Mr. John Connors, Complainant (Represented by Mr. Patrick F. Burke, Solicitor ) V
The Old Stand Pub, Waterford (represented by M. W. Keller & Son Solicitors)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 11 July, 2001 under the Equal Status Act, 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000, the Director then delegated the case to Marian Duffy, 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 The dispute concerns a claim by Mr. John Connors that he was discriminated against by the Old Stand Pub on the ground that he is a member of the Traveller Community. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2 Summary of Complainant's Case
2.1 The complainant's case is that he is a settled Traveller living in Waterford, and on 21 May 2001 at about 3pm he entered the respondent's pub with three other Travellers and a non-Traveller. They were served one round of drinks and after about 15 minutes in the pub the barman requested them to leave as the Gardaí were on their way. They were refused further service and after the Gardaí arrived they were then requested by the Gardaí to leave. The respondent refused to give them a reason for requesting them to leave. The Gardaí advised them to take the matter up with their solicitor. The complainant believes that the respondent may not have initially recognised them as Travellers, but when he overheard their conversation he identified them as Travellers and this was the reason they were asked to leave the pub. In response to the respondent's case, the complainant
denied that he caused any disturbance or noise in the pub or that three of the group spent longer than usual in the toilet. He said that only one of the group went to the toilet. He denied that the group were involved in drugs. Mr. Christopher Stokes who was with the complainant on the day in question also gave evidence and denied the group were loud or that any of them went to the toilet apart from one member of the group or that they were involved in drugs in the toilet.
3. Summary of the Respondent's Case
3.1 The respondent submitted that the complainant was not discriminated against on the grounds that he is a Traveller. Mr. John Kearns, bar manager, submitted that the complainant and his friends became noisy after getting their drinks. A customer who was paying for his lunch commented about their noisy behaviour and Mr. Kearns became suspicious of the group when three of them went to the toilet together and spent longer than usual there. He said that he had been recently on a drug awareness course and he thought they might be involved in drugs. He decided because of their noisy behaviour that he would not serve them further and would ask them to leave. He said that he did not know they were Travellers until after he asked them to leave and they accused them of discrimination and identified themselves as Travellers. Mr. Kearns submitted that it was the one of the complainant's friends who asked him to call the Gardaí after he asked them to leave.
4. Conclusions of the Equality Officer
4.1 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 and in terms of Section 5 (1) of that Act. In reaching my decision I have considered all the submissions, both oral and written, made to me by the parties in the course of my investigation of the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the
discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not."
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. I have identified the following the key questions to be answered to establish a prima facie case:
(i) is the complainant covered by the discriminatory ground? ( in this case is he a member of the Traveller community?)
(ii) was the complainant refused service by the respondent on 21 May, 2001?
(iii) is there evidence that the treatment received by the complainant was less favourable treatment than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances? If the answer to all three questions is yes then a prima facie case has been established
I am satisfied that the complainant is a Traveller and that he was refused further service and asked to leave the respondent's pub on 21 May, 2001. Therefore the key conditions (i) and (ii) above have been satisfied.
4.3 In considering (iii) above I have examined the evidence to see if the complainant has produced sufficiently hard evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that discrimination occurred. While there was a number of inconsistencies in the evidence produced by both the complainant and respondent the onus is on the complainant to satisfy me that he has made out a prima facie case of discrimination. I am satisfied on balance that the complainant has not produced sufficient evidence to establish a prima facie case of discrimination.
4.4 The complainant had no independent evidence and called only one witness to support his case, despite the fact that he was in the company of four people on the day including a non-Traveller. The evidence did not lead me to believe that the complainant was treated less favourably than a non-Traveller would have been treated in similar circumstances. The bar manager, Mr. Kearns, said that he had a complaint from a customer who was paying his bill about the loud behaviour and bad language of a group of people in the pub and after observing their behaviour Mr. Kearns asked them to leave. On this point I found the evidence of Mr. Kearns more compelling than the evidence of the complainant and his witness. There was a conflict of evidence in relation to who called the Gardaí. The complainant stated that Mr. Kearns called the Gardaí, but Mr. Kearns stated that he called the Gardaí after having been requested to do so by the complainant. I am satisfied from the response received from the Gardaí that the call to the Gardaí was initiated by the complainant and his friends. I believe on balance that the evidence of the respondent was more compelling than that of the complainant. I find therefore that the complainant has not established a prima facie case of discriminatory treatment on the Traveller community ground.
4.5 With regard to the respondent's suspicion of drug activity involving the complainant and his friends, I am satisfied that there was no evidence to support the allegation. I have not been convinced from the evidence that Mr. Kearns actually held this belief or that it was the reason he asked the complainant and his friends to leave the pub.
5. Decision
5.1 On the basis of the foregoing I find that the complainant has failed to establish that he was discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act.
_________________
Marian Duffy
Equality Officer
8 April, 2004