Michael & Margaret McCarthy (Represented by the Traveller's Visibility Group) V Fiddler's Green Bar (Represented by PJ O'Driscoll & Son, 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
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 Fiddler's Green Bar at 10:30pm. Mr. McCarthy only got inside the door with his wife when the respondent came from the bar area towards him, along with a bouncer, at the door. The respondent said that he would not serve them that night and told them to come back the next day. The complainants believe the refusal on 30/12/2000 was because of their membership of the Traveller community.
Summary of the Respondent's Case
The respondent stated that he watched Mr. McCarthy enter and make his way to the bar. He hit a couple of stools on the way in and stumbled. The respondent decided that his general demeanor suggested that he was intoxicated. He has never employed bouncers and works alone. After the refusal the complainants left. Mr. Coleman, owner of the Eagle Bar and witness for the respondent, stated that the complainant was intoxicated while in his bar at 10:15pm on 30/12/2000.
Conclusions of the Equality Officer
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, and it was accepted by the respondent, that the complainant is a member of the Traveller community. It is agreed that a refusal took place on 30/12/2000. The complainants' representative suggested that since the versions of events presented by the parties were so different perhaps the respondent was describing a different incident involving different customers. The respondent agreed that he could not positively identify Mr. and Mrs. McCarthy but stated that only one such incident took place at that time. I am satisfied that this satisfies (b) above. In relation to (c) above, I note that the complainant denies that he was intoxicated, stating that he had been unable to get a drink anywhere in the Blackpool area that night and that he had not had a drink at home. The respondent, on the other hand stated that the complainant's general demeanor led him to the conclusion that he was intoxicated. The respondent's witness had also arrived at this conclusion. The respondent stated that his policy in relation to refusals is based entirely on a person being intoxicated or influenced by any substance and this policy is applied across the board. I find the respondent's evidence more compelling and on the basis of the evidence, I am satisfied that the complainant was behaving in a manner that was perceived as intoxicated. (The complainant's own evidence supports this in that it was recorded on the ODEI5 that the respondent suggested that they come back the next day.) Refusing the complainant because he was intoxicated was entirely in line with the respondent's policy relating to refusals. As I am satisfied that this policy is applied to all customers, Mr. McCarthy was not treated less favourably than a non-Traveller who was intoxicated would have been treated. In any event the refusal of a person because they are intoxicated is in accordance with Section 15(2) of the Equal Status Act, 2000. I find that Mr. McCarthy has not established a prima facie case of discrimination on the Traveller ground.
Decision DEC-S2003-140-141
I find that Michael and Margaret McCarthy have failed to establish a prima facie case of discrimination on the Traveller ground and accordingly this decision is in favour of the respondent.
Bernadette Treanor
Equality Officer
20 November 2003