Edward McDonagh, Ms. Angelina McDonagh & Ms. Lisa Marie McDonagh (represented by the Equality Authority) V Davitt's Public Bar (Dungarvan) (represented by David Burke & Co. Solicitors)
The complainants referred a claim to the Director of Equality Investigations on 17 August, 2001 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 then delegated the cases to Marian Duffy, 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 The dispute concerns a claim by the above named that they were discriminated against by the Davitt's Public Bar on the grounds that they are members of the Traveller Community. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2 Background
2.1 On 24 February, 2001 Ms. Angelina Mc Donagh made her Confirmation. To celebrate the occasion she and her sister, Ms. Lisa Marie McDonagh, together with their cousins sought entry to the disco, which was organised especially for the Confirmation by Davitt's Public Bar. The whole party was refused entry. The complainants father, Mr. Edward McDonagh, then sought entry to the disco with his daughters and he was also denied entry. It was submitted on the complainants behalf that the reason for the refusal was due to the fact that the complainants are members of the Traveller community.
2.2 The respondent submitted that the complainant were not discriminated against on the grounds that they are Travellers, but they were refused entry to the disco because they did not have a meal in Lawlor's Hotel, which was a requirement in order to have access to the free disco. The respondent's also own Lawlor's Hotel.
3 Summary of the Complainants' Case
3.1 The complainants, Mr. Edward McDonagh and his daughters Angelina aged 13 and Lisa Marie aged 15 are Travellers living in a halting site in Dungarvan with other members of their family for the past 5 years.
They submitted the following:
- Ms. Angelina McDonagh, who was attending the local primary school, made her Confirmation on 24 th of February, 2001 and she wished to attend the Confirmation disco in the respondent's premises. Together with her sister Lisa Marie and her cousins they decided to go to Davitt's Public Bar, where a free disco for the Confirmation, was taking place. The free disco was an annual event which ran from 3pm to 6pm.
- They went to the door of Davitt's but they were all refused entry. Mr. McDonagh's brother saw the complainants and their cousins standing at the door of the pub after having been refused entry and he informed their father.
- Mr. McDonagh, after being made aware of the refusal, returned with the group to Davitt's front door and spoke to Mr. Hodman, Manager of the respondent premises, but he was also refused entry with his daughters. Mr. McDonagh asked for the reason for the refusal, however no reason was given.
- The complainants gave evidence that while they were standing at the door of the premises other people arriving at the disco had no difficulty in gaining access. For this reason the complainants believed that the disco was not full and that the only reason they were not allowed in, was because they are members of the Traveller community.
- Mr. McDonagh explained to Mr. Hodman that it was Angelina's Confirmation and as this was a very special day for her she wished to go to the disco. Mr. Hodman again refused to allow the complainants into the premises. When it became clear that the complainants would not be allowed in they left. Mr. McDonagh subsequently reported the incident to the Gardaí.
Evidence of Ms. Angelina Mc.Donagh
- The complainant stated that she made her Confirmation with her classmates from the local primary school. The disco was not advertised, but she heard about it from her friends in school who all intended to go. Her friends asked her if she was going? She understood that the disco was open to everyone who made their Confirmation. Most of her classmates went to the disco.
- She was not told that it was a requirement to have a meal in Lawlor's Hotel or Davitt's Bar in order to go to the disco. After the Confirmation at about 2 p.m., together with her cousins she went to Davitt's to enquire about the disco. Ms. McDonagh and her cousins were asked to leave by the barman.
- She returned to Davitt's after 3 p.m. with her sister and cousins and they were refused entry. She saw her friends going into the disco. The manager, Mr. Hodman, was on duty at the door and refused to admit her and her cousins. They were about 5 minutes at the door and she did not see Mr. Hodman checking receipts or turning any other customer away.
- Her father then came to the door and spoke to Mr. Hodman but they still did not get into the disco.
- Ms. McDonagh did not go to school the following week as she was too upset over the fact that she couldn't get into the disco on her Confirmation day. On her return to school she told her teacher about not being let into the disco.
Evidence of Lisa Marie McDonagh.
- She went to Davitt's with her sister and cousins around 3 p.m. and was refused entry to the disco. Ms. McDonagh did not attend Davitt's with her sister and cousins earlier in the day.
- She stated that nobody had told her it was a private function, or that she was required to have a meal in Lawlor's before she would be allowed into the disco.
- While she was standing at the door she saw other people going into the disco and they were not asked for receipts as far as she could see. A female friend of hers who is not a Traveller walked into the disco without any difficulty.
- Ms. Lisa Mc Donagh said that she is a pupil in the Youth Reach, and the following day she spoke to the coordinator Mr. O'Rourke about being refused entry to the disco as she was very upset about it.
Evidence of Mr. Edward McDonagh
- Mr. McDonagh said that he knows Mr. Hodman to see. He was made aware that his daughters and their cousins were not allowed into the disco. He approached the door and asked to get into the disco with his daughters. Mr. Hodman refused to allow them in and also refused to give him a reason for denying access.
- Mr. McDonagh then pleaded with Mr. Hodman to allow them in as it was his daughters Confirmation, and she was devastated by news she would not be allowed into the disco. Mr. Hodman refused to change his mind.
- Mr. Hodman did not ask him for a receipt from Lawlor's or ask him if he had a meal in the bar in Davitt's. Mr. McDonagh and his daughters then left, and Mr. McDonagh reported the matter to the Gardaí.
- Mr. McDonagh believes that Mr. Hodman would have known that he is a member of the Traveller community. He said that other Traveller children who had made their Confirmation were also refused access to the disco.
- Mr. McDonagh said that on occasions prior to this incident he had been refused service in Lawlor's. After this incident he has been in Lawlor's and was served there but he has not gone back to Davitt's since.
Evidence of Complainants' Witnesses Angela Cockwell
- Ms Cockwell said that she knows the complainants as she is a neighbour, and her son was in the same class as Ms. Angelina Mc. Donagh, and he also made his Confirmation. Her family had a meal in Lawlor's and subsequently attended the disco in Davitt's.
- She said that she knew about the disco as Davitt's always held a Confirmation disco. It would be common knowledge in the town and also amongst the children of the Confirmation class that Davitt's held an annual Confirmation disco. She was not informed by Lawlor's to hold on to her receipt so that they could enter the disco. Ms. Cockwell was also unaware that there was a requirement to show the receipt, nor indeed was her party asked for a receipt at the door of Davitt's.
- She said that she was aware of other children who were at the disco and they did not have a meal in Lawlor's. Friends of her children came to the disco and they had not had a meal in Lawlor's. Ms. Cockwell submitted that a boy of about 9 years, who was a friend of her son, was at the disco on his own in the company of her son and she was certain that he did not have a meal in Lawlor's.
- She understood that it was a free disco for the Confirmation class, and this was also the understanding of her children and their friends.
- She said that there were a lot of children going in and out of the disco.
- In response to questions from the respondent's solicitor Ms. Cockwell agree that she had worked in Davitt's and was well known at the respondent's premises, and that she would have no difficulty in gaining entry. She also stated that her mother paid for the meal in Lawlor's, but she did not see her mother being asked for the receipt. Her mother did not mention that she was asked for a receipt.
Evidence of Ms. Jacqueline Duggan
- Ms Duggan stated that she is a friend of Ms. Angela Cockwell and that she was invited to the Confirmation disco by Ms. Cockwell. She didn't have a meal at Lawlor's and did not accompany the Cockwell family into the disco. She was unaware it was a requirement to have a meal in Lawlor's in order to get into the disco.
- She said that she walked into the disco on her own, and was not asked for a receipt by anyone on the door.
- She said that there were a lot of children at the disco who did not make their Confirmation. She conceded, in questions from the respondent's representative, that some of the children who were at the disco could have family members who made their Confirmation.
- She said that she knew one boy at the disco, who was a friend of the Cockwell's. He did not make his Confirmation and neither did he have a meal at Lawlor's.
Evidence of Mr. Liam O' Rourke
- Mr. O' Rourke said that he is a Youth Reach Coordinator and Ms. Lisa Mc Donagh attends school there. Following the Confirmation, the pupils in the school were talking about the fact the McDonagh children did not get into the disco in Davitt's.
- A day or two later he was in Davitt's having a meal and he spoke to Mr. Hodman. He didn't mention the Mc Donagh girls by name. He said to Mr. Hodman it was very unfair not to allow the girls into the disco. He said that Mr. Hodman didn't mention the requirement to have a meal in Lawlor's. Mr. Hodman told Mr. O' Rourke that he was the manager and he could do as he wished.
Submission by the Complainants' Representative
The complainants representative submitted that the complainants were refused entry to the disco because they are members of the Traveller community. Despite the fact it was Ms. Angelina McDonagh's Confirmation day she was refused entry to the disco which was specially organised for the Confirmation class. It is well known in the town that Mr. Edward Mc Donagh and his family are members of the Traveller community and they are held in high esteem by the local community. The representative submitted that it was embarrassing and humiliating for Angelina and Lisa Marie McDonagh to be refused entry as their friends and class mates could enter or leave the premises without any difficulty. It was further submitted that the incident was particularly devastating for Ms. Angelina McDonagh as she had been looking forward to her Confirmation and her big day out. She was so badly affected by it and found it particularly difficult to face her friends and class mates in school. Because of her upset she was unable to go to school and her parents arranged for her to visit her aunt in Mitchelstown the following week. In support of the complaints their representative also referred to a number of English employment cases under the Race Relations Act, 1976 which deals with the interpretation of the Burden of Proof. In her written submission she submitted the following as relevant authority: Khana-v-Ministry of Defence (1981) I.C.R. 653, in which Browne -Wilkinson J stated:
"In this case the industrial tribunal would, we suspect, have found the case rather more straightforward, if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts indicate that there has been discriminated of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will mean the complaint succeeds. Those propositions are, we think, most industrial tribunal has drawn the inferences of possible discrimination from the fact that there has been discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial functions, however unpalatable, is to resolve such conflicts by decision if possible". In the case of Chattopadhay-v-Headmaster of Holloway (1982) I.C.R. 132 Browne- Wilkinson stated:
"As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the Respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with him having been treated less favourably than others on racial grounds. In the majority of cases it is only the Respondents and their witnesses who are able who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the Industrial Tribunal should draw an inference that such treatment was on racial grounds, unless the Respondent can satisfy the Industrial Tribunal the there is an innocent explanation..." In the North West Thames Regional Health Authority -v- Noone (1988) I.C.R. 813, 822 May LJ stated that he did not find the decision Khanna altogether satisfactory and stated "In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself, I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds". In the case of King -v-Great Britain-China Centre (CA) Neil LJ stated: From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial; discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based but merely based on an assumption that" he or she would not have fitted in". (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 65(20)(b) of the Act of the of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer fro an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Thames Regional Authority -v- Noone (1988) I.C.R. 813, 822, "almost common sense". (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case".
4 Summary of the Respondent's Case
4.1 The respondent submitted that the complainants were not discriminated against on the Traveller community ground. They submitted that she was refused entry to the disco because they didn't have a meal in either Lawlor's or Davitt's which was a requirement in order to enter the free disco. The respondent submitted the following in evidence:
Mr. Hodman the General Manager stated that the disco on 24 February, 2001 was for people who had attended the Confirmation lunches in Lawlor's or Davitt's. The disco is a free annual event and is held in a function room in Davitt's Public House from 3pm to 6pm. Customers were informed about the disco when booking their meals in Lawlor's. About 350 meals were served in Lawlor's on the day of the Confirmation, and Davitt's served a small number of meals.
Anyone entering the disco was required to produce a receipt from Lawlor's . Children not accompanied by an adult were not allowed in. Parents could purchase drinks from the bar for themselves and their children.
He said that he was on the door and that large parties of up to 30 or 40 people entered together. He checked receipts, but it would be difficult to verify that everyone from each party had a meal in Lawlor's, as there was up to 300 children at the disco.
Mr. Hodman was not sure if children who didn't have a meal got into the disco. He conceded that it was possible that people without a receipt got into the disco.
Mr. Hodman said that the complainants, Lisa Marie and Angelina Mc Donagh, came into Davitt's about 20 minutes after the Confirmation ceremony finished and spoke to the barman Mr. Twomey. At that stage they were informed it was a private party.
Mr. Hodman said that he was on the door when the complainants returned to get into the disco. They were in a large group of girls and they were all refused entry. He knew that the complainants did not have a meal in Lawlor's.
The complainants' aunts then approached Mr. Hodman to know why the complainants were not admitted to the disco. They became very abusive but this was not the reason the complainants were refused admission.
The complainants' father then arrived at the door and requested entry with his children, but he was also refused. Mr. Hodman didn't tell Mr. McDonagh why he was refusing to allow them in. He told Mr. McDonagh he was not discussing it. Mr. Hodman said that he was confused after the abuse he received from the complainants' aunts. Mr. Mc Donagh said that he would pursue his complaint through the law and they all left.
Mr. Hodman said that the complainants were not the only people turned away on the day. He didn't know if there were any Traveller children allowed into Davitt's.
Mr. Hodman agreed that the procedure for attending the disco was slipshod and that people could have slipped in without having had a meal in Lawlor's. Since the complainants took the case the procedures have been tightened up.
Mr. Twomey, the barman on duty, said that he was 5 years working in Davitt's
The complainants and three other girls came to the Davitt's shortly after the Confirmation ceremony at around 2p.m. to enquire about the disco. He informed them it was a private party for the people who had a lunch in Lawlor's. He knew the complainants could not have had a meal in Lawlor's as they should have been there at the time they called to Davitt's.
The girls shouted names and said that they had made their Confirmation too. The complainants then left and he informed Mr. Hodman about the incident.
Later on after the disco started he was on the door with Mr. Hodman and the complainants approached the door. He informed Mr. Hodman that these were the girls who had come into Davitt's earlier in the day. Mr. Hodman than dealt with the complainants. Later on he saw Mr. Hodman and Mr. McDonagh having an argument.
Mr. Twomey said that he checked receipts on the door, but he was not sure if some people got in without receipts. He said that he knew if people had meals in Lawlor's. As it was very busy there were people coming and going all of the time so it was difficult to know if everyone had receipts.
The respondent's representative submitted that Mr. McDonagh had provided no evidence to support his claim that he was refused service in Davitt's on the day in question. He said that Davitt's did not operate a policy of treating Travellers differently to non-Travellers and the complainants have not provided evidence to support their contention that they were discriminated against on the Traveller community ground. He said that the policy of Davitt's in relation to the Confirmation disco was that people who had a meal in Lawlor's or people who were involved with a party who had a meal in Lawlor's obtained access to the disco. The representative said that the complaints were frivolous and vexatious and asked that the complaints be dismissed on these grounds.
5 Conclusions of the Equality Officer
5.1 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 and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not.
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as:
"Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred."1 If a prima facie case of discrimination is established by the complainants, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
In more recent employment discrimination cases the Labour Court has applied the test and stated:
"The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination".2
And in another case stated:
2 The Rotunda Hospital v. Noreen Gleeson DEE003/2000
1 Dublin Corporation v. Gibney EE5/1986
"...the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed."3 The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson4 and referred to by the High Court in Conlon v University of Limerick.5 In Nathan v Bailey Gibson the Supreme Court stated:
"In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant's sex.
" While these were both indirect discrimination cases, it seem that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases. In the complainants' submission their representative referred me to some English cases as outlined above in relation to the interpretation of the burden of proof and I have noted the application of this caselaw to the case in hand. However as I have outlined above, it has been the practice of Equality Officers to consistently shift theburden of proof to the respondent once the complainant has established a prima facie case and this is the approach I am also taking in this case.
5.3 I have identified the key issues for decision concerning establishing a prima facie case
5 Conlon v. University of Limerick [1999] ILRM 131
4 Nathan v. Bailey Gibson [1998] 2 I.R. 162
3 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011 as follows:
(a) are the complainants covered by the discriminatory ground? ( in this case are they members of the Traveller community?)
(b) in what circumstances were the complainants refused service by the respondent on 24th February, 2001.
(c) evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
5.4 I am now going to examine issues I have identified above and consider whether the complainants have established a prima facie case. If those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is notnecessary for the complainants to prove that there is a link between the difference in treatment 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.
5.5 Issue of Traveller Identity In the Equal Status Act, 2000 the Traveller community ground is defined as follows: "means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland". I am satisfied that the complainants are members of the Traveller community as defined by the Act and the respondent also accepted that he knew Mr. McDonagh as a member of the Traveller community. In relation to (b) above I am satisfied that service was refused but the reason for the refusal is in dispute. The next issue for consideration is whether the complainants were treated less favourably than another person not covered by the discriminatory ground, would have been treated in similar circumstances.
5.6 The complainants' case is that they were refused access to the disco for no good reason and they believe this occurred because they are members of the Traveller community. They submit that a receipt from Lawlor's was not a requirement to get into the disco. Their representative submitted that that non-Traveller customers were allowed into the disco without having a meal in Lawlor's. Their representative further submitted that two witness gave evidence on their behalf to the effect that they were aware of people who were at the disco and who did not have a meal in Lawlor's. One witness stated that she entered the disco and was not asked for a receipt nor had she had a meal in Lawlor's. It was further submitted that they were treated less favourably than non-Traveller customers who gained entry to the disco.
5.7 The respondent stated that the reason the complainant was refused entry to the disco was because they did not have a meal in Lawler's and this was a requirement to haveaccess to the disco. The respondent's representative submitted that Mr. Edward Mc Donagh had not sought entry to the disco and had produced no evidence to show that he was refused a service in the respondent's premises. The policy which operated on the day was that people who did not have a meal in Lawlor's were denied access to the disco and evidence was produced by the manager Mr. Hodman that he turned away several persons for this reason. The complainants' witnesses Ms. Cockwell was known to the respondent and Ms. Cockwell did indeed have a meal in Lawlor's.
5.8 I note from the respondent's evidence that the system of entry to the disco was difficult to police in order to ensure all entrants had had a meal in Lawlor's. Mr. Hodman said that as there were large groups of people trying to gain access at the one time it was difficult to fully check that everyone in the group had a meal. I also note from the evidence of the complainants' witnesses Ms. Cockwell and Ms. Duggan that they were not asked for receipts at the door and this ties up with the evidence of Mr. Hodman who described the system of entry as slipshod. I note that Mr. Hodman stated that when customers came to the door and said that they had friends inside Mr. Hodman would check with the friends to establish their bona fides, and then allow access to those whose identities were established. I note that the complainants were not given this opportunity to establish to Mr. Hodman if they had friends inside as Mr. Hodman knew from Mr. Twomey that the complainants did not have a meal in Lawlor's. However some people, on the evidence provided, did get access to the disco without having had the meal in question.
5.9 I note that the complainants' witnesses Ms. Cockwell and Ms. Duggan, neither of whom are members of the Traveller community, said that there were children (not Travellers) at the disco who did not have a meal in Lawlor's. Ms. Duggan evidence was that she did not have a meal in Lawlor's, and was not asked for a receipt at the door. She was at the disco at the invitation of Ms. Cockwell. The criteria for entry to the disco I believe lacked transparency. It seems to me from the evidence provided that there were people allowed into the disco who neither had a meal in Lawlor's, or who were asked for a receipt at the door. On the evidence it is also clear that people were allowed into the disco on the basis that they had friends inside.
5.10 I note that Mr. McDonagh, when he sought the reason why his daughters were not admitted to the disco, was neither given a reason by Mr. Hodman nor was he admitted to the disco with his daughters. I note that the complainants Angelina and Lisa McDonagh were refused entry to the disco by Mr. Hodman on the basis of what Mr. Twomey told him, that is that they did not have a meal in Lawlor's. The complainants said that all their school friends were admitted to the disco, and Lisa McDonogh gave evidence that she saw at least one of her friends admitted without being asked for a receipt.
5.11 I am satisfied from the evidence that a different criteria applied to the complainant in order to qualify for entry to the disco than that which applied to other customers who were allowed into the disco. I find on the evidence that the complainants Ms. Angelina and Ms. McDonagh were treated less favourably than other non-Traveller children who gained access to the disco without having had a meal in Lawlor's. In relation to Mr. McDonagh, I am satisfied from the evidence provided that he was refused entry to the disco when he approached the door with his daughters. I note from the evidence the respondent said that he only allowed children into the disco accompanied by an adult, but when Mr. McDonagh and his two daughters approached the door of the disco they were all refused. I believe that Mr. McDonagh intended to accompany his daughters into the disco after the initial refusal. I note from the evidence of Ms. Duggan that she was allowed into the disco without being stopped or asked questions at the door. I am satisfied therefore that Mr. McDonagh was treated less favourably than Ms. Duggan who gained access to the disco without a receipt for a meal. In the circumstances, I find that the complainants were treated less favourably than non-Traveller customers were treated in similar circumstances. I find therefore that the complainants have established a prima facie case of discrimination.
5.13 The next question I have to consider is whether the respondent has provided sufficient evidence to rebut the prima facie case raised by the complainants. The respondent in his defence stated that the complainants did not have a meal in Lawlor's and it was necessary to have such a meal in order to qualify for entry to the disco, but as I have found above this was not a requirement which was applied to all customers. I am satisfied therefore that the respondent has provided insufficient evidence to rebut the prima facie case raised by the complainants.
5.14 I also note, from Mr. Twomey's evidence, that he had identified the complainants as members of the Travelling community, and he later brought the complainants' presence at the door of the respondent's premises to the attention of Mr. Hodman. His evidence was that when the complainants presented themselves at the door on the second occasion he said that "these are the girls I told you about". It is likely therefore that he would have identified the complainants as Travellers to Mr. Hodman when he spoke to him.
5.15 In considering this case, I have also looked at whether there was an intention by the respondent to discriminate and I have considered other decided cases under the Equal Status Act. In the case of Collins & Others v Bartra House Hotel DEC-S2001-015, -18- the Equality Officer stated: "In considering whether intention is required in order to establish discriminatory treatment I have looked at a definition of direct discrimination in Deirdre Curtin's book on Irish Employment Equality.6 In discussing Section 2(a) and 2(b) of the Employment Equality Act, 1977, (an Act which prohibits discrimination in the employment area) Ms. Curtin states "no intention to discriminate is required". Section 3(1) (a) of the Equal Status Act, 2000 (at 5.2 above) is similar to the provisions contained in the above sections of the Employment Equality Act, 1977 and no intention to discriminate is contained in this provision in the Equal Status Act". In applying this rationale to the case in hand it is clear that the intention or motive of the respondent at the time he took the decision to refuse service is not a relevant to a finding of discrimination.
5.16 I note from the respondent's evidence that he stated that he does not operate a discriminatory policy against Travellers and submitted that he regularly serves a number of Traveller families. Mr. Mc Donagh stated that he has been refused service by the but he didn't provide any further evidence to support this contention. I am satisfied that the respondent does not operate a general policy of discriminating against Travellers but I do find on this occasion that the treatment of the complainants raised an inference of discriminatory treatment which the respondent has failed to rebut.
5.17 The respondent' representative submitted in his summing up of the case that the complaints should be dismissed as frivolous and vexatious. It is clear from the evidence that the complainants were distressed at their exclusion from the Confirmation disco and the lack of transparency apparent from the evidence as to what were the criteria for admission to the disco raised an inference of discriminatory treatment. I am satisfied therefore from the evidence, that the respondent has not put forward any evidence to support the contention that cases should be dismissed as frivolous and vexatious, and I find that there are no grounds on which I could recommend such a course of action to the Director, under Section 22 of the Equal Status Act, 2000.
6 Deirdre Curtin Irish Employment Law, Round Hall page 219
6 Decision
6.1 On the basis of the foregoing and on the balance of probabilities, I find that the respondent did unlawfully discriminate against the complainants contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
6.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
6.3 Under the above Section the maximum amount of compensation I can award is €6,349 but the maximum award would not be appropriate in these cases. In considering the amount of compensation which would be appropriate, I have taken into account the effects the discrimination had on each of the complainants. In the case of Ms. Angelina McDonagh, the effects of the discrimination was the greatest in that she had made her Confirmation and was looking forward to attending the disco as part of the celebrations. I note she was very upset and embarrassed about the incident and was unable to attend school the following week. I order Davitt's Public Bar to pay Ms. Angelina McDonagh the sum of €1,200 to compensate her for the distress, embarrassment and upset caused to her on the day which should have been a celebration for her.
In the case of Ms. Lisa McDonagh I believe she also suffered distress and embarrassment particularly in front of her friends at the Youth Reach project which she attended. I order Davitt's Public Bar to pay Ms. Lisa McDonagh the sum of €600 to compensate her for the embarrassment and upset caused to her. In the case of Mr. Edward McDonagh the effects of the discrimination would have been less severe than that which applied to his daughters. Nevertheless it is clear that he was upset and embarrassed over the discriminatory treatment he was subjected to. I order Davitt's Public Bar to pay Mr. Edward McDonagh the sum of €100 for the distress and embarrassment caused to him.
6.4 Under Section 27(1)(b) of the Act I order the respondent to put a notice at the entrance to Davitts Public Bar 4 weeks prior to any further Confirmation disco. The notice should set out clearly the procedures and the conditions applicable for entry to the Confirmation disco.
____________
Marian Duffy
Equality Officer
2 May, 2003