Noreen, Mary, and Dermot O'Brien, Tommy, Betty, Helen, Dennis, Kathleen and Jerry O'Sullivan V The Viaduct Inn (Represented by Julian O'Brien & Boland Solicitors)
The nine complainants each 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, the Director then delegated the cases to me, Bernadette Treanor, 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.
Summary of the Complainant's case
On 17/3/2002 most of the complainants had arrived at their local pub to find that there was a disturbance of some kind underway. They decided to leave and chose the Viaduct Inn where they have frequently eaten dinner and Sunday lunch and where they would be known. When they arrived and before anyone of them had approached the bar the barman shouted at them that they would not be served. They were not given a reason for the refusal of service and asked for the Gardai to be called. Ultimately they called the Gardai themselves. Mary O'Brien subsequently entered the bar alone, having been delayed by applying her makeup in the car. She went directly to the bar to order but before she could the barman shouted that he was not serving her and walked away. She noticed the Gardai arrive and joined the rest of the party. The Gardai spoke to both parties and ultimately the complainants left the pub.
Summary of the Respondent's Case
The owner of the Viaduct Inn had received a call at home from a Garda known to him shortly before the incident, informing them of the disturbance in the other pub and advising them to be vigilant. The Garda, now retired, phoned only the owner of the Viaduct Inn and not any of the other pubs in the vicinity because it is relatively isolated and does not have doormen. The pub has a strict policy relating to the non-service of large groups who have not booked or who are not known to them. When the group arrived some came to the bar, some sat down and some acknowledged others already in the bar. The barman accepts that he did not allow them to order before telling them "Sorry, I am not serving you". He also accepts that he did not give a reason for the refusal. His refusal was based on the phone call received from the Garda via the owner and he did not want to suggest that the group may have been involved in the disturbance and thereby irritate them. The pub does not display a sign indicating that large groups will be refused but the barman stated that he would have refused any large group, although he indicated that he normally gives a reason, for example where they are unable to cater for the group. The barman did not recall Mary O'Brien entering alone.
Conclusions of the Equality Officer
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) Applicability of the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie
case and 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. I am satisfied that the complainants are members of the Traveller community. At the hearing the respondent's representative made much of the fact that a number of the complainants have not travelled since childhood. However, this is to ignore that the Act's definition of members of the Traveller community includes those who share inter alia traditions including, historically, a nomadic way of life. I am satisfied that it is not necessary to pursue a nomadic way of life currently or in the recent past in order to be considered a member of the Traveller community. This satisfies (a) above. It is common case that a refusal took place on 17/3/2002 which satisfies (b) above.
Prima facie Case
Against the backdrop of the earlier disturbance and the phone call received by the owner from Garda Nagle the barman refused the group service. It is necessary to consider whether or not a group of settled people would have been refused in the same manner in these circumstances. Both the pub's licensee and barman indicated that they have a policy of refusing large groups. Staff numbers working on Sunday night are limited and any large group arriving might therefore create a crisis. However, the licensee indicated that such refusals would not take place where the group had a booking or where the group was known to them. I find the complainants evidence relatively compelling, even though there were some small discrepancies. These discrepancies did not relate to any of the core issues and I did not find that they reduced the overall credibility of the complainants in any way. The complainants have indicated that they had eaten in the Viaduct Inn frequently during the previous three years and that they knew the barman. While the barman does not
dispute that they may have eaten there frequently he stated that he did not know the
complainants.
I am satisfied that when issuing the refusal, the barman had the following in mind:
- The earlier disturbance and the phone call from the Gardai.
- The number in the group arriving and the pub's policy of refusing large groups.
What is not clear is why the barman failed to recognise any of the group who had eaten there frequently, if irregularly, over the previous three years. It is also unclear whether he recognised the group as members of the Traveller community and had this in mind in addition to the issues mentioned above when issuing the refusal. In my view several members of the group are recognisable as members of the Traveller community. I am satisfied that it is a policy of the pub to refuse large groups, and I accept the barmn may not have recognised the individual members of the group. However, I accept the complainants' version of events in relation to the delivery of the refusal. This was shouted across the bar in a voice loud enough for all to hear. While this might be cause for concern, no direct evidence was adduced to show that this behaviour was only addressed to members of the Traveller community. In other words no direct evidence has been adduced to indicate that a non-Traveller group in the same or similar circumstances would have been treated any differently. While I am satisfied that the treatment the group received was unfavourable it is not clear that, on the balance of probabilities, the group received less favourable treatment than a group of settled people might have received given the same circumstances.
However, the refusal meted out to Mary O'Brien requires separate consideration. Ms. O'Brien did not enter with the rest of the group, and she did not directly approach them, possibly believing that they would have their drinks by that time. In behaving so, she gave no indication to the barman that she was connected with the group. Ms. O'Brien went directly to the bar but was refused before she could order. The barman could not confirm whether this happened or not. I find the complainant's evidence more compelling, supported by the evidence of the other complainants, and I am satisfied that it occurred as described. In addition, I am satisfied that Ms. O'Brien is recognisable as a Traveller. In this situation, neither the earlier disturbance nor the group refusal policy appear to apply and there appears to be no reasonable explanation for her refusal. In the absence of such a reasonable explanation a prima facie case of discrimination on the Traveller ground arises. I find that Mary O'Brien has established a prima facie case of discrimination on the Traveller ground. On that basis a prima facie case of discriminatory behaviour on the part of the barman has been established in respect of Ms. O'Brien's refusal.
In the light of:
- Ms. O'Briens refusal,
- The fact that several members of the group are, in my opinion, recognisable as
Travellers, - The manner of the refusal, and
- The fact that apparently nothing happened between the refusal of the group and of
Ms. O'Brien that might have changed the barman's approach, I am satisfied that an inference of discrimination arises in respect of the refusal of the group. I find therefore that Noreen and Dermot O'Brien, Tommy, Betty, Helen, Dennis, Kathleen and Jerry O'Sullivan have also established a prima facie case of discrimination on the Traveller ground.
Rebuttal by the Respondent
The respondent pointed to the phone call received and the group refusal policy as the reason why the group was refused. As mentioned above, neither of these apply to Mary O'Brien. The group refusal policy cannot apply to her since she gave no indication that she was part of a group. The phone warning cannot be applied as a defence either since the warning was simply to be vigilant, according to the Garda's evidence at the hearing. No evidence was presented that suggested that any member of the group, including Mary O'Brien, behaved in a manner that would warrant vigilance to the point of a refusal. I am satisfied that the phone call received, as described by the Garda (retired) witness, combined with the pub's group policy is insufficient, on the balance of probabilities, to rebut the prima facie case established in respect of the complainants. The respondent also pointed to Sections 15(1) and 15(2) as defences under the Act. However, Section 15(1) does not apply since the barman stated that he did not recognise the complainants and there was no suggestion that the complainants behaved in a manner indicating that serving them would lead to a substantial risk of criminal or disorderly conduct. Section 15(2) does not apply since no evidence has been adduced to suggest that serving the complainants would contravene the Licensing Acts in any way. In any event, since I am satisfied that an inference of discrimination arises in this case it is unlikely that the good faith requirement of the section would be satisfied. I find that the respondent has failed to rebut the prima facie case of discrimination on the Traveller ground established by the complainants.
Vicarious Liability
The Act provides that anything done by a person in the course of his or her employment shall be treated as done also by that person's employer. Therefore I find that the Viaduct Inn is vicariously liable for the discrimination described above.
Decision
I find that the complainants, Noreen and Dermot O'Brien, Tommy, Betty, Helen, Dennis, Kathleen and Jerry O'Sullivan, have established a prima facie case of discrimination on the Traveller ground. I find that the Viaduct Inn discriminated against Noreen, Mary and Dermot O'Brien, Tommy, Betty, Helen, Dennis, Kathleen and Jerry O'Sullivan on the Traveller ground when they were refused service on 17/3/2002.
Redress
I order the Viaduct Inn to pay each of the complainants, Noreen, and Dermot O'Brien, Tommy, Betty, Helen, Dennis, Kathleen and Jerry O'Sullivan, €700 for the effects of the discrimination. I order the Viaduct Inn to pay Mary O'Brien €1000 for the effects of the discrimination. I also order the Viaduct Inn to display, clearly in view of the public, details of their group refusal policy, should they decide to continue to implement it.
Bernadette Treanor
Equality Officer
August 2004