DEC-S2003-120 Full Case Report

Mr Willie Collins, Dublin (Represented by the Equality Authority) V The Village Inn, Dublin (Represented by Owen MacCarthy, Solicitor

Mr.Collins referred a claim 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.

2. Dispute
This dispute concerns a claim by Mr. Willie Collins that he was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of his membership of the Traveller Community in that on 11/6/01 he was denied service in the respondent's premises. The respondent does not deny that service was not provided, but states that it was on grounds other than the complainant's membership of the Traveller community.

3. Summary of the Complainant's case
The complainant entered the Village Inn and ordered. He was told 'Regulars Only'. He left and met a member of the Gardaí. He asked to Garda to witness the refusal. When the Garda approached the door of the Village Inn, he asked a man standing there why they would not serve Mr. Collins. The man, who said he was the manager but was identified as the owner, initially did not respond. Ultimately he said that they had had trouble in the past.

4. Summary of the Respondent's Case
In writing prior to the hearing, the respondent stated that Mr. Collins was refused so that they could run an orderly house. Subsequently it was stated, also in writing, that he had been disheveled and intoxicated. At the hearing, the bar-lady stated that in her opinion he had already had enough to drink and she refused him on that basis. The owner did not attend the hearing. The respondent submitted that since other Travellers drink in the Village Inn, it could not be operating a discriminatory policy against Travellers.

5. Evidence of the Parties
5.1. Complainants Evidence
Mr. Willie Collins, complainant

• Mr. Collins asserted that he was a member of the Traveller community, saying "That's what I am". He had lived on the halting site for five years.
• On 11/6/01, he had just come from the site, which is about three or four minutes walk from the Village Inn. He was alone.
• He had never been in the Village Inn before. He drinks very rarely.
• He had been dressed casually on that day, in jeans and a shirt.
• He entered the bar and ordered a pint of Budweiser from the bar-lady. She had the glass half under the tap when she turned round and said "Regulars only". Mr Collins asked her for her name and was told it was Iris. Mr. Collins identified the bar-manager as the lady who had issued the refusal.
• Mr. Collins left and met Garda Kenny MacDonald. Mr. Collins asked him to witness the refusal. Garda MacDonald spoke to a man standing with his arm across the doorway of the bar.
• Mr. Collins identified the man in the doorway as a person who regularly stood in this position and who had been sitting at the bar when Mr. Collins entered the pub.
• When the Garda returned to talk to Mr. Collins he suggested to him that he try another pub.
• Mr. Collins is known as a Traveller in the Inchicore area. He uses the barber, the video store and fast food outlet in the village.
• Mr. Collins could not accept that the respondent could have considered that he was disheveled or intoxicated since he had not had any drink and was not untidily dressed. He felt there could only be one reason for his refusal, and that was his membership of the Traveller community.

Cross-examination by respondent's representative

• Mr. Collins clarified where the gentleman had been sitting prior to standing in the doorway.
• Since he was well known as a Traveller, Mr. Collins was asked to identify who knew him as such. He named several traders, getting one Christian name incorrect, according to the respondent's representative.
• The respondent's representative said that he himself had been in the area for thirty years and did not know Mr. Collins.
• The respondent's representative suggested that as he approached the bar he was staggering and that he smelled of alcohol. Mr. Collins denied this.
• He also suggested that the manager did not know that Mr. Collins was a Traveller, and asked if Mr. Collins considered that a refusal was tantamount to discrimination. Mr. Collins said yes.
• When asked if bar staff have the right to refuse Mr. Collins said yes.
• Mr Collins indicated where he had seen the Garda on leaving the Village Inn.
• He explained again that he asked the Garda to witness the refusal. The respondent's representative asked him how could a refusal that had already happened be witnessed after the event. Mr. Collins reminded him of the discussion that took place between the Garda and the man in the doorway.

Garda Kenneth MacDonald, witness for the complainant

• Garda McDonald was based at Kilmainham station working as community Garda in the Inchicore St. Michael's estate area at the time of the incident.
• On 11/6/01 at approximately 1:30pm he was waiting at the traffic lights when he was approached by Mr. Collins to witness a refusal. He went to the Village Inn with Mr. Collins who stood aside as Garda McDonald spoke to a man in the doorway of the pub. The man said he was the manager. Garda McDonald asked the man why Mr. Collins was not allowed in. At first he did not answer. Then he said that there had been trouble in the past.
• Garda McDonald returned to Mr. Collins and told him not to worry about the refusal and to try another pub.
• The 'manager' did not expand on what he said and gave no indication as to who had caused the trouble.
• Mr. Collins was known to Garda McDonald before the incident. Garda McDonald works with members of the Traveller community on the site where Mr. Collins lives. It is adjacent to St. Michael's estate. He knew him from the area generally. Mr. Collins was settled in the area and had not adversely come to Garda McDonald's attention. Garda McDonald had had no dealings with him in that respect.
• Garda McDonald stated that Mr. Collins did not appear intoxicated and that there was no smell whatever of an intoxicant off him. There were none of the normal signs of intoxication about him, such as staggering, smell, bloodshot eyes. Absolutely no indication of intoxication.
• Garda McDonald did not take a note of what Mr. Collins was wearing at the time but was clear that he was dressed casually, like everyone else on the street. He was not disheveled.

Cross-examination of Garda McDonald

• It was put to Garda McDonald that since Mr. Collins has stated on his ODEI5 that the man at the door had given no response that he, Mr. Collins, was incorrect, lying, or that it was at best a half truth. Garda McDonald could not recall if he had told Mr. Collins the response he was ultimately given and therefore he did not know if Mr. Collins knew a response had been given.
• Garda McDonald stated that Mr. Collins stood about 2 metres away. When asked if Mr. Collins could have heard the conversation, Garda McDonald stated that the conversation took place, not in a quiet room, but on the street.
• Garda McDonald repeated that it was approximately 1:30pm when the incident happened.
• Garda McDonald repeated that Mr. Collins had not come to his attention adversely. He stated that he knew him well, as well as he knew the respondent's representative.
• Garda McDonald was asked for his opinion as to whether or not Mr. Collins was well known to others in the area. The respondent's representative suggested, (in a serious of statements which were progressively more explicit in the face of Garda MacDonald's lack of comprehension of the point being made) that a Traveller would only become known in a district if he caused trouble, and that since Mr. Collins had not caused any trouble he could not have been well known. The respondent's representative also suggested that Mr. Collins would not stand out as a Traveller for two reasons, one because he did not cause trouble and the other because of his appearance.

Mr. John Hanley, Social Worker, witness for the complainant

• Mr. Hanley is a social worker with Dublin City Council. Mr. Collins is known to him as he resides in Mr. Hanley's area of responsibility and he has worked with Mr. Collins in relation to the procurement of standard housing for him. In relation to this Mr. Hanley had come to know Mr. Collins quite well in the period before the incident.
• They met weekly and sometimes more often to keep Mr. Collins up-to-date as to how the procurement of standard housing was progressing.
• Mr. Hanley had never seen him intoxicated, even though he would have had to see him sometimes outside official hours. He might have seen him anytime between 8am and 10pm. He had never perceived any evidence of an intoxicant from Mr. Collins.
• Mr. Hanley has seen him at social occasions they have both attended and Mr. Collins would have stood out, as a sober person who takes an occasional drink, at functions where a substantial amount of alcohol was taken, including weddings and funerals.
• Mr. Hanley was happy to be involved as he had a lot of respect for Mr. Collins.
• Mr. Collins's general manner of dress was casual although he had never seen him dressed badly or in a disheveled state.
• Mr. Hanley said that Mr. Collins had never been identified to him as someone who indulged in anti-social behavior. Both Mr. Collins and his wife had 'sailed through' the very rigorous vetting procedure relating to the provision of standard housing.
• Mr. Hanley began working with members of the Traveller community three and a half years ago. In the reception area of the social worker's office the majority of callers would be settled people. In his view, had he initially met Mr. Collins at the office Mr. Hanley could have immediately identified him as a member of the Traveller community, this being confirmed as soon as he heard Mr. Collins speak.
• According to Mr. Hanley there is a small tight community of Travellers in Inchicore. They are known well locally. Those settled people who live locally know that there is a halting site in the area and they would have a fair idea who lives there.

Cross-examination of Mr. Hanley

• The respondent's representative put it to Mr. Hanley that he has been in the area for 30 years and that he knows one Traveller family but does not know the others. Mr. Hanley replied that perhaps the Travellers do not use the representative's services. The representative replied that he had indeed Traveller clients and that he is "well used to dealing with Travellers".
• Mr. Hanley suggested that perhaps people with on-the-street premises would be more familiar with the Travellers in the area. The representative replied that he had on-the-street premises and that he passed the halting site twice a day.
• Mr. Hanley concluded by saying that he had never engaged in this form of representation before although requested by other Travellers to do so. He was aware of the so-called claim culture that was linked with the equality legislation and for that reason had been reluctant to become involved in other cases. However, in this case and knowing Mr. Collins as an honourable man, he felt that Mr. Collins had been wronged and was happy to support him in this venture.
• The respondent's representative asked him if he was content to take that position without hearing the other side. Mr. Hanley repeated that Mr. Collins was an honourable man who had his respect.

Closing statements from complainant's representative.

• Ms Woulfe listed the various reasons for the refusal.
• She pointed out that Ms. Power had indicated that Travellers make up approximately 15% of the regular customers, although she could only mention two Traveller couples who drank there regularly.
• Mr. Collins was clearly not intoxicated or disheveled, as attested by an independent witness.
• Ms. Power made a judgement that Mr. Collins was a Traveller as soon as she heard him speak.
• Ms. Woulfe stated that the Village Inn has not taken this issue seriously from the outset, and that they were unlikely to without significant sanctions.
• Ms. Woulfe introduced three cases for consideration:
  o Pat Ward v Foxes Bar
  o King v The Great Britain-China Centre [1991] ICR516
  Paragraph 38 (2) states "It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption 'he or she would not have fitted in'." o Chattopadhyay v the Headmaster of Holloway School & others [1982 ICR132 Paragraph 18 states: "... ... As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases it is only the respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that the law has been established that if the applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the Industrial Tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the Industrial Tribunal that there is an innocent explanation... ..."

5.2. Respondent's Evidence
Ms Teresa Power, Manager of the Village Inn

• Ms. Power is manager of the Village Inn and has been for over three years. She has general responsibility for staff, stock etc. She has been in the bar trade for 8 years. She affirmed that she had authority to speak for the respondent.
• The customer base is generally working class, presently enlarged by builders currently working in the area.
• Travellers make up about 15% of their customer base, particularly at the weekend. A lot of Traveller regulars bring their extended family members who are visiting from Galway or elsewhere.
• Admission is normally refused where the customer is intoxicated or where age is an issue. No buggies are allowed as the premises is not wide enough, and toilets are for customers use only. At the weekend no trainers or tracksuits are allowed.
• Ms. Power did not know the complainant before 11/6/2001. Ms. Power did not recognize him at all and since she is there a lot this probably means that he was never in before that date.
• Ms. Power refused service to the complainant on 11/6/01. In such cases she always walks away after the refusal is delivered to avoid further confrontation. In her experience 99% of people just walk away at that point.
• No record of the incident was made. However, Ms. Power remembers it very well. She was not due in on that morning but had been asked to cover for the owner. She was on duty from 9am to 1:45pm.
• Staff were originally required to keep a log of incidents but now, since they do not experience trouble, only serious incidents are recorded. These records are made on the daily sheets. Since this refusal did not develop into a serious incident there is no record of it.
• Ms. Power did a one day course offered by the LVA in relation to refusals, the Equal Status Act, 2000, etc.
• All staff have the power to refuse service, only calling for support if a problem develops.
• The incident on 11/6/01 took place a little after 11am. When questioned about the geography of the incident, Ms. Power stated that she was standing right up at the taps when she spoke to Mr. Collins. From that point to the point where a customer entering the bar can be first seen is approximately two metres. When Mr. Collins's footfall could initially be heard, Ms. Power was another two metres back at the glass machine (presumably the glass washer). She heard him before she saw him. Ms. Power could see Mr. Collins walk in. He wore black jeans and a navy jumper. She had never seen him before. He appeared to her to be unsure of where he was. When he asked for a drink Ms. Power knew that he had had enough to drink and she replied "Sorry, you've enough on you". His voice was hesitant, as though he was checking her out before asking. She could also smell drink of him.
• Mr. Collins's appearance was casual, his hair was a bit longer than at the hearing. He was not scruffy but was not clean shaven.
• Ms. Power stated that Mr. Collins did not ask for her name. Had she been so asked she would, as usual, have given her real name, her second name and her status.
• The complainant walked away and left after the refusal.
• Ms. Power said that the man standing at the door was the owner. She could not hear what was said at the door, although the owner told her afterwards.
• Ms. Power has never used the phrase "regulars only".
• Mr. Collins is not barred and is welcome in the Village Inn anytime.
• Ms. Power stated that she did not recognize Mr. Collins as a Traveller. She grew up in Galway, her father had been community Garda. She felt that she would be capable of recognizing Travellers as such. She was just doing her job at the time.

Cross-examination of Ms. Power

• Ms. Power again denied that she said "regulars only". She would not have used that phrase.
• Ms. Power accepted that the owner, Mr. Peader Brady was at the door after the initial refusal. She stated that she had not seen him enter and he had not been in the bar during the refusal. Ms. Power could not explain why he stood at the door if he was unaware of the refusal, particularly as she said that the incident was not problematic.
• She denied that she had started to pull the pint.
• Ms. Power denied that she recognised Mr. Collins as a Traveller when he spoke. She said that his speech was slurred. The complainant's representative stated that their speech was perhaps one of the very clear characteristics of a Traveller. Mr. Hanley had emphasized this when assessing whether or not Mr. Collins would be perceived as a Traveller. Ms. Power again denied that she had recognised Mr. Collins as a Traveller when he spoke.
• Ms. Power stated that about 17 to 18 Travellers come in every weekend. When asked if she was sure she stated that two Traveller couples drink in the pub at weekends and identified one of couples by name. When asked if she could explain how she recognised them as Travellers Ms. Power stated that they always identified themselves as Travellers. In her experience this was normally the case. The complainant's representative asked if she was suggesting that these customers would say "How are you, I'm a Traveller, can I have....". Ms. Power said yes, in her experience.
• Ms. Power stated that she recognises Travellers but did not recognise Mr. Collins.
• Ms. Power had not spoken to Mr. Brady before he spoke to Garda McDonald. When asked if they have ever discussed the incident, Ms. Power said no. They did not discuss it, even when papers relating to the case were received.
• Ms. Power had no explanantion to offer as to why Mr. Brady had reaffirmed the refusal if he was unaware of any reason for it. She said that she could only speak for herself. However, the complainant's representative pointed out that she was speaking for the pub and that she had so indicated at the outset of her evidence.
• In relation to the response issued by the respondent on 30/7/2001, Ms. Power was asked if she had not been consulted before it was issued. She said that she had not. When she was asked if it would not be reasonable for the owner to check with the manager before such a letter was issued, particularly if the owner had not witnessed the incident. Ms. Power said they had refusals very rarely.
• When asked if she had any knowledge of the letter issued by the respondent on 30/7/01, Ms. Power replied that she did not know Mr. Collins and therefore did not know his name. It was suggested to Ms. Power that she had had the notification and could have identified the incident from that. It was further suggested that the respondent could not stand over the letter. Information submitted by respondent's representative.
• The owner/licencee of the Village Inn is Maltenworth Ltd.
• Mr. Peader Brady was also identified as the owner, and he was unavailable on the day of the hearing.
• The initial response to the ODEI5 notification was sent to the Equality Tribunal. The respondent's representative's attention was drawn to Section 26 of the Equal Status Act, 2000 in relation to the drawing of inferences.
• Mr. MacCarthy confirmed that he had not requested or required an adjournment of the hearing to allow the owner of the Village Inn to be present.
• When asked, the respondent's side could not identify any grounds for Mr. Brady's re-affirmation of the refusal.

Closing statement of respondent's representative

• Mr. MacCarthy suggested that the credibility of the complainant was in doubt.
• He repeated that Mr. Collins had said that simply to be refused was discrimination.
• The Village Inn has no policy of discrimination.

6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant/s was/were discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated" . Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not." Section 5 (1) states that "a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ". Section 15(2) of the Equal Status Act 2000 states that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination". Section 26 of the Equal Status Act, 2000 is as follows: 26. -- 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 the 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). 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 someone who was not a member of the Traveller community received, or 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.

7. Conclusions of the Equality Officer
7.1. Prima Facie Case

• Mr. Collins identifies himself as a member of the Traveller community. He lived on a halting site at the time of the incident. He is known to Mr. Hanley, a social worker, and Garda McDonald as a Traveller. I am satisfied that Mr. Collins is a member of the Traveller community and I am also satisfied that he is recognisable as such. This satisfies (a) above. It is common case that the complainant requested service and that there was a refusal. This satisfies the requirement at (b) above. Finally, was the complainant treated less favourably than a non-Traveller would have been in the same or similar circumstances? In order to assess this it is necessary to look at the reasons put forward by the respondent for the refusal.
• "You have enough drink on you." This is the statement Ms. Power alleges she made to the complainant after he ordered. In my view, she was unclear in her evidence as to why she might have considered that the complainant already had too much to drink. The main reason given was that she could smell an intoxicant from him. In evidence, however, she clearly stated that she had been standing right up at the beer taps when she addressed Mr. Collins. It seems unlikely that she could have identified the smell of an intoxicant from the complainant through all of the intoxicant smells coming from the beer taps and their equipment to collect spills etc. In addition I do not accept Ms. Power's assertion that Mr. Collins was staggering as she did not have adequate time to assess Mr. Collins' walk. There is only two metres from the entrance to where she stood behind the bar. She also mentioned that he had appeared hesitant and uncertain, suggesting that these are signs of intoxication. Given the description of the layout of the entrance (outer door, inner door and then only two metres to the bar), this seems entirely in keeping with the behaviour of a person who had not been on the premises before and was unclear on where to go. During her crossexamination Ms. Power stated that Mr. Collins' speech was slurred. It is unclear how she reached this assessment since all he said was either "A pint of Bud" or "A pint of Guinness". Ms. Power's description of the incident does not, in my view, reflect the due care necessary when making an assessment such as this.
• The complainant could not be identified among the number of refusals that took place on 11/6/01, and that refusals normally take place to ensure the running of an orderly house. This reason was given by the respondent in response to the notification sent by the complainant describing the incident. In my view the incident is clearly identifiable from the notification, given that the refusal by Ms. Power is described in addition to the question put to Mr. Brady by Garda MacDonald. Even if Mr. Collins' name was not known the description of the incident contained in the ODEI5 would have sufficed to connect his name with the incident. Ms. Power stated that Mr. Brady spoke to her after he spoke to the Garda MacDonald, saying that he told her what had happened. Ms. Power stated at the hearing that she recalled the incident and that morning very well. Why then was the connection not made? In addition she stated that she had not discussed the incident with Mr. Brady. However, it seems unlikely that he would tell her about the approach made by Garda MacDonald without asking her what it had all been about. Unless, of course, he had been present when the refusal was made, as alleged by the complainant, and already knew what had transpired. Ms. Power also said at the hearing that refusals rarely occur, but this response states that a number of refusals took place on t at day alone.
• "...on checking with my member of staff the above named [Willie Collins] looked dishevelle[d] and appeared to be in an intoxicated state." This statement was contained in a letter from the respondent responding to correspondence received from the Equality Authority, dated 12/11/01. However, in her evidence Ms. Power clearly stated that Mr. Collins was not 'scruffy' and evidence was given by Garda MacDonald that Mr. Collins was casually dressed "just like everyone else on the street. He was not disheveled. In addition, Garda MacDonald stated that there was absolutely no indication that Mr. Collins had indulged in an intoxicant of any kind. In my view Garda MacDonald had ample time to assess Mr. Collins in relation to intoxication since he spoke to him twice. It seems unlikely that Garda MacDonald would make representations on behalf of someone who might be considered intoxicated.
• There had been trouble on the premises in the past. This was the delayed response given to Garda MacDonald when he asked why Mr. Collins was not being served. This response was sufficient to indicate to Garda MacDonald that there was nothing further he could do in the circumstances. No further indication was given at the time to Garda MacDonald as to the nature of the trouble mentioned and who might have been responsible and Mr. Brady, the person to whom this statement is attributed, did not appear at the hearing. Garda MacDonald stated that Mr. Brady identified himself as the manager. However, Ms. Power asserts that she was the manager and clearly indicated the duties for which she was and is responsible. These duties suggest that she is responsible for the day to day running of the pub. What was the reason for this statement and the inherent reaffirmation of the original refusal? If Mr. Brady was not aware of what had transpired in the bar was this response not tantamount to a second refusal, apparently for different reasons? Ms. Power was adamant that Mr. Brady was unaware of the original refusal, and the reason given by Mr. Brady, according to Garda MacDonald, related to previous trouble. This suggests that his refusal was because of previous difficulties in the pub and that that was why Mr. Collins was not going to be served. To make such a suggestion in a statement to a Garda without foundation is very serious.

7.2. Drawing of inferences
Section 26
The respondent did respond to the complainant's notification, but this response was sent to ODEI and not to Mr. Collins. In addition, it suggested that the respondent was unable to identify the refusal in question. I have dealt with this above, finding that it was possible to identify the incident and connect Mr. Collins' name with it. Section 26 of the Equal Status Act, 2000 is as follows: 26. -- 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 the 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). On the basis of this it is open to me to draw whatever inferences seem appropriate to me. Inferences generally The cases referred to by the complainant's representative are not directly comparable but are persuasive. In Chattopadhyay v the Headmaster of Holloway School & others [1982] ICR132, the lack of direct evidence is considered and it is suggested that all a complainant can do is to point to certain facts which, without an 'innocent explanation', might lead one to conclude or infer that discrimination had occurred. The judgement then states that in the majority of cases only the respondent can say whether or not in fact the act was discriminatory. In this case the complainant has pointed to certain facts. Some of the issues surrounding the refusal are disputed. However, even if one acceptsthe respondent's version of events it is inconsistent. In addition, a major player in the incident, the man who was standing at the door and identified as Mr. Brady, did not appear at the hearing and it was clarified at the hearing that no request for an adjournment was made to facilitate his appearance. Since no 'innocent explanation' has been forthcoming from the respondent in this case, it would be appropriate to draw an inference, on the basis of the above case, that the treatment received by Mr. Collins was based on his membership of the Traveller community.

7.3. Conclusion
While I have concluded that I may draw inferences as explained above, it appears to me that this is unnecessary. It is clear that the complainant has been given a number of different reasons for his refusal. All of these reasons have been shown to be without foundation. Section 15(2) of the Equal Status Act, 2000 provides that where the refusal is to ensure compliance with the Licensing Acts, and such a decision to refuse is taken in good faith, it does not constitute discrimination. However, since several different reasons have been given for the same refusal, an argument of good faith cannot be sustained in this case. Finally, given the contradictory and changing nature of the respondent's evidence, and the entirely consistent and reasonable nature of the evidence presented on behalf of the complainant, I find on the balance of probabilities the complainant's version of events more compelling. I find that Ms. Power had been on the point of serving the complainant when for some reason she changed her mind. I find that it is more likely that Mr. Brady was sitting in the pub and heard the refusal "regulars only", subsequently going to stand at the door. Finally, I am satisfied that he did not repeat the "regulars only" reason to Garda MacDonald but said after a moment's consideration, that they had had trouble in the pub in the past. In the absence of any evidence of an alternative reason for the refusal, I can only conclude that the real reason for it was based on Mr. Collins' membership of the Traveller community. I am satisfied that a settled occasional drinker, who was neither disheveled nor intoxicated, and who had not caused any difficulties in the past, would not have been treated in this manner. Mr. Collins was therefore treated less favourably than non-Travellers would have been treated in similar circumstances and element (c) above has been satisfied. I am satisfied that Mr. Collins has established a prima facie case of discrimination on the grounds of his membership of the Traveller community.

7.4. Rebuttal
The respondent did not submit any reasons for the refusal other than those considered above. As I have already found these reasons to be unsustainable, and the respondent's evidence to be contradictory and of a changing nature, I do not accept that these reasons amount to a rebuttal of the prima facie case of discrimination. During the hearing the respondent's representative suggested that since they serve Travellers other than the complainant, they cannot be found to be discriminatory in this case. The fact that Travellers are sometimes served by the respondent, does not, and cannot, in itself defeat the case for discrimination, as the respondent argues. There are different degrees of discrimination, ranging from an outright refusal to serve Travellers in any circumstances, to serving Travellers in some situations but where a doubt or a problem arises, tending to treat them less favourably than a non-Traveller in the samecircumstances, or perhaps serving some types of Travellers but not others (e.g. couples but no single males) where the rules are different for non-Travellers. Evidence that a pub serves Travellers regularly can contribute to a defence by showing that the respondent in question does not practise the absolute forms of discrimination. However, such evidence does not prove that more subtle and pervasive forms of discrimination cannot occur. It may suggest that they are less likely to do so as a general rule, but it is only one of a number of factors which may be relevant in assessing whether discrimination has in fact occurred. In this case the assertion that the respondent serves other Travellers does not amount to a rebuttal of the prima facie case relating to how Mr. Collins was treated.
The respondent's representative confirmed that he had not requested an adjournment of the hearing to allow Mr. Brady to present his evidence, even though the principle of natural justice, audi alteram partem, was put to him. When asked, the respondent's side did not identify any grounds for Mr. Brady's refusal or reaffirmation of the refusal.

8. Decision, DEC-S2003-120
I find that the complainant Mr. Collins was treated less favourably amounting to discrimination on the Traveller ground contrary to section 3(1), and section 3(2)(i) of the Equal Status Act, 2000, and in terms of section 5(1) of that Act.

8.1. Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that: "the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified." The complainant's representative also raised the sanctions mentioned in the Race Directive which entered into force on 19/7/2003 and suggested that any award made should be substantial enough to be dissuasive and ensure that the respondent take these matters seriously. However, the hearing predated the date of entry into force for the Directive and therefore the Directive does not apply in this case.

8.2. Order
I hereby order:
1.1.1. That €2000 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration:

• The embarrassment and annoyance caused to the complainant by the refusal of service.
• The allusion to previous trouble in the pub to a member of the Gardaí in connection with a refusal of Mr. Collins, thereby implicating Mr. Collins in such trouble.
• The necessity for Mr. Collins to request the assistance of Garda McDonald in an attempt to respond to the refusal.
• The difficulties created for Mr. Collins in preparing his case by the shifting nature of the respondent's position.
• The consistent attack on Mr. Collins' appearance and sobriety in all responses from the respondent, these responses having been made without consultation with the staff involved.

Bernadette Treanor
Equality Officer
6th October 2003