DEC-S2003-117-119 Full Case Report

Martin Stokes, Edward O'Reilly & Ann O'Reilly (represented by Mr. Conor Power, B.L., acting on instructions from The Equality Authority) v Regdale Limited t/a The 79 Inn, Dublin (represented by Ms. Marguerite Bolger, B.L., acting on instructions from Arthur Cox Solicitors)

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 delegated the complaints 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, 2000.

1. Dispute
1.1 This dispute concerns complaints by Martin Stokes, Edward O'Reilly and Ann O'Reilly that they were discriminated against by the respondent 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 Evidence Provided at Hearing by the Parties
2.1 Hearing on 4 December, 2002
Prior to the scheduled Hearing the representative for the respondent, Ms. Bolger, indicated that the respondent wished to withdraw the original defence submitted, as new instructions had been received to the effect that Martin Stokes had not actually been involved in the incidents set out in the original defence, but was instead associated with those who had been involved in such incidents. The Hearing was adjourned to allow the submission of the respondent's new defence and to allow the complainants time to consider and respond to same.

2.2 Hearing on 17 January, 2003
At the commencement of the Hearing the respondent's representative, Ms. Bolger, indicated that her witnesses, the staff of the respondent premises, had informed her that Martin Stokes, the complainant, whom they had just seen for the first time, was a person unknown to them and had never been in the respondent premises. Proof of identity was requested from Martin Stokes who produced insurance documentation and a driver's license, the latter which contained his signature and a photograph. The photograph in the driver's license clearly depicted Martin Stokes, complainant, and the driver's signatures matched that on the formal complaint documentation submitted by Martin Stokes to the Equality Officer's satisfaction. The documentation was copied to the respondent's party for information. The insurance documentation showed the name and address of the insured person which corresponds with Martin Stokes, the complainant's, name and address. The Equality Officer indicated that the Hearing would proceed on the basis that the complaint was procedurally a valid one under the Equal Status Act, 2000, notwithstanding the issues of the disputed identity of the complainant and his ever having attended at the respondent premises, i.e. the formal documentation submitted was valid and in order. The Hearing was adjourned to allow the complainants time to respond to the respondent's contention that Martin Stokes was not a person known to the staff of the respondent premises and that he had never attended at the premises. Mr. Stokes was put on notice that the respondent had requested proof of his identity and his relationship to Margaret Stokes, witness for the complainant.

2.3 Hearing of 25 February, 2003
The representative for the complainants submitted a copy of Martin Stokes marriage certificate indicating that he was married to Margaret Stokes. This was copied to the respondent's party for information.

Oral Evidence provided by, and on behalf of, complainants at Hearing on 25 February, 2003
Mr. Martin Stokes, Complainant
Mr. Stokes stated that:-

• On 1 January, 2001 he and his wife had gone to the 79 Inn. Edward and Ann O'Reilly were seated in the pub. Mr. Stokes shook hands with several people and wished them a happy New Year.
• Mrs. Stokes went to sit with Edward and Ann O'Reilly while Mr. Stokes went to the bar and ordered drinks for himself and his wife. Mr. Stokes saw the manager, Mr. Darcy come through the bar and speak to the bar staff. The barman then told Mr. Stokes that he could not serve him on manager's orders. Mr. Stokes asked to speak to the manager and was told that he was not there and would not be back for an hour.
• Edward O'Reilly came to the bar and ordered drinks and was served. He took the drinks back to the table where his wife and Mrs. Stokes were seated. One of the barmen went over to the table and took the drinks away.
• Mr. Stokes had started to drink in the 79 Inn about four nights previously and had not experienced any problems previously.
• On 31 December, 2000 he had spoken with a number of people in the premises. There was a very good atmosphere and everybody was wishing each other a Happy New Year and shaking hands. Mr. Stokes had spoken to a number of people in passing and had exchanged greetings with them. He had spoken to Collette Smyth on that night and was collected by Paul Mc Nevin, a taxi driver.
• There had been no incident whatsoever on 31 December at the Stokes' table. They had been drinking in a normal manner. Mr. Mc Nevin called to the 79 Inn late in the night and told the Stokes that their daughter had asked him to collect them. Mr. Stokes still had a pint in front of him and asked if Mr. Mc Nevin could call back later. Mr. Mc Nevin had told them to take their time, that he would go and knock off the taxi meter while he was waiting.
• Mr. Stokes had been in the 79 Inn on 30 December with his wife. They were in the company of Collette Smyth. Ms. Smyth had spoken to one of the doormen and enquired about the event that was to take place in the 79 Inn the following night, New Year's Eve. The doorman told them that they would require tickets for the function and that the tickets would be available the following day.
• Ms. Smyth had agreed to purchase the tickets for Mr. Stokes as she would be having lunch in the pub the following day. She dropped into Mr. Stokes caravan the following afternoon and gave him two tickets which she had purchased on his behalf.
• It turned out that the tickets were only needed for a disco upstairs in the pub and tickets were not needed for admission to the pub itself. Neither Mr. Stokes nor his wife were interested in attending the disco.
• Mr. Stokes did not know of anyone in the pub who had attempted to gain entry to the disco and had not spoken with any such person. Neither did he witness anyone pointing in a sneering way at the bar staff as the manager had claimed.
• Mr. Stokes vehemently opposed any inference by the respondent staff that he was not in his wife's company on the evening of 31 December, or that she was in the company of another man. A number of people passed by their table on New Year's Eve and stopped to greet them.
• Mr. Stokes fully accepts that it is reasonable to have a policy of excluding persons from the pub when they are troublemakers. It is also acceptable to exclude those persons who associate with troublemakers if they are aware that that is the case. However, Mr. Stokes was not aware of this and does not know any of his associates who have been barred as being troublemakers. He simply conversed politely with anyone who stopped in passing his table on the evening in question to exchange greetings.

Mr. Paul Mc Nevin, taxi driver, witness for Martin Stokes, complainant
Mr. Mc Nevin stated that:-

• He had first met Martin Stokes, the complainant, on 30 December, 2000. Mr. Mc Nevin is a friend of Mr. Stokes' daughter and her husband and their children go to school together. Mr. Stokes' daughter called him at around 7.30-8.00 p.m. and asked him to collect her parents from the 79 Inn that night.
• Mr. Mc Nevin confirmed his written statement to the effect that he had spoken to the doorman on the way in to collect the Stokes on 30 December and had been told that the Stokes were "sound" and that they had never caused a problem.
• When Mr. Mc Nevin called to the 79 Inn on 31 December to collect the Stokes at the end of the night he had spoken to the doorman and in the course of conversation had asked the doorman if there had been any problems in the pub that night. The doorman had said no, that there had been no problems.
• Shortly before the Hearing of 25 February, 2003 Mr. Mc Nevin had received a phone call from his ex-wife to say that the manager of the 79 Inn, Mick Darcy, had telephoned her and wanted to speak to him about something. Mr. Mc Nevin rang Mr. Darcy who asked him to call in to the 79 Inn . When he called to the 79 Inn Mr. Darcy showed Mr. Mc Nevin a photograph of Martin Stokes, the complainant, and tried to persuade Mr. Mc Nevin that the person who had been in the 79 Inn previously was a younger man and not the man in the photograph. Mr. Mc Nevin was adamant that the man in the photograph was Martin Stokes, and was the man he had collected from the 79 Inn. Mr. Mc Nevin had no idea how Mr. Darcy had obtained his ex-wife's phone number as it is an ex-directory number and wished to formally register his annoyance at the intrusion of his and his ex-wife's privacy.

Ms. Margaret Stokes, witness for complainants
Ms. Stokes identified the complainant as her husband and stated that:-

• She was with her husband in the 79 Inn on both evenings, i.e on 30 and 31 December, 2000. They had been collected on each occasion, at their daughter's request, by Mr. McNevin, a taxi driver, who took them home.
• On 31 December they had been joined in the 79 Inn for a while by Collette Smyth. They had spoken to people who were going back and forth in the course of the evening and she had not noticed any trouble. Neither she nor her husband had gone near the disco.
• Ms. Stokes saw the O'Reilly's at one point early in the evening of 31 December 2000 but they, the O'Reilly's, had left the premises early on. They had not sat with the O'Reillys at any time that evening.
• When she and her husband went into the 79 Inn on 1 January, 2001 the O'Reillys were there and she had gone to sit with the O'Reillys at their table. Her husband had gone to the bar to order drinks. He returned to the table without drinks and told her that they were not getting served. A barman had taken away drinks from the O'Reillys and asked them to leave.
• Ms. Stokes stated that she and her husband have been married 36 years and they are together every New Year's Eve. She had been in the 79 Inn with her husband on about three or four occasions prior to the refusal of service. Ms. Stokes never goes out without her husband.

Ms. Collette Smyth, witness for the complainants
Ms. Smyth confirmed her written statement and stated that:-

• On 31 December 2000 she had been in the 79 Inn with Mr. and Mrs. Stokes. She had been in their company for approximately one hour at around 8-9 p.m. She had then left them and joined a group of friends. She was seated at the back of the pub from where she could see the Stokes at their table. She had seen them shake hands with people through the evening. Ms. Smyth identified the complainant and his wife in the course of the Hearing as Martin and Margaret Stokes respectively whose company she had been in on 31 December 2000.
• Ms. Smyth did not see the O'Reillys at all that evening. She knows them to see from another premises (named) where they socialise.

Mr. Edward O'Reilly, complainant
Mr. O'Reilly stated that:-

• The complainant Martin Stokes, is his brother in law i.e Martin Stokes, the complainant is Ann O'Reilly's brother. Mr. O'Reilly and his wife had gone to the 79 Inn early on the evening of 31 December, 2000. They received a phone call from another brother in law of Mr. O'Reilly's, Michael Stokes, who invited them to meet him in the Jensen Hotel. They left the 79 Inn circa 7-7.30 p.m. and took a taxi to the Jensen Hotel where they spent the rest of the evening. They had not returned to the 79 Inn at any time that evening.
• The O'Reillys had not been in the company of Martin or Margaret Stokes on the evening of 31 December, 2000.
• On 1 January, 2001 the O'Reillys had gone to the 79 Inn at around 6 p.m. Martin and Margaret Stokes came into the pub some time later. Margaret Stokes came to sit with them while Martin Stokes went to the bar to get drinks.
• Mr. O'Reilly went to the bar and ordered drinks for himself and his wife and was served. He brought the drinks back to the table. A barman came to the table and took the drinks away saying that he had been told by the manager not to serve them and that his job "was on the line". Martin Stokes came to the table and said that he was not going to be served.
• On 2 January, 2001 Mr. O'Reilly went to the 79 Inn to speak with the manager. He spoke with members of the bar staff who told him that the manager was not there at that time and would not be back until the afternoon.
• Mr. O'Reilly returned in the afternoon and was again told that the manager was not there.
• Mr. O'Reilly then contacted Mr. Damien Peelo of the Tallaght Travellers Community Development Project and asked that he accompany him to the 79 Inn to try and resolve matters. Mr. Peelo accompanied Mr. O'Reilly to the 79 Inn on 4 January, 2001.
• When they went to the 79 Inn they were told that the manager was not there. They spoke with Mr. Gareth Fortune and explained what had happened to him. Mr. Fortune stated that he was aware that Mr. O'Reilly was not to be served but he did not know the reason for this. He stated that he knew Mr. O'Reilly as a customer and he had always found him to be a nice, respectful customer.
• Mr. Peelo gave his phone number to Mr. Fortune and asked that he get the manager to phone him.

Ms. Ann O'Reilly, Complainant
Ms. O'Reilly agreed with her husbands account of events and further stated that :-

• The bar manager's statement to the effect that he had seen her and Mr.O'Reilly drinking in the 79 Inn was incorrect (see evidence provided by Mr. M Darcy at 4.2 below). He could not have seen them as they were not there.
• Mrs. O'Reilly stated that she is always recognised as a Traveller. She does not know what exactly identifies her to others as being a Traveller, but they (she and her husband) have always found it hard to get into, or get served in, pubs.
• Her brother Michael Stokes, who had invited her and Mr.O'Reilly to the Jensen Hotel on 31 December, 2000. Michael Stokes could not attend at the Hearing as one of his children had been injured, but he wrote a statement confirming that he had contacted them, and had spent the evening with them, on 31 December 2000, in the Jensen Hotel (statement submitted)

Mr. Damien Peelo, witness for the complainants.
Mr. Peelo confirmed the facts as stated in his written statement.

Oral Evidence provided on behalf of the respondent at Hearing on 25 February, 2003
Mr. Mick Darcy, Manager, 79 Inn
Mr. Darcy stated that:-

• He has been the manager in the 79 Inn for some two and half years. It is his duty to run the pub and to keep a good orderly house. If there is trouble from a group or individual service will be refused. This has been the policy of the pub since it opened. If only one member of a group is boisterous they will be asked to stop. If they do not stop then the entire group will be refused. The policy is not a written one but is rather Mr. Darcy's own policy in the pub.
• There is an average of one refusal per week. These are not always recorded and prior to the introduction of the Equal Status Act would have been recorded in an ad hoc, informal manner.
• Mr. and Mrs Stokes had been drinking in the 79 Inn for a period of about six weeks prior to 31 December, 2000. They were well known in the pub and usually drank in the company of another couple.
• Mr. Darcy does not recognise the complainant as the person known to Mr. Darcy as being Martin Stokes.
• There had been an incident at the door to the ticket only function on 31 December, 2000. Paddy Pepper, the doorman on duty had experienced some abuse from three individuals who had caused a verbal commotion. As the three in question stated that their wives were already inside it was decided to charge them a cover charge and admit them to the function.
• Later in the evening the three individuals kept pointing over at Mr. Darcy . Mick Doyle, the other manager had confirmed to Mr. Darcy that the three in question had been up and down the stairs all night. Mr. Darcy made the decision to exclude the group from the next day.
• Mr. Darcy did not know that any of the group were Travellers.
• On 1 January, 2001 Mr. Darcy had instructed the bar staff not to serve the O'Reilly's who had associated with the troublemakers the previous evening. He had then deliberately left the bar area to avoid confrontation over the refusals. The O'Reilly's would have been refused service even if they had not been in the Stokes company on 1 January, 2001. The bar staff would recognise the O'Reillys to see so Mr. Darcy could not say why the policy had not been implemented by the bar staff in relation to the O'Reillys.
• Mr. Darcy stated that he would not refuse service on the basis of normal interaction which takes place on New Years Eve. He would only refuse service to someone if drink were being bought on behalf of those causing trouble. This type of situation requires a judgement call on the part of Mr. Darcy who can weigh up the situation.
• Mr. Darcy had not been aware that Edward O'Reilly was looking for him on 2 January, 2001 as he was off on a break when he had called. He first became aware of this when he was told that Mr. Peelo had left his phone number. He had rung Mr. Peelo and left a message as to when he would be available to meet with him. In any event Mr. Darcy did not see that it was his place to contact Mr. Peelo.
• Mr. Darcy would call the Gardaí if trouble arose in the pub which he felt he could not handle himself. He would sometimes give a reason to patrons for refusing to serve them, but not always. Patrons would sometimes be readmitted after having been barred, but this would not happen very often.
• Mr. Darcy apologised about the initial confusion on his part about the identity of the person known to him as Martin Stokes as being actually involved in the trouble experienced. In the course of conversation with other staff members he had been informed that Martin Stokes was not involved in the trouble directly. The conversation with staff members took place after the initial response was made by the respondent's solicitors to the complainant's notification of complaint to the respondent. The doorman who had been on duty on the night of 31 December, 2000 had left by the time the letter issued so Mr. Darcy could not consult with him.
• Mr. Darcy is certain that the O'Reillys were downstairs in the 79 Inn all night on 31 December, 2000 and were in the company of Mrs. Stokes all evening.
• Mr. Darcy confirmed that he called Mr. Mc Nevin's ex-wife and asked that she get Mr. McNevin to contact him. When Mr. Mc Nevin called to see him in the 79 Inn he, Mr. Darcy, showed him the photograph of the complainant which had been given to the respondent's solicitor by the Equality Officer at the Hearing on 17 January, 2003 and Mr. Mc Nevin confirmed that it was Martin Stokes, the complainant, in the photo. Mr. Darcy declined to say how he had obtained Mr. Mc Nevin's ex-wife's phone number.
• The man known to Mr. Darcy as Martin Stokes is a much older man than the complainant and has very grey hair.
• Mr. Darcy did not see any problem with the doormen letting taxi drivers know whether there had been a problem with someone in the premises. It would not necessarily be unprofessional of them to do so.
• Mr. Darcy confirmed that a photograph produced to him by the complainant, Martin Stokes, in the course of the Hearing was taken in the 79 Inn. The photograph shows the complainant sitting at a table in the 79 Inn and was taken, according to the complainant, on New Years Eve, 2000.

Mr. Gareth Fortune, witness for the respondent
Mr. Fortune stated that:-

• He was on duty in the 79 Inn on 31 December, 2000. He went into the bar to fetch a bottle of spirits. Dave Redmond, another barman told him that "a group of lads" had been going up and down the stairs all night and they were sitting across from the bar. When Mr. Fortune looked over there were a number of people sitting with a broad man aged about sixty with greyish hair. Mr. Fortune did not see any trouble occurring but was told that it had.
• Mr. Fortune had seen the O'Reilly's sitting in company some time between 7-8p.m on 31 December, 2000. He does not recall seeing them after that.
• Mr. Fortune was on duty on his own 1 January, 2001. It was not he who had refused service to, nor was it he who had taken drink back from, the O'Reillys. The complainant, Martin Stokes, was not there in the 79 Inn on that date and he had never seen him before.
• Mr. Fortune recalled speaking to Mr. Peelo. He recalled saying that he knew Mr. O'Reilly was a good client and that he was also aware that he was to be refused service. He did not recall taking Mr. Peelo's phone number. He had not refused to serve the O'Reillys on 1 January as he did not see it as his place to deal with the issue of refusal of service. He might have said it to Dave (Redmond).

Mr. Dave Redmond, witness for the respondent
Mr. Redmond stated that:-

• He was on duty in the 79 Inn on 31 December 2000. There was a gang of lads in the lounge whom he was told to refuse the next time they came in. They were with a crowd of people who were pointing fingers over at the bar. He was told not to serve them again as they were behaving aggressively.
• Mr. Redmond saw Mrs. Stokes and one of the men who had been waiting outside the Hearing sitting with the people in question. There were 5 or 6 of them in total at the table. The man in question was well built with thick dark curly hair and would be aged in his early sixties.
• Mr. Redmond had seen Mrs. Stokes about three or four times previously.
• Mr. Redmond does not recall what time he was on duty on 1 January, 2001 and does not recall any incidents that day. He thinks that he came on duty after 6.00 p.m on that day.

Summary on behalf of complainants by Mr. Conor Power, B.L.

• The complainants are Travellers. They had been treated in a less favourable manner and refused service in the respondent premises and the refusal was corroborated by a number of witnesses including Martin Stokes, the complainant's wife.
• The complainants were refused service because they had been stereotyped by the respondent's staff. The latter had claimed, in letters dated 8 and 12 February, 2001, that the complainants were involved in trouble on 31 December, 2000. These letters were the closest in date to the actual date of the alleged trouble.
• The respondent had since changed the account of events to state that Martin Stokes, the complainant had not personally caused the alleged trouble, but was, rather, associated with the alleged troublemakers. As the respondent' staff now state that they did not know Martin Stokes it was miraculous that they could make this assertion.
• When the respondent was first notified by the complainants that they intended to pursue the matter of the refusal, a full and proper investigation could have been made by the respondent into the matter but the respondent failed to do this. The first reason put forward by the respondent for the refusal of service to the complainant falls away and a second reason takes its place, neither of which are acceptable.
• The respondent stated initially that it would not have been appropriate for any staff member to engage in discussions with the taxi driver about the alleged trouble. It now transpires that the respondent's staff accept that it would be appropriate in certain circumstances.
• The complainant accepts that the policy of the manager of the respondent premises to exclude troublemakers or those who openly associate with them, to the extent where it is reasonable, but not in its entirety, e.g where it extends to any persons who casually or unwittingly associate with persons who are not known to them as troublemakers or who merely exchange greetings with such persons. Both the complainant and the manager of the respondent premises are agreed that the policy is only reasonable to a certain extent.
• Mr. Stokes, the complainant has produced a photograph of himself taken in the 79 Inn on 31 December, 2000 and a number of witnesses have verified his presence in the premises on that date. The respondent's manager asserted that the complainant had never attended at the premises. This was not so.
• A number of witnesses had confirmed that Mr. Stokes the complainant and his wife were together as a couple on the evening of 31 December, 2000 while the respondent staff were unsure that this was the case. Two members of staff had given different accounts of the appearance of the person who was in the company of Mrs. Stokes on that date. One, Mr. Redmond had described the person in Mrs. Stokes company as a man in his early sixties, with dark curly black hair. This describes the complainant. The differing accounts by the respondent's staff, combined with the changes in the respondent's defence in this matter, make the respondent's account unreliable.
• The complainants have established a prima facie case of discrimination. The nature of the respondent's defence is such that it is almost conjecture. The most contemporaneous report of events on 31 December, 2000 by the respondent is now stated to be wrong. The respondent did not take the matter seriously and stereotyped the complainants. There may well have been trouble in the premises on 31 December 2000 but on 1 January, 2001 the complainants were singled out by the respondent's staff as probably being those who had caused the trouble because of their Traveller status. The groups on the list of others who had been refused service in the respondent premises were common groups, e.g families, footballteams etc. In the instant case this was not so. The only connection between those who were refused service on 1 January, 2001 is that they are Travellers. It is not a coincidence that the four people who were asked to leave the premises on 1 January, 2001 were all Travellers. It is not necessary that the respondent had a discriminatory motive in refusing service to the complainants but a glib association of the complainants with the alleged trouble had occurred. The case of Davis v DIT (HC 23 June, 2000) is relevant in this regard.

Summary on behalf of respondent by Ms. Marguerite Bolger, B.L.

• The staff of the respondent's premises had attended for Hearing on two earlier occasions. On neither occasion had any of the staff in question seen the complainant as both Hearings had been adjourned. On the third occasion when the staff in question saw the complainant they immediately instructed Ms. Bolger that they had never seen the complainant before on the respondent premises.
• The original instructions from the respondent were incorrect. The respondent could have opted to stand over those instructions but chose to amend them and should be credited for taking corrective action.
• The respondent staff state that the complainant was not refused service in the respondent premises on 1 January, 2001. However if the Equality Officer accepts that the complainant is the same person who was refused then the respondent is entitled to put forward a case, which is that any person who is excluded from the respondent premises is excluded in pursuance of the pubs policy as set out. The respondent's case has always been that refusal of service was in pursuance of the pub's policy and the altering of the facts does not alter the reason for the refusal. The respondent's case has not altered therefore in that regard.
• The issue in this matter is whether or not the refusal of service took place in pursuance of the pub's policy of excluding troublemakers. If so, then that is the end of the matter. It was suggested that the policy was unfair and that may be the case but that does not make it a discriminatory policy and the case cannot be found in favour of the complainant on that basis.
• It was implied that the policy was wrongly applied in this case. If the policy was applied unfairly, wrongly or inaccurately, it still does not mean that it was a discriminatory policy. Travellers are served regularly in the respondent premises and this fact defeats the case for discrimination.
• Even the taxi driver had given evidence that he saw Travellers in the pub on 30th and 31st December, 2000.
• Mr. Power had referred to the eight recorded instances whereby service had been refused to patrons by the respondent and had stated that the groups in question were common groups and that the complainant had been refused because of an association by the respondent with Travellers. This was not so. In the Equal Status Decision by an Equality Officer - Tom Sherlock v The Brewery Pub, DEC-2001-291, the Equality Officer had concluded that the complainant had been refused service because of previous unacceptable behaviour on the part of his brother and that service would or could be refused on that basis. The respondent wishes to rely directly on this authority.
• The jurisprudence in Equal Status cases requires that three elements be satisfied before a prima facie case of discrimination can be established. The first is that the complainant be covered by the ground under which they are claiming, in the instant case, the Traveller community ground. While the respondent does not concede this point, neither do they wish to make issue of it. The second is that the complainant was afforded specific treatment. It is common case that a refusal of service took place. The third element is that the treatment afforded the complainant was such that it was less favourable than that which would have been afforded someone who is not covered by the ground in the same or similar circumstances. The third element has not been established by the complainant. The complainant has not therefore established a prima facie case of discrimination. General statements about the stereotyping of Travellers or imputing motive to the respondent are not sufficient. The complainant has adduced no evidence to support his case. A prima facie case of discrimination has not therefore been established.

3 Matters for Consideration
The matter referred for investigation turns upon whether or not the complainant was 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.

3.1 Section 3 (1) provides that discrimination shall be taken to occur where:
(a) "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
(b) "... a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph 3 (1)(a), constitute discrimination".

3.2 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."

3.3 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 ".

3.4 Section 15(1) of the Equal Status Act 2000 provides that ....nothing in this Act prohibiting discrimination, shall be construed as requiring a person.... to provide services .... to another person ("the customer") .... 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".

3.5 Section 26 of the Equal Status Act, 2000 states that "If, in the course of an investigation under section 25, it appears to the Director --
(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),
(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or
(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director, the Director may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c)."
In this particular case the complainants claim that they were discriminated against because they are members of the Traveller community, while the respondent maintains that there was no discrimination.

3.6 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 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 the same or 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.

3.7 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 theyrely 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 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. " The recent US Supreme Court ruling in Desert Palace Inc v Costa, 9 June, 2003, held that the evidence required to establish a prima facie case of discrimination may be circumstantial and need not be direct evidence based on personal knowledge or observation. While the references above refer to employment matters and some are from other jurisdictions that is not to deny them their persuasive value in relation to Equal Status matters.

4 Prima Facie Case - Complainants
4.1 I am satisfied that the complainants are members of the Traveller community in accordance with (a) at 3.6 above. While the respondent did not concede this, neither, according to their representative, were they going to make an issue of it. I take this to mean that the respondent does not accept the Traveller status of the complainants. The complainants are clearly identified by themselves and a number of witnesses as being members of the Traveller community. When initially seeking assistance with the lodging of their complaints the complainants sought and were granted assistance from the Clondalkin Travellers Development Group who carry out a range of functions in relation to matters of relevance and/or importance specific to Travellers. In the circumstances and in the absence of any evidence or argument to the contrary by the respondent I am satisfied that the complainants are Travellers.

4.2 It is common case that the O'Reillys were refused service and element (b) at 3.6 above is therefore satisfied in each of their cases. Martin Stokes states that he was refused service while the respondent contends that Martin Stokes had never been to the 79 Inn.
Attendance by Martin Stokes, complainant, at the respondent premises
The complainant, Martin Stokes, provided evidence from eye witnesses, Edward and Ann O'Reilly, and his wife Margaret Stokes, who state that they were present when he was refused service on 1 January, 2001. He has also provided witness accounts of previous attendance by him at the respondent premises. Furthermore, he produced in evidence, in the course of the Hearing, a photograph of himself and female relatives, one of whom is his wife, Margaret Stokes, which he stated was taken in the respondent premises on 31 December, 2000. The manager of the respondent premises confirmed that the photograph was taken in the 79 Inn. While the photograph does not provide evidence as to the time or date at/on which it was taken, it did confirm that the complainant had, in fact attended at the respondent premises, despite the emphatic assertions of the respondent's staff that he had never done so.Given the inconsistency of the evidence from the respondent's staff and the compelling and consistent evidence presented by the complainant, and witnesses on his behalf, to the effect that he attended at the respondent premises on 31 December, 2000 and again on 1 January, 2001 on which latter date he was refused service by the respondent's staff, I am satisfied, on balance, that Martin Stokes account of the refusal of service to him is the more reliable and he has, therefore, satisfied (b) at 3.6 above.

4.3 In relation to key element (c) at 3.6 above, as the respondent's ultimate defence, in relation to the complaint from Martin Stokes, is that Martin Stokes, the complainant, is completely unknown to them I cannot therefore accept as a reason for refusal of service to him an association by the respondent's staff of the complainant with alleged troublemakers. There is simply no evidence to support this assertion. Martin Stokes, and a number of witnesses on his behalf, state that he was refused service on 1 January, 2001 while non-Travellers were being served on the premises. In the absence of any evidence from the respondent as to a credible alternative reason for the refusal of service I am satisfied that the complainant, Martin Stokes, was treated in a manner which is less favourable than the manner in which non-Travellers were treated and that key element (c) at 3.6 above has been established. The O'Reilly's were denied further service without an explanation almost immediately after they were joined by Mrs Margaret Stokes. In the absence of a credible alternative reason for this treatment of the O'Reilly's by the respondent, an inference of discrimination arises in all three cases.

5 Repondent's rebuttal.
5.1 The respondent' representative indicated that if I were ultimately to accept that Martin Stokes, the complainant, had been refused service in the 79 Inn, which is the case, then their initial defence stands, i.e that all refusals of service to patrons in the respondent premises are lawful and in accordance with, and in pursuance of, the policy of the pub. This policy has been applied to a number of groups/persons and excludes them from the respondent premises on the basis of their own unacceptable behaviour or that of others with whom they are associated.

5.2 The respondent's submissions in relation to the O'Reilly's complaints are to be taken as amended in light of the amendments to the respondent's defences in Martin Stokes case i.e that they were refused service in accordance with, and in pursuance of, the policy of the pub. This policy has been applied to a number of groups/persons and excludes them from the respondent premises on the basis of their own unacceptable behaviour or that of others with whom they are associated.

5.3 The respondent wishes to rely directly on the authority in Tom Sherlock v The Brewery Pub, DEC-S2001-291 in which the Equality Officer held that service could be refused in circumstances whereby the complainant was associated with a person who had behaved in an unacceptable manner.

6 Conclusions of the Equality Officer
Refusal of service in accordance with policy of respondent's premises
6.1 In the course of giving evidence the manager of the 79 Inn, Mr. Darcy, indicated that there was no formal overarching policy in the pub, and certainly none that was written down. The policy is, according to Mr. Darcy, his own. The policy is that any person who causes trouble in the premises or who is associated with any individual who causes trouble is excluded from the premises.

6.2 Mr. Darcy did not apply his policy to those individuals whom he alleges caused a disturbance in the 79 Inn on the night of 31 December. It was decided to charge the persons in question a cover fee and admit them to the disco. The persons allegedly causing the disturbance were not, therefore, excluded from the premises, nor was any other action taken against them. They were, in fact, admitted by Mr. Darcy to a ticket only function. I cannot accept that one of a number of managers in the respondent premises can make up an individual policy as they go and call it a formal policy applying in the premises. It is open in that case to any senior member of staff to formulate their own individual policy in relation to similar matters arising and any such policy could vary significantly from any other. I do not accept therefore that Mr. Darcy's own, ad hoc, informal and subjective policy can be regarded as anything akin to a clear, comprehensive, consistent, transparent, objective policy applying in the respondent premises. Nor do I accept that the policy can be arbitrarily applied to persons other than those who have invoked use of the policy when no evidence of misconduct on the part of those who are refused service is forthcoming. In particular there is no evidence that any of the complainants sought to purchase drinks on behalf of those persons alleged to have caused trouble. Mr. Darcy stated in evidence that it is only when a person seeks to do so that he would consider barring them.

6.3 The list submitted by the respondent giving examples of groups/persons who were excluded in accordance with Mr. Darcy's policy is unenlightening as it is a sterile, typed, computer table format with no names or details in relation to the individual entries which are of any great significance. There is nothing to indicate that these entries were taken from a source which logged refusals of service in the 79 Inn on an ongoing contemporaneous basis. The table could have been compiled from memory or could as easily have been compiled specifically for the Hearing of these complaints. In either event it is not something to which any great significance can be attached. Furthermore the list in question contains no reference to the incident alleged in the course of the investigation of these matters. Nor was any attempt made by the respondent to produce to the Tribunal the original entries from which the list was, presumably, compiled, as requested to or to explain why this was not done. Refusal of service to Martin Stokes in accordance with policy of respondent premises.

6.4 If the complainant Martin Stokes is completely unknown to the staff of the respondent premises because, according to them, he had never been to the premises then he could not have been involved in an incident of the type alleged. I am satisfied that were he to have been involved in such an incident he would be recalled by staff of the respondent premises. No evidence whatsoever has been provided by the respondent to indicate that Martin Stokes, the complainant, was ever involved in any such incident. Refusal of service to O'Reillys in accordance with policy of respondent premises

6.5 The respondent stated that the O'Reilly's were refused service on 1 January, 2001 because they associated with a person named Martin Stokes who is alleged to have behaved in an unacceptable manner in the 79 Inn the evening before. The O'Reilly's state that they left the 79 Inn early in the evening in question to join another relative in a different premises. This appears to be borne out by witnesses for both parties who, with the exception of Mr. Darcy, have no recollection of seeing the O'Reilly's in the 79 Inn after 7.30 - 8.00 p.m on 31 December, 2000. This is also supported by a written statement submitted by Mr. Michael Stokes to the effect that he invited the O'Reilly's to join him in another premises on 31 December, 2000 and that they joined him shortly thereafter. As Michael Stokes was not present at the Hearing of these complaints no great weight can therefore be attached to his statement. On balance I am satisfied that the O'Reilly's were not in the 79 Inn late in the evening of 31 December, 2000 and could not therefore have been associated with the alleged incident of disorderly behaviour.

6.6 It is clear that the O'Reilly's were served a number of drinks without any difficulty on 1 January, 2001 prior to the Stokes arrival. The respondent's staff did not therefore identify them as associates of troublemakers in their own right on that date. The refusal of service to the O'Reilly's took place immediately after the Stokes entered the 79 Inn and Mrs. Margaret Stokes joined the O'Reilly's at their table. The O'Reilly's were then refused further service and had drinks taken from them without explanation. Taking all of the evidence into consideration I am satisfied that the O'Reilly's association with the Stokes was the reason for the refusal. As I have indicated at 6.4 above that no evidence has been provided to show that Martin Stokes was involved in any incident of the type alleged by the respondent, I am satisfied that it was not an association on this basis that caused the refusal. No evidence whatsoever has been provided by the respondent to indicate that the O'Reillys were ever involved in any incident such as that alleged by the respondent to have occurred on the night of 31 December, 2000. In the circumstances the only factor connecting those who were refused service on 1 January, 2001 is their Traveller identity. It is possible that the O'Reillys were either not identified by Mr. Darcy as Travellers until such time as they were actually seen by him in the company of the Stokes, or were permitted to attend at the premises as part of a quota system operating in the 79 Inn.. Indeed it is not clear whether the O'Reilly's were even, in fact, identified as Travellers when joined by the Stokes on 1 January, 2001. What is clear is that once they became associated by Mr. Darcy with persons whom I am satisfied he did identify as Travellers, i.e. the Stokes, whose appearance and accents are very distinctively that of Travellers, he then instructed his staff to refuse the O'Reilly's further service. Such a refusal of service is discriminatory within the terms of Section 3 (1) (b) of the Equal Status Act 2000.

6.7 Precisely why the Stokes were served on some three previous occasions in the 79 Inn is unclear, but I am satisfied that such a limited period of service does not clearly demonstrate a lack of discriminatory motive on the part of Mr. Darcy. Only Mr. Darcy can know precisely what his motives were. The fact that Travellers are served by the respondent, or that the complainants have been served on other occasions, does not, and cannot, in itself defeat the case for discrimination, as the respondent argues. There are different degrees of discrimination, ranging from an outright refusal to serve Travellers in any circumstances, to serving Travellers in some situations but where a doubt or a problem arises, tending to treat them less favourably than a non Traveller in the same circumstances. Both ends of the spectrum are contrary to Section 5 of the Equal Status Act . Evidence that a pub serves Travellers regularly, or has previously served the complainants, can contribute to a defence by showing that the respondent does not practise the more blatant and deliberate forms of discrimination. However, such evidence is not relevant to the more subtle and unconscious forms of discrimination cannot occur. It may suggest that they are less likely to do so as a general rule, but it is only one of a number of factors which may be relevant in assessing whether discrimination has in fact occurred. I am satisfied that, on balance, in the absence of a credible alternative for the refusal of service to the complainants, an inference arises that they were discriminated against on the Traveller community ground.

6.8 In relation to the respondent's contention that the O'Reilly's had associated with a person other than the complainant, named Martin Stokes on 31 December, 2000 who had behaved in an unacceptable manner I have outlined at 7.6- 7.10 below why I do not accept that that individual was involved in the incident alleged. No compelling evidence was presented to show that the O'Reilly's had ever associated with alleged trouble makers nor was any explanation forthcoming from the respondent as to why they were initially served on 1 January, 2001 if they were so associated by the staff of the 79 Inn. Mr. Darcy also stated that, after he gave the instruction to exclude the O'Reilly's he left the bar area to avoid further confrontation. It seems to have entirely escaped Mr. Darcy that he left staff members who were junior in position to him to deal with a potentially confrontational situation of his making, on foot of his own personal policy. Such situations are according to Mr. Darcy's own evidence, a matter for managers to deal with, whether of their own making or not. Mr. Darcy did not do what he holds himself out as being qualified to do, that is, to manage the situation. 6.9 It is also unclear as to why Mr. Darcy later referred the O'Reillys to a Mr. Pat Walsh in another premises, the Palmerstown House, for an explanation as to why he , Mr. Darcy, refused service to them. No evidence has been received from Mr. Walsh, no indication given as to his role in these matters and he did not attend at the Hearing of these matters.

6.10 In relation to the authority which the respondent wishes to rely on directly, (Sherlock v The Brewery Inn, DEC-S-2001-129) the facts of that case can be distinguished from the instant case in a number of areas. Specifically, while the Equality Officer found that the complainant in the Sherlock case was refused service on the basis of the previous unacceptable behaviour of his brother, the unacceptable behaviour was established to the satisfaction of the Equality Officer by the respondent in that case, in the presence of the person to whom the unacceptable behaviour was attributed. The latter failed to rebut the evidence presented on that occasion. It remains the case that service can lawfully be refused to persons where it is established that they have either personally behaved in an unacceptable manner or where they are clearly associated with those who have behaved in such a manner, neither of which has been established to my satisfaction in this case.

7 Analysis of Respondent's Submissions
Nature of unacceptable behaviour alleged
7.1 The manager of the respondent premises, Mr. Darcy, stated in evidence that three individuals had caused a disturbance on 31 December, 2000, that these same three individuals had pointed at him when he was serving in the bar and that another manager told him that the three individuals had been up and down the stairs all night on 31 December, 2000.

7.2 In all submissions from the respondent the unacceptable behaviour was characterised as "aggressive and threatening", such that it could result in "more violent conflict" and was "objectionable". The specific behaviour was described by the manager, Mr. Darcy as (i) creating a commotion verbally at not being allowed into a ticket only function and (ii) pointing at Mr. Darcy.

7.3 The language applied in submissions by the respondent to the alleged behaviour seems to be largely inapplicable or, at least, overstated. Three persons argued about getting into a ticket only function in the 79 Inn without tickets. No evidence was presented as to the specific nature of any threat made directly by any of the three to any specific member of staff. The manager's response to the verbal commotion was to charge the three individuals a cover fee and permit them entry to the function.

7.4 Later that same evening the manager alleges that the three individuals were pointing at him in what he perceived to be an aggressive manner, yet he took no action against them at that point in time, but determined instead that he would exclude them from the 79 Inn the next day. I find this perplexing, given that the manager did not recognise any of the three people in question, as he stated that they had never been to the pub previously. Why then, did he think that they would be in the pub the next day?

7.5 In summary, the evidence given by the only person who claims to have witnessed the "objectionable" behaviour first hand indicates that this behaviour amounted to a verbal argument and some pointing at the main bar area, on foot of neither of which anydirect action was taken by the pub manager against the alleged perpetrators on the night in question. If the behaviour described, if it occurred at all, was such that it would have led to "more violent conflict" if action had been taken to exclude the alleged perpetrators then it was open to the manager and staff to eject the troublemakers or alert the Gardai and have the matter dealt with appropriately. Mr. Darcy stated in evidence that he would call the Gardai on occasions when he felt he could not handle the situation. His inaction on the night in question seems to indicate that he felt he was able to manage the situation and it was not a situation therefore that was bordering on "violent conflict" such as is envisaged in Section 15(1) of the Equal Status Act. Taking all of the above into consideration I find that Section 15 (1) of the Equal Status Act 2000 does not apply in the instant cases. Involvement of individual named Martin Stokes

7.6 The manager of the 79 Inn, Mr. Darcy, states that he thought an individual other than the complainant was Martin Stokes. At the Hearing Mr. Darcy described the person known to him as Martin Stokes as older in appearance than the complainant, with very grey hair. However, in the course of his conversation with Mr. McNevin at the 79 Inn, when he had requested that Mr. McNevin call to see him, he had insisted that the person known to him as Martin Stokes was younger in appearance than the complainant and attempted to persuade Mr. McNevin that that was the case. The complainant has a rather youthful appearance for his age (supplied at Hearing) and thick black curly hair. Yet Mr. Darcy tried to persuade Mr. Nevin that the person known to him as Martin Stokes was even younger looking than the complainant. Clearly someone younger would not be "an elderly man with very grey hair". I am satisfied that Mr. Darcy has no clear idea as to the appearance/description of the person whom he claims is known to him as Martin Stokes.

7.7 Mr. Darcy claims that this other person was well known to him as he had been socialising in the pub for the previous six weeks with Mrs. Margaret Stokes " as a couple" but the person he had in mind was not the complainant. The latter is completely unknown to him. This would imply (i) that Mrs. Stokes is pretending/mistaken that the
complainant is her husband, (ii) that Ann O'Reilly is pretending/mistaken that the
complainant is her brother, (iii) that Edward O'Reilly is pretending/mistaken that the
complainant is his brother-in-law, (iv) that Collette Smyth is pretending/mistaken that the
complainant is married to Mrs. Stokes, both of whom are friends of hers, and (v) that Mr. McNevin is pretending/mistaken when he says that he collected the Stokes (including the complainant) on at least two occasions, as a couple, from the 79 Inn. It also implies (i) that all the aforementioned are either pretending or are mistaken when they attest to the fact that the complainant was in the 79 Inn on 30 and/or 31 December, 2000 and 1 January, 2001 and (ii) that Mrs. Margaret Stokes was consorting with a person other than her husband. On balance I find Mr. Darcy's account lacking in credibility. I am satisfied that Martin Stokes, the complainant, is the husband of Margaret Stokes and that they attended at the 79 Inn as a couple on, and on some three occasions prior to 1 January, 2001.

7.8 The respondent's staff proffered three different descriptions of the individual they claim is known to them as Martin Stokes. One of the descriptions (Mr. Redmonds) exactly fits the complainant. On balance I am satisfied that the respondent's staff have no clear idea as to the identity of the person they state is known to them as Martin Stokes and whom they claim is not the complainant.

7.9 Neither the doorman in the 79 Inn who actually spoke to those alleged to be involved in the incident on 31 December, 2000 nor the manager who is stated to have pointed out to Mr. Darcy that the three individuals had been going up and down the stairs all night were available to give evidence at the Hearing in this matter. I cannot therefore give much weight to the evidence presented by Mr. Darcy on their behalf.

7.10 In summary, the only person in the respondent's party present at the Hearing who directly witnessed the alleged events was Mr. Darcy, the pub manager. The evidence of the other two members of staff relies on what others had told them. There is no compelling evidence to show that they personally witnessed any unacceptable behaviour on the part of any patron on the night of 31 December, 2000. There is certainly no satisfactory evidence to the effect that any individual named Martin Stokes, was involved in, or associated with, the alleged unacceptable behaviour on that specific occasion.

8 Other matters of concern
8.1 It has already been shown at 7.6 above that Mr. Darcy cannot clearly identify the person whom he claims is known to him as Martin Stokes. It was open to Mr. Darcy prior to responding to this complaint in the first instance to properly investigate this matter and to base his reply on the facts as determined by such investigation. Mr. Darcy responded at the time to the effect that Martin Stokes was excluded for unacceptable aggressive and threatening behaviour when seeking admittance to a ticket only function. In reply to this, evidence was provided by a witness for Martin Stokes, the complainant, to the effect that she had bought tickets to the event in question on behalf of the complainant.

8.2 Some considerable time later the respondent stated that Mr. Darcy had been mistaken and that, following discussions with other members of staff the person he thought was Martin Stokes was not directly involved in the alleged unacceptable behaviour but rather, was associated with those who were involved. Mr. Darcy clearly stated in evidence that he did not know any of the three persons who had allegedly caused trouble. He also stated clearly in evidence that the person he knew as Martin Stokes (not the complainant) was well known to him as he had attended at the 79 Inn for six weeks before 31 December, 2000. If the person was as well known to Mr. Darcy as he claims, and he was the only person other than the doorman on duty on 31 December, 2000 to see who the three individuals were, why (i) was he not already aware that the person he knew well as Martin Stokes was not directly involved in the alleged disturbance and (ii) with what members of staff did he discuss it? Mr. Darcy stated in evidence that the doorman, the only other person who witnessed the alleged verbal commotion on 31 December, 2000, had left employment in the 79 Inn before Mr. Darcy responded to the complaint in the first instance. It is clear therefore that he could not have discussed the matter with the doorman. I think it is also noteworthy that, if Mr. Darcy had discussed the matter with Mr. Redmond, the barman, then the latter would have described the complainant, Martin Stokes. It must be assumed then that if Martin Stokes was now merely associated with the alleged unacceptable behaviour, that the O'Reilly's were refused service on 1 January, 2001 for being associated with an associate of the alleged troublemakers. Attempt by Michael Darcy to influence witness for the complainant

8.3 In the course of the Hearing Mr. McNevin, witness for the complainant, stated that he had been summoned by Mr. Darcy to a meeting in the 79 Inn. Mr. Darcy confirmed that he had acquired the ex-directory telephone number of Mr. McNevin's ex-wife and had contacted her. To date Mr. Darcy has declined to offer an explanation to Mr. McNevin as to how he acquired the ex-directory telephone number in question. Mr. Darcy asked that she have Mr. McNevin contact him in return. He had then asked Mr. McNevin to call to the 79 Inn which he duly did. In the course of the discussion which had followed Mr. Darcy had used an item of evidence, a photograph, which had been presented at Hearing to the respondent's representatives, to try to persuade Mr. McNevin that he was mistaken about the complainant's identity. This is, to say the least, the most outrageous and unacceptable behaviour which was designed, I am satisfied, to influence the course of, and possible the outcome of, the investigation and Decision in this matter. I regard the actions of Mr. Darcy as being a deliberate and cynical attempt on his part to interfere with and influence the evidence of a witness for the complainant and thereby impede my investigation of this matter. Mr. Darcy's actions may constitute an offence under Section 37(1) of the Equal Status Act 2000. The consideration of the offence-related provisions contained in the Equal Status Act, 2000 such as obstructing or impeding an Equality Officer, is a matter for the Minister for Justice, Equality and Law Reform or the Equality Authority, (Section 44).

9 Re: Submissions on behalf of complainants
I do not propose to dwell unduly on the very detailed submissions made on behalf of the complainants, as much of the material has been covered in my conclusions above. In relation to the case references cited in the submissions and the tests to be applied in Equal Status matters I am satisfied that the tests applied in the instant cases are in accordance with the principles set out in those cases cited and the jurisprudence of the Tribunal to date. These tests were upheld as being the correct tests to be applied in the case of Griffin v The Mary B Public House, DEC-S2001-023 (Judge Brian McMahon, CC , Wicklow- 20th and 25 th June, 2002). Taking all of the above into consideration I find that the respondent has failed to rebut the inference of discrimination

10 Decision
I find that the complainants were discriminated against by the respondent in terms of Section 3(1) and 3(2)(h) contrary to Section 5 of the Equal Status Act 2000. The finding is in favour of the complainants.

11 Vicarious Liability
While the action which constituted discrimination is directly attributable to the Mick Darcy, the manager of the 79 Inn and the barman who refused service to the complainants section 42(1) of the Equal Status Act, 2000 provides that: "Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval" As the manager and the barman was clearly acting within the scope of their employment in the course of the refusal I find that their employer, Regdale Limited, trading as The 79 Inn, is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Act.

12 Redress
12.1 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."

12.2 In this particular case Martin Stokes the complainant was not only refused service and excluded from the respondent premises, but he was also subjected to a number of claims by the respondent which attempted to lower the character and standing of the complainant and stereotype him as violent and disorderly. These claims proved to be unsubstantiated and compounded the initial instance of discrimination and added greatly to the effects of the discrimination on the complainant, in terms of stress, time and effort expended in responding to those claims. In arriving at a sum to be paid to Martin Stokes by the respondent in compensation for the effects of the discrimination, I have taken account of these factors.

12.3 In accordance with Section 27 (1) I hereby order that the sum of €1,500 be paid to Martin Stokes and €1000 be paid to each of the complainants, Edward O'Reilly and Ann O'Reilly, by the respondent, for the effects of the discrimination. 12.4 In accordance with Section 27(2) I further order the respondent to draft a formal, written, policy in relation to refusals of service which complies with the requirements of the Equal Status Act 2000 and which is to be prominently displayed in the 79 Inn.

___________________________
Dolores Kavanagh
Equality Officer
16 September , 2003

Appendix 1
Written submissions on behalf of complainants

Written Submissions on behalf of Martin Stokes, complainant
Submission from Clondalkin Travellers Development Group, 30 March, 2001

• the Stokes had tickets for the event in the 79 Inn on 31 December, 2000. Ms. Collette Smyth had purchased the tickets for the event on Mr. Stokes behalf and would be willing to testify to that. CTDG also stated that Mr. Stokes did not engage in any aggressive or threatening behaviour on that night. Mr. Stokes was seeking to identify a number of witnesses to testify to this.
• CTDG also stated that the complainant had indicated that there was another man named Martin Stokes on the premises on 31 December, 2000 and was concerned that this was a case of mistaken identity. He is very embarrassed by the fact that he is barred from the pub and is seeking to clarify the events on the night.

Written statement dated 4 April, 2001 from Ms. Collette Smyth, witness for the complainant

• Ms. Smyth had purchased two tickets on behalf of the complainant and his wife for the New Year's Eve function in the 79 Inn.
• Ms. Smyth did not witness any aggressive or threatening behaviour on the part of the complainant on New Year's Eve 2000 in the 79 Inn and was surprised to hear that they had been barred from the 79 Inn on that basis.
• On 16 February, 2001 Ms. Smyth had spoken with a member of staff in the 79 Inn and asked the member of staff whether she could recall any incident involving the complainant and his wife on New Year's Eve. The staff member had said that she was not aware of any controversy. Shortly after Ms. Smyth had been approached by the manager of the 79 Inn who told her that she had no business asking questions about the complainant and that she had upset a member of staff by doing so. He asked Ms. Smyth to finish her drink and leave. Written statement dated 4 April, 2001 from Ms. Margaret Stokes, witness for the complainant
• Ms. Stokes accompanied her husband, the complainant to the 79 Inn on 1 January, 2001. They entered the 79 Inn at approximately 6.00 p.m. Martin Stokes ordered a drink for both of them . The barman told them that he had been told by the boss not to serve them.
• Martin Stokes sought a reason for the refusal to serve them but the barman couldn't give them one. Martin Stokes asked to speak with the manager but was told that he was not available.
• It was very embarrassing for them to be refused service and Ms. Stokes has to assume that they were refused because they are members of the Traveller community as no other reason was forthcoming.
• Ms. Stokes had been with her husband on 31 December 2000 and can testify that it is untrue that her husband was engaged in threatening or aggressive behaviour as the solicitors for the respondent claimed. Both Mr. and Ms. Stokes had tickets for the event in question.

Written statement dated 10 April, 2001 from Mr. Paul Mc Nevin, taxi driver, witness for Martin Stokes, complainant

• Mr. Mc Nevin went to the 79 Inn on 30th and 31st December, 2000 to collect Martin and Margaret Stokes. As he didn't personally know either of them he asked the doorman to point them out to him.
• Mr. Mc Nevin explained to Martin Stokes that his daughter had asked him to give him and his wife a lift home. They agreed that Mr. Mc Nevin would call back at approximately 12.30-1.00 a.m
• As Mr. Mc Nevin left the premises he asked the bouncer if Martin Stokes was "o.k" as he had never met him before. The bouncer assured Mr. Mc Nevin that Mr. Stokes was "sound" and never causes a problem.
• Mr. Mc Nevin brought the Stokes home on both nights and there did not appear to have been any problems in the 79 Inn. Mr. Mc Nevin was, therefore, very surprised when Mr. Stokes informed him that he and his wife had been barred from the premises for alleged "threatening" and "aggressive" behaviour.

Written submission dated 9 October, 2001 from the Equality Authority,

• Mr. Stokes was treated in a less favourable manner because he is a member of the Traveller community contrary to section 3 of the Equal Status Act.
• Mr. Stokes and his wife had been to the 79 Inn on a number of occasions. They decided they would like to go to an event in the 79 Inn on New Year's Eve and were told by others that they would have to get tickets to attend on that night. They were told that the tickets would be going on sale the next day between 12.00p.m. and 1.00 p.m. Martin Stokes asked Collette Smyth, a friend of his, if she would buy four tickets . He gave her £20 to get the tickets. On New Year's Eve at lunch time, Ms. Smyth went to the 79 Inn and asked for four tickets but was told they were only being sold in twos. She bought two tickets and later on that day gave them to Martin Stokes. As it happened Mr. and Mrs. Stokes did not need tickets for the event downstairs in the 79 Inn, they were tickets required only for the disco upstairs and appealed to a different age group. Mr. and Mrs. Stokes stayed downstairs. When they were in the 79 Inn on 31 December they met various people including Collette Smyth, the friend who had bought the tickets for them. Mr. and Mrs Stokes were joined by their sons and daughter in law. They had a very enjoyable night. At one point the doorman came up to them and wished them a Happy New Year.
• Mr. and Mrs. Stokes had been in the 79 Inn on a previous occasion over Christmas and their daughter had arranged for them to be collected by a taxi man, Paul Mc Nevin. The first time he collected them Mr. Mc Nevin called to the 79 Inn and asked the door man to point out the Stokes as he did not know them. He asked the bouncer if Mr. Stokes was "o.k" as he had never met him before. The bouncer assured him that Martin Stokes was "sound" and never caused a problem. Mr. Mc Nevin called in again for the Stokes to drive them home on the night of 31 December, 2000 and there did not appear to be any problems. When he was leaving Mr. Mc Nevin noticed nothing amiss between them and the bouncers.
• After receiving a reply to the statutory notification Mr. Stokes informed Mr. Mc Nevin that he was accused of threatening and aggressive behaviour. Mr. Mc Nevin was extremely surprised. At no point during the night was any mention made to either Mr. or Mrs Stokesabout any trouble caused in the 79 Inn. In fact when Mr. Mc Nevin came to collect them they had not yet finished so Mr. Mc Nevin told them to take their time and spoke to the doorman for a few minutes. No mention was made by the doorman of any problems with the Stokes that night. The next night Mr. and Mrs. Stokes went to the 79 Inn at approximately 7.00 p.m. They were with Edward and Ann O'Reilly, Mr. Stokes sister and brother in law. Mr. Stokes went up to the bar and was told by someone behind the bar that they were not to be served. Mr. Stokes asked for the manager. He saw the manager talking to the staff and then disappear. Meanwhile Edward O'Reilly went up to the bar and ordered a round and brought the drinks back to the table. The barman came down and took the drinks from Mr. O'Reilly and asked them to leave. Both couples were extremely embarrassed by this behaviour and left the 79 Inn. They received no explanation as to why they had to leave. In response to a letter dated 8 February, 2001 from the respondent's solicitors the Equality Authority also made the following written comments:-
• The function upstairs in the 79 Inn for which tickets were necessary was a disco. Mr. and Mrs. Stokes have no interest in discos, they prefer country and western music. In any event they had tickets which they thought were necessary to gain access to the entirety of the 79 Inn. As it turned out these were not needed. Both Mr. and Mrs. Stokes categorically deny that Mrs. Stokes was on her own at a function. In fact Mrs. Stokes does not go out on her own without her husband and therefore would not have been present by herself. Mr. Stokes strenuously denies that his behaviour was ever aggressive and threatening as he never attempted to get into a reserved section of the public house. It should be noted that Ms. Smyth was also in the 79 Inn on the night in question and was sitting a few tables away from where Mr. and Mrs. Stokes were sitting. She noticed no aggressive or threatening behaviour from either of them. Mr. Mc Nevin the taxi driver spoke to the bouncers at the end of the night and told them he was bringing Mr. and Mrs. Stokes home. At no point did anyone mention to him that they had been aggressive and threatening. Since that time Mr. Mc Nevin had given a lift to the Stokes on a number of occasions and he has confirmed that he has never seen Mr. Stokes acting in an aggressive and threatening manner. Mr. Stokes confirmed that himself and Mrs. Stokes had an enjoyable night with his sons and daughters in law in the non - reserved section of the 79 Inn and left without incident.

Written Submissions on behalf of Edward & Ann O'Reilly
Submission dated 16 May, 2002 from the Equality Authority

• The complainants allege that the respondent refused them service in the 79 Inn on 1st January, 2001 because of their membership of the Traveller community contrary to Section 5 of the Equal Status Act, 2000 in terms of Section 3 thereof.
• On 31st December, 2000 at approximately 6.00pm Edward and Ann O'Reilly went in to the 79 Inn. The O'Reillys had a couple of drinks on their own. Edward O'Reilly subsequently received a telephone call on his mobile phone from Ann's brother, Michael Stokes, who was home from England. Michael Stokes asked the O'Reillys to meet with him in the Jensen Hotel. Edward subsequently telephoned for a taxi and the couple left the 79 Inn at approximately 7.00pm. Edward and Ann O'Reilly spent the night with Michael Stokes in the Jensen Hotel. They spent the first part of the night in the pub and then went around to the club. They left the Jensen Hotel between 12.30am and 1.00am. At no point did they return to the 79 Inn. ( Statement from Michael Stokes dated 20th June, 2001 confirming that Edward and Ann O'Reilly spent the evening with him in the Jensen Hotel submitted).
• On 1st January, 2001 Edward and Ann O'Reilly returned to the 79 Inn at approximately 6.00pm. They entered the lounge and got a seat. Edward then went to the bar and got two drinks. A while later another Traveller couple, Martin and Margaret Stokes, came into the lounge. Margaret Stokes joined the O'Reillys while Martin Stokes went up to the bar to get a drink. There seemed to be some difficulty getting served as Mr. Stokes was at the counter for a long time. The O'Reillys had seen the bar manager, Mick Darcy, speak to staff and point over to their table. At that point Edward O'Reilly went to the bar and bought a drink for himself and his wife. He took the drinks back to the table. However, one of the bar staff came over to the table and said that he had been told not to serve drink to that table. The man apologised for having to take the drinks back. Mr. O'Reilly asked why they were not allowed to drink in the pub. The bar person said that he did not know but that he was told not to serve them. Mr. O'Reilly asked to see Mick Darcy and was told that the manager, was no longer in the pub and would not be back until 9.00pm. The O'Reillys and the Stokes then left the pub.
• On 2nd January, 2001 Edward O'Reilly went into the 79 Inn at approximately 10.30am to speak to the manager but was told that the manager was not there and was told he would be back around 12.00pm. He returned to the pub between 12.00pm and 1.00pm that day but was informed that the manager was not there. Mr. Edward O'Reilly was very upset by the way he was treated and felt that there was no hope that he would get the opportunity to sort the matter out with the manager. He therefore contacted Damien Peelo of Tallaght Traveller Support Group and asked him to come with him to try and sort the matter out with the manager of the 79 Inn. On 4th January, 2001 Damien Peelo called to the 79 Inn in Ballyfermot along with Edward O'Reilly to meet with Mick Darcy, the manager. When Mr. Peelo and Mr. O'Reilly arrived at the bar they were informed that Mick Darcy was not available but they spoke to Gareth Fortune, a barman in the 79 Inn. Mr. Peelo spoke to Mr. Fortune about his role in documenting the experience of Travellers in relation to the Equal Status legislation. Mr. Fortune was very friendly towards both men and recognised Edward O'Reilly. He stated that he did not know why Mr. O'Reilly had been refused service and also confirmed that he had never had any problems with Edward and had always thought he was a decent man. Mr. Peelo explained that Mr. O'Reilly would like to be able to come in to the bar and that he would like the matter to be resolved amicably. Mr. Fortune confirmed that he would pass the message onto the manager. Mr. Peelo then gave Mr. Fortune his telephone number so he could be contacted by Mr. Darcy. However, Mr. Peelo was never contacted by Mr. Darcy. In the circumstances Mr. O'Reilly felt that he and his wife had no alternative but to make a complaint under the Equal Status Act. Edward and Ann O'Reilly subsequently sent ODEI forms dated 15th January, 2001 to the 79 Inn. Arthur Cox & Co., Solicitors, responded to Mr. O'Reilly by letter dated 12th February, 2001. Edward O'Reilly and Ann O'Reilly subsequently lodged their claim with the Office of the Director of Equality Investigations on 28th June, 2001.

Submission from Equality Authority (cont'd) - Burden of Proof and Caselaw.

• In article 4 of the EC Burden of Proof Directive (Counsel 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 the decision of Bernard, Richard and Thomas Joyce -v- Liz Delaney's Pub DEC-S2001-021 (copy submitted) the Equality Officer in considering whether the existence of a prima facie case had been established by the complainants defined three key elements which needed to be established:
  (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 a similar circumstances". The Equality Officer then went on to state that: "if and when those elements were established the Burden of Proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such case 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."
  I refer the Equality Officer to a number of U.K. Employment case law decisions which deal with the interpretation of the Burden of Proof. In Khana -v - Ministry of Defence (1981) I.C.R. 653. (copy submitted) Browne - Wilkinson J stated "In this case the industrial tribunal would, we suspect, have found the case rather more straightforward, if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inferences of unlawful discrimination from the primary facts will mean the complaint succeeds. Those propositions are, we think, most industrial tribunal has drawn the inferences of possible discrimination from the fact that there was no obvious reason why the applicant should not have got the job:... To decide that there has been discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial functions, however unpalatable, is to resolve such conflicts by a decision if possible".
• Browne - Wilkinson in Chattopadhay -v- Headmaster of Holloway (1982) I.C.R. 132 (copy submitted) stated: "As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the Respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases it is only the Respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should drawn an inference that such treatment was on racial grounds, unless the Respondent can satisfy the industrial tribunal that there is an innocent explanation:..."
• In North West Thames Regional Health Authority -v- Noone (1988) I.C.R. 813, 822 May LJ stated that he did not find the decision in Khanna 'altogether satisfactory'. He then continued "In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself, I would have thought that it was almost common sense that, it there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds".
• Having reviewed a number of authorities Neil LJ in King -v- Great Britain-China Centre (CA) (copy submitted) stated: "From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in". (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 65(20(b) of the Act of the 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in North West Thames Regional Health Authority -v- Noone (1988) I.C.R. 813, 822, "almost common sense". (5) It unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case".

Response from the Equality Authority to Letter from Arthur Cox, (respondent's representative) dated 12th February, 2001

• Edward and Ann O'Reilly had left the 79 Inn at approximately 7.00pm on the night of the 31st December, 2000. The O'Reillys were drinking alone during their time in the 79 Inn before they left to meet with Michael Stokes in the Jensen Hotel in Clondalkin. It is therefore untrue to say that they were associated with any individuals during the course of the evening who had attempted to gain access to a ticket only event. The allegations made by the respondent regarding other individuals is not in any way related to them or in any wayrelevant to their complaint. The O'Reillys had previously purchased tickets for the ticket only event in the 79 Inn for 31st December, 2000. However, the O'Reillys did not need their tickets as they did not stay in the 79 Inn (copy tickets attached). The O'Reillys have not met the individuals referred to in letter of 12th February, 2001 at any point during the course of 31st December, 2000. Martin Stokes who was one of the persons being referred to in this letter of 12th February, 2001 has confirmed that he did not see or come in contact with Edward O'Reilly on the 31st December. ( copy statement of Martin Stokes dated 21st June, 2001 submitted).
• The O'Reillys confirmed that they were drinking in the 79 Inn from approximately 6.00pm on 1st January without any difficulties from the doorman or the staff or the manager until they were joined by Martin and Margaret Stokes. Mr. and Mrs. Stokes denied that they were involved in any disorderly, aggressive or threatening behaviour on the night in question and are pursuing their claim against the 79 Inn through the Office of the Director of Equality Investigations. The O'Reillys dispute the statement in which they were said to be recognised as someone who had been associated with the three disorderly individuals on the preceding night. We would submit that if the policy of the 79 Inn is not to serve individuals who were associated with alleged trouble makers and if the respondent alleges that they were associated with these individuals (even though they were not there) then they should not have been allowed service when they first entered the premises. There is a clear inconsistency in what is being stated by the respondent in this regard.
• Mr. and Mrs. O'Reilly believed that they were discriminated against because of their membership of the Traveller community. Other Travellers including Margaret and Martin Stokes also believed that they were discriminated against by the 79 Inn because of their membership of the Traveller community. The Equality Authority submitted written observations on 17 September, 2002, in relation to the respondent's submission, as follow:-
• The claimants were not in the company of Martin or Margaret Stokes at any time on the night of 31 December, 2000. In this regard , a statement has already been furnished by Martin Stokes. A further statement from Michael Stokes confirms that the two claimants spent the night in the Jensen Hotel from approximately 7.30 p.m. Had the claimants stayed in the 79 Inn they would have used their tickets to go upstairs to the function. However they did not use their tickets as they left the pub. They were never joined by the individuals who the respondent alleges caused trouble later in the night and therefore could not have been by association implicated in such trouble.
• Mr. Darcy allowed the claimants to be served before the Stokes came in to the pub. If it was the policy of the 79 Inn not to serve individuals associated with persons who cause trouble, the claimants would not have been served in the bar. The respondent cannot therefore rely on its policy as an excuse for not serving the claimants. It is also important to note that thepolicy relied upon by the respondent is not in writing. It is accepted by the respondent that the claimants and the second couple, Martin and Margaret Stokes did not enter the bar as a group and it was not therefore a matter of preventing the entire group from entering the premises. It was open to the respondent to decide not to serve Mr. and Mrs. Stokes while continuing to serve the claimants. By continuing to serve the claimants this would in no way have conflicted with the dual purpose of the 79 Inn policy as set out at (a) and (b) of the respondents submission. It is accepted that the respondent must comply with the licensing legislation. However, it is clear that the respondent would not have been in contravention of the stated legislation by continuing to serve the claimants. Indeed the respondent cannot rely on Section 15(1) of the Act as a defence for their actions as there was clearly no risk of a "substantial risk of criminal or disorderly conduct or behaviour or damage to property".
• In the claimants submission it is stated that they were told that the manager was not present and they did not state or imply that Mr. Darcy refused to talk to them. The staff did not inform the claimants that Mr. Darcy was on leave but asked them to come back at a certain time to meet with him. The claimants then sought assistance from Damien Peelo of the Tallaght Travellers Community Development Project in trying to resolve the matter with the manager of the 79 Inn. It is denied that any other Traveller representative spoke to Mr. Darcy regarding their complaint. When Damien Peelo and Mr. O'Reilly went to speak to Mr. Darcy on 4 January, 2001 they were informed that he was not available. Mr. Gareth Fortune, a barman in the 79 Inn to whom they spoke on that date, did not ask them to contact Mr. Pat Walsh who would be dealing with the complaints. He informed Mr. Peelo and Mr.O'Reilly that he did not know why he was barred. It was stated in the respondent's submission that Mr. Darcy instructed the staff not to serve the claimants. However, three days later on 4 January, 2001 Mr. Fortune was not aware that the claimants were not to be served because they were allegedly associated with troublemakers. We submit that if this had been the genuine reason for the refusal that the instruction would have be passed on to all bar staff as the respondent's primary concern would be to run an orderly public house. (Mr. Peelo's statement attached).
• The claimants had left the 79 Inn by the time Mr. & Mrs Stokes arrived and they are not therefore in a position to comment on the allegations set out in the respondent's submission. If the claimants had been in the bar that night they would have used their tickets and gone upstairs to the function and not stayed in the bar. Furthermore if they had met the Stokes prior to their departure they would have given them their tickets to the function as they no longer needed them.
• The respondent was aware of the identity of the claimants when they were served on 1January, 2001. The claimants would not have been served from the time they came into the pub if the genuine reason for their refusal was their association with trouble makers the previous evening. In Arthur Cox's letter of 12 February it stated as follows:- "When the said individual then joined you at a table in the premises you were recognised as someone who had been associated with the three disorderly individuals on the preceding night. As a result the manager did not permit his staff to serve you further".
• It refers specifically to someone who had been associated with the alleged disorderly individuals on the proceeding night. The claimants could not be associated with the alleged troublemakers as they had not been in their company upon the evening in question and the respondent cannot rely on refusal by association as the reason. Also there appears to be aninconsistency between this statement and the subsequent statement in the respondent's submission which refers to Mr. Darcy coming into the bar and recognising the group as the people involved in trouble the night before. We would submit that the respondent discriminated against the claimants on the grounds of their membership of the Traveller community and that their identity as members of the Traveller community was known in advance of 1 January, 2001.
• While it is accepted that the UK employment case precedents are not binding on the ODEI, they are persuasive and it is a matter for the Equality Officer to decide whether to follow the English authorities. The definition of race as defined in Section 6(2) (h) includes ethnic origins and as such Travellers also come within the definition of race.
• We would submit that we have discharged the burden of proof necessary to establish that the claimants were discriminated against on the Traveller community ground. The claimants were known to be of the Traveller community when they were refused service by the respondent. They had not been in the pub at the time of the alleged trouble and could not have been associated with the alleged troublemakers on the preceding night. When they returned to the pub the following day they were not refused service on the basis of the unwritten policy outlined in the respondent's submission. However, when they were subsequently joined by other Travellers who the respondent alleges had caused problems the previous evening, the claimants were treated less favourably and denied service. At no point even after the event were they informed by the respondent that they were being refused service because they were associated with the alleged troublemakers and it is clear that this was being used as an excuse and was not the genuine reason for the refusal.
• We submit that the claimants refusal was based on the fact that they were Travellers and that non-Travellers would not have been treated in this manner. Written statement dated 12 June, 2001 from Mr. Damien Peelo, Tallaght Travellers Community Development Project
• On 4 January, 2001 I called to the 79 Inn in Ballyfermot with Edward O'Reilly to meet Mick Darcy. Edward had been refused service on New Year's Day and was told to speak to Mick Darcy to find out the reason.
• Edward had asked me to accompany him to record the conversation and to see if we could resolve the situation.
• When we arrived at the bar Mick Darcy was not available but we spoke to Gareth Fortune, a barman. I introduced myself to Gareth and spoke to him about my role in documenting the experience of Travellers in relation to the Equal Status legislation.
• Gareth was very friendly and recognised Edward. Gareth did not know why Edward had been refused service and stated that he never had any problems with Edward and always thought that he was a decent man.
• I explained that Edward would like to be able to come into the bar and that if we could sort out the issue without taking a case to the Equality Authority, Edward would be happy to do so.
• Gareth seemed very interested and thought it was a reasonable way to go. He promised to pass the message on to Mick and I left my number to be contacted. He shook hands with both of us and wished us well.
• Mick Darcy never contacted me. Edward felt he had no alternative but to make a complaint under the Equal Status legislation.

Appendix 2

Written submissions on behalf of respondent
Re: Martin Stokes, complainant
Submission dated February, 2002 ( reply to statutory notification) from Arthur Cox

• On the night of 31 December, 2000 Martin Stokes was in the 79 Inn and attempted to gain access to a ticket only event in a reserved section of the public house. He did not possess a ticket for this function but he advised members of staff that his wife was already present at the said function. His conduct on the night was considered by the manager and the doorman of the 79 to be aggressive and threatening. However, he was not ejected from the premises at the time because the manager was of the opinion that this could result in further and more violent conflict.
• On 1 January, 2001 he returned to the 79 and was advised that he would not be served on the premises. This is in keeping with the policy of the 79 's management that any person who is involved in any aggressive , threatening or other objectionable behaviour, or any other individuals associated with such a person will not be served following such behaviour. The 79 does not operate a policy of discrimination against the Traveller community or any member of that community. This is borne out by the fact that on 31 December 2000 some members of the Traveller community had tickets for the reserved function and had been admitted to same, while other members of the said community were served in the non-reserved section of the premises. Both before and after the incident of 31 December, 2000 members of the Traveller community have been served in the 79 Inn.
• Mr. Stokes stated that he is a member of Traveller community and alleges that this was the reason why he was not served at the 79 on 1 January, 2001. However, the reason for the refusal to serve him was because of his aggressive and threatening behaviour to members of staff as detailed above. Therefore the respondent disputes the grounds for the complaint and categorically denies that he was discriminated against at the 79 Inn in a manner which breached the provisions of the Equal Status Act, 2000.

Submission dated November, 2002 from Arthur Cox

• It is denied that the complainant was discriminated against by the 79 Inn.
• By his own admission the complainant and his wife were served in the 79 Inn on a number of occasions prior to 31 December 2000. It is inconsistent to claim that the 79 discriminated on the grounds of membership of the Traveller community and to admit that prior to the incident in question the complainant and his wife were served on number of occasions in the 79 Inn.
• The complainant's version of events is disputed and the correct version is as set out in the letter of 8 February, 2001 to Mr. Stokes.
• It is submitted that the reference to the complainant's taxi driver, Mr. Mc Nevin and his conversation with the doorman is irrelevant as the conversation preceded 31 December, 2000. The fact that Mr. Mc Nevin noticed nothing amiss between the complainant and his wife and the doormen on 31 December 2000 is also irrelevant as he would not necessarily have noticed anything amiss and, in any event, the conduct complained of took place earlier in the night in question. Similarly, Mr. Mc Nevin's surprise when he was informed of the reply to the statutory notification is also irrelevant. It is submitted that the doorman would not have mentioned any problems with the complainant to Mr. Mc Nevin and indeed it would have been unprofessional for him to do so.
• In relation to the comment that Mr. Mc Nevin's had never seen Mr. Stokes act in an aggressive or threatening manner since the night of 31 December, 2000 , it is submitted that this is not relevant to the matters at issue in this case. Submission dated December, 2002 from Arthur Cox
• On 31 December, 2000 the complainant was in the 79 Inn with his wife. He and his wife were sitting with another couple, Mr. and Mrs. O'Reilly, and were served drinks. The complainant and his wife were well known to Mick Darcy the manager of the 79 Inn as they had socialised in the 79 Inn for approximately six weeks before 31 December, 2000 and were recognised by the manager and staff on the night in question. The complainant and his wife were in the 79 Inn for the entire night.
• During the course of the evening of 31 December, 2000 the complainant and his wife were seen to be associating with individuals who had been involved in a troublesome incident with the doorman and manager at the entrance to a function in the upstairs lounge earlier in the evening. Neither the manager nor any of the bar staff recognised these people and the respondent is therefore not in a position to identify them. These individuals did not possess a ticket for the function in the lounge but advised members of staff that their wives were already present at the function and insisted that they be allowed to enter the function. Their conduct on that night was considered by the manager and the doorman of the 79 Inn to be aggressive and threatening. However, they were not ejected from the premises at the time because the manager was of the opinion that this could result in further and more violent conflict.
• The individuals who were causing trouble then proceeded to come and go, in and out of the lounge, up and down the stairs all night causing disturbance to the doorman, bar staff and other customers. They stared and pointed over at Mr. Darcy and the bar staff in a manner believed by Mr. Darcy and his staff to be as a result of them having succeeded in gaining entry to the ticket only function for which they had no tickets. They continued with this behaviour throughout the evening. When they came downstairs they went over to the table at which the complainant and his wife were sitting and sat with them on a number of occasions. Therefore the complainant was associated with troublemakers.
• It is not disputed that the complainant was refused service on 1 January, 2001. However, it is disputed that the refusal to serve was because of the complainant's membership of the Traveller community. It is submitted that the complainant was refused service because of the 79 Inn policy that any person who is involved in aggressive, threatening or other objectionable behaviour or any other individual associated with such a person will not be served following such behaviour. The respondent has applied this policy across the board and has refused service to a number of people who were associating with troublemakers, many of whom were not members of the Traveller community. (table of instances of refusals when persons had associated with troublemakers in the respondent premises attached).
• The 79 Inn does not operate a policy of discrimination against the Traveller community or any member of that community. This is borne out by the fact that the complainant had been served in the 79 Inn for a period of approximately six weeks before the night in question and by the fact that on the night of 31 December, 2000 some members of the Traveller community had tickets for the reserved function and had been admitted to same, while other members of the said community were being served in the non-reserved section of the premises. Both before and after the incident of 31 December, 2000 members of the Traveller community have been served at the 79 Inn.
• The complainant states that he is a member of the Traveller community and that this is the reason why he was refused service by the 79 Inn on 1 January, 2001. However, the reason for the refusal to serve the complainant was because of his association with persons who were involved in trouble the night before as detailed above. Therefore the respondent disputes the grounds of this complaint and categorically denies the complainant was discriminated against at the 79 Inn in a manner which breached the provisions of the Equal Status Act 2000.

Submission dated February, 2003 from Arthur Cox

• The complainant in this case instituted proceedings pursuant to the Equal Status Act 200 against the respondent arising from the alleged refusal of the respondent to serve the complainant in its premises, the 79 Inn, on 1 January, 2001. The complainant issued his proceedings on or about the 8th day of January, 2001. - The respondent accepts that an individual whom they believed to have been Martin Stokes was asked to leave their premises on 1st January, 2001, because he had been associated with three individuals on the previous evening who had caused disruption and difficulties in the respondent's public house.
• This matter came before the Equality Officer originally on the 5th of December, 2002, at which time the respondent sought further time to submit an amended submission arising from clarification of their instructions to their solicitors at that time. On that occasion whilst the matter was listed before the Equality Officer and the Equality Officer heard certain submissions on behalf of each of the parties to the proceedings, at no time did the respondent's servants or agents and, in particular, the people who were working in the pub on the occasion in question, see the complainant.
• The matter was listed before the Equality Officer again on 16 January, 2003. On this occasion the respondent's employees who had witnessed in the respondent's premises a man they believed to be Martin Stokes on the evening of 31 December, 2000 and the evening of 1 January, 2001 saw the complainant in the within proceedings in person. Immediately upon seeing the complainant the respondent's employees instructed the respondent's solicitors that this was not the same man who had been asked to leave the respondent's premises on 1 January, 2001.
• At all material times the respondent has accepted that they asked certain individuals to leave their premises on or about 1 January, 2001. However the respondent vehemently denies that the complainant in the within proceedings was ever removed from their premises. The complainant is not recognised by the respondent staff as having ever attended at their premises and in particular as having attended at their premises either on the evening of 31 December 2000 or 31 January, 2001.
• Without prejudice to the foregoing if the Equality Officer is of the view that the complainant in the within proceedings was in fact removed from the premises on 1 January, 2001 the respondent reserves its right to continue with its original defence i.e that the complainant was lawfully and properly asked to leave the premises in pursuance of the respondent's lawful policy of excluding any person who has been associated with persons who have caused trouble on the premises. The respondent submits that in those circumstances the complainant has failed to discharge the burden of proof on him to prove that he was less favourably treated on grounds of his membership of the Traveller community.

Re: Edward and Ann O'Reilly, Complainants
Submission dated 29 July, 2002 from Arthur Cox, Solicitors

• The Respondent denies that the Complainants were refused service in the 79 Inn on 1stJanuary 2001 because of their membership of the Traveller community. The Complainants were refused service in the 79 Inn on 1st January 2001 because they were associated with certain individuals who had attempted to gain access to a ticket-only function without tickets on 31st December 2000 and whose conduct in the night on question was considered to be aggressive and threatening.
• The Complainants' account of the background to their complaint is denied and the Respondent sets out its account of the background to the complaint below.
• It is accepted that the Complainants were in the 79 Inn on their own at the beginning of the evening of 31st December 2000 and that they were served drinks. However, it is disputed that the Complainants left the 79 Inn and spent the night in the Jenson Hotel. The Complainants were well known to Mick Darcy, the manager of the 79 Inn and to staff of the 79 Inn. They had socialised in the 79 Inn for approximately one month before the 31st December 2000 and were recognised by the manager and staff on that night. The Respondent contends that the Complainants were sitting in the main part of the bar alone at the start of the evening and remained there all night. They were joined by the individuals who caused trouble later in the night and were by association implicated in such trouble. They were in the 79 Inn for the entire night.
• The Respondent does not dispute the fact that the Complainants were served when they returned to the 79 Inn on 1st January 2001. When Martin and Margaret Stokes came in to join the Complainants, Mr. Darcy was in the bar and he recognised the Stokes as persons who had been involved in the trouble the night before and the Complainants as the persons associated with them. At this point the bar staff were instructed by Mr. Darcy not to serve either couple.
• It is the policy of the 79 Inn not to serve persons who cause trouble on the premises and it is also the policy of the 79 not to serve individuals associated with persons who cause trouble. This policy is an unwritten policy and is based on the custom and practice of management of the 79 Inn. This policy is applied indiscriminately to all customers of the 79 Inn. It is applied for a dual purpose, namely:- to stop persons who are barred entering the premises in order to meet with persons who are not barred; and to prevent persons who are barred remaining on the premises and having drinks bought for them by persons who are not barred.
• The policy is necessary in order to comply with Licensing Legislation. Copy of the Courts (No.2) Act, 1986 attached which provides that, where a court certificate is required for the granting or renewal of a licence, it must certify the peaceable and orderly manner in which the licensed premises were conducted. In addition, copy of the Licensing Act, 1872 attached which provides that it is an offence to permit drunkenness or any violent, quarrelsome or riotous conduct to take place on the premises. The Licensing Act, 1872 also allows a licensed person to refuse to admit or turn out of the premises any person who is drunken, violent, quarrelsome or disorderly and any person who would subject him to a penalty under that Act.
• In the Complainants' Submission, the Complainants imply that Mr. Darcy refused to talk to them about the incident in question. Any such implication is emphatically denied. Mr. Darcy was not on duty when Mr. O'Reilly called to the 79 Inn on 2nd and 4th January, 2001. Christmas and New Years Eve are very busy periods for the 79 Inn and for the pub business generally therefore bar staff usually take time off and annual leave in the New Year. Mr. Darcy was off duty and was unavailable when the Complainants called to the 79 Inn. Mr. Darcy subsequently spoke to a representative from a travellers group. He explained that Pat Walsh, who could be contacted at Palmerstown House, was dealing with these complaints and that if they required any further explanations in relation to their complaints, they should contact Mr. Walsh directly. Accordingly, Mr. Darcy presumed that the Complainants would pursue the matter with Mr. Walsh.
• In reply to paragraph 3 of the Complainants' Submission, the Respondent's account of the events of the night of 31st December 2000 is as follows: On the night of 31st December 2000, the Complainants were in the 79 Inn sitting alone having a few drinks. Martin Stokes and several other individuals were sitting separately in the bar, also having a few drinks. Later in the night, Martin Stokes and some other men attempted to gain entry to a ticket only event upstairs in the lounge. They did not have tickets for the event. Mr. Darcy was called to the door of the lounge by the doorman. Mr. Stokes and his companions insisted that they be allowed to enter the lounge because their wives were in the lounge. Mr. Darcy considered Mr. Stokes and his companions to be very threatening and aggressive. They had also consumed alcohol at this stage. He was anxious to avoid confrontation and feared that they might become violent if he did not allow them to enter the lounge so he let them into the lounge without tickets to avoid further trouble. (note of the incident prepared by the doorman, Patrick Pepper, attached). However, Mr. Stokes and his companions were not content to remain in the lounge and proceeded to come and go, in and out of the lounge, up and down stairs all night causing disturbance to the doorman, bar staff and other customers as they did so. When they came downstairs, they went over to the Complainants and sat with them. They stared and pointed over at Mr. Darcy and the bar staff and continued to be aggressive and threatening in their talk and manner. Mr. Darcy felt that their behaviour was unacceptable but as it was a very busy night he decided not to cause a scene by asking them to leave. Mr. Darcy is certain that the Complainants were both present for the entire night on 31st December 2000 and that Mr. Stokes and his companions joined them at their table when they were not upstairs in the lounge. Furthermore, another member of staff who was also in the 79 Inn on 31st December 2000 is also certain that the Complainants were in the 79 Inn for the entire night and that they were joined by Mr. Stokes and his companions when they were not upstairs in the lounge.
  In relation to the Complainants contention that they were drinking in the 79 Inn on 1st January 2001 until they were joined by Martin and Margaret Stokes, the Respondent does not dispute the fact that the Complainants were served until they were joined by Martin and Margaret Stokes. When Mr. Darcy came into the bar he recognised the group as the people involved in trouble the night before and instructed the bar staff not to serve the group.
• It is repeated that it is the policy of the management of the 79 Inn not to serve people who were involved in trouble making or persons associated with them. This unwritten policy is based on custom and practice of the management of the 79 Inn and is adopted in order to comply with the Licensing Acts. The policy is applied indiscriminately to all customers. The Respondent treats individuals who are not members of the traveller community in exactly the same way if they are involved in a similar type of incident.
• The Respondent repeats its denial that the Complainants were refused service in the 79 Inn on 1st January 2001 because of their membership of the traveller community. The Complainants were refused service in the 79 Inn on 1st January 2001 because they were associated with persons who had attempted to gain access to a ticket-only function without tickets on 31st December 2000 and whose conduct in the night on question was considered to be aggressive and threatening.
• The 79 Inn does not have a policy of discrimination towards members of the traveller community. The 79 Inn has many customers who are members of the traveller community. Both the Complainants and the Stokes and the individuals associated with them had previously been served in the 79 Inn and were served on the night in question for the entire night. It was not until Mr. Stokes and his companions began to cause trouble and became quarrelsome and aggressive that the decision was taken to refuse to serve them and all persons associated with them. The refusal to serve the Complainants had nothing to do with their membership of the traveller community but was because they were associated with persons who had caused trouble.
• The Respondent further submits that the Complainants could not have been discriminated against on grounds of their membership of the traveller community as it was not known that they contended that they were members of the traveller community until after they had been refused service.
• It is further submitted by the Respondent that all managers received formal training in relation to the Equal Status Act, 2000 and that management and staff know their obligations and duties under the Equal Status Act, 2000.
• The case law produced by the Complainants in support of their case deals with the burden of proof which a complainant bears in establishing their case. We submit that the UK employment cases submitted by the Complainants in support of their complaint are not binding on the ODEI for the following reasons: They are English authorities and are therefore not binding on an Irish court or tribunal. They are employment cases and should be confined to the employment situation. They relate to discrimination on grounds of race and not discrimination on grounds of membership of the traveller community.
• We submit therefore the ODEI is not bound to follow the English authority. However, we submit that if even if the English authority is followed, the Complainants have failed to establish any direct or indirect evidence of discrimination on grounds of their membership of the traveller community.
• In the only Irish authority submitted by the Complainants in relation to the burden of proof, "Bernard, Richard and Thomas Joyce -v- Liz Delany's Pub" Dec-S2001-021, the Equality Officer set out three key elements that must be established in order to satisfy the burden of proof that there has been discrimination:
  A. Membership of a discriminatory ground.
  B. Evidence of specific treatment by the respondent.
  C. Evidence that the treatment received by the complainant was less favourable than the treatment received by someone not covered by that ground would have received in similar circumstances. We submit that the Complainants have not discharged this burden of proof. They have not established that they are members of the traveller community and they have not established that the refusal to serve them was specific treatment to which other persons would not be subjected in the same or similar circumstances. The 79 Inn has many customers who are members of the traveller community. The fact that the Complainants, the Stokes and other individuals associated with them were served in the 79 Inn for the entire night of 31st December 2000 and the fact that they had previously been served in the 79 Inn is evidence that the 79 Inn does not discriminate against members of the traveller community. It was not until Mr. Stokes and his companions began to cause trouble and became aggressive that the decision was taken to refuse to serve them and all persons associated with them. The refusal to serve the Complainants had nothing to do with their membership of the traveller community but was because they were associated with persons who had caused trouble. At no time were the Complainants treated differently to other customers. Other customers who are involved in similar incidents are treated exactly the same way.