Michael & Margaret McCarthy (Represented by Noonan, Linehan, Carroll, Coffey on behalf of the Equality Authority) V The Eagle Bar (Represented by PJ O'Driscoll & Sons, Solicitors)
Headnotes
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Membership of the Traveller Community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub - Prima Facie Case - Section 15(1)
Michael and Margaret McCarthy referred claims 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, the Director then delegated the case to me, Bernadette Treanor, 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.
Summary of the Complainant's case
The Complainants had decided to go out for drinks on 30/12/2000. They arrived at the Eagle Bar at 10:15pm. While his wife Margaret sat down, Michael McCarthy went to the bar to order. The barman waved his hands at him as if to suggest that he would not be served. Mr. McCarthy turned around and left with his wife. The complainants believe the refusal on 30/12/2000 was because of their membership of the Traveller community.
Summary of the Respondent's Case
On 30/12/2000 the respondent saw the McCarthy's enter the Eagle Bar. The respondent was of the opinion that Mr. McCarthy was intoxicated. However, since he is barred on the basis of a previous incident, he would not be served in any event. One witness on behalf of the respondent attested to the previous incident, allegedly involving Mr. McCarthy. Another witness stated that members of the Traveller community are regulars in the Eagle Bar. The respondent stated that the refusal on 30/12/2000 was because Mr. McCarthy was barred.
Conclusions of the Equality Officer
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) Applicability of the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie case and 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.
Mrs. Margaret McCarthy
Mrs. McCarthy did not attend the hearing to present evidence in support of her complaint under the Equal Status Act, 2000. She has therefore failed to establish a prima facie case of discrimination on the Traveller ground.
Mr. Michael McCarthy
I am satisfied that the complainant is a member of the Traveller community and this was accepted by the respondent. I am satisfied that a refusal of service took place on 30/12/2000. These points satisfy (a) and (b) above. In order to assess whether or not the treatment received was less favourable based on the Traveller ground it is necessary to examine the circumstances surrounding the refusal. Mr. McCarthy offered no reason for the refusal other than his membership of the Traveller community. He denied that he had ever been involved in a previous incident in the Eagle Bar. The first witness for the respondent described the previous incident and confirmed that Mr. McCarthy had been the person involved in that incident. The respondent himself had been involved in the latter part of the incident and he confirmed the witnesses version of its conclusion. I find the respondent's evidence more compelling. On the basis of the evidence I am satisfied that this previous incident took place and that Mr. McCarthy is barred because of it. I am satisfied, based on the description of the previous incident, that Section 15(1) provides a defence for the respondent in this case. I find that the respondent, in refusing service in accordance with Section 15(1), did not treat Mr. McCarthy less favourably on the grounds of his membership of the Traveller community. Mr. McCarthy has failed to establish a prima facie case of discrimination on the Traveller ground.
Decision DEC-S2003-138-139
I find that Michael and Margaret McCarthy were not discriminated against on the Traveller ground and accordingly this decision is in favour of the respondent.
Bernadette Treanor
Equality Officer
20 November 2003