Jimmy Maughan and John Barrett (represented by Matthew Molloy & Co., Solicitors) v McAlinden's Pub, Galway (represented by Geoffrey Browne & Co, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Jimmy Maughan and John Barrett that they were discriminated against, contrary to the Equal Status Act 2000, by the owner of McAlinden's Pub, Galway. 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 Complainants' Case
2.1 The complainants state that when they entered McAlinden's Pub on Saturday 23 June 2001, they were refused service by the owner, Ms Helen Healy, on the grounds of their membership of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainants were refused service because Mr Maughan had been abusive towards staff in the pub the previous Sunday.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated these complaints 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. Evidence of Complainants
- Both men are members of the Traveller community who have lived in Galway for many years
- Mr Maughan had only been in McAlindens once prior to 17 June 2001 while Mr Barrett had never been in the pub before
- Mr Maughan knew Ms Healy to see from around the neighbourhood but did not know her brother Jimmy
- On Saturday 17 June 2001, Mr Maughan went to McAlindens around 9pm with his cousin. They joined a friend of theirs at the bar, Mr Kenneth Gillan, a non-Traveller.
- Mr Barrett arrived in the pub before 10 pm with another non-Traveller colleague, Mr A, who was a regular in McAlindens. They had been in the Crane bar beforehand for a drink.
- At that time, Mr Barrett was very ill and subsequently underwent a liver transplant.
- The five men were served a number of drinks during the night. They recall an Australian woman working behind the bar with Mr Jimmy Healy.
- Around 10.50 pm, Mr Maughan asked the Australian barwoman for a last drink but she replied "Sorry, no more drink being served"
- Mr Barrett also called for a drink but was also refused service
- While neither can say exactly what time it was, they are both sure that it was before 11 pm closing time
- Both men saw the woman serving other customers later
- Mr Maughan went to the other end of the bar where Mr Jimmy Healy was standing. Mr Healy was not taking orders but was talking to customers and had a pint in front of him
- Mr Maughan complained to Mr Healy but received no explanation from him as to why he was not being served
- Mr Healy then went behind the bar and served other customers
- As they were not being served, Mr Maughan, Mr Barrett, Mr A and Mr Maughan's cousin decided to go to the Crane where they got a last drink.
- Neither of the complainants accused the barstaff of discrimination on the night nor did they identify themselves as Travellers
- On Saturday 23 June 2001, the two complainants returned to McAlindens for a drink
- On arrival, they were approached by Ms Helen Healy who said to Mr Maughan "I think you are barred" and "I think you were involved in an incident last week"
- The complainants then called the Gardai and soon afterwards Garda John Lovett arrived
- The complainants explained to the Garda that they were Travellers and that they believed they were being discriminated against
- The Garda took details and spoke to Ms Healy
- The complainants then left peacefully
- In response to the respondents' claim that they did not know the complainants were Travellers, Mr Maughan said that it was possible that other customers would have recognised them that night and told the barstaff
Evidence of Mr Kevin Gillan
- Mr Gillan is a non-Traveller who used to be a regular in McAlindens in 2001
- He arrived in McAlindens shortly after 6 pm on Sunday 17 June 2001
- He had 6 or 7 pints before the complainants arrived
- He was in the complainants company while they were in the pub
- The complainants had no difficulty getting served until they called for a last drink before 11 pm
- Mr Gillan cannot remember exactly what time it was but believes that it was before closing time
- He recalls the complainants asking for a last drink and being refused by a woman behind the bar
- After the complainants left the pub, he asked for a last drink himself and was served
- He believes that he may have been the last person to be served that night and considers that he was fortunate to get a last pint
Evidence of Respondents - Ms Helen Healy
- Ms Healy took over McAlindens in July 2000
- She lived abroad for 12 years previously
- She knew neither of the complainants to see prior to 17 June 2001
- The pub caters mainly for older customers and a few Travellers drink there on occasion
- About 10 people are barred. She cannot say whether any of them are Travellers as this would not have been a factor in them being barred
- Ms Healy normally calls to the pub 10/15 minutes after closing time to close up
- On her arrival on 17 June 2001 at 11.15 pm, her brother Jimmy was engaged in conversation with Mr Maughan
- She heard Mr Maughan shouting and being abusive
- When Mr Maughan left the pub, her brother told her he was looking for drink after the bar had closed and that he had been refused
- On account of Mr Maughan's behaviour, Ms Healy and her brother decided that he was not to be admitted again
- She was on duty herself on Saturday 23 June 2001
- She recognised Mr Maughan when he came in with Mr Barrett
- She told him he was not being served on account of the incident the previous week
- Mr Maughan asked then if Mr Barrett could be served
- She noticed that Mr Barrett was leaning on the counter and thought that he looked to have some drink taken
- On account of Mr Barrett's condition and because he was with Mr Maughan, Ms Healy decided that it would be best not to serve Mr Barrett either. (At the Hearing, Ms Healy acknowledged that it was probably Mr Barrett's illness at the time that made him look under the weather, rather than the fact that he had drink taken)
- The two men refused to leave and called the Gardai
- When Garda Lovett arrived, the complainants told him they were Travellers and had been discriminated against
- It was only then that Ms Healy learned that the two men were Travellers
- She explained to the Garda what had happened the previous week and he took some notes
- The complainants then left the pub
Evidence of the Respondents - Mr Jimmy Healy
- Healy is Helen Healy's brother and is employed as a barman in McAlindens
- He had never seen either of the complainants prior to 17 June 2001
- He remembers them coming in on 17 June 2001
- He recalls that the group were well behaved and that he had no difficulty with them until after closing time
- He personally served Mr Maughan and Mr Barrett several rounds and the female barperson also served them a few drinks
- The female barperson was Australian and would not have known of any distinction between Travellers and non-Travellers
- Mr Healy believes that Mr Maughan would probably have had 6 or 7 drinks that evening
- The bar closed promptly just after at 11 pm as is normal for Sunday nights
- Mr Healy poured himself a pint and sat talking to some customers outside the bar
- At about 11.10 pm, Mr Maughan approached him and asked for another drink
- Mr Healy told him the bar was closed
- At that point, Mr Maughan became very abusive towards him and announced that the pub was "only a shit-hole" and that he would not come in again
- Mr Maughan never mentioned that he was a Traveller nor did he accuse anyone of discrimination
- At that point, his sister Helen arrived and heard the end of the discussion
- Mr Maughan then left the pub
- On account of Mr Maughan's conduct, the couple decided at that point that he would not be served again
- Mr Barrett himself was not involved in the incident that night and no decision was taken to bar him
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 service on 23 June 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 has satisfied me that they are members of the Traveller community. In relation to (b), the respondents acknowledge that the complainants were refused service on 23 June 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 23 June 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
Key Points and Factors
7.4 In deliberating on the case be before me, I consider the following factors to be the most compelling and persuasive:
The respondents state that the refusal of service on 23 June 2001 was due entirely to Mr Maughan's behaviour on 17 June 2001
On 17 June 2001, Mr Maughan and Mr Barrett had no difficulty getting served in McAlindens prior to being refused around closing time
Both Mr Healy and the Australian female barperson were happy to serve the men throughout the night.
The complainants were first refused by an Australian national who, most likely, would have had little or no knowledge of the Traveller community.
All parties agree that no reference whatsoever to the complainants' Traveller identity was made by anyone on 17 June 2001
Both Helen and Jimmy Healy state that Mr Maughan approached Jimmy Healy after 11.10 pm
Mr Maughan himself has stated that Mr Healy had a pint in front of him when he spoke to him at the end of the bar. This would seem to indicate that Mr Healy had finished serving
7.5 On considering the evidence before me, it is clear that the decision to bar Mr Maughan revolved around the dispute which took place between Mr Maughan and Mr Healy at the end of the night on 17 June 2001. The complainants state that the refusal was on account of their Traveller identity while the respondents state that it was because it was after closing time.
The complainants make the point that some customers were served after their refusal (including Mr Gillan). In my opinion, this could be explained by the fact that they were regulars rather than because the complainants were Travellers. Reference has also been made to the fact that the complainants were served in the Crane later that night and the complainants maintain that this is proof that they were refused service before closing time in McAlindens. While this point seems to carry some weight, there is no evidence before me to indicate that the Crane itself stops serving promptly at 11 pm on Sundays.
7.6 On deliberating on this case, I find that there is no convincing evidence before me to indicate that the refusal of a last drink on 17 June 2001 was because the complainants were identified as Travellers. Both parties have confirmed that no reference whatsoever was made to the complainants Traveller identity on the night. In addition, evidence shows that the complainants were served with no difficulty up until closing time. I, therefore, find it hard to accept that the refusal of a last drink was brought about by a sudden recognition that they were Travellers.
I, therefore, consider that, on the balance of probabilities, the reason the complainants were refused a last drink on 17 June was that service had finished on the night. I also consider that the reason that service was refused the following week was because of Mr Maughan's dispute with Mr Healy on 17 June 2001 and not for any discriminatory reason. Accordingly, I find that the treatment afforded Mr Maughan on 23 June 2001 was the same that a non-Traveller would have received in similar circumstances. For this reason, I find that the respondents' actions did not constitute discrimination under the Equal Status Act 2000.
7.7 With regard to Mr Barrett's situation, I note that he had no involvement in the incident on 17 June 2001 but that he was also refused service on 23 June 2001. While Ms Healy's decision to refuse service to Mr Barrett on 23 June may have been somewhat harsh, I have formed the opinion that his refusal was not an act of discrimination but an honest mistake on Ms Healy's part and that she, not knowing of Mr Barrett's illness, mistook him for someone who had drink taken.
I, therefore, consider that it was a genuine mistake on Ms Healy's part that led to Mr Barrett being refused a drink on 23 June 2001 and that his refusal was not motivated by any discriminatory reasons.
I, therefore, find that a prima facie case of discrimination has not been established in this case.
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