Tom and Charles Conroy V Mooney's Pub, Ballinrobe (Represented by Claffey Gannon & Co, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by two brothers, Tom and Charles Conroy that they were discriminated against, contrary to the Equal Status Act 2000, by Mooney's Pub, Ballinrobe. 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 they were asked to leave Mooney's Pub, Ballinrobe on 30 September 2001, for no apparent reason. The complainants believe that it was solely because of their membership of the Traveller community.
3. Summary of Respondent's Case
The respondents reject that a discriminatory policy against Travellers was in operation. They maintain that Tom and Charles Conroy were told that they were barred because of their unacceptable conduct on the premises during the course of a pool game.
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 his 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 Note
At the beginning of the Hearing in Galway on 23 October 2003, Tom Conroy announced that the other complainant, his brother Charles Conroy, had taken ill in Dublin the night before and was unable to attend the Hearing. Tom Conroy indicated the he would represent his brother at the Hearing. The respondents objected to this saying that, in the absence of any medical certificate from Charles Conroy, that his complaint should be dismissed. The Equality Officer said that he had noted the views of both parties and that he would make a ruling on the matter in his decision.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken tooccur 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 asked to leave Mooney's Pub on 30 September 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 complainants 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 asked to leave the premises on 30 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 30 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 From the evidence provided, I consider the following information to be the most compelling and persuasive:
- Tom Conroy states that he had not been served in Mooney's Pub prior to the Equal Status Act 2000 coming into force but that, since the Act took effect, he and his family were regular customers (twice a week) in Mooneys in the year leading up to the incident on 30 September 2001.
- Mr Conroy states that Mrs Mooney would have known that his family came from a Traveller background and Mrs Mooney has acknowledged that she knew the Conroy family to be Travellers.
- On 30 September 2001, the three Conroy brothers, Tom, Charles and David and their wives met their parents for a drink in Mooneys. The family usually met for a drink once a week. Tom Conroy says that he and his brother, Charles played pool together that evening and were having fun. While they may have been a bit loud, they were not acting in an aggressive manner.
- The respondents maintain that, as the night went on, Tom and Charles Conroy got increasingly louder and became very aggressive towards one another while playing pool, that Tom Conroy physically and verbally threatened his brother, that both brothers used foul and abusive language and that they totally ignored Mrs Mooney when she asked them to quieten down.
- As she was being totally ignored, Mrs Mooney said that she decided that the only way to handle the situation was to ask the two brothers to leave. Mrs Mooney then informed Tom and Charles Conroy that they were both barred. No other member of the Conroy family was asked to leave. Tom Conroy confirmed at the Hearing that only his brother and himself were asked to leave.
- Mrs Mooney states that the situation was so serious that she had to close the bar early that night. Mrs Mooney's account of events was supported by the barwoman on the night and another customer who appeared as witnesses.
- Tom Conroy denied that any threatening behaviour had occurred and insisted that the two brothers were only "jiving" and having fun. Mr Conroy's mother and wife supported this account of events at the Hearing stating that they had seen nothing untoward in the behaviour of the two brothers that night.
- Tom Conroy produced a non-Traveller witness, Brendan Clarke, at the Hearing in order to make the point that the Conroy brothers were treated more harshly than non-Travellers would normally be treated by Mrs Mooney in similar circumstances.
- Mr Clarke, a non-Traveller, gave evidence of an incident where he was violently attacked in Mooneys by another non-Traveller customer. He said that on the night, Mrs Mooney assisted his attacker by allowing him leave the pub through the kitchen . Mr Clarke said that that man is still a regular customer in Mooneys despite having committed a serious assault on him. Mr Clarke called the Gardai that night and gave them a statement when they spoke to him outside the pub. Mrs Mooney was not interviewed by the Gardai to Mr Clarke's knowledge and the case did not go to court as the Sergeant involved has since retired.
- Mrs Mooney denied any knowledge of this alleged incident and said that the Gardai had never contacted her about the alleged incident. She also said that she has never allowed anyone to leave the premises through the kitchen in the time she been running the pub.
- Since the incident on 30 September 2001, the Conroys's parents and other brother, David, have continued to frequent Mooneys Pub and have not experienced any problem in getting served.
7.5 As stated earlier, the respondents have argued that the complaint by Charles Conroy should be dismissed because of his failure to appear at the Hearing. In this regard, I consider that, in the interests of natural justice and fair procedures, that the respondents should have been afforded the opportunity to question Charles Conroy at first hand with regard to the allegations made against them. This did not occur in this case as, at the hearing, Tom Conroy, indicated that his brother had taken ill the night before in Dublin. In the absence of any medical evidence to support this claim and in light of the fact that Charles Conroy was still in Dublin the night before a Hearing scheduled for 10 a.m. the next morning in Galway, I find that I have not been sufficiently satisfied as to the bona fides of the explanation given for Charles Conroy's non-attendance at the Hearing. Accordingly, I find that, in not attending the Hearing, Charles Conroy has not established a prima facie case in his own right (DEC-S2003-137).
7.6 With regard to the alleged incident referred to by Mr Clarke and which Mrs Mooney denies any knowledge of, I note that no independent witnesses or Garda reports have been produced in support of Mr Clarke's testimony. For this reason, I consider that it would not be appropriate to draw any firm conclusions from this evidence in deliberating on the case before me. It must be said, however, that if sufficient evidence had been put before me to support Mr Clarke's testimony that non-Travellers had been treated more favourably than Travellers, then it is possible that an inference of discrimination could have been drawn from such evidence.
7.7 In considering whether the barring of the Conroy brothers can be attributed to their membership of the Traveller community ground, I am particularly cognisant of the fact that the Conroy brothers, who were known to be Travellers, had no difficulty in obtaining service in Mooneys prior to 30 September 2001. In addition, there is agreement that other members of the Conroy family continue to be served in Mooneys pub which indicates to me that the pub does not operate a general policy of discrimination against Travellers. Having considered all the evidence before me, I find that the decision to bar the two complainants on 30 September 2001 was brought about by their own behaviour on the night rather than because they were members of the Traveller community. I, therefore, consider that the Conroy brothers were not treated less favourably than non-Travellers would have been treated in similar circumstances. Accordingly I find that Tom Conroy has also failed to establish a prima facie case of discrimination in his own right (DEC-S2003-136).
8 Decision
8.1 I find that neither 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. Accordingly, I find in favour of the respondent in the matter.
Brian O'Byrne
Equality Officer
18 November 2003