DEC-2003-030-033 Full Case Report

Mary Mongan, Edward Mongan, Patrick Reilly & Bridget Reilly (represented by Ms. Mary Honan, B.L., acting on instructions from The Equality Authority) v Kingston Inns Limited t/a Downey's Pub, Dublin (represented by Mr. John Sweetman, B.L., acting on instructions from Young & Co. Solicitors)

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 delegated these complaints to me, Dolores Kavanagh, 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.

1. Dispute
1.1 This dispute concerns complaints by Mary & Edward Mongan and Patrick & Bridget Reilly that they were discriminated against by the respondent 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 The complainants state that the respondent refused further service to them and ejected them from his premises on the evening of 16 January, 2001 because they were identified by the respondent's staff as being members of the Traveller community.

3. Summary of Respondent's Case
3.1 The respondent maintains that he has a duty to his customers to ensure that his premises is a safe and well-run establishment. In order to do so he states that the complainants were asked to leave the premises because it was considered that one of them was causing a disturbance. The respondent maintains that his decision constituted actions which are (i) a requirement of other enactments in accordance with Section 14 of the Equal Status Act 2000, (ii) not discriminatory in accordance with section 15(1) of the Equal Status Act 2000, and (iii) taken "in good faith" in accordance with Section 15(2) of the Equal Status Act 2000.

4. Evidence Provided by the Parties
4.1 Complainants' Evidence
Written submission on behalf of the four complainants by the Equality Authority.

Complaint
The claimants are all members of the Traveller community. They allege that they were refused service in Downeys Bar on the 16th of January 2001 because of their membership of the Traveller community and were thereby discriminated against contrary to Section 5 (1) of the Equal Status Act 2000 in terms of Section 3. Background to Complaint
Patrick Reilly, Bridget Reilly, Edward Mongan and Mary Mongan entered Downeys pub on the 16th Jan 2001 at approximately 9 pm. The Reillys had invited the Mongans who are their brother and sister-in-law out for the evening. When they entered the pub, three of them sat at a table while Patrick Reilly went to the bar to order drinks. He was served by a barman, who he later found out was the assistant bar manager and whose name was John Reilly.
When they had finished these drinks, Edward Mongan ordered a second round of drinks from a member of the floor staff and these were served at their table. John Reilly came over to the table a few minutes later and started wiping the table and looking purposefully at the complainants. He then walked away. Just before 10pm Patrick Reilly signalled to the same member of the floor staff to order another round. He tried to attract her attention but she appeared to be ignoring him so he went up to the bar again. This time, John Reilly said he would not give them any more drink. When Patrick Reilly asked why, he was told it was because they were not regulars. Patrick Reilly asked the barman how long he had been working there and was told "about 20 years" Patrick then said that if he was there that long he should have known that

Written submission from Equality Authority (continued)
Patrick Reilly and his companions were not regulars in the first place and asked why he had served them at all if it was their policy not to serve new customers. John Reilly replied that it was nothing to do with him and it was "the manager's orders". Patrick Reilly asked to speak to the manager but was told he was not there, that he was down the road. Patrick Reilly again said he would like to speak to him. John Reilly went out and was gone for 10-15 minutes. When he returned, he continued just walking about the pub and did not come over to Patrick Reilly. Patrick Reilly had to call him over. John Reilly said that the manager would not come back to the pub. Patrick Reilly said that he would not leave until he spoke to the manager. When John Reilly said again that the manager would not be coming in, Patrick Reilly said he wanted the Gardai called to witness what was happening.
Patrick Reilly then phoned the Gardaí and Garda Declan Walsh and another Garda arrived some time later. The Gardaí watched while the complainants were asked to leave the premises and did so. It was then approximately 10.30 pm.

Alleged Discrimination
It is submitted that the refusal to provide service to the complainants constitutes less favourable treatment on grounds of membership of the Traveller community and contravenes Section 5 of the Equal Status Act, 2000 in terms of Section 3 of that Act.
Section 5(1) :
"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 3(1):
"Discrimination shall be taken to occur where -
(a) on any of the grounds specified in subsection (2) (in this Act referred to as "the discriminatory grounds") which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated."
The definition of Traveller community is contained in Section 2 of the Act:
"Traveller community" means the community of people who are commonly called
Travellers and who are identified (both by themselves and others) as people with a 8 shared history, culture and traditions including, historically, a nomadic way of life on the island or Ireland.
The complainants are all members of the Traveller community; this was known to the respondent and its agents at the time of the alleged discrimination and has never been disputed by the respondent.

Observations on respondent's submission
The complainants notified the respondent of their complaints on the 22nd of January 2001 and in the absence of a response, they proceeded to lodge their complaints with the Office of the Director of Equality Investigations on the 13th of July 2001. The Equality Authority wrote to Mr. Maurice Mitton, on the 11th of October 2001, repeating the allegations contained in the complaints. A response dated 27th November 2001 was received from the solicitors for the respondent . (copy submitted). This letter stated that the respondent "has no argument with the complainants". The letter also makes reference to section 15(1) and 15(2) of the Equal Status Act 2000 but gives no indication of any specific alleged relevance of these provisions to the complaints in question.
Two further statements were received from the respondent, one a statement by John Reilly sent to the Equality Officer and the second, a submission on behalf of the respondent to the Equality Officer and dated 5th June 2002 (copies submitted). In his statement, John Reilly states that "the four people were served a total of four rounds of drinks from about 8.30 by myself and Mr. Jeff Curley." However, the submission forwarded by the solicitors for the respondent states at paragraph 3.
"Three rounds of drinks were ordered and there was no difficulty with the orders". The complainants assert that neither of these contradictory versions is accurate and that only two rounds were served to them. The complainants entered the pub around 9pm The respondent claims in its submission that Patrick Reilly was refused drink "because the group were not regulars and were drinking very fast and had become unsteady". It is submitted that no such charge would be levelled at other non-Traveller customers who had two drinks over a period of an hour.
In the submission from the respondent's solicitors it is stated that Patrick Reilly dealt with John Reilly in such a way that would be deemed as "technically an assault". Despite this allegation, it is accepted by the respondent that it was Patrick Reilly who insisted on the Gardaí being called. It is not credible that a customer would have summoned the Gardaí if he had been behaving in the manner alleged by the barman or if he or any of his party were drunk or unruly. The attached copy reports from Garda Declan Walsh make it quite clear that there was no suggestion of disorderly conduct by the complainants or any of them on the night in question and that the group "left quietly" (copy submitted).

Written submission from Equality Authority (continued)
There are further substantial inconsistencies between the description of the alleged assault in John Reilly's statement and that in the later submission on behalf of the respondent. There is also complete contradiction in relation to the calling of the Gardaí. John Reilly in his statement says that "the Gardaí then approached him and told them to leave". Garda Walsh states categorically in his second report (dated 16th August 2002) that he did not ask the group to leave. This and other discrepancies outlined above must place in substantial doubt the credibility of the respondent's evidence.
The respondent's submission at paragraph 12 makes reference to section 15(2) of the Equal Status Act in terms of the "ultimate discretion" afforded a publican. It is submitted on behalf of the complainants that the requirement of good faith contained in the sub-section has not been met in this case. The meaning of "good faith" in this section has been expounded upon in a number of decisions by Equality Officers, most recently in DEC-S2002-097/100 where the Equality Officer cited the decision of Judge McMahon in the Circuit Court appeal hearing of Griffin -v-Mary B. and stated that a decision (to refuse service)
"cannot be based on prejudice against any of the protected grounds". In the instant case, there is no other convincing or consistent reason given for the refusal of service. The initial excuse that the complainants were "not regulars" can hardly be accepted as a valid reason for refusing service in a large urban pub such as Downeys. It must therefore be seen only as "a ploy to deter people who for some reason they do not approve of". (DEC-S2001-021).

Oral evidence provided at Hearing
Mr. Patrick Reilly, Complainant
Mr. Reilly stated that the position was as stated in the written submission made on behalf of the complainants by the Equality Authority and added that:-

• He and the other three complainants had gone to Downey's pub direct from home. They had no drink taken earlier in the evening. They arrived in the pub at around 9.00p.m. John Reilly, the barman, had stated to him that it was on manager's orders that he was not to be served as neither he nor his companions were regulars in the pub.
• On entering the pub at around 9.00p.m. Mr. Reilly's three companions had gone to sit down while he ordered drinks at the bar. He was served by John Reilly, barman. A second round of drinks was ordered, by Mr. Mongan, from a member of the floor staff and this was served to the group. No further drink was served to the group.
• No member of the group was aggressive in any way in the course of the evening. When refused further service by John Reilly, the barman, he had insisted on speaking with the manager, as he had been told that the manager had given instructions not to serve the group, but he was not aggressive with the barman in any way.
• Mr. Reilly, the barman, had requested that the entire group leave the premises and was insistent in this.
• Between the second and third rounds of drink the group of complainants had been having a normal conversation. The pub is pleasant and Mr. Reilly, complainant, is a member of a nearby club. Neither of the men in the group had left the table at any time in the course of the evening. The ladies had gone to the bathroom once.
• Mr. Reilly, complainant, had been in the premises once previously with his wife and another couple and had not encountered any problems.
• On the night of 16 January, 2001, there were two doormen on duty who were very polite and the complainants had no difficulty getting into the premises. These doormen should know the regular patrons and made no attempt to stop the group entering the premises.
• Mr. Reilly stated that his demeanour on the way to the bar to order a third round of drinks was fine i.e he was not staggering or unsteady as was implied by the barman.
• John Reilly, the barman, had called him aside to speak with him and tell him that he would not be served further, but he had not indicated that this was for any reason other than that the members of the group were not regulars.
• Mr. Reilly, complainant had not "barged past" two other customers at the bar when he went there to seek service.
• John Reilly, the barman, had indicated to Mr. Reilly, complainant, in the course of their conversation that he was the acting manager on the night in question but the complainant insisted on speaking with the manager who had instructed that the group was not to be served. He, the complainant, had been informed by John Reilly, the barman, that the manager was in another premises (named) and would not leave there to come and speak with him.
• Mr. Reilly, complainant, was not invited by the barman to return to the premises on a later occasion and had never stated to the barman that he was a Traveller because he did not think it was an issue at the time.
• The barman, John Reilly, had seemed very tense when the complainant had approached him to order the third round of drinks. He had not appeared tense previously.
• The complainant had not raised the issue of regular v non-regulars patrons when refused service. This issue had been raised by the barman on the night in question when he refused service on the basis that the group were not regulars in the pub. While he, the complainant, had been very irritated at the reason given for the refusal of service he had not become aggressive with the barman and had not been verbally abusive in any way to the barman.
• The complainant, Mr. Reilly, agreed that the barman had not, at any point, told him or the other members of the group that the complainant's companions could not have drink.
• John Reilly called the Gardaí and they arrived. The Gardaí waited while John Reilly then asked the entire group to leave the pub and they did so quietly.

Ms. Bridget Reilly, Complainant
Ms. Reilly did not hear the conversation between her husband, Patrick Reilly and the barman but stated that :-

• While the group was drinking at their table, after the second round of drinks had been served to them, John Reilly the barman had come out from behind the bar and had approached their table. He proceeded to clean their table and was staring at them very hard in the course of doing so. Ms. Reilly felt that there was no need for the barman to approach them in this manner as there were floor staff going around the premises. She felt that he had done so specifically to get a close look at the group.

Mr. Edward Mongan, Complainant
Mr. Mongan stated that:-

• While he was not privy to the conversation between Patrick Reilly, complainant, and John Reilly, the barman, he had looked up at the bar when the conversation was taking place and anticipated, based on the length of time that the conversation was taking, that the group were going to be refused service. He had said this to his wife, Mary Mongan and Ms. Reilly, (both of whom affirmed that this was the case).

Ms. Mary Mongan, Complainant.

• Ms. Mongan did not hear the conversation between Patrick Reilly and John Reilly but confirmed the evidence as presented by the other complainants as being consistent with what she experienced/witnessed.

Ms. Mary Honan, B.L., acting on instructions from the Equality Authority
Opening arguments at Hearing

• The case for the complainants is as set out in the submission made on their behalf by the Equality Authority.
• The complainants had established a prima facie case of discrimination. There was no conflict between the parties regarding the fact that service had been refused to the complainants, nor was any evidence provided by the respondent to show that non-Travellers would be treated in the same way, in the same or similar circumstances, as were the complainants.
• The respondent had provided no evidence that Section 15 (1) or (2) of the Equal Status Act applied in this case.

Closing Summary by Ms. Honan on behalf of the complainants

• The complainants were refused service because the respondent's staff were aware of their Traveller identity.
• It is necessary for a complainant under the Equal Status Act to establish that they are treated in a less favourable manner on the basis of one of the nine grounds under the Act. In this case the complainants received a lesser form of service and it is for the Equality Officer to infer the relationship between the lesser form of service and one of the prohibited grounds, in this instance the Traveller community ground.
• The Equality Authority has cited a number of relevant cases in its submission to the Tribunal, many of which deal with gender discrimination, but which are also relevant in the instant cases, particularly Wallace v South Eastern Education and Library Board (1980 IRLR 193). In that case findings were made on the basis of inferences raised, and the raising of inferences, which the Equality Officer is entitled to do, is directly relevant in the complaints at hand.
• There was knowledge on the part of the respondent's staff of the complainant's Traveller identity. Even if this were not the case, inferences, as referred to above, can be raised in that regard.
• The respondent has given no bona fide reason or explanation for the refusal of service to the complainants.There is conflict between the written submission made by the respondent and the oral evidence adduced at Hearing on behalf of the respondent. This undermines the credibility of the respondent.
• Section 15 (1) of the Equal Status Act requires that the respondent show that a substantial risk of disorderly conduct had arisen in order to avail of the protection afforded by this section of the Act. The respondent had not established that such a risk existed and had stated that there was merely a potential for trouble. Neither had the respondent provided any evidence to show that Section 15(2) was applicable or that there was any threat to the peacable and orderly running of his establishment.
• The respondent's staff had made no report of any trouble to the Gardaí on their arrival and had simply stated to the Gardaí that they had asked the complainants to leave. When the barman asked the complainants to leave in the presence of the Gardaí they had done so quietly. This had been confirmed by the Gardaí, who had also confirmed that they had had no report from the respondent's staff of any type of assault by any of the complainants.
• The entire group had been asked to leave the premises, not just Mr. Patrick Reilly. The respondent's staff had made no attempt whatsoever on the night in question to clarify that service was only being refused to Patrick Reilly. When the Gardaí had arrived they were informed that a group of people, not an individual, had been asked to leave the premises.
• The respondent has no formal policy in relation to Equal Status matters and has allowed the staff of the pub to deal with customer service matters in an informal manner i.e. the issue of regulars v non-regulars in the respondent's premises. As the respondent himself had raised the latter issue in written submissions, the merits of such a policy must be taken into account.
• The submission made on behalf of the complainants is concerned with facts, not purely law, and the facts are what essentially must be relied on.

4.2 Respondent's Evidence
Written Statement by Mr. John Reilly, Barman.
Mr. Reilly stated that:-

• On the night of 16 January 2001 the four complainants were served a total of four rounds of drink from about 8.30 p.m. By Mr. Reilly and Mr. Jeff Curley, barman.
• At around 10.00 p.m one member of the group approached the bar counter. He was unsteady on his feet. Mr. Reilly left from behind the bar to talk to him and asked him if he could have a word with him in private.
• Mr. Reilly told the man that, in his opinion he had had enough to drink and if he were to take any more he could fall and injure himself or others around him.
• The man took offense to this and began to shout in Mr. Reilly's face that he had not had enough to drink and that he wanted another round before he left.
• Mr. Reilly again told the man that he had had enough to drink. The man kept shouting at Mr. Reilly and tried to grab his arm as he walked away. Mr. Reilly felt that he had to call the Gardaí as the man was becoming more aggressive towards him for not serving him.
• When the Gardaí arrived Mr. Reilly told them that he had asked a customer to leave because he considered he had enough to drink and he had become very loud and had tried to grab his arm.
• The Gardaí then approached the man and told him to leave.

Written submissions by Young & Co., solicitors acting on behalf of the respondent
Letter to the Equality Authority dated 27 November, 2001

• The respondent reserves the right not to serve intoxicating liquor to persons on his premises.
• The respondent did serve intoxicating liquor to the complainants and has no argument with the complainants.
• Section 15 (1) and (2) of the Equal Status Act 2000 provides for certain activities which are not discriminatory and in particular Section 15(2) allows action taken in good faith by the holder of a licence to preserve compliance with the Licensing Acts.

Written submission dated 5 June, 2002

• The complainants arrived at Downey's Public House at approximately 8.30 pm on the evening of 16 January, 2001 and were immediately allowed entry to the premises. There was no discrimination at point of entry.
• The complainants were not regulars but despite this there was no problem with entry to the premises.
• Three rounds of drink were ordered and there was no difficulty with the orders.
• Patrick Reilly then went up to the bar to order another round of drinks and he was refused by John Reilly, the barman (another barman called Jeff was also in attendance). Patrick Reilly demanded to see the manager who was across the road in another premises.
• The reason for refusing the next round of drinks was because the group were not regulars and appeared to be drinking fast, and had become unsteady. John Reilly, the barman, was 20 years a barman and knew his customers. He would treat the group as he would any of his other customers.
• Patrick Reilly complains that his group were humiliated by this experience, but it was he himself who had seen fit to call the Gardaí. The experienced barman sought to deal with the matter in a discreet manner which he does with all regular customers when refusing to serve alcohol.
• When he refused Patrick Reilly another round of drinks, John Reilly, the barman, did so by asking Patrick Reilly to come aside so that he could quietly tell him to come back the following evening if he wanted more drink.
• At this point Patrick Reilly grabbed John Reilly's wrist and put his face in John Reilly's, the barman's, face in a threatening manner. Such an action is technically an assault.
• John Reilly threatened to call the Gardaí, but in fact it was Patrick Reilly who insisted that they be called.
• Patrick Reilly stated that he was not leaving the premises until the Gardaí took statements.
• The Equal Status Act 2000 has a specific section which allows the proprietor of a public house ultimate discretion on whether to serve drink, particularly on the question of sobriety. (Section 15(2)).
• The Proprietor of the Licensed Premises, through his experienced manager on duty, justifiably refused to serve further rounds of alcohol in this case and there was no discrimination involved. An invitation to return on the following evening was proffered.
• The licensed premises involved in this case has an unblemished record in matters of good order.

Oral evidence provided at Hearing
Mr. John Reilly, barman
Mr. Reilly stated that:-

• He has been in the licensed trade for 20 years. Downey's Pub is well known to be relatively incident free.
• There was one doorman on duty on the evening in question.
• At around 8.15-8.30 pm the complainants came into the premises. Patrick Reilly came to the bar and was served a round of four drinks. The others in his company were seated.
• Mr. Reilly, the barman did not form any view as to their demeanour at that point in time.
• Patrick Reilly came to the bar for a second round of drinks approximately 15 minutes later and again was served four drinks. On this occasion he also ordered crisps and was told that there were none in stock, but that peanuts and bacon fries were available. He ordered some of these.
• The lounge girl on duty ordered a further round of drinks for the group. These were poured by John Reilly, as he was the only barman on duty at that point.
• Patrick Reilly came to the bar for a further round of drinks. John Reilly was at the end of the bar and observed Patrick Reilly as he approached the bar. He was unsteady on his feet and pushed past two other customers at the bar. Jeff Curley, another barman, who by this time had come on duty, also pointed this out to Mr. Reilly, the barman.
• John Reilly called Patrick Reilly aside to have a quiet word with him, as is normal in the circumstances. He told Patrick Reilly that he felt he was unsteady on his feet. Mr. Reilly, the barman, did not say anything to Patrick Reilly about whether he was a regular. It is irrelevant to the bar staff as regulars and non-regulars alike would be treated in the same way in the same situation.
• The pub does not have a dress code and does not operate a policy which restricts or refuses service to any group. In any given week, up to ten patrons are refused service or further service if they are causing trouble or are deemed to be a danger to themselves or others.
• Patrick Reilly replied saying "O.K. just one quick one for the road". Mr. Reilly, the barman, refused to serve him again saying that it would only make matters worse.
• Patrick Reilly then requested to speak to the manager who was out of the premises at that time. Mr. Reilly, the barman told him that he was responsible for dealing with what he observed.
• Patrick Reilly put his hand on the barman's arm and came close to him. Mr. Reilly, the barman felt that he "was going to get a smack in the head" from Patrick Reilly. He told Patrick Reilly that he was going to call the Gardaí. Patrick Reilly said "you will have to get the Gardaí to get us out of here"
• Mr. Reilly, the barman went back behind the bar. Patrick Reilly walked the length of the bar roaring and shouting at him. Mr. Reilly, the barman, called the Gardaí. When they arrived he was relieved to see them because, while it is an occupational hazard of working in the licensed trade that people will occasionally become aggressive or even violent, it can still cause stress when it arises. Mr. Reilly informed the Gardaí that he had asked an individual who was being aggressive to leave, but the individual had refused to do so.
• The Gardaí told Mr. Reilly, the barman, that they could not ask the individual in question to leave that he would have to do so. Mr. Reilly asked Patrick Reilly to leave. He did not ask the other complainants to leave.
• Mr. Reilly, the barman, recollected that the complainants had been on the premises and had been served three rounds of drink as described above before Jeff Curley came on duty at 9.00pm
• Few incidents are recorded in the pub, as they seldom arise. Mr. Reily does not record these, but informs the manager about them. In this instance Mr. Reilly does not think a record was kept of the incident.
• Mr. Reilly had not been frightened by Patrick Reilly's behaviour at first but had become frightened of his behaviour after he refused to serve him any further. He had not made any assessment of the demeanour of the rest of Patrick Reilly's companions but had been surprised that they made no effort to stop Patrick Reilly shouting at the bar.
• Other patrons got up and left the premises when Patrick Reilly started shouting.
• It is not unusual for barmen to go out on the floor to wipe tables on quiet nights in the bar. This way they can mix with customers.
• Mr. Reilly, the barman, did not communicate with any other member of the group of complainants.

Mr. Maurice Mitton, proprietor

• On this occasion a record was kept of the incident. Mr. Mitton undertook to submit copies of the specific entry in question along with a number of other entries from the incident book.

Mr. Jeff Curley, barman.
Mr. Curley stated that:-

• The complainants were seated at a table in the premises when he came on duty at 9.00p.m.
• Mr. Mongan had come to the bar and ordered a drink from him after 9.00 p.m. He was served. There was no mention that Mr. Mongan or any of his companions were Travellers.
• Mr. Curley observed Patrick Reilly approach the bar a while later. He was unsteady on his feet and pushed his way in between two other customers at the bar.
• Mr. Curley indicated to Mr. Reilly, the barman, what had happened, as Mr. Reilly was in charge of the bar at that time.
• John Reilly went to have a word with Patrick Reilly. As Mr. Reilly, the barman, was walking away, Patrick Reilly came after him.
• John (Reilly) seemed very strained. Mr. Curley felt that something was wrong.
• Mr. Curley then witnessed Patrick Reilly being abusive across the bar counter at John (Reilly) the barman.

Mr. John Sweetman, B.L., acting on instructions from Young & Co., Solicitors
Opening arguments at Hearing
The respondent wished to amend the earlier submission made in certain respects as follows;-

• The respondent wished to dispute that the complainants are Travellers. The respondent's staff did not know at the time of the refusal of service that Patrick Reilly was a Traveller and would never have known that this was the case until the complainants held this out as the reason for the refusal of service to them.
• The complainants arrived in the premises at an earlier time than was stated by them. The time they in fact arrived was somewhere between 8.15-8.30 pm
• The respondent wished to state that Section 3 of the Occupiers Liability Act imposes a duty of care on the respondent in relation to visitors to his premises. Also Part 2 of the Safety Health & Welfare at Work Act, 1989 requires that the respondent conduct his undertaking in such a way as to avoid/prevent risks to the safety and health of his employees.

Closing Summary by Mr. Sweetman on behalf of the respondent

• The complainant, Mr. Patrick Reilly, had indicated that he had been in Downey's Public house on a previous occasion with his wife and another couple and had been welcomed.
• On the evening in question he and the other complainants had been admitted to the premises without any difficulty whatsoever, and had been served a number of rounds of drink.
• The issue of the complainant's Traveller identity had never arisen and had never been in question as an issue. As this was not known to the respondent's staff at the time it could not have been the basis for the refusal to Mr. Patrick Reilly of further service.
• The complainants had confirmed the barman's recollection of serving them crisps etc. so the barman's recollection of events was not in question.
• The pub has a mixed clientele because of its location and does not operate a dress code or other restrictions.
• No issue had arisen between the bar staff and the other members of the group of complainants. Only Patrick Reilly's demeanour was at issue.
• The barman had wide experience in the licensed trade and no other complaints have arisen in relation to the pub.
• Much has been made of the barman's phraseology regarding regulars and non-regulars in the course of this matter. The question of whether somebody is or is not a regular in the respondent's premises is not a central issue and was not the basis for the refusal to Patrick Reilly. The fact that somebody is a non-regular does not, in any event, equate to them being a Traveller.
• In relation to Section 15(1) of the Equal Status Act 2000, the barman John Reilly observed that the group was consuming alcohol too quickly and that Patrick Reilly had had enough to drink. Mr. Reilly, the barman sincerely felt that there was potential for trouble and had elected to speak to Patrick Reilly, the complainant, quietly.
• In accordance with Section 15(2) of the Equal Status Act 2000 John Reilly took steps to prevent quarrelsome behaviour in the pub by refusing further service to Patrick Reilly. The staff in the pub are mindful of the need to run an orderly house in order to ensure that the license will not be objected to because of disorder.
• Mr. Reilly, the barman had given evidence of the nervous tension he felt approaching Patrick Reilly. He had a very real concern that there was a risk to his safety and health and/or that of other staff in the pub. The action he took to prevent matters getting worse are in accordance with the requirements of the Safety, Health & Welfare at Work Act, 1989. Following the Hearing of this complaint the respondent forwarded copies of the entries from his incident book, which he had undertaken to forward at the Hearing. A further written submission was subsequently made by the Equality Authority on foot of the entries in question and on foot of evidence presented at the Hearing as follows :-
• The existence of a record of the incident (refusal of service) in which the complainants were involved was never previously mentioned by the respondent or his legal representatives in correspondence, submission or otherwise. The same point arises in relation to the Traveller status of the complainants.
• Mr. John Reilly, assistant manager stated initially when asked and was quite clear that he had not recorded the incident in any incident book. This was notwithstanding his earlier evidence that he had been in fear for his safety in light of Mr. Patrick Reilly's alleged behaviour. Subsequently, following intervention by Mr. Mitton, Mr. John Reilly had stated that he was not sure whether he had recorded the incident.
• Mr. John Reilly had given evidence that the claimants had left the pub in or around 9.30pm after the Gardaí had been called. Presumably therefore the incident book records the time of the arrival of the Gardai at 9.30p.m Working back from this it is reasonable to suggest that the order of Mr. Patrick Reilly which was refused was made at least 20-30 minutes prior to the arrival of the Gardaí, in or around 9pm-9.10pm It was the respondent's evidence at the Hearing that the claimants had consumed four rounds while they were in the pub (although an earlier submission had stated three rounds). It is submitted that it is unlikely that the claimants consumed four rounds in little over a half an hour, or indeed that they were served four rounds in that timescale given the respondent's de facto policy in relation to 'fast' drinking.
• The claimants evidence was that they had left the pub at 10.30-10.45pm having arrived at around 9pm. Although the incident book records that the Gardaí arrived at 9.30 pm , Mr. John Reilly's initial statement to the Tribunal states that Mr. Patrick Reilly approached him for a round of drinks at 'around ten o'clock'. It was at this point that the claimant was refused and subsequently insisted that the Gardaí be called by the respondent, having initially phoned them himself. This timescale is consistent with the claimants' evidence that they left in or around 10.30-10.45 pm, after the Gardaí had arrived. It is also consistent with the claimants' evidence that they had not had excessive amounts of alcohol over the period of time they spent in the respondent's pub and were not drinking too fast as alleged by the respondent. The claimants stated that they had had two rounds of drink during the relevant period, about one hour.
• The respondent's written submission stated that Mr. Patrick Reilly and the other claimants were refused 'because the group were not regulars and appeared to be drinking too fast'. Notwithstanding this submission, the evidence of the respondent's witnesses at the Hearing was that the fact that the claimants were 'non-regulars' had no bearing on the refusal. However the copy extract from the incident book submitted states that the claimants were refused because they had 'enough to drink' and because they were 'non-regulars'.
• It is submitted that the above inconsistencies seriously call into question the credibility and reliability of the respondent's evidence. Replying submission from the respondent's legal representative
• While the existence of an incident book is important the respondent is quite entitled to deal with the events which occurred at the oral Hearing. The reference in the incident book on 16 January, 2001 has been misinterpreted by the complainants as set out below. There is no reference in the incident book to the complainants being members of the Traveller community and therefore this comment is not understood.
• It is alleged that the incident book should have contained a more thorough entry. This should not militate against Mr. Reilly's evidence to the Equality Tribunal. There is another clear version of these events which the complainants have ignored and which was given in oral evidence by Mr. Jeff Curley, who gave very clear evidence that he returned from his well established break time, from 7.30-9.00 pm, and served a fourth round of drinks to Mr. Eddie Mongan. The events which occurred surrounding the service of the fifth and final round of drinks to the complainant would have occurred after that at approximately 9.30 pm. The complainants timescale is not accurate. There would have been adequate time to have the first four rounds of drinks (the first two served by John Reilly; the third served by the bar girl; and the fourth by Jeff Curley to Eddie Mongan) within the timescale of 8.15 pm (not 8.30) to 9.30 pm. It is for the adjudicator to decide on the relevance of the speed of drinking.
• The complainants have ignored the evidence of Jeff Curley who clearly stated that it was his practice to return from his break at 9.00 p.m. He then served the fourth round of drinks to Eddie Mongan allowing time for the incident in relation to the non-service of the fifth round to occur at approximately 9.30p.m The incident book simply states 'Garda 9.30 o'clock'. It does not state whether this was the time the Gardaí were called or whether it was the time that the Gardaí arrived, although the word called appears in a different context earlier in the text, lending weight to the fact that it was the time that the Gardaí were called.
• The question of 'non-regulars' is being misinterpreted by the complainants. The proprietor of a licensed premises and his experienced staff over many years would be familiar with the drinking patterns, and the likely effects of alcohol on those persons with whom they are familiar as opposed to any such persons who do not frequent the premises on a regular basis. It is in this sense, and in this sense only, that the reference to the phrase 'non-regulars' is being used both in the incident book and in evidence adduced at the oral Hearing. The Equality Authority requested access to the repondent's original incident book. This request was facilitated by the respondent, following which the Authority made the following, final, submission.
• Mr. John Reilly stated at the Hearing that in any week 'you might have eight to ten people asked to leave'.The incident book indicates that it is extremely rare that a customer is asked to leave.
• Mr. Reilly also stated initially that there was no incident book and that he 'never personally had to write down an incident'; this is consistent with the total absence of any reference to such a book in the pre-Hearing correspondence. However, there was inconsistency in subsequent evidence and the entries in the incident book itself which must call into question the credibility of the book.
• Mr. Curley also stated in evidence that no 'incidents' were written down, that he simply told the manager of any such incidents.
• Mr. Mitton subsequently stated that it was the practice to write down incidents only where a claim might be made. It is difficult to understand why the claimants being refused on the night in question would be recorded on this ground, particularly when the respondent denies being aware that the complainants were Travellers. Apart from a discrimination claim, the only other likely claim would be for personal injuries, which clearly did not arise. A similar point could be made in respect of the entry for (date specified). It is difficult to see how a possible claim could be the basis for this entry.
• The entries for (date specified) appear to have been made by a different hand and at different times, this is evident from the different handwriting and the different coloured pens used. Furthermore it appears that the reference to '9.30' was inserted some time after the initial entry relating to 'Gardai'. These concerns cast further doubt on the reliability of the incident book.
• The book records that four rounds of drink were served - however a written submission on behalf of the respondent states that three rounds were served. If the book recorded four rounds at the time in question surely the respondent would not have stated three in a written submission.
• It should be noted that the entries regarding 'incidents' all post-date 16 January, 2001.

5 Matters for Consideration
The matter referred for investigation turns upon whether or not the complainants 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.

5.2 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".

5.3 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."

5.4 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 ".

5.5 Section 14 of the Equal Status Act 2000 provides that " Nothing in this Act shall be construed as prohibiting-
(a) the taking of any action that is required by or under-
(i) any enactment or order of a court, .............................."

5.6 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".

5.7 Section 15(2) of the Equal Status Act 2000 states 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 theLicensing Acts, 1833 to 1999, shall not constitute discrimination".

5.8 Section 26 of the Equal Status Act, 2000 states that
"If, in the course of an investigation under section 25, it appears to the Director --
(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),
(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director, the Director may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c)."
In this particular case the complainants claim that they were discriminated against because they are members of the Traveller community, while the respondent maintains that there was no discrimination.

5.9 At the outset, I must first consider whether the existence of a prima facie case has been established by each of 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 of the complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.

5.9 In considering what constitutes a prima facie case, I have examined definitions from other sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred." In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) the following definition appears: "when persons who consider themselves wronged..... establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination". In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: " This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. "

6 Conclusions of the Equality Officer
6.1 I am satisfied that the complainants are members of the Traveller community in accordance with (a) at 5.9 above. While this was ultimately rejected by the respondent it was rejected only on the basis that the respondent's staff were not aware of the complainants Traveller identity until the complainants held themselves out to be Travellers in the course of their complaint to the Tribunal. The respondent put forward no evidence to refute the complainant's Traveller identity and it was clear in the course of the Hearing of these complaints that each of the complainants identifies themselves, and each other, with the Traveller community as defined in the Eqwual Status Act, 2000. The complainants have provided evidence that service was refused to Patrick Reilly and that they were subsequently ejected from the respondent's premises, which has been confirmed by the respondent, and this fulfills (b) at 5.9 above. In relation to key element (c) at 5.9 above the complainants contend that the treatment they received was less favourable than that which was or would have been received by non-Travellers in the same or similar circumstances. The respondent contends that the manner in which the complainants were treated was a direct consequence of the unacceptable behaviour of Mr. Patrick Reilly and his staff's view that a substantial risk of disorder existed if Mr. Reilly was not asked to leave his premises. In order to establish whether the complainants have established that they were treated less favourably than non-Travellers were, or would have been, in the same or similar circumstances it is necessary to examine the facts as presented by both parties.

6.2 Prior to the refusal of service to Patrick Reilly on the evening of 16 January, 2001 the complainants state that they had two rounds of drink, were not drinking quickly and were conducting a normal conversation while in the respondent's premises. Patrick Reilly stated in evidence that he, along with his wife and another couple , had been to the premises on a previous occasion and had encountered no difficulty gaining admission to or getting served in Downey's pub. On the evening of 16 January, 2001 Patrick Reilly and the other complainants affirmed that they had had no difficulty gaining admission to the premises and found the doormen to be polite and welcoming. They also affirmed that they had two rounds of drink served to them without any difficulty.

6.3 Three of the complainants have stated in evidence that they did not hear the conversation between Patrick Reilly and the barman in the course of which Patrick Reilly was refused further service. They could not therefore provide any evidence to support Patrick Reilly's version of the conversation in question, nor can they refute the barman's version. Effectively, therefore, the specific matter of the refusal of service to Patrick Reilly boils down to the credibility of the barman and Patrick Reilly respectively.

6.4 Patrick Reilly states that he was refused further service on the basis that he was not a regular patron of the pub. The barman, John Reilly, asserts that he refused further service because the group were not regulars and were drinking fast. Service was actually only refused to Patrick Reilly, and was refused on the basis that the barman observed that Patrick Reilly was unsteady on his feet on his way to the bar. This is supported by the second barman, Jeff Curley, who gave evidence that he, in fact, drew John Reilly's attention to the demeanour of Patrick Reilly, particularly after the latter 'pushed through' two customers at the bar.

6.5 Both Patrick Reilly and the barman agree that the barman took Patrick Reilly aside to talk to him discreetly, while they disgree about the reason put forward for the refusal. They also agree that the barman made no reference to refusing drink directly to the other members of the group. It is unclear, therefore, whether Patrick Reilly actually requested at any time that service be provided to the other members of his group. In any event things occurred swiftly from that point and most likely precluded any such request.

6.6 The second barman has stated that, following the refusal, he witnessed Patrick Reilly walk the length of the bar speaking in an aggressive tone of voice to the barman and shouting for the Gardaí to be called. Patrick Reilly confirmed that he insisted that the Gardaí be called. It was due to this behaviour on the part of Patrick Reilly, following the refusal of service, that he and his companions were asked to leave the premises. The initial refusal of service to Patrick Reilly and the request for the group to leave the premises were, therefore two separate issues.

6.7 In relation to the refusal of service I am satisfied that the barman, John Reilly, on this particular occasion made a judgement call and refused service to Patrick Reilly on the basis of what he and the other barman perceived, i.e. that Patrick Reilly appeared, in their opinion to be unsteady in his gait. I am also satisfied that at this point in time neither Patrick Reilly nor his companions had caused any difficulty in the premises.

6.8 Based on Patrick Reilly's own evidence he had attended at the premises on a previous occasion and was served for the entire evening without difficulty. Given that Mr. Reilly's, and his wife's, Traveller identity has not changed in the meantime and that he and the other three complainants also stated that they were welcomed by the doormen on this particular occasion, this supports the respondent's claim that a policy of discrimination against Travellers is not operating in Downey's.

6.9 A great deal of emphasis was placed by both parties to these complaints on the time spent by the complainants on the respondent premises and the amount of drink consumed by the complainants in that time. Effectively neither side could convincingly establish the correct timeframe or the amount of drink consumed. While these facts might have an impact on the issue at hand where they can be precisely established, that is not always necessarily the case. The effect of alcohol on individuals can vary considerably. It is possible that the complainant, Mr. Patrick Reilly, could have been unsteady on his feet after only two drinks if they were consumed in a short period of time. The respondent contends that 4-5 rounds of drink were served to the group while they were in the respondent premises. The barman on duty states that the group arrived in the premises circa 8.15-8.30 p.m and that Patrick Reilly was refused further service at 9.30 p.m i.e. the complainants were in the premises for somewhere between 1- 11/2 hours. The complainants contend that they only arrived in the premises at 9pm and that Patrick Reilly was refused service at circa 10pm i.e. They were in the premises for approximately one hour before further service was refused to Patrick Reilly. While the time scale in question is disputed, another barman who came on duty at 9p.m on the evening in question confirmed that the complainants were seated and drinking when he came on duty and had therefore arrived some time before 9p.m This second barman also verified that Patrick Reilly was unsteady on his feet when he approached the bar to order a round of drinks, and had pushed through two other customers at the bar. The second barman brought this to the attention of the other barman on duty, John Reilly. It was the latter who then refused service to Patrick Reilly. In the specific case of Patrick Reilly, complainant, I am satisfied that the refusal of service to him was therefore for non-discriminatory reasons and that non-Travellers would be afforded the same treatment in the same or similar circumstances i.e. John Reilly's decision was made in good faith based on what he and the second barman perceived in relation to Patrick Reilly's demeanour and was made entirely on the basis of his experience in making this type of decision. The complainant's representative referred to a number of inconsistencies in the evidence provided by the respondent, particularly in relation to the entry made in the respondent's incident book. I am satisfied, having considered all the evidence presented that certain of the perceived inconsistencies can reasonably be accounted for. For example, the issue of John Reilly initially stating that he served three rounds of drink followed by a statement by the respondent that the complainant's group were served four rounds of drink. John Reilly, the barman, has consistently stated that he served the group three rounds of drink, while the second barman, Jeff Curley stated that he also served the group one round of drinks. John Reilly's statement therefore consistently reflects what he recalls having served the group, while the respondent's statement reflects the overall position. I accept that part of the entry in the incident book was completed in a different hand and in a different ink, but the specific part of the entry in question is not of central importance and does nothing to shed light on this matter one way or another. Nor does the specific part of the entry in question indicate that the entire entry is open to question. While John Reilly stated that he does not record incidents in the book and did not think that the incident at hand had been recorded, he also stated that he relays such matters to the manager, who may then record them. Also while he stated that 8-10 people may be refused service in any one week, he also stated that only serious incidents would be recorded.

6.10 The actions of the respondent's staff in ejecting all of the complainants from the premises was subsequent to the refusal of service to Patrick Reilly and was a reaction to what was seen by them as Patrick Reilly's aggressive reaction to the refusal of service. The remaining three complainant were, therefore, ejected from the premises as a consequence of Patrick Reilly's reaction to the refusal. Patrick Reilly stated in evidence that he was irritated by the refusal. The manner in which he conveyed his irritation is therefore pivotal in this matter. He may well have indicated his irritation in a manner which led a tense member of staff to interpret his reaction as being more aggressive than irritated. I find that, on balance, the three remaining complainants have failed to show that the manner in which they were treated in being asked to leave the premises did not stem directly from the manner in which Patrick Reilly conducted himself in the course of his conversation with the barman, following the refusal of service to him. Their ejection from the premises was a result therefore, not of their Traveller status, but of the behaviour of Patrick Reilly. The remaining three complainants have failed to show that they were treated in a manner which was less favourable than non-Travellers were treated or would have been treated in the same or similar circumstances. They have not, therefore, established a prima facie case of discrimination on the Traveller community ground.

6.11 I note that a number of references were made to the issue of "regulars v non-regulars" in this matter and that the complainant's representative attached a deal of significance to this, on the basis that it had been shown in earlier Decisions of the Tribunal to be a device used to exclude certain persons or groups from premises, in particular licensed premises. I acccept, based on earlier Decisions and my own experience in dealing with equality cases, that there is a distinct tendency on the part of licensees to trot this out as a valid reason for refusing service while failing at the same time to show how a person becomes a regular if they are not admitted in the first instance. In the specific complaints at hand I would distinguish the use of the phrase from earlier Decisions on the basis that the phrase was repeatedly accompanied by the fact that the complainants were also drinking fast ("The complainants were not regulars and were drinking fast"). I am therefore satisfied that it is in the context of not being familiar with the complainants and their drinking habits that the phrase "non-regulars" was used. This is supported by the fact that the complainants gained admission without any difficulty and were initially served with no difficulty .

7. Decision
I find that the complainants have not established a prima facie case of discrimination on the Traveller community ground in accordance with Section 3 (1) and 3(2) (i) of the Equal Status Act 2000 in terms of Section 5 (1) of the Act. I find therefore, in favour of the respondent.

__________________________
Dolores Kavanagh
Equality Officer
1 May, 2003