Michael and Kathleen Moorehouse, Martin and Mary O' Brien (represented by Haughton's Solicitors) -v- The Deerhunter Public House
Delegation under the Equal Status Act, 2000
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 has delegated these complaints to me Mary O'Callaghan, 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. The hearing of the case commenced on the 23rd June 2004 and was reconvened for a second day of hearing on 12th August in order to hear the evidence of a Garda witness.
1. Dispute
1.1 This dispute concerns claims by Michael and Kathleen Moorehouse, and Martin and Mary O'Brien that they were discriminated on the grounds of their membership of the Traveller Community when they were refused service in the Deerhunter Public House on 10th November 2001. The complainants have alleged that the treatment they received was contrary to Section 3 (2) (i) of the Equal Status Act 2000 and in not being provided with a service which is generally available to the public they were subjected to treatment contrary to Section 5 (1) of the Act.
2. Background
2.1 The complainants said that they entered the Deerhunter Public House on 10th November 2001 and ordered and were served a round of drinks. While they were there they said they also bought some raffle tickets for a draw to be held later in the night. They said that when they sought to get second drinks they were ignored by the lounge staff and that when one of them went to the counter for service, he was told that they would not be served.
2.2 The respondent disputes this version of events and said that the complainants arrived at the pub by car and were observed from within the pub premises as behaving in such a way that they should not be served. He said that he and staff members went to the door to prevent them entering and that the complainants then decided to obstruct customers entering and leaving the premises. The respondent said that he had to get Garda assistance to have the complainants leave.
3. Summary of the Complainant's Case
3.1 The complainants said that after visiting the home of their pastor they decided to go for a drink in the Deerhunter on the night of 10th November 2001. They were to meet up with Mr. Ring the pastor in the pub where they had gone to drink. When they arrived they said they entered the premises and that a band or DJ was setting up for a music session on their left hand side as they went in. They said that they got seats and ordered a round of drinks which was served to them. During the 30 minutes or so that it took to finish the round of drinks they said that the noticed people being served at their tables. When they attempted to do this they were ignored by the table staff. A man, they said they recognised from the Dalkey area, was selling some tickets for a raffle and they bought some to the value of £4.
3.2 Ultimately one of the complainant group, Mr. O'Brien, went to the counter to order a second round of drinks but he said that the barman told him they would not be served and no reason was given other than the words "bosses orders". When the rest of the group noticed what was happening they asked for the manager but were told he was not there. When they went toward the door they spotted a man there and on enquiring, discovered that he was the owner/manager of the pub. The group said they sought an explanation for the refusal but were just told they wouldn't be served. One of the group, Mrs. O'Brien said that she decided to summon the Gardaí and within minutes several Garda cars arrived on the scene. They said Mr. Moorehouse left to get assistance from their pastor while the others spoke with the Gardaí. They said that a Garda also spoke with their pastor over Mrs. O'Brien's mobile phone. Mr. O'Brien said that he sought a refund of the £4 he had spent on raffle tickets and that the respondent gave him a £5 note which he said he was reluctant to take as it was more than he had paid. The complainants said that following words with the Gardaí, they left by car. They said that they believed that the reason so many Gardaí attended was because someone in the pub must have phoned them.
4. Summary of the Respondent's Case
4.1 The respondent, Mr. Dara Keogh said that the pub had been open since 1974 but had been under his management since 1988. The overall capacity of the premises is about 300, with 150 patrons being accommodated in that bar and a similar number in the lounge. There is also an off-licence on the premises. He said that he did not have many Traveller customers but one or two did come in and he knew of one Traveller who drinks in the pub regularly. He said that he did not know the complainants until the incident complained of.
4.2 The respondent said that he believed that the complainants had not entered the premises on the evening of the 10th November 2001 and that they were prevented from doing so by himself and a staff member. He said that the reason for doing this was because that he had seen the complainants drive up to the pub and it was apparent from their demeanour that they were not in a fit condition to be served. He said that one of the complainants urinated against the wall of an adjoining business.
4.3 Mr. Keogh said that his refusal to allow the complainants to enter the premises led to an incident where two of the complainants blocked the entrance to the lounge in an effort to prevent customers gaining access to and leaving the lounge. He said that one of the women said she was going to call the Gardaí and a priest. He said that he called the Gardaí from the local Garda station at Kill O the Grange and that a number of Gardaí arrived in cars including an unmarked car. The Gardaí present included a Garda Emmet Ryan who he recognised. Mr. Keogh said that when the Gardaí arrived Mr. Moorehouse ran away as one of the other complainants advised him to do so because there was a warrant out for his arrest. Mr. Keogh said that Mr. Moorehouse said that he would come back later that night and torch the pub.
4.4 Mr. Keogh said that everyone was shouting at the Gardaí at this stage and the Garda asked for an explanation of what happened. Mr O' Brien, one of the complainants, acted as spokesman for the group. The respondent said that the Gardaí indicated that the complainants were too drunk and they threatened to arrest the group. The group then went away.
5 Witness Evidence
5.1 On the first day of the hearing a number of witnesses appeared for the respondent. These included members of the bar staff whose evidence concurred with that of the respondent although most of these came on the scene of the incident rather than observed it from the beginning.
5.2 A number of customers who were at the pub on the night of the incident also provided evidence. However, all of these people came on the scene of the incident at the pub entrance and were unable to provide evidence on whether the complainants had been inside the pub prior to the events at the door. On arriving at the pub they were directed inside through an alternative entrance and did not see the complainants leave.
5.3 On the second day of the hearing evidence was provided by Garda Emmet Ryan, a Garda who attended the incident at the Deerhunter Pub. Garda Ryan's evidence was requested by both parties to the complaint and on considering the request I asked for Garda Ryan to attend in accordance with Section 34 of the Equal Status Act.
5.4 Evidence was also provided by Mr. Kieran Ring a pastor who said he was Pastor of the Travellers Church. An additional witness provided evidence on behalf of the respondent that day also.
Evidence of Garda Emmet Ryan
5.5 Garda Ryan said that his notes indicated that the incident was recorded as having occurred on a different date. He recalled being in the Kill O the Grange Garda car when a call came through telling of an incident at the Deerhunter Public House. He said he and his colleague in the car went to the Deerhunter and he got out of the car to deal with the incident while his colleague remained in the car. Garda Ryan said he believed that only one Garda Car, the one he had travelled in, attended the incident and that his colleague and himself were the only Gardaí present. He said he dealt with the incident alone. He recalled only 3 people in the complainant group, Mr. and Mrs. O'Brien and Mrs. Moorehouse. He said that he smelled drink from them.
5.6 Describing the incident, Garda Ryan said he was told the complainants were obstructing the entrance. He said he understood that the complainants had been refused service in the pub and asked to leave, rather than refused entry to the pub. After talking to the complainants he warned them that if they did not desist from their actions they would be charged under Sections 4 and 8 of the Public Order Act. He said that Mrs. O'Brien said she wanted to make a complaint and he told her that this would have to be done at the Garda station. Garda Ryan recalled speaking on Mrs. O'Brien's phone to someone and he repeated that a complaint should be made at the Garda Station. He said he did not recall anything being mentioned regarding payment for raffle tickets.
5.7 Garda Ryan said that no legal action was taken on foot of the incident as the disturbance subsided and order was restored. He said that the complainants went to their vehicle which he thought was a van but he could not be certain and proceeded to drive away. When asked if the complainants were drunk Garda Ryan said no, because he would not have allowed them to drive if they were. Garda Ryan said that his attendance at the incident took no more than 10-15 minutes.
Evidence of Pastor Kieran Ring
5.8 Pastor Ring said that he was the Pastor of the Travellers Church and that the complainants were members of his congregation. He said that he knew the O'Brien's particularly well and that he often dined with them. He said that his wife was away in Canada at the time. The Pastor said that Mrs. O'Brien called to his house at about 8 pm and invited him to join the group for a drink. As he was not ready he said that they should go on ahead and he would join them later. He then said he got a phone call from Mr. Moorehouse who told him that they had gone to the Deerhunter and they were sitting in the lounge. Shortly after, Mr. Moorehouse arrived at his door and said there was trouble at the pub. As he was talking to Mr. Moorehouse, he received a call from Mrs. O' Brien. He said he asked her to put the Garda on the phone. He said that he told the Garda if Mr. O' Brien could get his "admission fee" back they would go. The Garda said OK. Mr. Ring said that within an hour of leaving his house originally, all four complainants had returned.
5.9 He said that the complainants don't get drunk and he said that he was offended at the suggestion. He said they were "stone cold sober" when they left his house to go to the pub and they were in the same condition when they returned. He said that he did not attend at the Deerhunter that evening.
5.10 Further evidence was provided by a staff member of the pub who said when he returned to the bar area after changing a keg he witnessed activity at the door of the pub and that customers were unable to get out. He said he saw two people with their backs to the door and that a women who he believes to be Mrs. O' Brien shouting at Mr. Keogh. He said another staff member told him the Gardaí had been called. He said that he did not see the complainants inside the pub at any time while he was working behind the bar.
6 Conclusions of the Equality Officer
6.1 I must initially assess whether the complainants have succeeded in establishing prima facie cases of discrimination. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish that they are covered by a discriminatory ground (in this case the Traveller community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not a member Traveller community would have received in similar circumstances.
6.2 In considering the first of the three criteria it is accepted by both parties and has not been disputed that the four complainants are members of the Traveller community. Therefore, the first of the three criteria has been met. With regard to the second of the criteria outlined it has been established that the complainants were refused service either through a refusal of entry to the pub or a refusal of service at the bar on the night of the incident and for the purposes of this case I regard this as sufficient to satisfy the second of the criteria. In relation to the third criterion I must consider whether there is sufficient evidence to show that the treatment received by the complainants' refusal was less favourable than that which would have been afforded to another person in similar circumstances who was not a member of the Traveller community.
6.3 In this case I am faced with a conflict of evidence as to whether the complainants were actually admitted to the respondent premises at all on the evening of this incident. The evidence of the complainants is that they were in the pub when they were refused service and had to leave the premises. In contrast the respondent stated that the complainants had not entered the pub and had merely approached the door in a manner that suggested to him that they should not be admitted onto the premises.
6.4 The evidence of the respondent's witnesses has been that they did not see the complainants in the pub premises on the night of the incident complained of. However, in the majority of cases these witnesses did not appear on the scene of the incident until after the contretemps at the door had commenced and when it would have been impossible to determine whether or not the complainants had been on the premises.
6.5 Pastor Ring's evidence, due to the fact that he was not on the scene of the incident at all, but only knew of it by the account of one of the complainants directly and by telephone through conversation with those on the scene does not assist me in reaching a conclusion on whether the complainants did or did not gain entry to the premises.
6.6 The evidence of Garda Ryan, who arrived on the scene while the activity was taking place at the door of the pub, is useful in aiding me in concluding whether or not the complainants were on the pub premises. I consider the evidence of a witness such as a member of the Garda Siochána to be particularly useful in such circumstances given the experience that someone in such a position can bring to forming an impression of what occurred. Garda Ryan's evidence was that it was his understanding that the complainants had been on the pub premises and had been asked to leave and it was this action which led to the incident at the door of the premises. I also note that while the Garda noted that he could smell drink from the complainants, he did not consider them to be sufficiently intoxicated that they should not be allowed to drive away from the premises. I am inclined in this case to rely on this evidence in particular, as it appears to me on the balance of probabilities a more likely scenario to have led to the subsequent disorderly conduct by the complainants at the door of the pub. In such circumstances and in the absence of any evidence that the complainant did anything while on the premises, to give rise to a refusal of service, I conclude that the complainants were subjected to less favourable treatment
than that which would be given to someone in similar circumstances who was not a member of the Traveller community. The complainants have, therefore, established prima facie cases of discrimination on the Traveller community ground.
6.7 In circumstances where a prima facie case of discrimination has been proved by the complainants the burden of proof then shifts to the respondent who must rebut the case of discrimination. In this case the respondent has relied on his view that the complainants were not on the pub premises on the evening of this incident but had just been in the vicinity of the pub doorway where their behaviour was such that they should not be admitted. On the basis of the evidence outlined above I have concluded that the complainants did in fact spend some time in the pub prior to the refusal and therefore I conclude that the respondent has not rebutted the prima facie case of the complainants.
7. Decision and Redress
7.1 On the evidence that the complainants Michael and Kathleen Moorehouse and Martin and Mary O'Brien have established prima facie cases of discrimination on the Traveller community ground, and which the respondent has failed to rebut, I find that the four complaints of discrimination are upheld.
7.2 In relation to the appropriate redress in these cases, I am conscious that in circumstances where findings of discrimination under the Equal Status Acts 2000 to 2004 have been made, I am obliged to make an award of some form of redress for the effects of discriminatory acts to the complainants. In this instance, however, I am struck by the fact that the complainant's response to the refusal of service was such that a volatile and potentially dangerous scene evolved at the door to the premises and that this not only prevented customers from entering the premises but also restricted those inside from leaving. The potential danger arising from such circumstances is striking. I am also conscious that the Gardaí attending felt it necessary to issue a warning to the complainants that they could be charged under the Public Order Act, before the situation calmed down. While I accept that an angry response may be a natural response to discriminatory activity, I cannot accept that behaviour such as that exhibited by the complainants and attested to by several witnesses at this hearing comes within the definition of mere anger and I am of the opinion that in terms of the effects of the discrimination my award must reflect what occurred at the door of the Deerhunter on the evening in question. I therefore award the sum of €20.00 to each of the complainants for the effects of the discrimination suffered.
Mary O'Callaghan
Equality Officer