Collette Smyth (represented by Mr. Conor Power, B.L., acting on instructions from The Equality Authority) v Regdale Limited t/a 79 Inn, Dublin (represented by Ms. Marguerite Bolger, B.L., acting on instructions from Arthur Cox Solicitors)
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 delegated the complaint 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 a complaint by Collette Smyth that she was discriminated against by the respondent on the Traveller community ground by association, and the victimisation ground, contrary to sections 3(1) (a) , 3(1)(b), 3(2)(i) and (j) 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 ejected from the respondent premises on the evening of 16 February, 2001 because she had sought information from a member of the respondent's staff regarding events involving a member of the Traveller community who had lodged a complaint of discrimination against the respondent. The complainant claims that it was becaus of the nature of this conversation and her association by the respondent's staff with the Travellers in question that she was discriminated against by them.
3. Summary of Respondent's Case
3.1 The respondent maintains that he has a duty to his staff to ensure that his premises is a safe work environment. 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.
4 Evidence Provided by the Parties
4.1 Complainants' Evidence
Written submissions prior to Hearing
Submission by Clondalkin Travellers Development Group - 17 September, 2001
- Ms. Smyth went to the 79 Inn on 31 December 2000 circa 7.30 p.m. She saw Martin and Margaret Stokes when she entered the pub and she sat with them for an hour or more along with two other friends of hers. The people she went to the 79 Inn to meet with were seated at the back of the pub and she went to join them after the hour she spent with the Stokes. She could see Martin and Margaret Stokes from where she was sitting. After midnight was rung in Martin Stokes came to the cigarette machine and wished Ms. Smyth and her friends a happy New Year and shook everybody's hand. Ms. Smyth did not see the Stokes after that and did not see or hear any trouble. Neither did she see any Gardaí at all, and Ms. Smyth and her friends were the last to leave the pub.
- Ms. Smyth was in the 79 Inn on 30 December 2000 and the Stokes were seated near the door. Ms. Smyth joined them with a friend of hers. While they were sitting together Mr. Stokes called a bouncer over and asked him whether tickets were available for New Years Eve. The bouncer said that the remaining tickets would be on sale the next day between 12-1.00 p.m. in the pub. Mr. Stokes gave money to Ms. Smyth and asked her to get four tickets for him the following day. Ms. Smyth went to the 79 Inn the following day and asked for four tickets. Mr. Darcy told her that he was only allowing two tickets per person, so Ms. Smyth purchased two tickets and delivered them, along with the £10 change to Mr. Stokes on her way home.
- On 16 February, 2001 Ms. Smyth spoke to a lounge girl, Azaria Griffiths, who had served Ms. Smyth and the Stokes a couple of times on New Year's Eve. Ms. Smyth wanted to find out if there had been any problem with the Stokes on New Year's Eve.
- The lounge girl told her that there had been no trouble.
- Ms. Smyth, who is a friend of the Stokes , had been to the 79 Inn regularly prior to 31 December, 2000. Ms. Smyth is aware that the Stokes had been to the 79 Inn on 30 December, 2000 but is unaware of how regularly they visited the premises prior to that date. Submission by the Equality Authority - 29 October, 2002
- Ms. Smyth, complainant, was discriminated against by the 79 Inn as she was treated in a less favourable manner because she was associated with Travellers in contravention of Section 3 (1) (b) (Equal Status Act 2000)
- Ms. Smyth was a regular in the 79 Inn for some time. She would go to the bar upstairs sometimes after work and also on some Saturday nights. She also went to the pub for lunch as she worked in the Ballyfermot area. She never had any problem with any of the staff of the 79 Inn.
- On 30 December 2000 Ms. Smyth went to the 79 Inn to meet a friend. The friend had not yet arrived so she went and sat with the Stokes whom she had known for a number of years. They decided that they would go to the 79 Inn for New Year's Eve and Ms. Smyth asked the manager, Michael Darcy, about tickets. He said the tickets were on sale the next day between 12.00-1.00 p.m. Mr. Stokes gave Ms. Smyth money and asked her to get tickets for him. On New Year's Eve Ms. Smyth went to the 79 Inn and asked for the tickets and was given two as it was explained to her that they were only selling them in twos. She passed these tickets on to Mr. Stokes.
- Ms. Smyth went to the 79 Inn on New Year's Eve and found that she did not in fact need a ticket for downstairs and neither did the Stokes.
- Ms. Smyth initially sat with the Stokes and, after about half an hour she went to sit with another group of friends. Ms. Smyth could see the Stokes all night in the other part of the lounge. She saw nothing occur between the bar staff and the Stokes. When Ms. Smyth left the pub the Stokes had already left.
- On 1 January 2001 Ms. Smyth went to the 79 Inn for lunch.
- Early in February Mr. Stokes showed Ms. Smyth a reply he had received from Arthur Cox on behalf of the 79 Inn stating that Mr. Stokes had tried to gain entry to the pub on New Year's Eve without possessing a ticket and that his conduct on the night was aggressive and threatening. Ms. Smyth was bothered by this as she herself had given two tickets to Mr. Stokes because all concerned believed that they were needed for entry to all of the 79 Inn on that night.
- On 16 February Ms. Smyth went to the 79 Inn with a friend. Before she sat down she spoke to a lounge girl who was standing beside her. Ms. Smyth asked the lounge girl if she saw any trouble involving Mr. and Mrs. Stokes on New Year's Eve. The lounge girl replied that she had not. The lounge girl would have been familiar with Ms. Smyth and the Stokes. Ms. Smyth explained to the lounge girl that that the Stokes were barred because it was claimed that they were in a row on New Year's Eve. Ms. Smyth then sat down with her friend. Mr. Darcy subsequently came down to Ms. Smyth and said that he wanted her outside. He got extremely angry and abusive towards her and said that she had upset a member of his staff and that she had no business getting involved in the Stokes case. He would not listen to Ms. Smyth. He asked her to finish her drink and leave.
- Approximately one week later Ms. Smyth and her friend went to see Mr. Darcy in the 79 Inn. He told them that he did not want her getting involved in the Stokes case. Ms. Smyth's friend explained that the member of staff had not become upset. Mr. Darcy reiterated that nobody should have asked a member of his staff about the Stokes case and that they should not have got involved.
- In reply to the respondent's assertion that Ms. Smyth had pulled the lounge girl by the arm Ms. Smyth denied this. She also denied ever saying to the lounge girl that she had been sent to speak to her because people wanted to "see her in shock". Ms. Smyth had not seen anything in Ms. Griffith's demeanour to show that she was in any way fearful. Ms. Smyth had not lost her temper but had spoken to Ms. Griffiths because she was the first member of the staff Ms. Smyth saw whom she recalled was on duty on New Year's Eve.
Evidence provided at Hearing
Opening statement by Mr. Conor Power B.L.
- The complainant had gone to the 79 Inn on 16th February, 2001 with friends.
- The Tribunal is aware that Martin Stokes and Edward and Ann O'Reilly had lodged complaints of discrimination against the 79 Inn to which the respondent had responded stating that that there was an issue of Mr. Stokes having tried to gain entry to the 79 Inn without tickets on 31 December, 2000.
- The complainant in the instant case was made aware of the tickets issue by Mr. Stokes and when, on 16 February, 2001 she saw Ms. Griffiths, the lounge girl, she recognised her as someone she knows and asked her about her recollection of events on 31 December, 2000.
- The complainant was discriminated against because of her association with Mr. Stokes and was victimised for having tried to oppose the discrimination against Mr. Stokes.
Oral evidence provided at Hearing.
Ms. Collette Smyth, Complainant
Ms. Smyth stated that :-
- When she went to the 79 Inn on 16th February, 2001 she went to the bar to order a drink. While she was standing at the bar waiting to be served a lounge girl, Azaria Griffiths, came to the bar and stood beside her. She recognised the lounge girl as someone who had been on duty in the lounge on 31 December, 2001 on which date the respondent claimed that two people, Martin and Margaret Stokes, for whom Ms. Smyth had purchased tickets, had attempted to gain entry to a ticket only event in the 79 Inn and had behaved in an unacceptable manner when refused entry.
- The lounge girl, Ms. Griffiths, was also personally known to Ms. Smyth as she had gone to school with Ms. Smyth's daughter some years before.
- Ms. Smyth spoke to Ms. Griffiths and asked her whether she recalled serving the Stokes on 31 December, 2001. Ms. Griffiths had replied that she remembered them clearly. Ms. Smyth asked Ms. Griffiths whether she recalled any difficulties arising in relation to the Stokes behaviour. Ms. Griffiths had replied that there had been no trouble with the Stokes.
- Ms. Smyth explained to Ms. Griffiths that the Stokes had lodged a complaint because they were barred from the pub because they were accused of having tried to gain entry without tickets and because of alleged aggressive behaviour on their part. Ms. Smyth had then ordered a drink and gone and sat down with a friend of hers.
- Ms. Smyth had not taken hold of Ms. Griffiths' arm at any time, and she had not requested Ms. Griffiths to give a witness account of what had happened. Neither had she at any time told Ms. Griffiths that the Stokes were looking for her to be a witness for them.
- Mr. Darcy had come to Ms. Smyth's table and asked her if she were "Collette" and she had confirmed that she was. Mr. Darcy asked her to go to the door of the premises with him and she did. Ms. Smyth who had been a regular in the pub for several months knew Mr. Darcy to see.
- Mr. Darcy was very angry and told her that Azaria was crying and was upset. He told her that the Stokes complaint was no business of hers and that she was to drink up and leave.
- Ms. Smyth had tried to explain that she had been to the Traveller support group to answer questions about tickets she had purchased on the Stokes behalf but Mr. Darcy was pacing the floor and refused to listen to her.
- When Ms. Smyth had seen the documents about the Stokes complaint she could not believe what they said about the Stokes conduct. The Stokes, in her experience are a very quiet couple.
- Ms. Smyth had been to the 79 Inn several times between 31 December, 2000 and 16th February, 2001. The reason she raised the issue of the complaints being taken by the Stokes with Ms. Griffiths on 16th February, 2001 was because she had been asked to go to the Traveller support group the week before and answer some questions in relation to tickets she had purchased for New Year's Eve on the Stokes' behalf. The issue was on her mind therefore on 16 February.
- Ms. Smyth returned to the 79 Inn a week after she had been ejected to speak to Mr. Darcy and was told that she was barred.
- Ms. Smyth accepts that the 79 Inn is entitled to take some steps to deal with people who genuinely upset their staff, but is satisfied that Ms. Griffiths showed no signs of being upset in the course of their conversation.
Ms. Joanna Smyth witness for, the complainant
- Ms. Smyth explained that she is the daughter of the complainant and was a former school friend of Ms. Azaria Griffiths. Ms. Smyth had met Ms. Griffiths around Christmas time, 2002 at the Liffey Valley Shopping Centre. They had chatted and laughed for a whileand had spoken about the complaint by Ms. Smyth.
- In the course of the conversation Ms. Griffiths had stated to Joanna Smyth that the whole thing about what her (Ms. Smyth's) mother was supposed to have done was a bunch of lies. Summary on behalf of complainant by Mr. Conor Power, B.L.
- This matter concerns a dispute about the facts.
- The complainant took the approach to speak to a member of staff whom she recognised, and asked some questions in relation to an incident of abusive behaviour on the part of Mr. Martin Stokes, which the respondent had alleged took place on 31 December, 2000
- It was clear that the member of staff knew to whom the complainant's remarks referred because she had said that she remembered the Stokes, who were sitting near her own parents on 31 December, 2000.
- The complainant had asked the questions innocently as a letter from the respondent's representative which Mr. Stokes had shown to her contradicted the facts as they were known to the complainant. She had purchased tickets for the 79 Inn for 31 December on behalf of the Stokes, so she knew that they had not been attempting to gain entry to a ticket only event without tickets.
- The complainant had gone to the 79 Inn on 16 February, 2001 to socialise and this had been cut short by events.
- The respondent had stated in evidence that Ms. Smyth had been threatening Ms. Griffiths. Ms. Griffiths had now stated in oral evidence that the specific comment "they are looking for you to do witness" had upset her.
- The respondent had given the impression that there had been physical contact by the complainant. Ms. Smyth denied this emphatically and was adamant that it did not happen.
- The respondent's submission stated that the complainant had made a remark to Ms. Griffiths that people had sent her to Ms. Griffiths so that they "could see her in shock". Ms. Griffiths had denied ever having said this in oral evidence and could not clarify whether the "everything is cool" remark had ever been made by the complainant.
- The complainant does not accept that she ever "dragged" Ms. Griffiths in any way, and it would have been very foolish for her to have done so when she was in the company of her boss and friends at the time.
- With regard to events on 31 December 2000 concerning the Stokes, the respondent had submitted a letter in defence to the Stokes complaint some few days before 16 February. The dispute referred to Mr. Darcy and the events would, on 16 February, 2001 have been to the forefront of Mr. Darcy's memory.
- It was common case that Ms. Smyth had received less favourable treatment. With regard to Ms. Griffiths becoming upset the complainant cannot comment on this as she did not see this, did not intend or cause this.
- Mr. Darcy had stated that staff in the 79 Inn do not have to tolerate threats or abuse. It is fully accepted that this is correct, but it did not happen in this case. No such threats were made to Ms. Griffiths.
- It was the context of the conversation that was the reason for Mr. Darcy's reaction, and he himself had stated in evidence that when the complainant "confirmed to him the content of the conversation that he asked her to drink up her drink and leave"
- Mr. Darcy was annoyed because he felt that Ms. Smyth was snooping around looking for evidence in relation to the Stokes complaint and he was annoyed about this.
- Ms. Smyth is entitled to ask questions and denies the allegations against her. In relation to approaching a manager rather than a member of staff she feels that it was appropriate to approach a member of staff tactfully.
- It is more than simple coincidence that Mr. Darcy barred someone who would be in the forefront of Mr. Darcy's mind as being a witness in the matter of a complaint against him and who was asking questions about the matter. This amounts to discrimination by association or victimisation.
- At the commencement of the Hearing the respondent's representative had referred to fears on the part of witnesses who did not wish to give evidence in front of the complainant for fear that they would be recognised by the complainant. Nothing in the course of the Hearing had been shown to substantiate the inference that they had anything to fear from the complainant.
4.2 Respondent's Evidence
Submissions by Arthur Cox, Solicitors prior to Hearing
First submission - 3 May, 2002
- On 16 February, 2001 the complainant tipped an employee (Ms. Azaria Griffiths) of the respondent on the back and, as she turned to see who it was, the complainant had pulled her by the arm away from the counter and questioned her about her memory of a fight on the premises on New Year's night. Ms. Griffiths had indicated that it was none of her business and that there were other lounge staff on that night. The complainant had replied that people had sent her to Ms. Griffiths and they wanted to see her in shock. The complainant then stated that she was going to ring the persons in question and tell them that everything was "cool" and she walked away. Ms Griffiths ran to the rear of the premises and started to cry with fear. She was afraid to return to duty on the premises because of the complainant's conduct towards her.
- Mr. Darcy was approached by a colleague of Ms. Griffiths. He advised Mr. Darcy that Ms. Griffiths was out the back crying. Mr. Darcy approached and spoke to Ms. Griffiths who advised him of the nature and manner of the approach that she had received from thecomplainant. She advised him that she was afraid to go back out to work on the floor.
- Mr. Darcy then approached the complainant who confirmed that she had approached Ms. Griffiths. Mr. Darcy advised the complainant that she had upset Ms. Griffiths who was afraid to go back to work on the floor. The complainant did not seem to care about this and Mr. Darcy requested her to finish her drink and leave. This action was taken because of the conduct and attitude of the complainant to Ms. Griffiths on the premises. It has nothing whatever to do with the complainant's membership, if is the case, of the Traveller community. The complainant had by her own admission been served prior to the incident complained of.
Second submission - November, 2002
- It is denied that the complainant was discriminated against by the respondent or was treated in a less favourable manner in contravention of section 3(1) (b) of the Equal status Act 2000 Second submission by Arthur Cox, Solicitors, (continued) because she was associated with members of the Traveller community. The complainant was asked to leave the 79 Inn on 16th February, 2001 because she had upset a member of staff and reduced her to tears to the extent that she was afraid to return to the bar while the complainant was there.
- It is admitted that, prior to 16th February, 2001 the complainant was a regular and socialised in the 79 Inn. This in itself is evidence that the complainant was not discriminated against because of her association with members of the Traveller community and that the events on 16th February 2001 were the reason for the refusal of service to the complainant.
- The decision to ask the complainant to leave the 79 Inn was taken solely because of the complainant's aggressive behaviour towards a member of staff on 16th February 2001. The events of New Year's Eve 200/New Year's day 2001 are not relevant to the complainant's case except to the extent that they were the subject matter of the complainant's approach to the member of staff on that date.
- It is denied that the version of events given by the complainant in her submission is an accurate account of events on 16th February, 2001. The correct version is as submitted above.
- The complainant had no right to upset a member of staff by questioning her in relation to the incidents of New Year's Eve 200/New Year's Day 2001.
- It is denied that Mr. Darcy was "extremely angry and abusive" towards the complainant when he spoke with her.
- The decision to ask the complainant to leave the premises was taken because of the conduct and attitude of the complainant to Ms. Griffiths on 16th February 2001. It had nothing whatsoever to do with the complainant's association with persons who she says are members of the Traveller community.
Oral Evidence provided at Hearing
- Application by respondent's representative concerning the provision of evidence by witnesses. Ms. Bolger made an application for witnesses to be allowed to give evidence in the absence of the complainant Ms. Smyth. The basis for this application was that 'certain witnesses had found out indirectly that it would not be in their best interests to give evidence at the Hearing if the complainant were to recognise them'. Specifically, Ms. Azaria Griffiths had stated that she was fearful of giving evidence in the presence of the complainant. Ms. Bolger cited two examples of cases in which the witnesses had been permitted to give evidence anonymously. The first concerned a mentally impaired child who was permitted to give evidence to the court through a psychologist. The second concerned evidence presented by witnesses at the Bloody Sunday Tribunal. Ms. Bolger could not provide any details as to the source of the fears on the witnesses part and wished to make it clear that there was absolutely no intention to infer that the source of the fears was the complainant herself. The application was vehemently opposed by Mr. Conor Power, B.L., acting for the complainant who stated that it was outrageous and completely unfounded. He also stated that the examples cited were equally outrageous and bore no resemblance to the matter at hand. Decision of Equality Officer in relation to the application The application was refused on the basis that there was no evidence whatsoever to indicate that it was well founded and there was nothing to show that either of the cases cited could compare with, or were directly relevant to, the matter at hand. Opening statement by Ms. Marguerite Bolger, B.L.
- It is accepted by the respondent that the complainant was a regular in the 79 Inn prior to 16 February, 2001. Ms. Griffiths, the lounge girl whom the complainant approached, had worked in the pub for six months before she was approached by the complainant and for twelve months after that. In that eighteen months the only occasion on which she had been reduced to tears was when she was approached by the complainant.
- The barring of the complainant was not related to the subject matter of the conversation between the complainant and the lounge girl. Mr. Darcy took the decision to bar the complainant because of her behaviour.
- The respondent has a duty under health and safety legislation to ensure that staff are not harassed by a customer. This is not one of the nine grounds covered by equality legislation. If Mr. Darcy had not excluded Ms. Smyth from the premises and Ms. Griffiths returned to her duty and if there had been a further incident, then the respondent would have been liable. An employer has a right and a duty to deal with any customer who causes distress to an employee (ref. P.O'Brien v the Killarney Ryan, DEC-S-2001-008).
- The complainant can show that there was less favourable treatment but not on either of the grounds claimed by her, i.e. by association with travellers or victimisation.
- The recent Report of the Commission on Liquor Licensing, regarding admission to licensed premises made reference to the considerations of Section 6 of the Safety, Health and Welfare at Work Act, 1989. The Commission takes the view that the law holds that it is not discriminatory to take health and safety measures in the workplace, where not to do so could give rise to civil litigation and also possible criminal investigations by the Health and Safety Authority. The Commission, in its report, seeks clarification in the Equal Status Act in that regard.
Oral evidence provided at Hearing
Ms. Azaria Griffiths, witness
Ms. Griffiths stated that ;-
- She was standing at the bar of the 79 Inn on 16 February, 2001 when somebody tipped her on the back. When she turned around Collette (Smyth, complainant) was there. She asked her if she remembered a couple who were sitting in the lounge on New Year's Eve.
- Ms. Griffiths had replied that she did remember them because she had served them and her own parents were seated near them in the same area.
- Collette had said that the couple were taking the pub to court because they were barred. Collette had then said " you know they were not fighting" to which she had replied yes. Collette had then pulled her aside and told her that the couple were looking for her to be a witness because she knew that they had not been fighting. When Collette left her Ms. Griffiths had started crying. She had never been upset in her job before, or since, her conversation with the complainant.
- Ms. Griffiths had been upset because the complainant told her that the Stokes were looking for her to be a witness because she knew that they weren't fighting.
- Her work colleague, Marie, came to the bar and asked her if she was OK Ms. Griffiths started crying. The barmaid, Jane, asked her if she was O.K and took her out the back. Ms. Griffiths told the barmaid what Collette had said. The barmaid said to hold on, that she would get Mick Darcy.
- When Mick Darcy came out to speak to her she told him what had happened and he asked Jane to stay with her and that he would be back in a minute. When he returned he told Ms. Griffiths that she had nothing to worry about because he had asked Ms. Smyth to leave. He asked Ms. Griffiths if she wanted to go home. Ms. Griffiths declined the offer to go home saying that she would be fine now and would go back inside.
- Ms. Griffiths had not wanted to go back inside while Collette was still there and was happy that Mick (Darcy) had asked her to leave.
- Ms. Griffiths was sixteen at the time of the incident. She had attended school with Ms. Smyth's daughter, Joanna for three years.
- Ms. Griffiths knew the complainant by name, and knows the Stokes to see, and they had told her their names on New Year's Eve, but she does not know anything about them.
- When the complainant told Ms. Griffiths that "they are looking for you to go to court" she took this to mean that they (the Stokes) are expecting you to go to court, not that they were actively seeking her out.
- Ms. Griffiths is quite clear in her recollection that Ms. Smyth, the complainant, did not say anything to her about others wanting "to see her in shock". She does not recall whether the complainant made the statement that "everything is cool".
- When Ms. Griffiths told the complainant that it was "none of my business about the fight", the complainant said "OK" and walked away.
- The conversation described by Joanna Smyth at the Liffey Valley Shopping Centre never happened.
Ms. Marie Gourley, witness
Ms. Gourley stated that: -
- She was working in the 79 Inn on 16 February, 2001. She had attended school with Azaria (Griffiths) and with Joanna Smyth.
- Azaria came over to the hatch at the bar. She was crying. The barmaid took her out the back and asked her if she was OK Azaria told them that "Joanna's mam" had grabbed her by the arm and had said something to her (Ms. Griffiths) about speaking to Travellers about being a witness.
Mr. Michael Darcy, witness.
Mr. Darcy stated that; -
- He has been the manager in the 79 Inn for two and a half years, since it opened.
- On 16 February, 2001 he was working in the top floor and ground floor lounges. He was talking to the doorman when a member of staff approached him and told him that Azaria was out the back crying.
- When he spoke to Azaria she told him that Collette Smyth had grabbed her by the arm and asked her a load of questions and frightened her.
- He went to Collette Smyth and told her that she had no business approaching a member of his staff, that she should have spoken either with him or Mick Doyle. He told her to finish her drink and go. Ms. Smyth had asked to stay, saying that she was with her boss. Mr. Darcy had refused to let her stay and told her that he would probably have to call Azaria's father to collect her and bring her home.
- He asked Ms. Smyth to leave because Azaria was not responsible for pub matters, such issues were proper to the managers to deal with.
- Mr. Darcy has no recollection of Ms. Smyth having visited the premises one week later.
- Mr. Darcy had not been told the specific questions put to Ms. Griffiths by Ms. Smyth, and Ms, Griffiths had not mentioned the incident on 31 December 2000 to him.
- Ms. Griffiths had told him that she told Ms. Smyth that she knew nothing about any incident on 31 December, 2000.
- Mr. Darcy knew the complainant to be a regular patron, she was in the premises 2-3 times a week. He did not seek an apology from her because he was anxious to get back to Azaria.
- Mr. Darcy did not seek to establish whether a misunderstanding had occurred. He was only concerned that a member of the lounge staff had been approached in this way. He knew Azaria, he had seen the state that she was in and it was clear to him that Ms. Smyth had upset her.
- Ms. Smyth had given her side of the story and had confirmed to him what Azaria had said, i.e. that she was asking questions about 31 December, 2000. Based on this he told her to drink up and leave.
- Mr. Darcy was not aggressive towards Ms. Smyth.
- It was not the case that he was annoyed about her asking questions about 31 December, 2000.
- He had called Ms. Smyth aside in order to avoid embarrassing her in front of those in her company and he had been polite throughout.
- Later that evening Azaria had told him about people wanting to "see her in shock". Summary on behalf of respondent by Ms. Marguerite Bolger, B.L.
- The burden of proof in this matter lies with the complainant who had produced no evidence to show that the burden of proof should shift.
- Evidence should have been given that the complainant is (i) covered by the ground i.e. traveller ground, (ii) that she received specific treatment (iii) that that treatment was less favourable than that which was or would be afforded to someone not covered by the ground in the same or similar circumstances and (iv) in relation to victimisation that she, the complainant, had lawfully opposed unlawful behaviour. In order to do this a direct link had to be established between the events of 31 December, 2000 and 16 February, 2001.
- It was a matter of fact that Ms. Griffiths had been upset. Witnesses had evidenced this. Ms. Griffiths had been upset as a result of her conversation with Ms. Smyth, the complainant. Whether it was Ms. Smyth's intention to upset Ms. Griffiths is irrelevant as the net result of the conversation was that Ms. Griffiths was in fact upset. Mr. Darcy had established that the conversation had upset Ms. Griffiths, and it was the pub's policy to ask people to leave if they upset staff members.
- Mr. Darcy, having established the facts of the conversation with Ms. Smyth, the complainant, and that Ms. Griffiths version of the conversation was corroborated, asked Ms. Smyth to leave because she had upset a member of staff.
- Other customers who behaved in this way had also been dealt with as befitted the circumstances and the complainant had failed to establish a link to associate the request to leave with the issues involving the Stokes. The complainant had upset Ms. Griffiths and this is why she was asked to leave. The complainant had therefore failed to discharge the burden of proof i.e to establish a link to the Stokes.
- The complainant had therefore failed to establish that she was lawfully opposing an unlawful act and had failed to establish a prima facie case of discrimination or victimisation.
- It had been suggested that Mr. Darcy had failed to properly investigate the incident and that a more thorough investigation should have been forthcoming. This is not accepted and does not, in any event assist the complainant in this matter. Even if the reason for the refusal, i.e. upsetting Ms. Griffiths, were a bad reason , which is not accepted, nonetheless it was not a discriminatory reason (ref. Mulcahy v Minister for Justice, Equality and Law Reform and Waterford Leader Partnership Limited, 2002, ELR 12)
- Any coincidence in the timing of the refusal to the complainant and the response to Mr. Stokes with regard to his complaint does not assist the complainant, Ms. Smyth, in this matter. The complainant had been in the premises after the letter had issued to Mr. Stokes and before 16 February, 2001.
- The respondent had never stated that Ms. Smyth had "dragged" Ms. Griffiths from the bar, but had said that she had pulled her by the arm.
Written evidence submitted at Hearing.
Ms. Bolger submitted a copy of a written report signed by Ms. Azaria Griffiths which states that
Ms. Smyth the complainant had made the statement to Ms. Griffiths that people had sent Ms. Smyth to her "to see her well in shock". The report is undated.
5 Matters for Consideration
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(b) , 3 (2)(i) and 3(2)(J) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1) provides that discrimination shall be taken to occur where:
(a) "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
(b)
(i) "a person who is associated with another person is treated , by virtue of that association, less favourably than a person who is not so associated, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination ........."
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."
(j) that one-
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which was unlawful under this Act
(v) has given notice of an intention to take any of the actions specified in subparagraphs
(i) to (iv), and the other has not (the victimisation ground").
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, .............................."
In this particular case the complainant claims that she was discriminated against because
(i) she was associated with members of the Traveller community who had lodged a complaint of discrimination against the respondent and (ii) she sought to lawfully oppose that discrimination. The respondent maintains that there was no discrimination.
5.6 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, in this specific case, an association with members of the Traveller community in accordance with Section 3(1)(b) of the Equal Status Act, 2000)
(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, i.e not associated with members of the Traveller community, did, or 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 21 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.
5.7 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 Prima Facie Case Traveller Community Ground by association
I am satisfied that the complainant is associated with members of the Traveller community who had submitted complaints to the Tribunal and was so associated by the respondent's staff in accordance with (a) at 5.6 above. This was clearly stated by the manager and staff of the respondent premises in the course of providing evidence at the Hearing in this matter. The complainant has provided evidence that she was ejected from the respondent's premises and therefore refused further service in the premises, which has been confirmed by the respondent, and this fulfils (b) at 5.6 above. In relation to key element (c) at 5.6 above I am not satisfied that the complainant has established, on the balance of probabilities, that she was treated less favourably by the respondent because of her association with members of the Traveller community on whose behalf she had attempted to seek information in support of their complaints against the respondent. I am satisfied from the evidence provided by the respondent's witnesses, that the lounge girl, Ms. Griffiths, became upset following the conversation with the complainant. It is clear from the evidence that the complainant was told that the main reason she was being asked to leave was because she had upset a member of the respondent's staff. On balance I am satisfied that the complainant had been served and treated in the same manner as all other patrons until she had a conversation with a member of staff which led to that member of staff becoming upset. It was the conversation, not the association with members of the Travller community, that ultimately led to her expulsion from the respondent premises. The complainant has not therefore, established a prima facie case of discrimination on the Traveller ground, by association.
Victimisation Ground
To establish that she is covered by the victimisation ground the complainant must establish that she has taken one of the measures in Section 3(2)(j) of the Equal Status Act 2000. The complainant states that she was opposing, by lawful means , an act which is unlawful under the Equal Status Act, 2000 in accordance with Section 3(2)(j) (iv). The unlawful act in question is alleged discrimination by the respondent against associates of the complainant which is the subject of a separate referral to the Tribunal. The evidence indicates that the complainant did not attend at the respondent's premises on the date in question with the intention of opposing the alleged discrimination, and had in fact attended at the premises on earlier occasions, after she had become aware of her associate's complaint. On each such occasion she attended at the premises to socialise. In the course of her conversation with Ms. Griffiths, following a chance encounter, the complainant sought to elicit information from Ms. Griffiths regarding the other alleged incident involving the complainant's associates. While I am not entirely satisfied that the enquiries made in this case can be regarded as clear, direct or in this case, even deliberate opposition to the alleged discrimination against the complainant's associates, the Collins English Dictionary, in its definitions of "oppose" includes that a person tries to counter something. The complainant's reference to the lounge girl's possibly being required to be a witness in the other complaints is, I am satisfied, an indication that the complainant was attempting to obtain a witness account from Ms. Griffiths to counter the alleged discrimination against her associates on the earlier occasion. Even had the complainant made no reference to the possibility of Ms. Griffiths being a witness for the complainant's associates, I am satisfied that she could, and probably would, have used any information gained from Ms. Griffiths in support of her associate's case.
While the respondent states in written evidence that the complainant took Ms. Griffiths by the arm and behaved in an abusive and aggressive manner, and that this was unacceptable behaviour on the part of the complainant, the latter vehemently denies any such contact with Ms. Griffiths. The only two people present when the alleged contact took place were the complainant and Ms. Griffiths. I found the evidence given by the complainanat more compelling in this regard. It is also clear from the oral evidence provided by Ms. Griffths that the complainant did not behave in an abusive or threatening manner. The complainant simply had a conversation with Ms. Griffiths. I am therefore satisfied that the nature of the approach by the complainant and the conduct of the conversation with Ms. Griffiths were entirely lawful I am satisfied that this complies with (a) at 5.6 above.
The complainant has provided evidence that she was ejected from the respondent's premises and therefore refused further service in the premises, which has been confirmed by the respondent, and this fulfils (b) at 5.6 above.
In relation to key element (c) at 5.6 above I am not satisfied, on the balance of probabilities, that the complainant was treated less favourably by the respondent than a person who was not making enquiries related to an earlier complaint of alleged unlawful discrimination would have been. I am satisfied from the evidence provided that the lounge girl, Ms. Griffiths, became upset following the conversation with the complainant. It is clear from the evidence that the complainant was told that the main reason she was being asked to leave was because she had upset a member of the respondent's staff. While in the course of conversation with the complainant, reference was also made by the bar manager to the earlier complaint against the respondent, on balance, I am satisfied that any person who spoke to a member of staff which resulted in that staff member becoming upset would be asked to leave the premises regardless of the purpose, subject matter or nature of the conversation. The complainant has not therefore established a prima facie case of discrimination on the victimisation ground.
I would emphasise that it was clear from the evidence provided that there was no intent on the part of the complainant to cause any upset to Ms. Griffiths and that the latter was quite clear in her evidence that she did not fear the complainant personally in any way. Ms. Griffiths herself stated that it was, rather, the idea of perhaps being asked to be a witness in relation to the alleged discrimination by the respondent against the complainant's associates that caused her to become upset.
I would also state that it was quite clear in the course of the Hearing that Ms. Griffiths was well known to the complainant and vice versa. Ms. Griffiths had gone to school with the complainant's daughter and repeatedly referred to the complainant by her first name. Therefore the application to have Ms. Griffiths provide evidence in the absence of the complainant "for fear of being recognised" by the complainant was entirely without basis.
7. Decision
I find that the complainant did not establish a prima facie case of discrimination on the Traveller community ground by association or the victimisation ground contrary to section 3(1)(a) 3(1) (b) and 3(2)(i) and 3(2)(j) in terms of section 5(1) of the Equal Status Act 2000. The finding is in favour f the respondent.
__________________________
Dolores Kavanagh
Equality Officer
30 May, 2003