Ann Maughan (represented by Tallaght Travellers Community Development Project) V Beechleaf Ltd., t/a The Sarah Curran Pub, Rathfarnham, Dublin (represented by Walsh Warren & Co., Solicitors)
1. Dispute
1.1 This dispute concerns a claim by Ms. Ann Maughan that she was discriminated against by a member of staff of The Sarah Curran Pub, Rathfarnham, contrary to the Equal Status Act, 2000, on the grounds that she is a member of the Traveller community in that on 25 November, 2001, she was refused service in the premises. The respondent denies that discrimination occurred. 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 The complainant states that she went, along with her husband and her son, to The Sarah Curran pub on 25 November, 2001. They were refused service and given no reason for the refusal. Ms. Maughan and her husband had been regular patrons of the pub for approximately six months before the refusal. It is the complainant's belief that the new manager in the bar refused to serve them because of their Traveller status.
3. Summary of Respondent's Case
3.1 The respondent submitted at the Hearing of the complaint that the complainant's husband was refused service because of misconduct on his, and his wife's, part the previous week in the premises in that they knocked over drinks belonging to other patrons while they were dancing to music in the pub.
4. Evidence of the Parties
4.1. Complainant's Evidence
Oral evidence provided at Hearing
Ms. Ann Maughan, Complainant
Ms. Maughan stated that:-
- When she, her husband and their son left their car and were approaching the entrance to the respondent premises on 25 November, 2001 they saw Mr. Sweeney, the proprietor, watching them from the lounge of the premises and then run from the lounge area of the premises into the bar.
- When they entered the bar Mr. Maughan went to the counter and ordered a drink while Ms. Maughan and her son sat down at a table in the bar. Ms. Maughan could tell from the expression on her husband's face that he had been refused service. He told her that he had been refused and that no reason was given.
- Ms. Maughan put her coat on and went towards the bar counter to speak with Mr. Sweeney. She asked him why he would not serve her husband. Mr. Sweeney did not answer. He walked away to the far end of the bar and Ms.Maughan followed him and again asked why they would not be served. Mr. Sweeney did not answer her.
- Ms. Maughan asked Mr. Sweeney if they were being refused service because they are Travellers. She asked this because she could think of no other reason why service would be refused to them as they had never been involved in any type of trouble in this or any other bar. Also Ms. Maughan had previously experienced episodes of discrimination from service providers and while she could not articulate precisely how she or her husband were recognised as Travellers, she explained that people's expressions or demeanor would change in the course of conversations where, she felt, they had realised that they are Travellers.
- Ms. Maughan and her husband had been regular patrons in the Sarah Curran for approximately six months before the refusal of service. They went to the premises every Sunday night because a band was playing there every Sunday. They also occasionally went to the premises on Saturday evening. They were aware from conversations among the regular patrons that new owners had taken over the running of the pub.
- Ms. Maughan said that none of them had ever encountered problems in the bar previously and had, in fact, been on very good terms with the bar staff and often conversed with them.
- On hearing the respondent's allegation regarding the spillage of drinks for the first time at the Hearing Ms. Maughan stated that she had no clear recollection of events on 18 November 2001 but vaguely recalled that she was up dancing to music in the bar on 18 November with her husband but she had no recollection of any approach to either herself or her husband about any drinks being knocked over. In any event, Ms. Maughan said that if she or her husband had done any such thing they would immediately offer to replace the drinks and apologise for the accident.
- The refusal of service was extremely humiliating, especially as it occurred in the presence of other customers known to the Maughans.
Mr. William Maughan, witness for the complainant
Mr. Maughan stated that:
- Mrs. Maughan, the complainant, is his wife.
- As he was walking from his car to the door of the premises he saw Mr. Sweeney rush into the public bar on the evening of 25 November, 2001. When Mr. Maughan went to the counter to order drinks Mr. Sweeney had reached the bar counter before him and came to serve him.
- Mr. Maughan ordered drinks for himself and his wife and minerals for their son. Mr. Sweeney said "no, I'm not serving you" and gave no reason for the refusal.
- When Mr. Maughan told his wife what had happened she went to speak to Mr. Sweeney and asked him why they were not being served. Mr. Sweeney did not answer her.
- Mr. Maughan was extremely embarrassed by the refusal as the bar became silent and some of the regular patrons stopped him on his way out and asked him what was wrong.
- Mr. Maughan did not recall anything of the evening of 18 November, 2001 in the bar. He does not recall whether he was up dancing or not on that date but stated that he sometimes gets up to dance to the music, as do a number of patrons.
- Mr. Maughan does not recall ever being approached by the barman about drinks having been spilled or tables knocked over. Neither does he have clear recollection of Mr. Dargan working as a barman in the premises.
- Mr. Maughan does not usually exceed 5-6 pints in any evening when he is out drinking.
Mr. Patrick Maughan, witness for the complainant
Mr. Maughan stated that:
- He is the son of Mrs. Ann Maughan, the complainant and Mr. William Maughan.
- On 25 November, 2001 he went with his parents to the Sarah Curran pub. Mr. Sweeney came from the lounge area to the bar and refused service to his father, Mr. William Maughan.
- He was not in the premises the previous Sunday, 18 November, 2001, with his parents. He only went to the pub on that date to collect his parents.
- His parents had been going to the pub regularly for approximately 6 months.
- When Mr. Sweeney refused service to his father on 25 November it was very embarrassing because they knew several of the regulars who asked what was happening and everyone in the bar was looking at them.
- They had never had any difficulties in the premises before and the barman had often sat down with them and had a conversation with his father.
Summary on behalf of complainant by Mr. Damien Peelo, representative.
- The complainant and her family were discriminated against in the respondent premises because they are Travellers and were recognised as such.
- The respondent had made no effort to resolve the matter whatsoever and had failed to respond even when the complainant had forwarded the formal notification of her complaint. This had left Mrs. Maughan with no option whatsoever but to formally pursue the matter.
- In the case of Patrick Reilly v The Foxhunter, DEC-S-2003-026, a spokesperson from the Irish Traveller Movement had stated, in relation to discrimination, that expectations of non-Travellers in relation to members of the Traveller community are based on stereotypes.
- The complainant disputes the claims by the respondent with regard to the spillage of drink on 18 November, 2001. The complainant and the witnesses on her behalf have no recollection of such an incident. The reason they have no recollection of it is because the 18 November was an uneventful night and they have no reason to recollect same. Theirrecollection of events on 25 November is based on the embarrassment and upset caused by the arbitrary refusal of service without any explanation for it.
- The complainant wishes to see the records kept by the respondent of spillages on the night in question as it was on foot of these alleged spillages that a major decision to bar the complainant and her family was made.
- It is clear from the evidence provided that Section 15(1) of the Equal Status Act 2000 does not apply in this case. Mr. Dargan, the barman stated that Mr. Maughan had "a grumpy attitude" when approached about the alleged spill of drink, which is denied. This does not show anything like the misconduct required to equate to the requirements of Section 15(1).
- Mr. Peelo finds the evidence presented by Mr. Cassidy, notably following a short interval in the Hearing, rather sudden and surprising, given that it is key evidence in this matter.
- Section 15 (2) of the Equal Status Act 2000 does not apply in this case as the real reason that service was refused to the complainant and her family is because of their Traveller status. They had been stereotyped by the respondent.
4.2 Respondent's Evidence
Oral evidence provided at Hearing
Mr. John Sweeney, Director of Respondent company
Mr. Sweeney stated that:-
- He is a director of Beechleaf Ltd., trading as The Sarah Curran public house as is Mr. Keith Cassidy. They took over the licence of the Sarah Curran on 11 November, 2001.
- Prior to taking over the licence Mr. Sweeney and Mr. Cassidy met with Inspector Eamonn Doran of Rathfarnham Garda Station. The Inspector had requested the meeting to make it clear to them that there had been ongoing difficulties with the previous licencee because there were frequent incidents arising on or near the premises. Specifically, the Gardaí in Rathfarnham were called regularly to deal with public order offences outside the pub such as noise pollution due to the noise created by patrons exiting the premises at closing time. The Inspector made it quite clear that objections would be made to the licence if the new licencees did not resolve these ongoing difficulties.
- Mr. Sweeney is the person who refused service to Mr. Maughan. He had done so because Stephen Dargan, the barman, had pointed the Maughan's out to Mr. Sweeney as they were entering the premises on 25 November, 2001 and had told him that they were barred because they had caused trouble the week before.
- Mr. Sweeney had not given a reason to Mr. Maughan because in his experience it is better to avoid confrontation by not replying when asked for a reason.
- Mr. Sweeney did not deliberately rush from the lounge to the bar of the premises on the night in question as was suggested by the complainant.
- An incident book was not kept at the time in question because the new owners had just taken over two weeks before and were still busy setting up business. An incident book is now kept, particularly recording incidents whereby injury to a member of staff or customer might arise as a result of an incident.
- Mr. Sweeney does not recall whether he was on the premises on 18 November, 2001 and duty rosters etc for the period in question are not available as they have been discarded. Mr. Stephen Dargan, witness for the Respondent
- Mr. Dargan has been in the licenced trade a long time and has worked in the Sarah Curran for four and a half years.
- On 18 November, 2001 the Maughans entered the Sarah Curran at approximately 9-9.30 p.m. and were served. They were up dancing a while later and spilled drinks belonging to other patrons. Music is provided in the bar on Sundays and it is normal that a number of patrons get up to dance. Up to twenty patrons usually do so at a time. The dance floor area is very small and consists of a small area in front of the podium.
- Mr. Dargan cleaned up the spill and asked Mr. and Mrs. Maughan to be more careful and they said that they would. A while later they bumped into other people and also knocked over a table where other customers were seated. Mr. Dargan went over to them again and asked them to be careful. Mr. Dargan also spoke to other people. This occurred very late on the night in question.
- When spills etc occur a barring of those responsible does not follow where it is clear that it was accidental and those responsible are apologetic. Otherwise those responsible are barred. When Mr. Dargan was speaking to Mr. Maughan the latter had a "grumpy attitude" and asked why Mr. Dargan was picking on them.
- Mr. Dargan reported what had happened to Mr. Sweeney at the end of the night. Mr. Sweeney had been in the lounge area all evening dealing with renovation/building matters and had not witnessed what had happened personally.
- Mr. Dargan was not on duty on Sunday, 25 November and did not therefore speak to Mr. Sweeney on that date.
- Mr. Dargan had met the Maughan's previously and had no great difficulty with them apart from the occasional spillage of drink.
- While Mr. Maughan conceded to Mr. Dargan's requests initially on 18 November Mr. Dargan felt that he might get aggressive so he described the Maughans to Mr. Sweeney at the end of the night. Mr. Dargan did not witness Mr. Maughan become aggressive, he was, however, a little grumpy when approached by Mr. Dargan. Following Mr. Cassidy's evidence Mr. Dargan stated that he now recalls events as Mr. Cassidy described them.
Mr. Keith Cassidy, Director of Respondent Company
Mr. Cassidy stated that:
- On foot of the conversation with the Gardai a number of initiatives (details provided) were introduced by himself and Mr. Sweeney to prevent a recurrence of those difficulties which had arisen in the past.
- Both he and Mr. Sweeney work in the premises as it is their only source of income.
- There is no policy of refusing or restricting service to any person or group unless they cause trouble in the premises.
- The pub policy is that if a person is barred from the premises then they are permanently barred. Second chances are not given because patrons would not take the policy seriously otherwise.
Following a short interval in the Hearing Mr. Cassidy stated that:
- He now recalled that he was on the premises on 18 November, 2001 and recalled that Mr. Dargan had told him in the course of the evening about the table being knocked over by the Maughan's. The pub paid for replacement of the drinks in question and this was recorded at the time. Mr. Cassidy had been dealing with building matters in the lounge area on the night in question. A copy of the record of the replacement drinks would be submitted to the Tribunal if available.
- Mr. Cassidy served in the bar on 18 November, 2001 to cover the staff's break and distinctly recalls serving the Maughans.
- He is responsible for legal and accounting matters in the company while Mr. Sweeney is responsible for staff and management of the premises. It is for this reason that Mr. Cassidy did not volunteer this information until this juncture. He did not think that it was relevant or important.
- Mr. Dargan had pointed out the Maughans to Mr. Cassidy on 18 November 2001 and told him that they had knocked over drinks.
- The pub replaces spilled drinks in such situations as a gesture of goodwill, but if the person who spilled them offers to replace them the offer will be accepted.
- Mr. Cassidy knew the Maughans prior to 18 November, 2001 as he had been a customer in the pub and had previously worked there. He had had a part time position some years earlier and was a duty manager from January to March, 2001. He had also attended at the premises occasionally to meet with builders etc prior to taking over the premises.
- In the course of the week following 18 November, 2001 Mr. Cassidy had spoken to Mr. Sweeney about the Maughans behaviour on 18 November.
- Mr. Cassidy does not recall all customers, only those who would be familiar to him from being in the premises when he was present.
Summary on behalf of Respondent by Ms. Doyle, legal representative.
- Ms. Maughan was not actually refused service in the respondent premises on 25 November, 2001, her husband was. Ms. Maughan cannot therefore be the complainant in this matter. The complaint should be struck out on this basis.
- The refusal of service to Mr. Maughan by Mr. Sweeney was reasonable based on what he had been told.
- The Maughans have stated that they were regulars in the premises for six months prior to 25 November, they were not therefore discriminated against. The sole reason for the refusal of service to them was their own misbehaviour/misconduct on 18 November, 2001.
- The respondent is required to operate the premises in an orderly manner. The refusal of service was in accordance with Section 15(1) of the Equal Status Act 2000 and on that basis does not contravene the Equal Status Act 2000.
- Mr. Maughan is clear in his recollection of 25 November, 2001 but remembers nothing of 18 November, 2001.
- The owners of the Sarah Curran are clear in their recollection that the Maughans werespoken to on a number of occasions on 18 November, 2001 about their troublesome behaviour. They did not confront the Maughans on the night in question but decided to do this at a time when no drink had been taken by the Maughans. This is good practice which avoids confrontation and was the most reasonable course of action.
- Each of the Maughans were consistent in stating that Mr. Sweeney ran from the lounge to the bar on 25 November, 2001 to get there before the Maughans entered the premises. This is consistent with the actions of a reasonable landlord. The Equality Officer is referred to the case of Collins v Kyles Pub, DEC-S-2001-019.
5 Matters for consideration
5.1 The matter referred for investigation turns upon whether or not the complainant was directly 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.
5.2 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".
5.3 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."
5.4 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 ".
5.5 Section 15(1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought". 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". In this particular case the complainant claims that she was discriminated against because she is a member of the Traveller community while the respondent maintains that his staff acted in accordance with section 15 (2) of the Equal Status Act 2000.
5.6 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 of the complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5.7 Essentially this is the approach provided for in the Burden of Proof Directive (Council Directive 97/80/EC). In adopting this approach I am conscious that the Directive is not directly applicable to the complaint in hand under the Equal Status Act, 2000, but I consider that the Directive has persuasive effect in discrimination law. It is notable that the Labour Court and Equality Officers applied the practice of shifting the burden of proof in discrimination cases long before any European Community caselaw required them to do so (as far back as 1983 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court) and 1986 (Equality Officer: Gibney), and that this was a consistent practice across a spectrum of cases 1. European Court of Justice caselaw did not address the issue of the shift in the burden 1 Curtin, Deirdre, Irish Employment Equality Law, 1989, P. 222 et seq. of proof for the first time until the Danfoss2 and Enderby 3 cases so this was not done purely in implementation of Community law. It seems to represent an indigenous development in Irish discrimination law, which was in advance of Community law. There is no reason why it should be limited to employment discrimination or to the gender ground. The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson 4 and by the High Court in Conlon v University of Limerick 5. While these were both indirect discrimination cases, it seem that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
5.8 In considering what constitutes a prima facie case, I have examined definitions from other sources. In Dublin Corporation v Gibney (EE5/1986) prima facie evidence is defined as: "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred." In article 4 of the EC Burden of Proof Directive (Council Directive 97/80/EC) the following definition appears: "when persons who consider themselves wronged.....establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination". In Teresa Mitchell v Southern Health Board, (DEE011, 15.02.01), the Labour Court interpreted article 4 of the EC Burden of Proof Directive as follows: " This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court , and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no
5 1999 2 ILRM 131
4 1998 2IR 162
3 Enderby v Frenchay Health Authority and Sec. Of State for Health, C-127/92
2 Case no. C-109/88 infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which her complaint of discrimination is based. "
6. Prima Facie Case - Complainant
6.1 In this particular case the complainant claims that she was discriminated against on the basis of her membership of the Traveller community when she was refused service on 25 November, 2001.
6.2 I am satisfied that the complainant is a member of the Traveller community in accordance with (a) at 5.6 above and this is not disputed by the respondent. The complainant has provided written and oral evidence of refusal of service to her husband by a member of the respondent's staff, which has been confirmed by the respondent. The respondent disputes, however, that the complainant herself was refused service. I am satisfied, based on all of the evidence presented in this matter that while the respondent refused service directly to the complainant's husband, the latter was ordering drinks on behalf of the complainant and their son. It was clear from the respondent's evidence that they regarded both the complainant and herhusband as barred from the establishment and Mr. Sweeney ignored the complainant completely when she sought to establish why her husband had been refused service. I am satisfied that the complainant was treated in a manner which amounts to a refusal of service and this fulfills (b) at 5.6 above.
6.3 In relation to key element (c) at 5.6 above I must now consider whether the refusal of service was such that a non-Traveller in the same circumstances would be treated more favourably. The complainant states that she had not caused trouble on the premises and was given no explanation for the refusal of service. This, combined with the respondent's failure to respond to the complainant's attempts to obtain an explanation for the refusal, and the complainant's evidence that non-Travellers were being served at the time in the pub fulfills (c). Furthermore under Section 26 (a) of the Equal Status Act 2000 inferences may be drawn by the Director as seem appropriate from the respondent's failure to reply to the complainant's notification. The Director has delegated the functions of Section 26 to me as an Equality Officer. In the instant case I am satisfied that it is appropriate to draw an inference of discrimination from the respondent's failure to reply to the complainant's notification.
7 Conclusions of the Equality Officer
7.1 The evidence provided by the complainant in this matter was clear and consistent in relation to events on the evening of 25 November, 2001. The complainant and the witnesses on her behalf have little or no recollection of events on 18 November, 2001 when it is alleged by the respondent that the complainant and her husband behaved in an unacceptable manner.
7.2 The respondent's evidence in this regard is, to say the least, inconsistent. The barman initially clearly recalled telling Mr. Sweeney about the alleged behaviour at the end of that night because Mr. Sweeney was unavailable earlier in the evening. Mr. Sweeney clearly recalled that the barman told him the Maughans were barred as they entered the premises on 25 November 2001. The barman however, states that he was not on duty that night. The barman had not told the Maughans at any stage that they were barred, but had reported their behaviour to Mr. Sweeney at the end of the night because Mr. Maughan seemed "a little grumpy".
7.3 Mr. Cassidy, after a lapse of some eighteen months, and notably following a short interval in the Hearing, after Mr. Sweeney and Mr. Dargan had provided inconsistent evidence, recalled that he had actually witnessed the alleged misbehaviour on the part of the Maughans and it was in fact, he who had reported it to Mr. Sweeney in the course of the following week. He had described the Maughans to Mr. Sweeney and this was how Mr. Sweeney recognised them the following week. I find the reason put forward by Mr. Cassidy for not volunteering this information previously, i.e that he did not think it was relevant or important, completely unacceptable. Mr. Cassidy stated in the course of the Hearing that he has responsibility in the respondent premises for legal matters and he did not therefore get involved in this complaint. It was pointed out to Mr. Cassidy that complaints of discrimination under the Equal Status Act 2000 are legal matters. Notwithstanding this, as a co-owner of the premises and an officer of the company it behoves Mr. Cassidy to get involved in matters affecting patrons of the premises and matters with potentially very serious consequences for his company.
7.4 The alleged misbehaviour on the part of the complainant consisted of spilling drink and/or knocking over a table while up dancing in the respondent premises. Music is provided in the premises every Sunday night and up to twenty patrons are up dancing to the music on a very small dance floor, yet the only spillage that is alleged to have occurred was caused by the complainant and her husband. Furthermore the respondent's own evidence was that spillages etc do not, in the ordinary course of things, lead to a barring where they were deemed accidental. No evidence has been provided to show that any deliberate act of the complainant led to such an alleged spillage or other incident.
7.5 The allegations by the respondent with regard to the spillage caused by the complainant and her husband were not made until the complaint came to Hearing. The Equal Status Act 2000 requires that complainants forward a formal, written notification to respondents, giving details of the nature of the complaint. Thenotification requirement provides respondents with an early opportunity to establish the facts in relation to an alleged incident of discrimination while the matter is fresh in the minds of those members of staff who may have been present when the alleged incident occurred. In the instant case no effort was made to reply to the complainant's formal notification or to inform the complainant of the allegations of the spillage on 18 November, 2001. If such notification had been given to the complainant in a timely manner the events of 18 November would have been fresh in her memory, and in the memories of her husband and their son, and would have been remembered for the Hearing. Also while Mr. Sweeney, in giving evidence at the Hearing, denied that he had hurried from the lounge to the bar on the night of 25 November, 2001 to get there before the complainant and her family. However, in her summing up on behalf of the respondent the respondent's legal representative stated that the actions of Mr. Sweeney as described by each of the Maughan's i..e that he ran from the lounge to get to the bar before they entered the premises, was consistent with the actions of a reasonable landlord. Either Mr. Sweeney did or did not run to the bar . If he did not run, as he claimed, then the statement by the respondent's legal representative is inconsistent with her own client's evidence.
7.6 On balance I am satisfied that the complainant's account is the more reliable in this matter. There is simply no evidence to show that the behaviour of thecomplainant or her husband was such that it constituted anything more than an accident, if in fact, given the inconsistencies in the respondent's evidence, it occurred at all. Having considered all of the evidence in this matter I am satisfied that the reason for the lack of recall on the complainant's part regarding 18 November 2001 is because there was no particular reason to recall it. I am satisfied that it was simply an uneventful night for the complainant and her husband.
7.7 The respondent states that the fact that the complainant was a regular in the premises for the previous six months demonstrates that discrimination did not occur. I am satisfied that this was the case under the previous ownership. However, within a week of taking over the licence to the respondent premises the new owners, the respondents, had decided to bar a family of Travellers from the premises which they did one week later.
7.8 No evidence was presented which provides the respondent with a defence under Section 15(1) of the Equal Status Act 2000. Mr. Maughan's being a "little grumpy" or having "a grumpy attitude" does not equate in any way to the type of violent or disorderly behaviour envisaged in that Section. While the requests from the local Gardaí to the respondents to eliminate noise and disorder outside the respondent premises at closing time is relevant in this matter in relation to Sections 15(1) and (2) of the Equal Status Act, the respondent has produced no satisfactory evidence that the complainant or her family were likely to create such noise or disorder. I am satisfied that the respondent has provided no satisfactory evidence to disprove the complainant's point that the respondent's action in barring the complainant and her family in the manner complained of was based on stereotyped prejudice against Travellers.
8 Decision
8.1 I find that the complainant was discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
9 Redress
9.1 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."
9.2 I hereby order that €1000 be paid to the complainant by the respondent for the effects of the discrimination.
9.3 Under section 27 (1)(b) of the Equal Status Act 2000 I order that (i) Ms. Maughan be readmitted by the respondent to, and permitted to drink in, the Sarah Curran Public House on the same basis as non-Traveller patrons of that premises and (ii) the respondent immediately review all customer service practices and ensure that they are fully compliant with the Equal Status Act 2000. In making this award and this order I have taken into consideration (i) the fact that a great deal of needless anxiety was caused to the complainant for a long period of time by the respondent's failure to respond to her requests for an explanation for the refusal of service (ii) that what should have been an enjoyable evening out for the complainant was entirely ruined by the refusal of service and the humiliation caused to her, and (iii) the loss of amenity to the complainant on the evening in question and since then.
__________________________
Dolores Kavanagh
Equality Officer
12 September, 2003