Laurence & Kathleen Ward (Represented by Michael McDarby & Co, Solicitors) V The Imperial Hotel, Tuam (Pirbright Ltd - in receivership) (Represented by O'Connor Leddy & Holmes, Receivers)
1. Dispute
1.1 This dispute concerns a complaint by Laurence and Kathleen Ward that they were discriminated against, contrary to the Equal Status Act 2000, by the Imperial Hotel, Tuam. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that when they sought a drink in the Imperial Hotel, Tuam on 27 October 2001, they were refused service. The complainants believe that the refusal was because of their membership of the Traveller community.
3. Summary of Respondent's Case
3.1 Receivers, acting for the respondents, rejected that a discriminatory policy against Travellers was in operation. They maintain that service was refused because Mr Ward had caused trouble previously in the hotel.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this complaint to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5 Background Information - Mr Gary Lennon, Receivers
- Pirbright Ltd purchased the Imperial Hotel in Tuam in October 1999
- The Directors of the company are Mr Thomas Connolly and Mr Declan Cahill
- Pirbright Ltd operated the hotel for 20 months, during which time the business declined
- On 10 July 2001, Conor, Leddy, Holmes, Accountants were appointed Receivers over the assets of the Hotel by the debenture holder, ICC Bank plc
- The incident complained of occurred during the five months the receivers were in charge of the hotel.
- The company has no assets to its name at the present time (April 2003) and there is still an estimated deficit of over £1m owing to the Bank.
- When the receivers took over the Hotel in July 2001, all existing barstaff were retained with the intention of selling the business as a going concern. The receivers also retained the services of the same security company and their staff.
- The only exception was the then manager, Mr A, who left the Hotel's employ around that time
- To ensure continuity, the Receivers appointed Mr Michael Dempsey as Manager of the Hotel. Mr Dempsey had previously worked in the hotel for a number of years as Restaurant Manager and other positions up until mid 2000
- Mr Dempsey's role was to sustain the hotel as a viable entity.
- The Receivers gave no direction as to who should or should not be admitted and did not introduce any form of discriminatory policies. The Receiver himself, Mr Barry Forrest, personally spoke to all the staff and left them in no doubt as to the policies to apply in dealing with customers. Discrimination was not one of these.
- The Receivers disposed of the Hotel in December 2001 after which the new owners closed it down for renovations
- The Hotel still remains closed
Evidence of Complainants
- Laurence and Kathleen Ward have lived in Tuam all their lives
- Both have visited the Imperial Hotel on and off over the years, on average 2 or 3 times a month
- Mr Ward knew Mr Michael Dempsey personally for many years
- Mr Ward often met Mr Dempsey when he worked in the Hotel and was often served by him at the bar
- Mr Dempsey would have known of the Wards' Traveller background
- Kathleen Ward herself worked in the Imperial Hotel 12 years previously
- The complainants never had any problem with the doormen in the years they frequented the Imperial Hotel
- The Wards had not been in the hotel for some months prior to 27 October 2001
- Mr Ward has no recollection as to when he was previously in the hotel but is sure that he was not involved in any incident on that occasion
- Mr Ward knows some Travellers who used to drink in the hotel before it closed and also knows some Travellers who were not admitted
- On Saturday 27 October 2001, the Wards were at a wedding in Athboy
- They returned home at 6.30 pm and went to the Imperial Hotel at 7.30 pm
- There was no one on the door when they arrived
- Kathleen Ward went to the bar and ordered two drinks
- The barman, who they recall was a foreign national, said to her "Sorry, I can't serve you". He did not give a reason
- They then approached Mr Dempsey who was on duty.
- Mr Ward asked him what the problem was and he told them that he had no problem with them personally but that they would have to wait and see the doormen when they came on duty at 8 pm
- The couple sat in the Lounge until 8 pm
- When the doormen arrived, they went into the back of the hotel and then returned and said "Can we have a word outside?". Mr Ward believes that they probably spoke to Mr Dempsey inside.
- Mr Ward recognised the doormen from seeing them before on duty in the Hotel. He had had no problem with them previously
- The doormen told him that he was "deemed trouble" and would not be served. They also made some reference to him having been "seen on camera."
- Laurence Ward pointed out to them that his wife had worked in the hotel previously and asked whether she could be served.
- The doormen went in to speak to Mr Dempsey and returned saying that they would serve Mrs Ward but not Mr Ward
- Mr Ward did not ask to speak any further with Mr Dempsey.
- The couple then left peacefully
- The following night, as Mr Ward was passing the Imperial Hotel, one of the doormen called him over and asked whether he had been involved in any assaults before as he wanted to check with the police.
- Mr Ward did not answer but walked away. He believes that this was an attempt to get more evidence to substantiate the hotel's decision to refuse him service
Evidence of Mr Michael Dempsey
- Mr Dempsey worked for a number of years in the Imperial Hotel. Initially as Restaurant Manager and subsequently as Manager. He was let go by Pirbright Ltd in 2000 when they appointed a new manager.
- When Pirbright went into receivership, the Receivers reappointed him as Manager in July 2001
- Mr Dempsey's role was to supervise barstaff and security staff. The security staff reported to him on an ongoing basis and all incidents were discussed between them to determine what action was to be taken.
- Mr Dempsey knew the Wards for many years and knew that Mrs Ward had previously worked in the hotel.
- The hotel had employed a number of Travellers and foreign nationals over the years and had never operated a policy of discrimination against anyone.
- Mr Dempsey had served the Wards before and had never personally encountered any trouble with them.
- Some weeks before 27 October 2001, the security staff reported to Mr Dempsey that a man called Laurence Ward had engaged in unacceptable behaviour in that he had been cursing and annoying other customers. The security men would not have known Mr Ward personally before that, as they were not from the Tuam area.
- As Mr Dempsey knew that there were a number of Laurence Wards in the area, he sought a description of Mr Ward from the security staff and, from their description, he was reasonably sure that it was the complainant who had been involved.
- Having discussed the incident, it was agreed between Mr Dempsey and the security staff that Mr Ward was not to be readmitted for a number of months.
- On 27 October 2001, the Wards arrived in the hotel and Mrs Ward ordered drinks from the barman who Mr Dempsey recalls was from Estonia.
- The barman refused to serve her. Mr Dempsey does not know how the barman recognised the Wards but presumes he must have been on duty on the previous occasion or that the security men had described Mr Ward to him and told him not to serve him.
- The couple then approached Mr Dempsey and asked what was going on. He replied that this was a matter they would have to take up with the security men when they came on duty at 8 pm.
- Mr Dempsey explained at the Hearing that it was not his function to inform people of decisions to bar them. It was hotel policy that these matters were handled entirely by the security staff.
- Mr Dempsey confirmed that incident reports of both nights involving Laurence Ward had been prepared.
- He had seen both reports at the time and had also referred to them subsequently when the discrimination complaint was made.
- Mr Dempsey had also used these reports to provide information to the Vintners Federation of Ireland, who responded, on the hotel's behalf, to the notification sent under the Equal Status Act 2000.
- In the months prior to the Hearing, Mr Dempsey had contacted the new hotel owners in an effort to obtain the Incident Report Book . However, he was told that the Incident Book was not available as all documentation pertaining to the hotel's previous existence had since been disposed of.
- Mr Dempsey was not aware of a doorman approaching Mr Ward subsequent to 27 October 2001
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment they received in being refused admission to the Imperial Hotel on 27 October 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents acknowledge that the complainants were refused admission on 27 October 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 27 October 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In this case, the complainants argue that there was no previous incident involving Mr Ward and that the decision to refuse service to Mr and Mrs Ward was taken for purely discriminatory reasons, that the decision was taken by a barman and subsequently supported by both Mr Dempsey and the security staff. For their part, the respondents state that the decision to refuse service was because of a previous incident involving Mr Laurence Ward.
7.5 In deliberating on the case be before me, I have drawn the following conclusions from the evidence presented:
- Mr and Mrs Ward have been frequenting the Imperial Hotel for many years and have never experienced any problem getting served.
- Both Mr Dempsey and the Wards are well known to each other and Mr Dempsey has served them regularly over the years without any difficulties
- Because they have known each other for a long time, it is hard to understand why Mr Dempsey would suddenly decide to act against the Wards purely for discriminatory reasons.
- As Mr Dempsey is no longer employed by the Imperial Hotel, there would appear to be no personal reason why he would want to distort the facts to protect his former employers.
- Mr Dempsey has referred to incident reports which are now no longer available. On hearing Mr Dempsey's evidence at the Hearing, I would find it hard to believe that these reports never existed. I would also find it difficult to accept that Mr Dempsey fabricated his report of a meeting with security staff following the first alleged incident involving a Mr Laurence Ward.
- Mr Ward himself has stated that the doormen indicated on 27 October 2001 that they would have no problem serving his wife, Kathleen Ward, which would seem to contradict the notion that a discriminatory policy against Travellers was in place
- Both the complainants and Mr Dempsey acknowledge that there are at least four Laurence Wards living in the Tuam area. It is possible, therefore, that a case of mistaken identity did occur in relation to the original incident
- Both parties recall that the barman on the night was from Estonia. If this was so, I consider that it is unlikely that he would have had much knowledge of Traveller culture nor that he would have recognised the Wards as Travelers. It would follow, therefore, that his decision to refuse service was most likely taken for a non-discriminatory reason.
- Reference was made to a doorman approaching Mr Ward following the 27 October incident. As Mr Ward did not engage him in conversation, it is unclear whether the doorman's request for information relating to other incidents was an attempt to acquire further evidence against Mr Ward or an attempt to validate whether he was the Laurence Ward who was involved in the original incident.
7.6 Having considered the above points, I cannot accept that the decision to refuse service to Mr and Mrs Ward on 27 October 2001 was taken purely for discriminatory reasons. Instead, I consider that there was a previous incident involving a Laurence Ward, although I am not totally convinced that the complainant himself was the Laurence Ward concerned. It may well be, therefore, that a case of mistaken identity led to the complainants being refused service on 27 October 2001. While this is unfortunate from the complainants point of view, I do not consider 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.
I, therefore, find that, on the balance of probabilities, the decision to refuse service on 27 October 2001 was taken for a non-discriminatory reason.. Accordingly, I find that a prima facie case of discrimination has not been established by the complainants in this instance.
8 Decision
8.1 I find that a prima facie case of discrimination has not been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
Brian O'Byrne
Equality Officer
23 May 2003