Ms Kathleen McDonagh (represented by the Equality Authority) V The Redcove Inn, Cork (represented by Raymond St. J O'Neill & Co, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Ms Kathleen McDonagh that she was discriminated against, contrary to the Equal Status Act 2000, by the owner of The Redcove Inn, Cork. The complainant maintains that she was 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 complainant states that when she sought a drink in the Redcove Inn on 14 February 2001, she was told to go to the off-licence where a member of staff told her she had received instructions from the manager not to serve her. The complainant claims that she was refused service on the grounds of her 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 complainant's family were known to have been involved in serious trouble previously and that this was the reason the complainant was refused service on 14 February 2001.
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 the 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 Note
The complaint under investigation was one of four originally submitted relating to St Valentine's Night 2001. Two of the complaints, from Mrs McDonagh and a colleague of hers, Ms A, were against the Redcove Inn. The other two complaints, again from Mrs McDonagh and Ms A, related to an incident in another Cork pub later that same evening. In correspondence with the Equality Tribunal in relation to the Redcove Inn complaints, Mr Raymond St John O'Neill, Solicitor acted on behalf of the pub's owner, Mr O'Mahony. In the case of the other pub, a separate legal firm acted as representatives for the respondents. In May 2002, the Equality Authority, who had agreed to represent both complainants against both pubs, informed the Equality Tribunal that Ms A had moved away from the Cork area and had decided not to pursue her complaints against either pub. The Equality Authority also informed the Tribunal, at that time, that Mrs McDonagh also had decided to withdraw her complaint against the other pub and would only be pursuing her case against the Redcove Inn. In response to this notification, Mr O'Neill was informed that Ms A had withdrawn her complaint against the Redcove Inn. As Mr O'Neill was not on record as representing the other pub, no reference was made in correspondence to him from the Tribunal to the fact that complaints had been received against another pub in respect of the same night nor to the subsequent withdrawal of the other complaints. A separate letter did, however, issue to the other pub's representatives informing them of the withdrawal of both complaints.
At the Hearing of this complaint on 6 March 2003, the respondent's representative, Mr O'Neill, claimed that his client's position had been prejudiced by the fact that the Equality Tribunal had refused to release to him all papers held by the Office relevant to the complaint against his client.
When asked to identify the papers referred to, Mr O'Neill, who had learned of the complaints against the other pub, expressed the opinion that the papers relating to the other pub should have been made available to him as the same complainants were involved and the other incident occurred on the same night.
In reply, it was explained to Mr O'Neill that the Equality Officer did not consider it appropriate for such papers to be made available to him on the basis that Mr O'Neill had not been engaged to represent the other pub, that the incidents in the other pub occurred after the Redcove Inn refusal and also because the other complaints had since been withdrawn.
Evidence of Parties
5.1 Complainant's Evidence
- Mrs McDonagh's husband, John McDonagh was a regular in the Redcove every week for two years up to 1998. Every few weeks during this period, Mrs McDonagh used to accompany her husband to the Redcove for a drink.
- The couple were well known to the owners, barstaff and customers.
- Neither Mrs McDonagh nor her husband had ever caused trouble in the Redcove Inn
- In August 1998, Mr McDonagh was attacked in his own home at 4 am one morning by members of another Traveller family (the C family) who lived in England but who had returned to Ireland for a few weeks. Mr McDonagh states that the incident arose from a disagreement between a brother of his and members of the C family.
- As a result of this incident, Mr McDonagh sustained a very serious injury to his arm which required treatment for over a year on an ongoing basis.
- Shortly after the incident, Mr McDonagh visited the Redcove Inn when his arm was in a splint. He says he recalls meeting the two owners at the time and that they welcomed him back with no problem
- Immediately after the attack, the assailants returned to England. The following year, the Gardai arrested some of the C family in Kilkenny and they were convicted for the attack in 1999. This court case received much coverage in the local papers at the time.
- At the Hearing, Mr McDonagh provided the name of the Traveller family involved, which was not Ms A's family
- As part of his medical treatment in the year following the attack, Mr McDonagh was given special medication which required him to avoid alcohol
- As a result, Mr and Mrs McDonagh did not frequent the Redcove Inn for over a year.
- Mr McDonagh recalls being served on two occasions in the Redcove Inn shortly after Mr O'Mahony took over in 2000. Mr O'Mahony was present on both occasions
- In August 2000, Mr and Mrs McDonagh were refused admission to the pub by Mr O'Mahony who remarked that he did not know them and that their names "were not in the book"
- Mr McDonagh asked to see the book but was told to "move aside"
- Mr McDonagh referred to the fact that he had been there previously but was still refused. The couple were very embarrassed as many of their friends were saying hello to them as they went into the pub
- Mr McDonagh said that he had been living in Ballymahon for 15 years and that he was very active on a number of committees established to assist Traveller Groups
- On 14 February 2001, Mrs McDonagh was accompanied by a Traveller friend of hers, Ms A, to the Redcove Inn
- Mrs McDonagh was a good friend of Ms A and they knew each other very well
- She knew Ms A had appeared in Court previously but understood that these appearances were insurance-related
- Mrs McDonagh had never accompanied Ms A to the Redcove Inn before. She was unable to say at the Hearing whether Ms A had visited the Redcove herself previously with anyone else.
- On St Valentine's night, 14 February 2001, Ms A had asked Mrs McDonagh to come with her to meet some non-Traveller friends of hers with whom she worked.
- Mrs Mc Donagh did not know these people.
- Ms A said that her friends would either be in the Redcove or in another specified pub
- The two women went to the Redcove first. The friends were not there so they decided to order a drink and wait.
- Ms A sat down while Mrs McDonagh went to the bar. Ms B was behind the bar. When she asked for two drinks, Ms B referred to Mrs McDonagh by her first name and asked to speak to her in the off-licence
- In the off-licence, Ms B told the complainant that she had been told by the manager not to serve her
- Ms B apologised to Mrs McDonagh and told her "she was only doing her job".
- When Mrs McDonagh asked for the manager, Mr O'Mahony, Ms B told her he was not on the premises.
- Mrs McDonagh went back into the bar, nodded to Ms A and they both left.
- Mrs McDonagh no longer sees Ms A very often. Ms A now lives in England and only returns to Ireland a few times a year.
- Because she was moving to England, Ms A decided to withdraw her complaints against the two pubs.
- At no time had there ever been any trouble or "feud" between the McDonagh family and members of Ms A's family. Ms A's family had no involvement in the attack on the McDonagh's house in 1998.
- Note In responce to questions from the respondent relating to an incident that same night in the other pub (which was the subject of the withdrawn complaints), Mrs McDonagh refused to comment on the grounds that that incident occurred later that evening and was completely separate to the present complaint.
Evidence of Mr Brian Cullen, Traveller Resourse Worker
- At the Hearing, Mr Cullen gave evidence that the complainant's husband, John McDonagh had worked as his assistant for over 3 years on a number of community related Traveller projects involving the Gardai, Health Boards and other agencies.
- Mr Cullen knew Mr McDonagh very well and was satisfied that John McDonagh was of good character and had never personally caused anyone any trouble
- Mr Cullen said that Mrs McDonagh has suffered a lot on account of not being allowed into the Redcove Inn.
- She used to work in a Creche near the Redcove Inn but, because of the ban, had been unable to join her workmates for a drink at lunch time in the Redcove.
- He said that this situation eventually contributed to her leaving her job in the Creche
5.3 Respondent's Evidence
- Mr Raymond O'Mahony took over the Redcove Inn in June 2000.
- On taking over, Mr O'Mahony retained the services of some existing barstaff
- Ms B, who dealt with the complainant on 14 February 2001, was one of these and is still employed by him
- As Ms B had not been summoned as a witness, he did not consider that it was necessary to bring her to the Hearing
- For 6/8 weeks prior to taking over, he worked alongside the previous owners in the pub
- In this time, the previous owners advised him as to who was barred and also identified those with whom they had had difficulty previously
- Mr O'Mahony would not know which of his customers are Travellers
- No more than 10 people are currently barred
- The pub has a capacity of about 200
- Prior to him taking over the Redcove, Mr and Mrs McDonagh were identified to Mr O'Mahony by the previous owners as members of the McDonagh family.
- The previous owners informed Mr O'Mahony that Mr and Mrs McDonagh had been regulars in the Redcove Inn for two years up until 1998.
- The previous owners told him that they had heard in 1998 that a serious feud had broken out between the McDonaghs and another Traveller family
- On the basis of this information a decision was taken by the owners in 1998 to refuse service to members of the McDonagh family if they visited the Redcove Inn
- Mr O'Mahony, who was working in another pub in Cork in 1998, said that he himself had heard reports at that time of a feud between the McDonaghs and the Keenan families and that it was "common knowledge" around Cork at the time.
- Based on what he had heard about the feud between the two families, Mr O'Mahony feared that trouble might ensue if members of both families visited the Redcove Inn at the same time.
- On taking over the Redcove Inn, Mr O'Mahony gave instructions to his staff that Mr and Mrs McDonagh were not to be served on the premises
- Mr O'Mahony remembers refusing access to Mr McDonagh himself on one occasion because of the reported family feud. He did not give Mr McDonagh a reason at the time.
- Mr O'Mahony does not remember ever refusing Mrs McDonagh
- On 14 February 2001, Ms B was acting on his instructions in refusing Mrs McDonagh
- No report of the incident was recorded by staff that night as it is only incidents that may later result in insurance claims that are recorded
- Ms A is known to Mr O'Mahony for years because of her reputation for causing trouble in pubs around Cork.. On one occasion, Mr O'Mahony was present in a pub when Ms A was arrested by the Gardai
- Mr O'Mahony has no recollection of Ms A visiting or seeking service in the Redcove Inn prior to 14 February 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. In this particular instance, the complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act, 2000 in being denied service in the Redcove Inn on 14 February 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.
7 Conclusions of the Equality Officer
7.1 As mentioned above, at the Hearing of this complaint, the respondent's representative claimed that his client's position had been prejudiced by the fact that the Equality Tribunal had refused to release to him all papers held by the Office relevant to the complaint against his client. The representative then went on to express the opinion that the papers relating to a separate complaint against another pub on the same night should have been made available to him.
In considering this point, I have had reference to Section 25(2) of the Equal Status Act which provides that "an investigation ...... shall be held in private". For this reason, I am satisfied that, while it is the Tribunal's practice, in the interests of natural justice, to ensure that both parties are aware of all relevant papers received, it would be wholly inappropriate for me to release details of a totally separate complaint to a person who is not a party to it.
7.2 In deliberating on the case before me, 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.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. With regard to (b), the respondents accept that Mrs McDonagh was refused service on the date in question. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on the date in question was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 The respondents state that they refused Mrs McDonagh service because they believed that she posed a risk to customers and staff and that they were entitled to do so under the Equal Status Act 2000. Section 15(1) of the Equal Status Act 2000 provides that nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide service to another person 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.
7.5 Mr O'Mahony states that he made his decision to bar the McDonaghs based on reports he and the previous owners had received about a feud between two Traveller families. On foot of these reports, Mr O'Mahony states that an instruction was given to staff not to serve either Mrs McDonagh or her husband.
7.6 Under Section 15(1) it is not discriminatory to refuse an individual where there is a belief that " a substantial risk of criminal or disorderly conduct or behaviour" exists. In the case before me, I would be prepared to accept such an argument if there was hard evidence to show that there was a feud between the families concerned, and that there was a strong possibility that members of the two families were likely to arrive in the Redcove Inn at the same time.
In considering the evidence about the alleged feud, I have noted the following:
- Mr O'Mahony has claimed to have had knowledge at the time about a "family feud" between the McDonaghs and Ms A's family. He has not, however, supplied any specific information as to who exactly was involved in the feud or what precisely he heard had occurred as part of the feud.
- Mr O'Mahony has also claimed that the previous owners, while still running the pub, had identified the McDonaghs to him as having been involved in a feud, which led to his decision to bar the McDonaghs. This claim, however, is contradicted by Mr McDonagh's statement that he was served in the Redcove Inn, while Mr O'Mahony was present, after he took over the pub. In light of this contradiction and in the absence of the previous owners as witnesses, it is very hard to draw any firm conclusions on this point. The complainant and her husband strenuously deny that there was ever any family feud between the two families concerned and, the fact that Mrs McDonagh and Ms A went out together on 14 February 2001, supports this view.
- The evidence of the complainants is that the attack on the McDonagh home was from a separate Traveller family who were subsequently convicted by the Gardai. I note, however, that I have no hard evidence of this claim either.
- No evidence whatsoever has been produced by the respondents to suggest that either Mr McDonagh or Mrs McDonagh have ever personally caused trouble of any kind. This ties in with the evidence of the complainant's character witness, Mr Cullen.
7.7 On the basis of the evidence before me, I find that I have little or no hard facts to go on in relation to the alleged family feud, the attack on the McDonagh home and the subsequent convictions by the Gardai. However, on deliberating on the information that is available, I have formed the opinion, on the balance of probabilities, that Mr O'Mahony took the decision to refuse the complainant based on unsubstantiated evidence of a "feud" between the two families, and that he made no effort to establish the full facts of the case. I have also formed the opinion that, on the balance of probabilities, the information acquired by Mr O'Mahony concerning a feud between the McDonaghs and Ms A's family was probably incorrect.
7.8 Even if there had been an ongoing feud at the time between the two families, I cannot see, from the evidence before me, how anyone could claim that there was a strong possibility that members of the two families were likely to arrive in the Redcove Inn at the same time, and that a disturbance was likely to occur. I have reached this conclusion on the basis that there is no evidence before me to indicate that either the complainant or her husband have ever personally caused trouble anywhere. In addition, there is no evidence before me to indicate that any of Ms A's family were patrons of the Redcove Inn and Mr O'Mahony himself has confirmed that Ms A herself never drank in the pub since he took over. I cannot, therefore accept that a "substantial risk" existed in the circumstances and, on the basis of such a conclusion, cannot accept that the decision to refuse admission to Mrs McDonagh falls within the provisions of Section 15(1) of the Equal Status Act 2000.
7.9 Reliance on information obtained through "word of mouth" as a defence against an allegation of discrimination leaves the respondent in a somewhat tenuous position, in my opinion, if they are unable to substantiate the information concerned subsequently with hard evidence.
In Ms A's case, Mr O'Mahony has indicated that he would have refused her service because of his own personal knowledge of her previous activities in other pubs and her arrests by the Gardai. This to me is sufficient grounds on which to refuse service to Ms A and is, in my opinion, fully in compliance with the provisions of Section 15(1) of the Equal Status Act 2000. Mrs McDonagh's situation is different, however, as Mr O'Mahony had no clear evidence of misbehaviour on her part yet still decided to bar her on the basis of an unsubstantiated report about a feud between two local Traveller families. For this reason, I have formed the opinion that Mr O'Mahony's decision to bar Mrs McDonagh was not sufficiently grounded in fact to be covered by the provisions of Section 15(1) and, therefore, is not acceptable as a defence against the allegation of discrimination.
7.10 I also note that, at the Hearing, the respondents made reference to Ms A's presence on the night of the alleged incident, claiming that Ms A's presence was sufficient reason to refuse service to both women, based on her past history. The respondents are, therefore, making the point that refusal of service was justified as Mrs McDonagh was in the company of a known trouble-maker on 14 February 2001. In this regard, I note that Mr O'Mahony himself has said that Ms A had never been in the Redcove Inn since he took over. I also note that Mr O'Mahony has made no reference to having instructed staff not to serve Ms A . On the basis of the foregoing, and in the absence at the Hearing of the key witness, Ms B, I have formed the opinion that Ms B had probably not been given any instructions relating to Ms A prior to 14 February 2001. I have, therefore, reached the conclusion that Ms B's decision to refuse Ms McDonagh service was based entirely on instructions she had received in regard to Mrs McDonagh, and I consider that Ms A's presence in the pub was not an influential factor in the refusal of service to Mrs McDonagh on 14 February 2001.
7.11 In reaching decisions in a case such as this, the Equality Officer is heavily reliant on the evidence provided, particularly of key witnesses involved in the incident under investigation. The onus is, therefore, on the parties concerned to produce, at the Hearing, those witnesses who they feel can support their cause. The non-attendance of key witnesses with crucial information, can often prove detrimental to the interests of one or other of the parties. The non-attendance of key witnesses has influenced decisions in the past. In Wall v Wicklow Cabs (DEC-S2002-001) the non-attendance of a key witness, a receptionist, led to the complainant being given the benefit of the doubt over a disputed issue.
In this particular case, it is clear that Ms B's evidence would have been extremely helpful as it would have provided a separate insight into the background to the complaint, the circumstances leading up to the alleged act of discrimination, the knowledge she had of the complainant and of Ms A and the actual events of 14 February 2001 itself. The respondent, however, chose not to involve his principal witness in the Hearing, despite the fact that she is still employed by him and was apparently available to attend. In the absence of Ms B, and the fact that the respondent has said that no incident report was prepared on the night, I find that I have been left with no other option but to rely primarily on the evidence of the complainant with regard to the events of 14 February 2001.
8 Decision
8.1 In this case, the evidence before me suggests that Mr McDonagh was an "innocent victim" in a dispute between two Traveller families and that, as a result of an attack on him which was falsely reported, both he and his wife achieved an unjustified level of notoriety locally, leading to them being refused admission to the Redcove Inn. It would also appear that false information relating to the attack led to the wrong families being identified as having been involved in the dispute. In considering the evidence before me, I find that Mr O'Mahony's actions, in accepting the report of a "feud" between the McDonaghs and Ms A's family, and in acting on it without further substantiation or confirmation, was, in all probability, guided by the fact that the families concerned were identified as members of the Traveller community.
8.2 In addition, I find that I cannot accept, for two reasons, the respondent's claim that the refusal of service was in accordance with Section 15(1) of the Equal Status Act 2000, in that the action taken was necessary to avoid a "substantial risk of disorderly conduct". Firstly, the respondent has produced no evidence whatsoever to indicate that either the complainant or her husband had ever personally been involved in trouble of any kind and, secondly, there is no evidence before me to indicate that the two families identified, even if they were involved in a feud, were likely to encounter each other in the Redcove Inn.
8.3 I, therefore, find that the complainant has established a prima facie case of discrimination 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. I also find that the respondents have failed to rebut the allegation.
8.4 In considering the level of redress which is most appropriate in this case, I am mindful of the fact that Mr O'Mahony had only just taken over the running of the Redcove Inn and, in trying to adapt to his new surroundings and customers, may have acted somewhat hastily in making a decision on Mr and Mrs McDonagh, based on "word of mouth" rather than on hard facts.
With this in mind, I order that the respondent pay the complainant a total of €500 and that Mr O'Mahony lift the ban on Mrs McDonagh and her husband, should they decide to frequent his premises again.
Brian O'Byrne
Equality Officer
30 May 2003