Patrick Anthony McCarthy (represented by the Traveller Visibility Group ) V Streets Nite Club, Grand Parade Hotel Cork
1. Dispute
1.1 This dispute concerns a complaint by Patrick McCarthy that he was discriminated against, contrary to the Equal Status Act 2000, by the management of Streets Niteclub, Cork. The complainant maintains that he was 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 This dispute concerns a complaint by Patrick McCarthy that he sought access to Streets Niteclub on Sunday night 9 September 2001 and was refused admission by the doorman.
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 arrived intoxicated and that was the sole reason that entry was refused.
4 Delegation under the Equal Status Act, 2000
4.1 This 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 Evidence of Complainant
- Patrick McCarthy was never in Streets prior to 9 September 2001
- On Sunday 9 September 2001, he left his home at 8.30 with his brother and a cousin
- They went to a pub in Glanmire where Mr McCarthy says he had 4 pints
- Later that evening the group decided to go to a nightclub in Cork
- They were refused admission to the first club they tried for being "under 25"
- Around midnight they went to a fast food restaurant and had something to eat
- At 12.30 am on Monday morning they sought admission to Streets
- There were 2/3 doormen there who told them that they could not let them in on "the boss's orders"
- Mr McCarthy cannot remember whether Bill Casey was one of the doormen
- When they asked for the names of the doormen, these were refused
- When a Garda arrived, they explained their position and asked him to get the names of the bouncers for them. The Garda said that he could not do this.
- The Garda suggested to them that they should see a solicitor if they felt they had been discriminated against
- They then asked the Garda whether he would "go as witness" for them. He agreed and gave them his name
- Mr McCarthy did not return to Streets for 7/8 months after the incident
- He has since been in Streets a number of times and has had no problems getting served
Evidence of Respondent - Mr Bill Casey, Owner
- Streets has been operating as a bar/nightclub for 15 years
- Mr Bill Casey took over ownership 6 years ago
- The nightclub is open from 11 pm to 2 am most nights
- The club provides a range of entertainment from live music to DJs
- Clientele are of all age groups and from all walks of life
- Staff are fully trained by the Irish Institute of Security. This training includes a module on the Equal Status Act
- Mr Casey has always believed that everyone should be treated equally
- Mr Casey would only refuse admittance to someone who was intoxicated or whom he considered a danger to themselves or others
- Mr Casey has a number of foreign nationals and Travellers working for him
Streets has many Traveller customers - Mr Casey has always treated Travellers well. He says that he respects them and they respect him.
- Mr Casey has always had an excellent relationship with Travellers and has never had any trouble with them in his club.
- Mr Casey himself was on the door on the night of 9 September 2001.
- He recalls Mr McCarthy's group arriving
- Mr McCarthy himself approached the door first. His speech was slurred and Mr Casey's immediate impression of Mr McCarthy was that he was extremely intoxicated
- As he was concerned that Mr McCarthy might be a danger to himself or others if admitted, Mr Casey told him he was not being admitted
- Mr Casey especially remembers the incident because of what happened next.
- Instead of leaving, the three men withdrew to a telephone kiosk where, after a short conversation, they came back to the entrance
- One of the group instructed Mr McCarthy to lie on the ground and announced that they had seen him "get a belt" from a doorman
- Because Mr McCarthy continued to lie on the ground, Mr Casey decided to call the Gardai
- Garda Pat Nunan arrived shortly afterwards and Mr Casey briefed him on what had occurred
- Mr Casey then stepped back and left the Garda to deal with the situation
- September 9 was the only occasion that Mr Casey recalls Mr McCarthy being refused admission to Streets
- On a point of interest, Mr Casey stated at the Hearing that, subsequent to the incident on 9 September, he had heard from other publicans of similar incidents occurring around the same time in Cork where individuals had feigned assaults outside pubs or clubs. Mr Casey said, however, that he had no evidence to link the complainant's group to these other incidents.
- Mr McCarthy has been in Streets many times since, and Mr Casey has had no problem in serving him
- In response to the complainants question as to why Mr Casey had not responded to the notification sent to him under the Act, Mr Casey said that his refusal was well grounded and because, on the night, the three men had been "treating it as a joke"
- Mr Casey believed that one of the doormen would have written a report of the incident in the Incident Report Book and undertook at the Hearing to forward same to the Equality Officer for inspection.
Note Some weeks after the Hearing, the respondent submitted a copy of the 9 September 2001 extract from the Incident Report Book written by another doorman. On reading the report, I noted that it accurately reflected Mr Casey's recollection of the events of 9 September 2001. From my examination of the extract, I have no reason to doubt its authenticity. A copy of the report was passed to the complainant for any observations that he might have but none were submitted within the time allowed.
Evidence of Garda Pat Nunan
Note The complainant asked that Garda Pat Nunan be called as a witness. Garda Nunan was identified by the complainant as the Garda who arrived at Streets on the night of 9 September 2001
- Garda Nunan came on duty at 10 pm on Sunday 9 September 2001
- Around 12.30 am he was instructed to go to Streets as there was "an incident at the door"
- On arrival, he saw one man on the ground. He is almost certain that it was Patrick McCarthy.
- Mr McCarthy appeared drunk.
- Mr McCarthy said that he had been "assaulted by bouncers". Mr McCarthy could not identify which bouncer.
- Garda Nunan checked him for injuries but found no evidence that he had been attacked
- He spoke to Mr Bill Casey who told him that the group had simply been refused admission and that no assault had taken place
- He asked Mr McCarthy to get up. Initially he would not, but did so after a few minutes
- Mr McCarthy asked Garda Nunan to get him the names of the bouncers. Garda Nunan told him this was not his duty and that he should contact a solicitor in this regard
- His friends also remarked that Mr McCarthy had been "struck by bouncers". Garda Nunan did not think they were serious, however, as they appeared to be laughing about it. He got the impression that they were also intoxicated.
- Garda Nunan asked Mr McCarthy whether he wanted to make a statement. He replied that he would.
- As Garda Nunan considered that Mr McCarthy had "quite an amount of drink taken", he decided not to take a statement then but invited Mr McCarthy to call to the Garda Station the next day. Mr McCarthy never called to the Station to make a statement.
- Garda Nunan did not make a written note of the incident as he was satisfied that no assault had taken place
- He is satisfied, however, that the incident he describes did take place on the night of Sunday 9 September 2001.
- Garda Nunan does not recall being involved in a second such incident outside Streets. If he had been involved and someone had been taken away in an ambulance, he would have taken notes.
Further Evidence of Complainant
- On hearing the respondents and Garda Nunan mentioning at the Hearing that they recalled Mr McCarthy lying on the ground on 9 September, Mr McCarthy referred to another night, about two months later, when he, his brother and cousin tried again to get into Streets.
- On that occasion his cousin and himself were stopped by the doormen. His brother, however, managed to get past but was stopped inside the entrance.
- At that point, Mr McCarthy said that his brother was hit on the head and thrown back out resulting in him collapsing on the ground outside Streets.
- The Gardai arrived, an ambulance came and his brother was taken to hospital. The complainant did not accompany his brother to the hospital and believes that he was discharged a few hours later.
- No action was taken by the complainants brother against Streets in connection with the incident
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 admission to Streets Nightclub on Sunday night 9 September 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 DECS2002- 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 complainant 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 admission on Sunday night, 9 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 9 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
In this particular case, I am faced with two conflicting versions of events. The complainant states that his group were refused admission for no reason, that they were not drunk, and thatthey reported the matter to a Garda who agreed to act as a witness for them. They say that they left soon afterwards without further incident.
The complainant states that the incident referred to by the respondents, where a man was on the ground, was a totally separate incident involving the complainant's brother.
The respondents, however, state that it was definitely on the night of Sunday 9 September 2001 that the "man on the ground" incident occurred, that it was Patrick McCarthy who was on the ground, and that he was intoxicated. To assist me with my deliberations, I find that I must, therefore rely heavily on the evidence of the only independent witness available, Garda Pat Nunan.
7.4 Key Points and Factors
In deliberating on the case be before me, I consider the following factors to be the most compelling and persuasive:
At the Hearing of the case, the respondent came across as a very sincere and genuine individual, with a very supportive attitude towards Travellers. The respondent's attitude towards Travellers on his premises was supported by Garda Nunan's testimony and is also supported by the fact that the complainant himself admits to having been served without any difficulty in Streets since 9 September 2001.
At the Hearing, the complainant stated that he had not revisited Streets for 7/8 months after 9 September 2001. However, on hearing evidence about the "man on the ground" incident, he was able to recall that such an incident had occurred 2 months after 9 September 2001. This disclosure damages the complainant's credibility, in my opinion.
Probably the most persuasive factor in this case, however, is that the complainant himself has said that he asked the Garda involved on the night of 9 September 2001 to appear as a witness for him and that he obtained his name from him specifically for this purpose. Prior to the Hearing, the complainant himself produced the name of Garda Nunan as being the Garda to whom he spoke on Sunday night 9 September 2001 and who he asked to be his witness.
In identifying Garda Nunan, the complainant is, therefore, substantiating the evidence given by both Mr Casey and Garda Nunan that Garda Nunan was present on the night. On the basis of this information, I am, therefore, satisfied that Garda Nunan was the Garda who arrived at Streets Niteclub on Sunday night 9 September 2001. At the Hearing, Garda Nunan gave a very credible and plausible account of what happened outside Streets on 9 September 2001 and I have no reason to doubt or query the evidence he has presented to me. I am, therefore, satisfied, on the basis of Garda Nunan's evidence, that Mr McCarthy arrived outside Streets on 9 September 2001, having consumed a lot of drink, and that this was the reason he was refused admission to the club.
7.5 In considering the above, I am satisfied that a genuine non-discriminatory reason existed for Mr McCarthy's non-admission to Streets on 9 September 2001 and that, while reference may have been made to his Traveller identity, that he was not treated less favourably than a non-Traveller would have been treated in similar circumstances. I, therefore, consider that no discriminatory treatment has been proven in this instance.
8 Decision
8.1 I find that a prima facie case of discrimination has not been established by the complainant 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 respondent.
Brian O'Byrne
Equality Officer
28 March 2003