Mr. Michael McCarthy Junior, Mr. Patrick "Ter" McCarthy (Represented by Mr Brian Kavanagh) V The Old Reliable Bar (Cork) (represented by O'Donnell Breen-Walsh O'Donoghue Solicitor)
1. Dispute
1.1 The dispute concerns a claim by Mr. Michael McCarthy Junior and Mr. Patrick "Ter" McCarthy that they were discriminated against by the Old Reliable Bar on the grounds that they are members of the Traveller Community. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2 Background
2.1 The complainants' case is that they were refused service in the respondent's pub at about 3.10 p.m. on 6 September 2001. They believe that the refusal of service was due to the fact that they are members of the Traveller community. The respondent submitted that the complainants were not discriminated against on the grounds that they are Travellers, but they were refused service because the barman observed them staring at a group of black people in a hostile manner. A short time later when they entered the pub he refused them service on the grounds that they could cause a disturbance.
3 Summary of the Complainants' Case
3.1 The complainants stated the following:
- That they are members of the Traveller community living in Cork and are residing about one and a half miles from the respondent's pub. At about 3:10 pm on 6 September, 2001 they went into the respondent's premises to get a drink. This was the first time they had visited this pub.
- Mr. Michael McCarthy ordered two pints of Heineken from the barman. The barman refused them service saying "no lads, sorry". The complainants said that they were embarrassed and immediately left the premises and did not query why they were being refused service. They believe they were refused because the barman recognised them as members of the Traveller community.
- They said that they are recognised as Travellers from their talk and looks. They are not aware if other Travellers are served in this pub as none of their friends drink there.
- They said that they have difficulty in getting service in pubs and they no longer query why they are being refused because they know it is because they are Travellers.
In response to the respondent's case the complainants denied that they had been involved in any hostile type situation on Shandon Street with a group of black people. They also denied that a boy of about 12 years was in their company on the street or in the pub. - The complainants' representative submitted that the complainants were not involved in the incident on Shandon Street. He said that he deplores such an incident if it did occur, but he believes that the barman was mistaken in identifying the complainants as the persons involved in the incident. He submitted the incident was being used as an excuse to cover up discriminatory treatment of Travellers by the pub.
4 Summary of the Respondent's Case
4.1 The respondent submitted that the complainants were not discriminated against on the Traveller community ground and submitted the following evidence:
- The barman Mr. John Paul Ring stated that he has worked in the respondent's bar for the past 5 years. He was on duty and refused to serve the complainants when they entered the bar on 6 September, 2001..
- Mr. Ring said that on his way to work at about 2:55 pm he observed the complainants on Shandon Street near the pub. He said that the complainants had a boy of about 12 with them and he observed that there was tension between them and a group of black people on the street.
- He said that one of the complainants was on the telephone in an open kiosk and the other was outside the kiosk with a boy of about 12. He said that a group of black people were standing a number of feet away and both the complainants and the black people were "staring down" each other. Mr. Ring said he observed it to be a tension filled situation. He said that his attention was drawn to the situation as he walked up the street and as he had to pass through the group he felt threatened and intimidated by them.
- A short time later the complainants together with the 12 year old boy entered the pub and he decided to refuse them as he was afraid that they could cause trouble.
- Mr. Pat Healy owner of the pub said that Mr. Ring told him about the incident when he came on duty at about 6pm. He said that he was satisfied that Mr. Ring observed the incident described and that he made the right decision to refuse service in these circumstances.
- Mr. Healy said that Shandon Street is a busy street and there is a fair number of non-nationals living in the area, so it would not be unusual to see a group of black people on the street. Mr. Healy said that non-nationals as well as Travellers are regularly served in his pub. He denied that he had any policy to limit the number of Travellers he allows into the pub.
- He said it is the barman's decision on the day to make a decision on whether to serve a customer or not. Customers are refused generally for having too much drink consumed, if they have been previously barred, fighting persistent arguing or fighting on the street.
- Mr. Healy said that he lives in the locality and he knows a high percentage of his customers. If he sees people on the street arguing or fighting and if they then come into his pub, it is the policy of the pub not to serve them.
- The respondent's representative submitted that because of the incident which Mr. Ring observed on the street, he was entitled under Section 15 of the Act to refuse service.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not."
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as: "Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred."1 Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In more recent employment discrimination cases the Labour Court has applied the test and stated: "The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination".2 and in another case stated: "...the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed."3
5.3 I have identified the key issues for decision as follows: (i) are the complainants covered by the discriminatory ground? ( in this case are they members of the Traveller community?)
3 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011
2 The Rotunda Hospital v. Noreen Gleeson DEE003/2000
1 Dublin Corporation v. Gibney EE5/1986
(ii) were the complainants refused service by the respondent on 6 September, 2001?
(iii) is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
5.4 I am now going to examine issues I have identified above and consider whether the complainants have established a prima facie case of discrimination. If those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is not necessary for the complainants to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5.5 Issue of Traveller Identity
In the Equal Status Act, 2000 the Traveller community ground is defined as follows: "means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland". I am satisfied that the complainants are members of the Traveller community as defined by the Act. .
5.6 It was accepted by both the complainant and the respondent that service was refused, so the second element of the test has been established.
5.7 I am now going to examine the evidence to see if the third element of the test has been established, that is have the complainants produced sufficient hard evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that discrimination had occurred. The complainants case is that they were refused service for no good reason and believes this occurred because they are members of the Traveller community. The respondent's case is that the complainants were refused service because they were acting in an unacceptable manner in the vicinity of the pub and it is the policy of the pub to refuse service to customers behaving improperly in the vicinity of the pub. The complainants deny that such an incident occurred and they also denied that they had in their company a 12 year old boy. I note from the complainants' evidence that they did not enquire from the barman why they were being refused service. They said that they were embarrassed and were convinced that the barman recognised them as Travellers. They said while they were never in the bar before, but they have been regularly refused service in others bars, and they no longer query why they are being refused because, they know from experience it is because they are Travellers. Nevertheless I find it very unusual given that the complainants were not in this pub previously that they did not enquire about the reason for the refusal of service. Likewise I note that the complainants did not put forward any other hard evidence to support their case.
5.8 I found the evidence put forward by the barman Mr. Ring to be very convincing evidence. I am satisfied that Mr. Ring believed he saw the complainants in the vicinity of the respondent's pub acting in an unacceptable manner and this belief led him to refuse them service. It is possible that Mr. Ring was mistaken in identifying the complainants, as the people involved in the incident, but it is clear from his evidence that this was his belief at the time he refused service. I am also satisfied that if Mr. Ring observed a non-Traveller in the vicinity of the pub acting in an unacceptable manner, that person would not be served in the pub either. I am therefore satisfied that the complainants have not established that they were treated less favourably than non-Travellers would have been treated in a similar circumstances. I find therefore, on the balance of probabilities, that the complainants have not succeeded in establishing a prima facie case of discrimination.
5.9 I note that Mr. Ring in evidence said that he had never seen the complainants before and he did not recognise them as Travellers. The complainants said that they could be recognised from their looks and their speech. It is clear from the complainants own evidence they were only in the pub briefly and only one of them spoke to Mr. Ring. I do not believe from this brief contact Mr. Ring had with the complainants that he recognised them as Travellers.
5.10 The respondent's representative submitted that the respondent was entitled to invoke Section 15 of the Equal Status Act, 2000 to justify the refusal of service. As I have found above that the complainants failed to provide sufficient evidence to establish a prima facie case of discrimination, it is not necessary for me to consider the case under Section 15 of the Act.
6 Issues Concerning the Investigation
6.1 The complainants complained during the course of the hearing that the respondent did not reply to the notification of the complaint or provide them with a reason for the refusal of service. The complainants notified the respondent of the complaint in accordance with Section 21 of the Equal Status Act, 2000, but received no response. I invited the respondent to respond to the complaint of alleged discrimination and again I received no response. The complainants only received an explanation for the refusal of service at the hearing.
6.2 At the hearing the respondent's solicitor said that a response was sent to the complainants but the registered post was returned. However when I sought information from the respondent I got no response, nor was I provided with the response which was prepared for the complainants.
6.3 While I am satisfied that it was not the respondent's intention to deliberately obstruct me in the investigation of this complaint. Nevertheless it should be noted that it is a statutory offence under Section 37 of the Act not to comply with a requirement of an Equality Officer or to obstruct her in the exercise quasi-judicial powers. The penalties provided by the Act are as follows:
on summary conviction, a fine of up to £1,500 or imprisonment for up to one year or both,
on conviction on indictment, a fine up to £25,000 or imprisonment for up to 2 years or both
Where the offence continues after conviction, a further fine up to £250 per day on summary conviction and up to £1,500 per day on conviction on indictment.
6.4 The complainants only received a proper explanation of the reason service was refused at the hearing of the complaints. As I have mentioned above the respondent did not reply to the notification of the complaints sent to him by the complainants in accordance with Section 21(2)(a) of the Equal Status Act, 2000. It should be noted that Section 26 of the Act provides: "If in the course of an investigation under Section 25, it appears to the Director-
(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by a complainant under section 21(2)(b),
(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director, The Director may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c)." As I have found above the complainants have failed to establish a prima facie case of discrimination. Therefore in the circumstance, I do not consider it appropriate to draw an inference from the fact the respondent failed to respond to the notification of the complain given that no prima facie has been established. Nevertheless I would like to draw the attention of the respondent to the provisions of the Act in this regard.
7. Decision
7.1 On the basis of the foregoing I find that the complainants were not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act.
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Marian Duffy
Equality Officer
21 November, 2003