Teresa O'Brien (represented by Clarke Jeffers & Co, Solicitors) V Devereux's Bar, Carlow
1. Dispute
This dispute concerns a complaint by Teresa O'Brien that she was discriminated against, contrary to the Equal Status Act 2000, by the management of Devereux's Bar, Carlow. The complainant maintains that she was discriminated against 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.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Teresa O'Brien that she was refused entry to Devereux's Bar on 29 September 2001.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They say that they have no recollection of the incident, having checked with staff on receiving notification that a complaint was being considered.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was 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 the complaint 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 Background Information
- This complaint centred on a refusal which allegedly occurred on Saturday 29 September 2001.
- On 2 October 2001, the complainant's solicitor sent a letter to the manager of Devereuxs, as required under the Equal Status Act 2000, notifying him of the incident, asking for an explanation and indicating that a complaint under the Equal Status Act was being considered
- When no response was received from Devereuxs, a complaint was lodged with the Equality Tribunal on 15 January 2002.
- In October 2002, The Equality Officer wrote to both parties asking for any observations they may have
- On 10 January 2003, Mr James Devereux responded, saying that Teresa O'Brien had been a former employee of the pub who had left because of disagreements over her work rosters. Mr Devereux said that she had been refused admission on 29 September 2001 because of past events and her abusive behaviour previously.
- A copy of Mr Devereux's correspondence was passed to the complainants who responded by saying that Teresa O'Brien had never been employed by Devereuxs.
- On 12 February 2003, I wrote to Mr Devereux, enclosing a copy of the complainant's reply, and asking whether a case of mistaken identity may have occurred
- Mr Devereux did not respond to my letter and only addressed this matter at the Hearing on 28 July 2003
5.1 Evidence of Complainants
- Mrs O'Brien has lived in Carlow for 15 years and regards herself as a settled Traveller
- Neither the complainant nor her husband had ever been in Devereux's Bar prior to 29 September 2001 nor did they know the owners or staff.
- Teresa O'Brien said that, as Devereuxs was a new pub, she wanted to visit it and she persuaded her husband to bring her there on 29 September 2001 They left home about 9.30 and went to another pub for one drink. As she was pregnant, Mrs O'Brien only had a soft drink before they went to Devereuxs at 10.30 pm
- Only one security man was on the door. Neither her husband or herself had seen him before.
- He stopped the couple and said "Sorry, I can't let you in. Upstairs told me not to let you in"
- He refused to give a reason.
- They asked for the security man's name but he refused to give it.
- While they were at the door, other customers were admitted
- Mrs O'Brien believes that the only possible reason for the security man's decision was that he recognised her and her husband as Travellers
- Mrs O'Brien did not accuse the security man of discrimination nor was any reference made to their Traveller identity
- The couple have not returned to Devereuxs since
- Mrs O'Brien went to her solicitor a few days later and he sent a letter to the Manager of Devereuxs on 2 October 2001, asking for an explanation and indicating that a complaint under the Equal Status Act was being considered
5.2 Evidence of Respondents
- The owner of Devereuxs, Mr James Devereux, has been involved in the pub business since 1997
- Devereuxs Bar in Carlow was opened in May 2001
- The pub consists of a bar and function room downstairs with a nightclub upstairs
- The pub caters for all age groups and has a varied clientele
- The pub has some regular Traveller customers who come in every second week or so
- There was never any policy of discrimination in place in Devereuxs
- The respondents have no recollection of the complainant or her husband ever having been in Devereuxs, either before or after 29 September 2001
- Mr Patsy Whelan, Head of Security, gave evidence that he hired security staff and organised training prior to the pub opening in May 2001
- Security Staff training was supplied by the Irish Security Institute
- The training was provided by different lecturers, one of whom would have covered equality issues
- Security Staff were told to refuse individuals who were under age, drunk, did not meet the dress code, were known to be involved in drugs or had caused trouble previously
- It was the pub's policy to give a reason when people were being refused
- Mr Whelan cannot state for definite who was on the door on the night of Saturday 29 September 2001, but believes that it was almost certainly Mr A, who would have been in charge of front door admissions at the time
- It was normal practice at the time for Mr Whelan to meet security staff at least once a month to discuss incidents that had arisen
- Mr Whelan says that he recalls the notification from the complainant's solicitor arriving a few days after 29 September 2001 and says that he raised the matter with security staff at their next meeting but no one could recollect the incident. No further action was taken in relation to the matter.
- Mr James Devereux states that he does not specifically recall seeing the original notification letter of 2 October 2001 but accepts that it was received
- When asked about his letter of 10 January 2003, stating that Teresa O'Brien had been a former employee of Devereuxs, Mr Devereux said that he now accepts that this was incorrect and apologised for the misunderstanding caused.
- When asked why he had not addressed this issue when asked to do so by the Equality Officer in his letter of 12 February 2003, he said that he could offer no explanation except that the letter must have got mislaid.
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 complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused admission to Devereux's Bar on 29 September 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is 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 or her actions were driven by factors which were non-discriminatory.
6.3 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 & O'Donagh 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 complainant. 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 complainant 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 complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondents state that their security staff have no recollection of the alleged incident. To determine whether a prima facie case exists, I must, therefore, decide first whether the complainant has satisfied me, on the balance of probabilities, that the alleged incident occurred on 29 September 2001 and, if so, whether the alleged treatment was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In deliberating on the case be before me, I can find no reason why the complainant would have fabricated the incident as there is agreement that the complainant had never previously visited Devereuxs and also that the complainant and the respondents were unknown to each other prior to 29 September 2001. These facts, to me, rule out any suspicion that the incident was concocted by the complainant.
7.5 The respondents, for their part, say that they have no information on, or explanation for, what apparently happened on 29 September 2001. Mr Whelan says that he recalls raising the matter with security staff, shortly after the notification of 2 October was received, but that nobody remembered the incident. Of interest here is that, while Mr Whelan says that he discussed the alleged incident with staff shortly afterwards, he was still unable to state with 100% certainty at the Hearing, who was on the door on 29 September 2001. For his part, Mr James Devereux, the Manager to whom the letter was addressed, states that he does not recall seeing the notification until some months later.
7.6 Based on the evidence of Mr Whelan, I have some difficulty in understanding why he did not refer the matter directly to Mr Devereux when his security staff claimed that they had no recollection of the incident. If Mr Whelan had seen the solicitors letter of 2 October 2001, as he says, he would have been aware that, by informing the complainant's solicitor that the Bar could not trace the incident, it may have been possible to enter into direct talks with the complainant and possibly resolve the matter between themselves, thereby obviating the submission of a complaint to the Equality Tribunal. The respondents did not, however, avail of this opportunity.
7.7 Section 26 of the Equal Status Act 2000 provides that the Equality Officer can draw an inference from the fact that a respondent did not reply to a notification under Section 21. In this case, I consider that it is appropriate for me to draw such an inference as, in my opinion, it is possible that the matter could have been resolved between the parties if the respondents had engaged the complainant's solicitor in correspondence when they were unable to establish details of the alleged incident.
7.8 Instead of trying to establish the full facts of the case from the complainant, the respondents reaction to the case being referred to the Equality Tribunal was to claim that Teresa O'Brien had been a former employee of the pub who had left because of disagreements over her work rosters and that she had been refused admission on 29 September 2001 because of her abusive behaviour previously. When faced with the assertion in February 2003 that Teresa O'Brien had never been employed by Devereuxs, the respondents chose not to address this issue but instead waited for the Hearing to admit that their allegations against Mrs O'Brien were false.
7.9 Overall, I consider that the manner in which the respondents dealt with this complaint leaves a lot to be desired. In my opinion, the respondent had several opportunities to resolve the matter before it got to the Hearing stage. Within days of the alleged incident, the respondents received notification from the complainant's solicitor that a complaint of discrimination was being considered in relation to the events of 29 September 2001. While the Head of Security consulted his staff about the incident, the respondents chose not to respond to the letter informing the solicitor of their findings. The respondents received a further opportunity to address the issue when they were told in early 2003 that the complainant was not the former employee they had identified. Again, the respondents chose not to pursue the matter. As a result of the respondent's inaction between September 2001 and July 2003, the matter ended up before a Hearing of the Equality Tribunal.
7.10 On the basis of the evidence before me, I have formed the opinion, on the balance of probabilities, that Mrs O'Brien and her husband were refused entry to Devereuxs by a security man on 29 September 2001 and, in the absence of any evidence to the contrary, that this refusal was because they were recognised as members of the Traveller community. Accordingly, I find that a prima facie case of discrimination on the Traveller community ground has been established and that the respondents have failed to rebut the allegation.
Decision
8.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
8.2 In considering the level of redress to award, I am conscious of the fact that the respondents had a number of opportunities to address the matter directly with the complainant. They chose not to, resulting in the complainant having to devote time and effort to bringing her case before the Equality Tribunal. Accordingly, I order that the respondents pay Mrs O'Brien the sum of €1000 for the humiliation, loss of amenity and subsequent inconvenience suffered.
Brian O'Byrne
Equality Officer
24 October 2003