Martin & Margaret Mongan (represented by Tallaght Travellers Community Development Project) V The Firhouse Inn, Dublin (represented by Mr. Paul Carroll , B.L., acting on instructions from Brian Morton & Co., Solicitors.)
1. Dispute
1.1 This dispute concerns claims by Martin and Margaret Mongan that they were refused service in the respondent premises on 29 June, 2001 on the grounds that they are members of the Traveller community. The respondent accepts that the complainants were refused service but states that the refusal was in accordance with Section 15(1) and/or 15(2) of the Equal Status Act 2000 and did not therefore constitute discrimination under the Act.
2. Summary of Complainant's Case.
2.1 The complainants, in the company of two others, went to the respondent premises on 29 June, 2001 between 6-6.30 in the evening. Martin Mongan went to the bar to order drinks and was refused service. He was told that service was being refused on "bosses orders".
3. Summary of Respondent's Case
3.1 The respondent states that for a considerable period of time before the complainants entered the premises there had been ongoing heated disputes between local residents and Travellers about where Travellers had chosen to halt. A great deal of destruction had been caused in the locality by certain Travellers who were halted on unofficial halting sites. When the complainants entered the pub the barman was immediately alert to the fact that the pub fell silent and that everyone in the pub was staring at the complainants group. He felt that a hostile situation was about to develop, through no fault of the complainants who were unknown to him, but that he had to make a split second decision and act fast to get them off the premises in order to avert trouble.
4. Evidence of the Parties
4.1. Complainant's Evidence
Martin Mongan, complainant.
Mr. Mongan stated that:-
- Following a christening he and his wife, in the company of two others, entered the respondent premises at around 6-6.30 in the evening on 29 June, 2001. The others sat down while he went to the bar to order drinks. The bar was full and was very busy.
- The barman refused service saying that the group were not to be served "on bosses orders".
- The complainants had never been to the premises before and felt that the only reason they were not being served was because they were Travellers.
- The complainants were camped, along with some fourteen other caravans, in a field in Firhouse near the respondent premises and it was for that reason that they chose to go to that pub. It was not an official halting site on which they were located.
- The complainants were not aware of any tensions in the area between Travellers and local residents. However, on entering the respondent premises Martin Mongan was aware of immediate tension. People stopped talking and stared at the complainants group. He felt that there was "an atmosphere" when they entered.
- When the group left the Firhouse Inn they went to another premises in Rathfarnham (named) and were served without difficulty.
4.2 Respondent's Evidence
At the opening of the Hearing, Mr. Paul Carroll, B.L., acting on behalf of the respondent, submitted that the respondent would be relying on Sections 15(1) and 15(2) of the Equal Status Act 2000 in relation to the refusal of service to the complainants in this matter.
Jason Hughes, Barman, Firhouse Inn
Mr. Hughes stated that:-
- He was aware that there had been ongoing hostility between local residents in the Firhouse area and Travellers for weeks before the refusal of service to the complainants. The hostility had arisen because Travellers had halted on local property, including sports facilities for local teams. These were not official halting sites.
- The issue of the illegal halting by Travellers had been discussed openly and at length by patrons of the Firhouse Inn and it was clear that resentment existed about the way that access had been blocked to sports facilities. There was also a great deal of hostility expressed by patrons about the litter being left by Travellers in the area and damage to land on which they were halted which rendered football pitches etc unplayable. Due to asbestos left by the Travellers on the football grounds it would be months before they could be used by locals.
- Prior to the above events Travellers had often stopped at local official halting sites and frequented the pubs in the area with no difficulty, including the Firhouse Inn. They were served in the latter in the same way that any other patron was served.
- When the complainants and their companions entered the premises on 29 June, 2001 Mr. Hughes immediately noticed a change in atmosphere for the worse. Other patrons stopped talking and stared at the complainant's group.
- Mr. Hughes made a split second decision not to serve the group, not because of anything that they had done, but because he immediately sensed that trouble would develop if they remained on the premises and violence might erupt.
- Mr. Hughes was concerned with the implications for the licensing of the premises of trouble did arise and the refusal to serve the group was made solely on the basis of the hostile atmosphere which he perceived.
Gerry McGlynn, Assistant Manager, Firhouse Inn
Mr. McGlynn stated that:-
- He has been working in the Firhouse Inn for some twenty years.
- He was not personally present when the complainants were refused service but came on the scene shortly after and was asked by Martin Mongan for the name of the barman who had refused him.
- Prior to 29 June 2001 Travellers had been served on the premises on an ongoing basis. While certain Travellers were not recognisable as such, others were.
- One week before the refusal to the complainants a group of Travellers had been drinking on the premises all day. Initially they had been very friendly and had chatted freely with Mr. McGlynn. However, by the end of the evening they had begun to fight among themselves. They were refused further service and asked to leave. When they refused to leave and it was necessary to call the Gardaí to get them off the premises.
- Travellers had been served since the refusal to the complainants, several of whom were known well locally and tensions with the locals, such as those which existed at the time when the complainants sought service, did not arise.
- Mr. McGlynn was aware of the tensions locally arising from Travellers halting on unofficial sites nearby. It was difficult not to be aware of them as he lived in the area close to the pub.
Mr. Niall Morton, Manager, Firhouse Inn
Mr. Morton stated that:-
- The Firhouse Inn is a family owned, traditional style, local establishment. There has never been a policy of refusing or restricting service to anyone or any group in the premises unless there is good reason to do so, such as disorderly conduct etc. There have never been any objections to the license of the premises.
- No instruction had ever issued not to serve Travellers in the premises, but the staff would regularly be admonished to keep things under control on the premises, e.g when large groups such as football teams came in and there was a danger that they would become excessively boisterous.
- Mr. Morton submitted a newspaper clipping which showed that a member of the Traveller community, (named) who had been served in the premises months after the refusal involving the complainants, had been arrested for causing a disturbance in the vicinity of the Firhouse Inn.
- In the ordinary course of events the only time a customer is barred indefinitely from the Firhouse Inn is for serious misbehaviour or bad conduct on their part. In the cases at hand exceptional circumstances led to the refusal.
Mr. Morton submitted eight separate newspaper articles dealing with the issue of the use by certain Travellers of the grounds/lands in the Ballyboden/Firhouse area as an unofficial halting site, immediately prior to the complainants arrival in the area. - These articles deal largely with the litter and damage left by the Travellers concerned in their wake and the consequent outrage of local residents. They clearly demonstrate that feelings were running very high in the area and that local residents were incensed by the actions of those Travellers who had halted on local playing pitches. The area and the pitches were rendered unplayable and unsafe by, among other things, a large quantity of asbestos which had been left on the playing pitches by the Travellers in question.
5 Matters for consideration
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) or 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 (and the description of those grounds for the purposes of this Act) 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 15(1) of the Equal Status Act 2000 provides that ....nothing in this Act prohibiting discrimination, shall be construed as requiring a person.... to provide services .... to another person ("the customer") .... 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.
5.6 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 the Licensing Acts, 1833 to 1999, shall not constitute discrimination".
6. Conclusions of the Equality Officer
6.1 In the cases at hand there is clear agreement between the parties that the complainants were refused service in the respondent premises. The complainants stated that they were halted on an unofficial halting site directly across the road from where the destruction had occurred. While the complainants felt that the hostile atmosphere which they experienced on entering the pub was simply because they were recognised as Travellers by the patrons of the premises, I am satisfied, having taken all of the evidence into consideration that the hostility of the other patrons had been engendered by the nature and scale of the destruction caused by a relatively small number of Travellers who had shown complete disregard for local facilities at the time in question. I am satisfied that the patrons of the Firhouse Inn on the evening in question recognised the complainants as Travellers and immediately associated them, not simply with other Travellers but, rather, with Travellers who had caused a great deal of destruction in the area. It was the destruction that had been caused, not the Traveller status of those who perpetrated it, that gave rise, ultimately to the hostility. I am satisfied that a non-Traveller similarly associated, wrongly or otherwise, with a group of non-Travellers who had caused such destruction would have been treated in the same manner.
In any event, I am satisfied that the barman, Mr. Hughes did not have time to analyse matters on the evening in question. Rather, he acted instantly to deal with a perceived, and I am satisfied, substantial risk of imminent violence on the premises. He was immediately aware that the complainant's continued presence in the establishment was the source of that substantial risk and he acted to remove the risk. This is not in any way to condone the reaction of the patrons of the Firhouse Inn to the complainants who appear to have been entirely innocent in this matter, but the fact remains that the refusal was not made on a discriminatory ground and was in accordance with Section 15(1) of the Equal Status Act.
6.2 The barman who actually refused service stated in evidence that he was concerned with the licensing implications for the premises should trouble arise. Mr. Hughes is acquainted with a number of Travellers who live locally and has no difficulty whatsoever serving Travellers in normal circumstances. The complainants are completely unknown to him and he has no reason to believe that they would not have conducted themselves in an appropriate manner had they stayed on the premises. He did not serve them purely and simply because it was immediately obvious that a potentially explosive situation existed, given the mood of the other patrons. I found the evidence given by Mr. Hughes compelling in this regard. The complainant, Martin Mongan, also perceived the atmosphere described by the barman, although he was not aware of the precise reasons for it, and most likely felt that it was simply because he and his companions were Travellers.
6.2 I am satisfied that the refusal was genuinely based on the perception by the barman, Mr. Hughes, that the complainant's presence could give rise to serious difficulties because of the hostility and animosity on the part of other patrons towards those members of the Traveller community who had caused serious destruction in the immediate area in the recent past. The locals were clearly associating the complainants with that destruction and, should they have been allowed to act on their animosity, there was clear danger to the well being of the complainants.
I would emphasise in the strongest possible terms that the complainants had neither done nor said anything to provoke the reaction which gave rise to the refusal, and in fact the refusal was made for their protection in the face of the existing hostility from local residents. The hostility and strong emotions caused a prejudiced reaction towards the complainants on the part of the local residents despite the fact that no evidence was presented to associate the complainants with the actual destruction which was caused by certain Travellers in the area at the time. However, Section 5(1) of the Equal Status Act is concerned with discrimination by service providers only.
I am satisfied that the barman, Mr. Hughes, acted in good faith for the sole purpose of ensuring compliance with the Licensing Acts 1833-1999 and that Section 15(2) of the Equal Status Act, 2000 is applicable in these cases. The respondent has established to my satisfaction that Travellers were served in the premises before the occurrences which gave rise to the animosity on the part of the locals and after the date of the alleged discrimination in the cases at hand. The barman, Mr. Hughes, has established to my satisfaction that he felt no prejudice towards the complainants and that he was genuinely concerned that, should violence erupt, the premises would be held liable under the Licensing Acts, specifically Section 13 of the Licensing Act 1872, for not having prevented such violence.
7 Decision
I find that the refusal of service to the complainants was made in accordance with Section 15(1) and 15(2) of the Equal Status Act 2000 and did not therefore constitute discrimination. I find therefore in favour of the respondent.
__________________________
Dolores Kavanagh
Equality Officer
12 May, 2003