respondents presented their evidence again. The respondents' witness, Mr A, a customer who was present on the night of the incident, gave evidence at the first Hearing. At the second Hearing, the respondents explained that Mr A was unavailable to attend but indicated that they had no difficulty in proceeding without him. Similarly, Ms B, a friend of Ms Feigherys who was also present on 17 October 2001, gave evidence at the first Hearing but was unavailable for the second. In Ms B's case, it was acknowledged by Ms Feighery that Ms B had nothing material to add to the second Hearing and that her presence was not crucial.
The absence of Mr A and Ms B from the second Hearing raises issues of natural justice in so far as the Keenan group of complainants are concerned, who were not given an opportunity to cross-examine either Mr A or Ms B. On considering this point, I have decided that the best way to proceed is for me to disregard both Mr A's and Ms B's evidence in the Keenan case and to make my decision based on the evidence provided on 12 March 2003 alone. This issue does not arise in the Feighery case as both complainant and respondent were present on 29 May 2002 and were afforded the opportunity of questioning the evidence of both Mr A and Ms B.

5.2 Complainants Evidence
Evidence Mr William Keenan Senior

• William Keenan Snr and his son William Keenan Jnr are relatives of John O'Brien and his son James O'Brien.
• Mr Keenan Snr said he was a settled Traveller and had been living in Nenagh for 12 years. Other members of his family also live in the area.
• Mr Keenan runs his own business and works a lot in England
• Mr Keenan and his son William Keenan Jnr, another complainant, spent about a week in England with a cousin of his, John O'Brien, another complainant, in early October 2001.
• A few days before 17 October 2001, the three complainants, together with John O'Brien's son, James, returned to Ireland for a few days break. The O'Briens stayed with the Keenans in their house in Nenagh.
• The group spent most of 17 October 2001 in the Keenans house until they decided at 9 pm to go into Nenagh for a drink. None of the group had any drink taken that day before arriving in MacMathunas
• Wm Keenan Snr had only been in MacMathunas once before, 6/7 years previously, possibly with John O'Brien. He has not been in the pub since and certainly never played pool with his son there before, as claimed by Ms McMahon
• Wm Keenan Jnr and James O'Brien had never been in the pub before.
• Mr Keenan said that, to his knowledge, a brother of his has been a regular customer in MacMathunas over the years, and it is likely that he would have had his young children with him on the occasions he was there.
• Mr Keenan drove the group into Nenagh on 17 October 2001
• On arrival, there were very few people in the pub. He recalls a couple and another man sitting at the bar. This man is referred to as Mr A from here on.
• Mr Keenan also recalls seeing Michelle Feighery and a friend sitting in the pub
• Mr Keenan Snr ordered four pints and was served by Ms Nancy Slevin. The four sat on stools at the bar. One or two may have remained standing
• He recalls a jukebox playing but none of his group played any music
• The four men were talking and laughing amongst themselves.
• Mr Keenan accepts that their conversation may have seemed loud. This is because John O'Brien has a natural loud high-pitched voice and, as a result, is inclined to dominate conversations
• Mr Keenan recalls that Mr A made some comments to them about being quiet. The man was very drunk and used a lot of abusive language.
• At no time, did any member of staff indicate to the group that they would like them to quieten down
• After about 20 minutes, William Keenan Jnr asked Nancy Slevin for another round of drinks
• Ms Slevin moved away and they were approached by Ms Breda McMahon, who had only recently arrived behind the bar
• Ms McMahon told them that she was refusing to serve them as she did not want "your kind" in here
• Mr Keenan commented that they were just having a conversation and that they had done nothing wrong
• Mr Keenan insisted that the Gardai be called and said that he was not leaving until they arrived
• While they were waiting, Mr A continued to abuse them and called them "scumbags"
• Eventually, Ms McMahon intervened and told Mr A to leave the bar and go to the back room
• At this point, Michelle Feighery came to Mr Keenan at the bar to ask what had happened. He told her the story and said that no reason had been given.
• He has no recollection of Ms Feighery having any dealings with Mr A.
• While waiting for the Gardai, the group were also approached in a threatening manner by another customer who commented " you'll be glad to leave in a minute". Mr Keenan understands that this man may have been employed as a barman in the pub on occasion
• Before the Gardai arrived, James O'Brien decided to leave the pub. Mr Keenan believes that this was because he did not want to draw attention to himself as he was 17 years old at the time. He waited in the car outside
• When Garda Bell arrived, Mr Keenan went outside with him and reported to him what had happened and gave him his name and full details
• The Garda said to him that he "had done the right thing" in not taking matters into his own hands
• The four men then left peacefully

Evidence of William Keenan Jnr,

• William Keenan Jnr was 18 years old at the time
• The four men stayed at home in the Keenan's house all day on 17 October 2001
• They were relaxing as the two O'Briens were over for a few days holiday
• No one had any drink that day prior to going to MacMathunas
• On arrival, they were served four pints with no problem
• They sat along the bar in the pub and engaged in some good-humoured conversation
• Mr Keenan recalls that another customer (Mr A), who was sitting beside them at the bar, kept "giving them grief" about being loud.
• He got the impression that Mr A had already consumed a lot of drink
• When he asked for a second round, he was refused by Ms McMahon who said that she "did not want your kind here"
• While they were waiting for the Gardai, Mr A became very abusive to the group and called them "scumbags". He continued to shout at them in a very abusive manner until Ms McMahon told him to sit somewhere else.

Evidence of Ms Michelle Feighery

• She is a non-Traveller herself with a number of Traveller friends
• She has been served in MacMathunas before
• On one occasion she was refused by the owner's son on the grounds that her boyfriend had been barred previously
• On 17 October 2001, the complainant met a friend of hers, Ms B, at 7.30 pm in Nenagh as they had arranged.
• Initially they decided to visit another pub but found that it was closed.
• They entered MacMathunas before 8pm and were served by a barman.
• Ms Nancy Slevin came on duty shortly after 8pm to replace the barman.
• Both women had no problem being served.
• They played the jukebox for a while
• Around 8.45pm, three or four male Travellers entered the pub.
• Ms Feighery knew two of them, the Keenans, and knew they were Travellers as the Keenans were friends of her sister
• The Travellers ordered and were served drinks.
• The Travellers were respectably dressed and in good humour.
• Ms Feighery spoke to the Travellers when she was waiting to be served at the bar
• When the Travellers were refused a second drink, some of them began to argue
• She recalls Mr William Keenan Snr getting very annoyed with Ms McMahon
• Ms Feighery recalls a man and a woman at the bar shouting at the Travellers to be quiet, after they had been refused. She recalls the Travellers shouting back at them.
• The Travellers demanded that the Gardai be called
• One of the Travellers left the premises prior to the Gardai arriving
• After the refusal, William Keenan Snr came over to the complainant and sat with Ms B and herself while waiting for the Gardai.
• She was served another drink by Ms Slevin after the Travellers had been refused
• Ms Feighery did not communicate with the four men at the bar, after they had been refused
• Ms Feighery did not approach Mr A that night and poke him in the ribs
• Two Gardai arrived and called the Travellers outside.
• After the Gardai had taken the Travellers outside, Ms McMahon came over to her and Ms B and asked them both to leave. Ms McMahon made the remark to Ms Feighery "you brought Travellers into the pub".
• Ms B asked if she could finish her drink first and was allowed do so.
• Ms Feighery immediately went outside, ahead of Ms B, and told the Garda that she believed that she had been discriminated against. She was advised by the Garda to see a solicitor.

Evidence of Complainants' witness - Mr James O'Brien

• James O'Brien is the son of one of the complainants, John O'Brien, who was unavailable to attend the Hearing himself.
• James O'Brien was present in MacMathunas on 17 October 2001 and was 17 years old at the time.
• Mr O'Brien and his father were staying with the Keenans for a few days holidays
• No one had any drink that day prior to going to MacMathunas
• On arrival, they were served four pints with no problem
• They sat along the bar in the pub and talked amongst themselves
• When they asked for a second round, Ms Slevin walked away and they were then refused by Ms McMahon who said "I can't serve your kind"
• Mr O'Brien does not accept that the group were "loud" as described
• When Mr Keenan Senior questioned Ms McMahon's decision, Mr O'Brien decided to leave the pub, as he did not wish to draw attention to himself because of his age. He then went to a chipper and returned 20 minutes later and waited outside until the matter was over.
• James O'Brien also explained that the fact that he was only 17 years of age at the time also influenced his decision not to lodge a complaint in his own right under the Equal Status Act

Evidence of Complainant's Witness - Ms B

• Ms B is a non-Traveller from Nenagh
• She frequents MacMathunas regularly
• She has been served there before and after the 17 October 2001
• Herself and Michelle Feighery visited MacMathunas before 8pm on 17 October 2001
• She recalls four men arriving in the pub that night
• Michelle Feighery spoke to them when she was ordering at the bar
• Ms Feighery did not tell her how she knew them
• She thought the men were well-behaved in the pub
• They asked about the jukebox and played some songs, she recalls
• She recalls Ms McMahon asking them to leave after which one of the four sat down beside Michelle
• She recalls him complaining about having being refused and saying that he was waiting for the Gardai
• Ms Feighery did not go near Mr A at the bar after the men had been refused.
• When the Gardai arrived, the Travellers went outside with them
• Ms McMahon then asked Ms Feighery and herself to leave for "bringing in Travellers". Ms McMahon seemed angry
• Ms B asked Ms McMahon to be allowed to finish her drink which she was permitted to do
• She left the pub after Ms Feighery
• They met later up town when Ms Feighery told her that she was going to see a solicitor the next morning
• Ms B did not consider lodging an Equal Status complaint herself

5.3 Evidence of Respondents
Evidence of Ms Breda McMahon, Pub owner

• Breda McMahon and her husband have been running MacMathunas for over 6 years
• There have not being any serious incidents on the premises previously
• The pub only has a few regular Traveller customers
• Ms McMahon did recall an incident about 2 years previously , where a group of Travellers were asked to leave because a number of under-age teenagers were in their company and Mrs McMahon feared that they might be supplied with drink. Ms McMahon believes that William Keenan Snr was with that group that day
• On leaving the premises that day, a comment was made to her that she was "lucky we don't wreck the place".
• Ms McMahon also recalls seeing Mr Keenan in her pub on another occasion, playing pool with his young son
• Mrs McMahon knows Michelle Feighery from previous visits. She recalls checking her ID on one occasion
• Mrs McMahon was not on duty herself on 17 October 2001. She was upstairs getting ready to go out when Nancy Slevin phoned her from the bar to say that she was uneasy about a situation that was developing, involving a few men at the bar.
• Ms Slevin told her that the group were "fine first but were now talking loud". Ms Slevin said she was "a bit nervous" and would like Ms McMahon to make a decision on the matter
• She came down and walked around the bar area for a while to survey the situation
• She thought that the men were talking very loudly and were acting strangely and she came to the conclusion that the men had had enough to drink
• It did not cross her mind that the men might be Travellers
• She told the men that that she would prefer if they left. She did not give them a warning.
• She never used the phrase "your kind"
• At that point, one of the gentlemen turned to her and said that she "had got away with that before"
• Only when this comment was made, did she recognise the man as one of the group of Travellers she had previously asked to leave because they had young teenagers in their company
• During the course of the incident, Mr A was getting increasingly involved in the situation. Mr A was a regular customer in MacMathunas. She recalls Mr A getting very aggressive towards the group and using a lot of bad language.
• She got the impression that Mr A had a lot of drink taken and she was "disgusted with him" for interfering. She told Mr A to "mind his own business" . She instructed him to go to the other end of the bar and that she would "deal with him later". She decided at that point that Mr A was not to be served any more drink that night.
• Ms McMahon cannot recall whether Mr A was asked to move before or after she refused service to the four men
• Mr A apologised to her later and explained that he had got involved because he could see that Nancy Slevin was nervous.
• After service had been refused, Ms Feighery approached the group and encouraged them to stay. Ms McMahon felt that Ms Feighery was interfering in the situation.
• She recalls seeing Michelle Feighery approaching Mr A and punching him in the ribs after he had told the men to "shut up"
• Because she was afraid for her own safety, Ms McMahon left the pub and went to the Ormonde Hotel to ask Mr Peter Ryan to accompany her back to the pub. Nancy Slevin remained in the pub with the complainants and other customers.
• She and Mr Ryan returned and waited outside for the Gardai to arrive
• Ms McMahon informed the Gardai of what had happened with the four men.
• She saw no reason to report Ms Feighery's actions to the Garda.
• While the Keenan group were talking to the Gardai outside, Ms McMahon informed Michelle Feighery and Ms B that she also wanted them to leave
• Ms McMahon denies that Ms Feighery was asked to leave because of her association with Travellers.
• Ms Feighery was asked to leave for interfering in the situation and for assaulting another customer, Mr A.
• Ms Feighery left immediately, followed shortly by Ms B

Evidence of Mr Noel McMahon, Pub Owner

• Mr McMahon and his wife own MacMathunas Pub
• Mr McMahon said at the Hearing that he has known the Keenan family to see for years and that he was aware that they were a Traveller family
• He especially knew William Keenan Senior's brother, Johnny, who had frequented the pub regularly over the years
• It is the pubs policy to give customers a warning first if they appear to be getting out of hand
• If the behaviour continues, and the customers are known to staff, they are not served any more drink but are allowed to finish their drink
• If they are not known to staff, they are asked to leave immediately

Evidence of Ms Nancy Slevin, Barstaff

• She has served behind the bar in MacMathunas for 2 years. She has 30 years experience in the hotel/restaurant trade
• She came on duty at 8pm on 17 October 2001
• Ms Feighery and Ms B were already present in the pub
• Mr A arrived in the bar after 8 pm and sat at the bar. Shortly afterwards, two friends of his arrived, a man and a woman, and joined him.
• Four men arrived in and ordered drinks. They were polite and courteous on arrival.
• She did not recognise them as Travellers on arrival and only discovered this fact after they had been refused.
• As time went on, they became boisterous. At that point, Ms Slevin came to the conclusion that two of them may have had drink taken beforehand.
• They asked how to play the jukebox and requested that it be turned up louder.
• After being in the pub for 10/15 minutes, they began "moving about" a lot and their voices were getting increasingly louder. She remembers one of the group asking her whether there was a "music pub" nearby
• At that point, Mr A began to get involved with the group over the fact that they were talking loudly.
• An argument then ensued between Mr A and Mr Keenan Snr over the noise level
• Ms Slevin began to feel uneasy about the group and hoped that they would decide to move on.
• Ms Slevin said that normally, in such situations, customers would be asked to "quieten down" or "take it easy". It is her policy to speak to customers who may be getting overly loud or out of hand
• Ms Slevin cannot recall whether she asked the group on 17 October 2001 to quieten down.
• As she became more on edge, she decided to ring the proprietor, Breda McMahon, upstairs and ask her to survey the situation.
• If Ms McMahon had not been on the premises she would have taken the decision herself to refuse the men
• Ms McMahon came down and , without making any comment, busied herself behind the bar.
• When the men called for another round, Ms Slevin walked down the bar and left the decision with Ms McMahon.
• Ms McMahon said to the men "Gentlemen, I'd prefer that you left"
• On being refused service, the Travellers began to hassle Ms McMahon
• At that point, fearing trouble, Ms Slevin says she began to remove ashtrays from the counter
• Mr A again asked the men to quieten down, at which point his two friends moved to another part of the pub.
• Ms Feighery came from her seat to the counter and encouraged the men to stay
• Ms Slevin recalls Ms Feighery approaching Mr A and saying something to him.
• She was told later that Ms Feighery had poked Mr A in the ribs. She herself did not see it happening.
• Ms McMahon then rang the Gardai.
• Ms Slevin did not feel personally threatened by the group but felt that their behaviour was unsettling other customers

Evidence of Respondents Witness - Mr A

• He arrived in the pub between 8pm and 9pm on 17 October 2001
• He regularly drinks in MacMathunas and knows the barstaff to see.
• He was joined by two friends and they all sat at the bar.
• There were a group of men near him who were very noisy and were continuously "shouting over each another"
• His two friends left him to sit somewhere else.
• He decided to stay at the bar a to finish his drink
• He realised from observing Nancy Slevin that she was becoming increasingly nervous about the situation.
• He remembers Breda McMahon coming down and, after a while, asking the men to leave
• At that point the men became abusive
• He recalls asking the men to "cool it"
• Michelle Feighery, who he did not know at the time, then approached the men and said to them "Don't leave , stay here"
• She then approached him, and while passing by, digged him in the ribs
• Mr A believes this was because she had heard him asking the men to be quiet
• Ms McMahon advised him not to get involved any further

Evidence of Respondents' Witness - Mr Peter Ryan, Hotelier

• Mr Ryan runs a Hotel close to MacMathunas
• On 17 October 2001, Breda McMahon called to his hotel between 9pm and 10 pm saying that she was worried because " a few lads were getting loud" in her pub and that she had called the Gardai
• Ms McMahon appeared fairly distressed and asked him to accompany her back to the pub
• She said that there no male staff on duty and that she was worried about the situation
• Mr Ryan accompanied Ms McMahon to the pub and they both waited outside until the Gardai arrived
• On their arrival, Mr Ryan returned to the hotel. He did not go into the pub at any stage

Evidence of Respondents' Witness - Mr Willie O'Reilly

• Mr O'Reilly has worked in the pub on a part-time basis previously.
• He was not present on 17 October 2001
• The pub does not discriminate against Travellers and a number of Travellers drink in the pub
• Ms McMahon is fairly strict in running the pub and has asked people to leave before for shouting and arguing
• Mr O'Reilly does not recall people being asked to leave simply for "loud voices"

Evidence of Respondents' Witness - Mr John Leahy

• Mr Leahy knows the McMahons well and has acted for them in a number of property transactions
• He was not present on 17 October 2001
• The pub is run strictly and efficiently by Ms McMahon
• Mr Leahy is not aware of any discriminatory policy against Travellers and has seen Travellers being served on the premises on a number of occasions

Evidence of Garda Des Bell

• Garda Bell and another Garda were sent to the pub following a report of a disturbance
• He had been unaware that Travellers were involved until one of the gentlemen, Mr William Keenan, identified himself as a Traveller
• Ms McMahon told him that she had asked the gentlemen to leave but they had refused. He also recalled her saying that one of the group had caused trouble before
• He spoke to Mr Keenan Snr and another man outside the pub
• Mr William Keenan informed him that neither he nor his friends "had caused any hassle" and that he wanted the Garda to note that in his report.
• The two Travellers whom Garda Bell met were clean cut and did not appear drunk.
• He had never met them before and did not know they were Travellers until Mr Keenan told him so
• The two Travellers then left quietly without causing any trouble
• Ms Feighery then came out and claimed that she had also been asked to leave and that this constituted discrimination.
• Garda Bell noted her complaint in his notebook
• Ms McMahon made no reference to having asked Ms Feighery to leave

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 she was discriminated against because of her association with members of the Traveller community, contrary to Sections 3(1)(b) of the Equal Status Act, 2000 in being asked to leave MacMathunas on 17 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 Michelle Feighery's complaint is based on the allegation that she was asked to leave MacMathunas Pub on 17 October 2001 because she associated with the Keenan group, who had been refused service because they had been recognised as Travellers. Section 3(1)(b) of the Equal Status Act 2000 states that discrimination shall be taken to occur where
" (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not associated is, has been or would be treated, and
(ii) similar treatment of that other person on any of the discriminatory grounds would ... constitute discrimination"
Ms Feighery is, therefore, claiming that she was discriminated against under Section 3(1)(b) of the Equal Status Act 2000. because of her association with individuals covered by a discriminatory ground.

7.4 With regard to (a) above, Ms Feighery has satisfied me that she was asked to leave MacMathunas on 17 October because she associated with a group of Travellers on the night. In relation to (b), the respondents accept that the complainant was asked to leave because of her involvement in an incident, which involved Travellers. To determine whether a prima facie case of discrimination by association exists, I must, therefore, consider whether the treatment afforded the complainant on 17 October was due to her involvement in a situation where Travellers were being discriminated against.

7.5 On considering the evidence before me, I find the following factors to be the most compelling and persuasive

• Evidence shows that the Keenan group were probably talking loudly amongst themselves but there is no evidence to suggest that they were misbehaving or that any of them had drink taken already.
• The respondents state that it is policy to give an initial warning to customers who appear to be getting out of hand. It would appear, however, that no such warning was given in this case.
• Nancy Slevin has stated that Mr A had already begun to get involved with the Keenan group before she decided to ask Mrs McMahon to come down to the bar
• Ms McMahon states that she did not recognise the Keenan group as Travellers until after she had refused them. On the other hand, her husband, Noel McMahon has stated that he has known the Keenan family to see for years and that he was aware of their Traveller identity.
• There is general agreement that Mr A had a lot of drink taken and was very abusive towards the Keenan group. Ms McMahon has admitted to being "disgusted" with Mr A for interfering in the situation. Ms McMahon said that she told Mr A to "mind his own business" but allowed him to remain on the premises
• Ms McMahon said that she chose to ask the Keenan group to leave because they had been "talking loudly" amongst themselves and "acting strangely". She did not say, however, what she meant by "acting strangely"..
• Ms McMahon said that she chose to ask Michelle Feighery to leave the premises for encouraging the Keenan group to stay and because she had got involved with Mr A
• Apart from Mrs McMahon and Mr A himself, no one else's testimony supports the allegation that Ms Feighery poked Mr A in the ribs.
• Both Ms Feighery and Ms B have stated that, when being asked to leave, Mrs McMahon specifically accused Ms Feighery of bringing Travellers into the pub.

7.5 Having deliberated on the above points, it seems clear that Mr A played a major part in the events leading up to the decision to refuse service to the Keenans. Evidence indicates that he had already gotten involved with the Keenan group prior to Nancy Slevin deciding to summon Mrs McMahon. However, Mr A was treated more favourably on the night than either the Keenan group or Ms Feighery, as he was allowed stay while the others were all asked to leave the premises. Having considered the evidence before me as to the behaviour of all those involved, I find that I have not been provided with any reasonable explanation as to why Mr A was permitted to remain on the premises and the complainants were not. While Mr A was regarded as a regular, Ms Feighery was also a frequent visitor to the pub. While it is accepted that Mr A had become very abusive, the Keenan group only appear to have been talking loudly amongst themselves. Yet, on the night, Mr A was not asked to leave the premises while the others were. Mrs McMahon contends that she did not recognise the Keenan group as Travellers until after she had decided to refuse them service. Based on the evidence before me, particularly that of her own husband, I find this difficult to accept. Having deliberated on all the evidence before me, I consider that, on the balance of probabilities, Ms McMahon did recognise the Keenan group as Travellers on seeing them. I have also formed the opinion that this recognition prompted her to ask them to leave without affording them the usual warning given to other customers.

7.6 On the basis of the above, I am satisfied that the actions of Ms Breda McMahon on the night of 17 October 2001, in asking the Keenan group to leave the premises, were guided by the fact that she recognised them as Travellers and, accordingly, I have found that her actions constituted discrimination against the Keenan group on the Traveller community ground under the Equal Status Act 2000 (DEC-S2003-048/050 refers).

7.7 In Michelle Feighery's case, it would appear that she did get involved to some extent in the events which followed the refusal of service to the Keenan group. From the evidence available to me, it would appear, however, that her involvement was certainly not on the same scale as that of Mr A and, more importantly, only began after the refusal of service to the Keenan group, which I have found to be discriminatory.

7.8 In comparing Ms Feighery's and Mr A's situations on the night, the evidence shows that Mr A had more drink taken, that Mr A was more vociferous than Ms Feighery and that Mr A got involved in the situation long before Ms Feighery did. Yet, it was Ms Feighery, who had never personally caused any trouble in the pub previously, who was asked to leave.

7.9 Having deliberated on this matter at length, I consider that, on the balance of probabilities, the reason Ms Feighery was asked to leave the pub was because she had associated with a group of Travellers who had suffered discrimination. I also consider, from the evidence before me, that Mrs McMahon did make reference to Ms Feighery associating with Travellers, when she was asking Ms B and herself to leave.
I, therefore find that Ms Feighery suffered discrimination by association contrary to the provisions of the Equal Status Act 2000, on the night of 17 October 2001.

8 Decision
8.1 I find that the complainant has established a prima facie case of discrimination by association on the Traveller community ground in terms of sections 3(1)(b) 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 respondents have failed to rebut the allegation.

8.2 Accordingly, I find in favour of the complainant and order that the respondents pay Michelle Feighery the sum of €1200 for the humiliation, loss of amenity and stress suffered by her.

Brian O'Byrne
Equality Officer
4 June 2003