Eileen O'Sullivan (represented by Newell Quinn Gillen, Solicitors) V The Licensee, Caulfield's Bar, Waterford (represented by H.D. Keane & Co., Solicitors)
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Gender ground , Section 3(2)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub - Prima facie case - Failure to apply policy consistently.
1. Dispute
1.1 This dispute concerns a claim by Ms. Eileen O'Sullivan that she was discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the grounds that she is a member of the Traveller community when she was refused service in the respondent premises on 1 July, 2001. The respondent states that service was refused but not on a discriminatory basis. The complainant 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 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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. Summary of Complainant's Case.
2.1 Ms. O' Sullivan states that she sought and was refused service in the respondent premises on 1 July, 2001. She was informed that service was "for members only". Ms. O'Sullivan's husband, a non-Traveller, who had been engaged in conversation with friends sought service and was served. When this was queried by the complainant she was told that her husband was a regular. The complainant's husband pointed out that he had never been in the premises before and that the complainant is his wife.
3. Summary of Respondent's Case
3.1 The respondent states that, due to difficulties caused on the premises in the then recent past by non-regulars, a policy of only serving regulars in the pub was introduced. The policy was to last for a number of weeks only and was a short term measure to address the problems caused by non-regulars. The complainant was not a regular in the pub and her husband was served because he was seen talking with regulars whom it was felt, could vouch for him.
4. Prima Facie Case
4.1. At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 of the complainants 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination. Traveller ground
I am satisfied that the complainant is a member of the Traveller community in accordance with (a) at 4.1 above. While this was disputed by the respondent the complainant established to my satisfaction that she is a member of the Traveller community while the respondent produced no evidence to contradict this. The complainant has provided written and oral evidence of refusal of service which has been confirmed by the respondent, and this fulfils (b) at 4.1 above. In relation to key element (c) at 4.1 above I am satisfied that the complainant has established that she was treated less favourably than non-Travellers were in the same circumstances because her husband, a non-Traveller, was served despite the fact that he was not a regular patron of the respondent premises.
5 Respondent's rebuttal
5.1 The respondent's defence, i.e. that service was to be refused to non-regulars in order to address the difficulties that had been caused in his premises by non-regulars, seems, if taken at face value, to be not unreasonable. However, it is clear that the policy was applied in an unfair and inconsistent manner, as a result of which the complainant was treated less favourably than her non-Traveller husband. (see Kiely v O'Donoghue's Bar, CC Tralee, 7 July, 2003 Judge O'Leary). The complainant's husband had not in fact been "vouched for" by any of the regular patrons when he was served. He was served, according to the manageress, on the basis that it was assumed by the bar staff that he would be vouched for.
6 Gender ground
6.1 In relation to the complainant's initial complaint that she was treated less favourably because of her gender, no evidence was put forward by the complainant to demonstrate that this was the case. Her husband also stated in evidence that he saw other women drinking on the premises on the day in question, but did not see any Travellers.
7 Decision
7.1 I find on the balance of probabilities (i) that the complainant was discriminated against on the Traveller community ground contrary to Section 3(1) of the Equal Status Act and in terms of Section 5(1) of that Act and (ii) I find that the complainant presented no evidence to substantiate a claim of discrimination on the gender ground.
8 Redress
8.1 I hereby order that the respondent pay to the complainant the sum of €500 for the effects of the discrimination.
__________________________
Dolores Kavanagh
Equality Officer
9 October, 2003