Michael & Margaret McCarthy, Cork Represented by Noonan Linehan Carroll & Coffey, Solicitors on behalf of the Equality 'Authority V Bowlers Rest Bar, Cork Represented by Eoin C Daly, Solicitors
Mr. McCarthy and Mrs. McCarthy referred claims to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Dispute
This dispute concerns a claim by Mr & Mrs. McCarthy that they were discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of their membership of the Traveller community in that on 30/12/00 they were denied service in the respondent's premises. The respondent does not deny that service was not provided, but states that it was because Mr. McCarthy is barred.
3. Summary of the Complainant's case
Mr. and Mrs. McCarthy entered the Bowler's Rest on 30/12/00 and were told that service was restricted to 'Regulars only'. As the McCarthys perceived this as the usual reason given to Travellers on refusal, the McCarthys felt that the refusal was based on their membership of the Traveller community.
4. Summary of the Respondent's Case
Mr Murphy has known Mr. McCarthy well over an extended period. Mr. McCarthy has previously been drunk to an unacceptable level in his premises and is barred on that basis.
5. Evidence of the Parties
5.1. Complainants Evidence Mr. McCarthy
- On 30/12/00 Mr. McCarthy had been out for the evening with his wife.
- He had never been in the Bowler's Rest before but knew the owner from passing outside.
- When he ordered he was told "locals only". Mr. McCarthy subsequently amended this to "regulars only".
- He felt that the refusal was based on his membership of the Traveller community because it was the response that Travellers are normally given.
- Since Mr. McCarthy had never been in the bar before he had never had any previous difficulties with the owner.
- Mr. McCarthy asked the barman if there was a reason and was told that there was none. At that point he just turned and walked out with his wife.
- Mr. Murphy was present during this refusal.
- Mr. McCarthy denied being on the premises the previous evening.
- Before entering the Bowler's Rest, Mr. McCarthy had come from a number of other bars, having been refused there also.
Mrs. McCarthy, Complainant
- Mrs McCarthy supported the evidence given by her husband.
- She did not order on her own behalf.
5.2. Respondent's Evidence
Mr Denis Murphy, Respondent
- When people are barred it is normally permanent since you must have control of your own house. If you let people back in you lose credibility, even though it may lose custom.
- Mr Murphy knew Mr. McCarthy but not Mrs. McCarthy. She is welcome in his premises anytime. Mr. McCarthy is barred.
- The Bowler's Rest is located in the most integrated part of the city. Members of the Traveller community and refugees form a large proportion of his clientele. If he did not serve minorities he would not have any customers. Occasionally there are no Travellers in at night but normally there would be four or five. A brother of Mr. McCarthys comes in every week with his partner.
- Mr. Murphy was not present at the time of the refusal. He had worked all that day until 7pm. That was the only night he could go out with his wife over the Christmas holidays. The following night was New Years Eve.
- Normally if he is needed when he is not on duty he will get a phone call. Otherwise all incidents are recorded in a log. When on duty himself he does not record incidents. Therefore, while the refusal is recorded, the incident involving the complainant on the previous day is not.
- The log entry is as follows: "Denis, the chap you put out yesterday came in with a woman. I said regulars only as I did not know why you put him out. Jason". The entry was the only item recorded on that page.
- Mr Murphy stated that Mr. McCarthy had been refused on previous occasions.
- On 29/12/00 Mr Murphy left the premises for approximately five minutes and on his return he found Mr. McCarthy on the premises and that he had been served. He noted that Mr. McCarthy had taken "a good sup" from the pint. He waited until Mr. McCarthy went to the toilets and then followed him. He said "Michael you know I don't serve you". Mr. McCarthy replied "I know but I tried."
- They shook hands and Mr Murphy guided him out as he was unsteady on his feet.
- Mr. Murphy knows Mr. McCarthy for years. Mr. McCarthy had commiserated with him at his father's funeral They occasionally drank together in the pub McCarthy (2) v Bowler's Rest Bar across the road. He stated that Mr. McCarthy would be fine for months, not in regularly and would know when to stop drinking. Then he would come in and not stop. He was not good at holding his drink.
- When Mr. McCarthy was drunk he would be drunk to an unacceptable level, falling against people and tables.
Sharon O'Connell, Witness for the respondent
- Ms O'Connell is a neighbour of Mr. Murphy.
- Ms O'Connell confirmed that Mr. Murphy and his wife were with her on the evening of 30/12/00.
Tara Cullinane, Witness for the Respondent
- Ms Cullinane worked as a bar-person for Mr Murphy.
- Members of the Traveller community are always served.
- She has seen Traveller groups in for functions such as a child's confirmation, and during Cheltenham.
- Mr. McCarthy was not a regular, although she thought she knew him from the district.
- Ms Cullinane could not be sure if Mr. McCarthy had been served while Mr. Murphy was on the premises. She did recall that Mr. McCarthy was "a bit messy with drink".
- She had left with Mr Murphy on 29/12/00. While he gave her a lift home someone else stood in.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant/s was/were discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated" Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not." Section 5 (1) states that "a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ". Section 15(1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought". 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) Applicability of the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances. McCarthy (2) v Bowler's Rest Bar
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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
7. Conclusions of the Equality Officer
I am satisfied, and the respondent agreed, that Mr. and Mrs. McCarthy are members of the Traveller community satisfying 6(a) above. Both parties agree that a refusal of service to Mr. McCarthy took place on 30/12/00 satisfying 6(b) above. While Mrs. McCarthy did not order and receive a refusal in her own right, she was not served because of her association with Mr. McCarthy.
In order to establish a prima facie case and satisfy 6(c) above, it must be possible to show that on 30/12/00 the respondent treated Mr. and Mrs. McCarthy less favourably than he would have treated a non-Traveller in the same or similar circumstances. The treatment received by Mr. and Mrs. McCarthy arose as a result of an incident the previous night. Mr. McCarthy denies that any incident took place the previous evening. He also denies being in the Bowler's Rest before the date of the refusal. I find the respondent's claim that he knows the complainant well and over an extended period more compelling than a claim that Mr. McCarthy knows the respondent by passing the door of the premises. On the basis of the evidence presented to me at the hearing, I am satisfied that on the balance of probabilities, Mr. McCarthy had been in the bar on previous occasions and had been barred. I am also satisfied on the balance of probabilities that Mr. McCarthy had been in the bar the evening before the refusal and had been escorted from the premises. The refusal on 30/12/00 took place, not because Mr. McCarthy is a Traveller, but because the barman had seem him being escorted from the premises the previous evening. In a McCarthy (2) v Bowler's Rest Bar premises where a person who falls to be barred is barred permanently, this appears to be entirely within the normal practice.
Therefore I am satisfied that the refusal did not take place because Mr. McCarthy is a member of the Traveller community, but because he had previously been barred. Since I am satisfied that a non-Traveller who had been barred would have been treated in a similar manner, Mr. McCarthy has not established that he was less favourably treated, or that any such less favourable treatment was based on his membership of the Traveller community. Therefore he has failed to establish a prima facie case of discrimination on the Traveller community ground. It follows that the refusal of service to Mrs. McCarthy because of her association with Mr. McCarthy was also not based on his or her membership of the Traveller community.
8. Decision, DEC-S2003-53
I find that the complainant Michael McCarthy was not discriminated against on the Traveller ground by the respondent in accordance with Section 3 of the Equal Status Act, 2000 and in terms of section 5 of that Act, in respect of the incident on 3/01/01.
9. Decision, DEC-S2003-54
I find that the complainant Margaret McCarthy was not discriminated against on the Traveller ground by the respondent in accordance with Section 3 of the Equal Status Act, 2000 and in terms of section 5 of that Act, in respect of the incident on 3/01/01.
Bernadette Treanor
Equality Officer
5 June 2003