Donna and Patrick McDonagh (represented by Charles Foley, Solicitor ) V The Old Ground Hotel, Ennis
1. Dispute
This dispute concerns a complaint by Donna and Patrick McDonagh that they were discriminated against, contrary to the Equal Status Act 2000, by the Old Ground Hotel, Ennis. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that they were refused service in the Old Ground Hotel at 10.30 pm on Monday 30 July 2001 on the grounds of their membership of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operated a discriminatory policy against Travellers. They maintain that the complainants were refused service because a person in their company was intoxicated and had been asked to leave the pub earlier.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred 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 has delegated these complaints to myself, Brian O'Byrne, 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, 2000.
5.1 Evidence of Complainants
- The complainants had never been in the Old Ground Hotel before
- On Monday 30 July 2001, Donna decided to take her father out for a meal and a drink to celebrate his birthday that day.
- At 6 pm, Donna and Patrick drove from Shannon to Ennis to visit her father at his house to make arrangements to go out later
- As Donna was heavily pregnant at the time and would not have been able to spend long in the pub, they arranged to come back at 10 pm to collect the father
- The father was sober when they met him at 6pm and the complainants do not believe that he had been out of the house prior to that
- They returned at 10 pm and walked with the father into town. They had no particular place identified to visit but decided on the Old Ground Hotel when they arrived at it.
- On arriving inside the hotel, the father went to the toilet while Donna and Patrick went to the bar
- On reaching the bar, a barman informed them that he was not serving them. He refused to give them a reason
- They then spoke to the Manager, Mr Foudy who confirmed that service was not being provided. He also refused to explain why
- Donna accused Mr Foudy of discrimination because of "who they were" but was again told that no reason would be given
- A customer at the bar then intervened and asked the Manager why he was not serving them. He was told not to interfere by Mr Foudy
- The complainants asked the customer for his name and he gave it to them
- On the father's return from the toilet, they informed him what had happened and left peacefully
- On account of the incident, they did not visit anywhere else
Evidence of Dr Patrick Quinn
- Dr Quinn was sitting at the bar on 30 July 2001 with his brother when Donna and Patrick McDonagh approached the bar beside him for a drink. They were both well dressed and well behaved and appeared sober.
- Dr Quinn did not hear the initial refusal but overheard Mr Foudy informing the couple that they would not be served
- Dr Quinn recognised the couple as Travellers from their voices and asked Mr Foudy why he was not serving them. Mr Foudy made a hand gesture towards him dismissing his intervention and told him to "have his drink"
- Dr Quinn is satisfied from the manner and tone of Donna and Patrick McDonagh that neither had been drinking earlier
- Dr Quinn recalls Donna referring to discrimination but does not recall the word Traveller being used
- He recalls another older man, who was wearing a suit, joining the couple after the refusal. He spoke with the couple but Dr Quinn did not hear the conversation
- Asked whether he thought the man had drink taken, Dr Quinn said that he was not able to form an impression in the short time involved
- Donna McDonagh then asked him for his name and contact details which he gave her
- All parties behaved respectably and the complainants left peacefully with the older gentleman
Evidence of Respondents Ms Mary Gleeson, Manager
- The hotel has been under its current management for 7 years
- The hotel has two restaurants and one public bar which caters for 80/90 people
- The pub has mostly local clients and one or two Traveller customers
- The hotel does not discriminate against anyone and has a Traveller employed by them at present
Evidence of Respondents, Mr Raymond Foudy, Assistant Manager
- Mr Foudy has worked in the hotel for 4 years
- Neither of the complainants were familiar to Mr Foudy before 30 July 2001
- He was on duty that day himself from 4 pm until after midnight
- Shortly after he came on duty, he noticed three gentlemen in the bar who appeared to be "well and truly intoxicated"
- One of the men (Donna McDonagh's father), he recognised as having seen in the hotel on 8 to 10 occasions over the previous few years. He did not know him by name at the time
- He did not recall seeing the other men in the pub previously but recognised them from seeing them locally
- He then asked the barman who had been on duty that afternoon, how much they had drank. He was told that they had ordered 4 rounds already in the hotel.
- At 4.30pm the men asked Mr Foudy for another drink and he told them that they had had enough and that he would like them to finish and leave
- They agreed to leave without argument saying that they would go elsewhere for a further drink
- It did not occur to him that any of the three men might be Travellers.
- Mr Foudy was behind the bar at 10.30 pm when he saw Donna and Patrick McDonagh enter with her father
- He immediately recognised the father as one of the three men he had asked to leave earlier that day.
- He had never seen either Donna or Patrick McDonagh before
- He recalls that they were well dressed and appeared sober and says that he would have had no problem serving them themselves if they had arrived alone
- On account of the father's presence, however, he instructed the barman not to serve the group
- When Donna and Patrick approached the bar, the barman refused them. They then asked to speak to him
- He repeated that they were not being served and told them that he did not have to give a reason
- It is the hotel's policy not to give a reason to avoid getting into a discussion or an argument.
- Although he did not think Donna or Patrick McDonagh were under the influence of drink, he was concerned that the father may have consumed more drink since the afternoon and might become argumentative
- Mr Foudy did not recognise the group as Travellers and does not recall any reference being made to discrimination
- He insists that the couples accents had nothing to do with their refusal as the decision had already been made before they came to the bar
- Another customer tried to intervene and Mr Foudy indicated to him that he should not get involved
- The group left peacefully shortly afterwards
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community, contrary to Sections 3(2)(a), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service in the Old Ground Hotel on 30 July 2001.
6.3 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.4 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100)
7 Conclusions of the Equality Officer
7.1 Prima facie case
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 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.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents accept that the complainants were refused service on 30 July 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 30 July 2001 was less favourable than the treatment non-Travellers would have received, in similar circumstances.
7.4 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 which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Acts 1833 to 1999, shall not constitute discrimination. 7.5 In this particular case, the respondents maintain that the decision to refuse service was based on the fact that Donna McDonagh's father had already been asked to leave the hotel earlier that day because he was in an intoxicated condition. Mr Foudy is, therefore, claiming that he was acting in good faith in accordance with Section 15(2) of the Act and that he was entitled under the Act to refuse service because one of the group had already been removed earlier for drunken behaviour. The respondents are, therefore, maintaining that discrimination did not occur as the complainants were treated in the same manner as any other group would have been treated if they had arrived in the company of someone who had already been asked to leave the hotel earlier that same day.
7.6 The father is, therefore, the key figure in this incident and it is clear that his evidence would have been crucial in deciding whether the respondents had sufficient reason for refusing service that evening or whether the refusal constituted discrimination. The complainants did not, however, bring the father to the Hearing to give evidence as to his activities and whereabouts on his birthday on 30 July 2001. When asked why, they indicated that they did not realise that he would be needed. As the importance of the father's evidence became clearer at the Hearing, proceedings were adjourned for a short while to afford the complainants an opportunity to locate the father. However, when they went to his house, he was not home and they were unable to produce him as a witness.
7.7 In considering whether the complainants had advance notice of the allegation against Ms McDonagh's father prior to the Hearing, I note that, when the complainants originally notified the respondents of their intention to submit a complaint, the respondents replied explaining that one of the people in Donna McDonagh's party on 30 July had already been refused service earlier that day and that was the reason service was refused that night. I also note that, in a response to a further letter from the complainants' solicitor a few weeks later, the respondents confirmed that Patrick McDonagh was not the person they were referring to as having been refused in the afternoon.. As Donna McDonagh's father was the only other person with them on 30 July 2001, it seems to me that the only conclusion to be drawn from the correspondence referred to above was that the father was the person who was allegedly asked to leave the hotel that afternoon.
7.8 In order for a prima facie case to be established in this instance, I consider that the onus was on the complainants to convince me that Donna McDonagh's father had not been in the Old Ground Hotel earlier that day as alleged. This they were unable to do at the Hearing, in the absence of the father as a witness. For this reason, I find that, on the balance of probabilities, I must accept the respondents evidence that the father was refused in the hotel earlier that day and that this was the reason the complainants were refused service later that same evening.
7.9 I, therefore find that, on the balance of probabilities, Mr Fitzpatrick treated the group in the same manner that he would have treated any other group, where one of the party had been refused service earlier, and accordingly I find that a prima facie case of discrimination has not been made in this instance.
8 Decision
8.1 I find that the complainants have not produced sufficient evidence to establish a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1), and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
8.2 Accordingly, I find in favour of the respondents in the matter.
Brian O'Byrne
Equality Officer
October 2003