James McDonagh (represented by the Equality Authority) V Ms Geraldine Whelton (former owner of Norris' Bar) (represented by Derry O'Carroll & Co, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by James McDonagh that he was discriminated against, contrary to the Equal Status Act 2000, by the management of Norris' Bar, Waterford. The complainant maintains that he 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 The complainant states that he was refused service in Norris' Bar by the manager on 17 February 2001 on the grounds of his membership of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondent totally rejects that she operates a discriminatory policy against Travellers. She maintains that the complainant was refused service because he was part of a group who had been barred in June 2000.
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 Matters for Consideration
5.1 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 he was discriminated against on the grounds of his 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 service in Norris's Bar on 17 February 2001
5.2 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 actions were driven by factors which were non-discriminatory.
5.3 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).
6 Conclusions of the Equality Officer
6.1 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.
6.2 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.
6.3 With regard to (a) above, the complainant has satisfied me that he is a member of the Traveller community. In relation to (b), the respondents accept that the complainant was refused service on 17 February 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 17 February 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
6.4 In deliberating on the case be before me, I consider the following pieces of evidence to be the most important and persuasive:
- The parties agree that James McDonagh and his wife were served regularly in Norris's Bar for up to 8 weeks prior to the incident in June 2000
- It is also agreed that Ms Whelton would have known at that time that Mr McDonagh was a Traveller
- On the night in June 2000, Mr McDonagh has admitted that Ms Whelton had to speak to him "once or twice" about his and his group's behaviour
- Mr McDonagh accepts that the group he was with did consume a lot of alcohol and that they probably were noisy on the night. He also accepts that some betting took place on pool games but only for small stakes
6.5 Having considered the evidence before me, I have come to the conclusion that the application of strict "house rules" by Ms Whelton over the years contributed to her running a very orderly house. I have also come to the conclusion that, on a previous Saturday night in June 2000, Mr McDonagh's group stepped outside the boundaries of those rules resulting in Ms Whelton taking the decision to bar the group from then on.
I am, therefore, satisfied that what brought the group to Ms Whelton's attention on the night in June 2000 was their behaviour rather than their Traveller identity and I consider that Ms Whelton was "acting in good faith" in accordance with Section 15(2) of the Equal Status Act 2000 in refusing service to the complainant in February 2001, on account of the incident in June 2000.
Accordingly, I find that the complainant was not treated less favourably than a non-Traveller would have been treated in similar circumstances and, therefore, I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground.
7 Decision
7.1 I find that a prima facie case of discrimination has not been made by the complainant in establishing that he 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. Accordingly, I find in favour of the respondent in the matter.
Brian O'Byrne
Equality Officer
31 October 2003