Joseph McDonnell V The Licensee, Tim Young's Public House, Dublin
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service - Prima facie case.
1. Dispute
1.1 This dispute concerns a claim by Joseph McDonnell that on circa 31 July 2002, he was denied a service in the respondent premises on the grounds that he is a member of the Traveller community. The respondent denies that discrimination occurred. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of Complainants' Case
2.1 The complainant states that he was refused service by a member of the respondent's staff on circa 31 July 2002. The complainant had been a regular patron of the respondent premises for a period of a year and a half. The refusal of service followed from a minor incident between a companion of the complainant and a non-Traveller. The complainant was not involved in this incident. When he returned to the premises following the incident and spoke with the manager he was ultimately told that he was barred because of unacceptable behaviour on his part and that of his companions. The complainant believes that he was treated less favourably than the non-Traveller who was actually involved in the minor dispute and who remains a regular patron of the respondent premises.
3. Summary of Respondent's Case
3.1 The respondent states that the complainant had been a regular patron for a period of a year and a half and had been welcome in the premises. He had caused no difficulty in that period of time. On circa 14 July 2002 the complainant attended at the pub with a number of 5 companions. The minor incident referred to by the complainant was caused by a companion of the complainant's who refused to honour a bet with another regular patron. The barman dealt with the matter. The complainant and his companions then began to sing very loudly and were asked by the barman on several occasions to calm down. Finally, at about 7p.m. on the day in question the barman told the group that they would not be served further as they had continued to sing loudly. He served them with takeaway alcohol from the off-license attached to the premises and the group left. Singing is strictly forbidden in the premises in the afternoon. The following day when the barman came on duty the complainant and his father were drinking in the premises. The barman related their behaviour from the day before to the manager and said that they should not be served on foot of their unacceptable behaviour. The manager decided to leave them alone on that occasion on the basis that he would have a quiet word with the complainant during the week. However the manager left for dinner and on his return was told that the complainant's father had begun to sing very loudly in the premises in the course of which he had stood up and removed his shirt. The complainant had been asked to finish his drink and leave, and take his father out of the premises also.
4 Prima Facie Case
4.1. At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
4.2 If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they
succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5 Prima Facie Case - Complainant
5.1 The complainant is a Traveller and this is not disputed by the respondent. This fulfils
(a) at 4.1 above. Both parties agree that the complainant was refused service on circa 31 July 2002. This fulfils (b) at 4.1 above. In relation to key element (c) above it is common case that the complainant was a regular patron for a year and a half in the respondent premises. The complainant did not adduce any evidence to show why, on the specific occasion of the refusal of service to him on circa 31 July, 2002, it was his membership of the Traveller community that was the basis for the refusal. The complainant stated in the course of the Hearing that it was his belief that he was refused because of the minor incident arising on Sunday, 14 July 2004 in which a non-Traveller and a member of the complainant's family were involved. The non-Traveller was not barred from the respondent premises.
5.2 The respondent's staff provided compelling evidence to the effect that the complainant and his companions had behaved in an unacceptable manner on 14 July 2002 and that the complainant had been informed of this. Further evidence was provided to the effect that the complainant was subsequently served in the premises on Monday 15 July 2002 and was ultimately barred because of another incident arising on that date, in which the
respondent's staff state the complainant was involved. I found the respondent's evidence more compelling than that of the complainant, whose evidence was inconsistent and whose recollection of events was at times extremely vague. I am satisfied that any customer, whether or not they are members of the Traveller community, would be refused service in the same or similar circumstances.
5.3 In conclusion, on the balance of probabilities, I am satisfied that any patron of the respondent premises who had behaved in an unacceptable manner would be refused service and that the complainant was not therefore treated in a less favourable manner than a non-Traveller would be in the same circumstances. The complainant has not, therefore established a prima facie case of discrimination on the Traveller community ground.
6 Decision
I find that the complainant was not discriminated against on the Traveller community ground contrary to Section 3(1)(a), and 3(2)(i) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
______________________________
Dolores Kavanagh
Equality Officer
17 August, 2004