Owen Ward (represented by Hugh J. Campbell & Co. Solicitors ) V O'Neills Pub, Athlone (represented by Fintan O'Reilly & Co. Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Owen Ward that he was discriminated against, contrary to the Equal Status Act 2000, by the management of O' Neills Pub, Athlone. The complainant maintains that he was discriminated against 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) o the Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Owen Ward that he sought access to O' Neill's Pub on Friday 21 September 2001 but was refused admission by the doorman.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainant was refused admission because he did not comply with the pub's dress code.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with his powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O'Byrne, 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.
5 Matters for Consideration
5.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourablythan another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on th grounds of his membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused admission to O'Neills Pub on 21 September 2001.
5.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
5.3 In considering the approach to be taken with regard to the shifting of the burden of
proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
6 Conclusions of the Equality Officer
6.1 Prima facie case
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 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 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.
6.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
6.3 With regard to (a) above, the complainant has satisfied me that he is a member of the Traveller community. In relation to (b), the respondents acknowledge that the complainant was not admitted on 21 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 21 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
6.4 In considering whether the complainant has established a prima facie case, I have
noted the following evidence provided by the complainant:
- O'Neills Pub was only open a short time prior to the alleged incident and Mr Ward had never been in it before 21 September 2001
- Mr Ward says that he was not allowed into the pub by the doorman, Mr McDonnell, around 6pm on 21 September 2001 because " he did not meet the dress code". Mr Ward said that he was wearing a football jersey, jeans and earrings at the time. The doorman assured him, however, that he would be allowed in later if he went home and changed into clothes that complied with the pub's dress code.
- Mr Ward went home and changed into a shirt and slacks before returning to the pub. He was also wearing several items of jewelery, including earrings, a chain and a number of rings, as was his Traveller custom.
- He arrived back at O'Neills at 9.30 with his partner, Jacinta Keogh and two sisters Susanne and Maggi Roche, all of whom are non-Travellers.
- Mr Ward said that the two sisters arrived at the pub in front of himself and Ms Keogh.The sisters were admitted by Mr McDonnell. Mr McDonnell then indicated to Ms Keogh that she could go in but stopped Mr Ward. Mr Ward believes that this was because Mr McDonnell recognised him as a Traveller from the jewelery he wore.
- Mr Ward said that Ms Keogh, who had heard that O'Neills applied a strict dress code, then asked whether Mr Ward would be admitted if he removed his jewellery. At that point, Mr Ward said that Mr McDonnell leaned towards Ms Keogh and said that he could not let Mr Ward in "because he is a Traveller".
- After Mr Ward had given his evidence, Jacinta Keogh was admitted to the Hearing. Ms Keogh said that Mr Ward was well dressed on 21 September 2001 but that Mr McDonnell refused him admission.
- Ms Keogh said that she had heard from other people that O'Neills were very strict on jewelery so she asked Mr McDonnell if Mr Ward would be let in if he "left off his jewelery". In reply, Mr McDonnell leaned towards her and said "You know why he can't get in - because he's a Traveller"
- After Ms Keogh's evidence, the Roche sisters were admitted separately to the Hearing to give their evidence. Both sisters, Susanne and Maggi Roche, gave evidence that they were standing immediately behind Mr McDonnell in the doorway when he refused Mr Ward. Both testified separately that they distinctly heard Mr McDonnell informing Ms Keogh that Mr Ward could not be admitted because he was a Traveller.
- On being questioned by the respondents, Susanne Roche stated that she had not discussed the incident with Mr Ward or Ms Keogh since September 2001 and said that she had no hesitation in agreeing to give evidence as she had distinctly heard Mr McDonnell making a reference to Mr Ward being a Traveller. Ms Roche said that she herself had not known that Mr Ward was a Traveller until the night of 21 September 2001.
6.5 At the Hearing of this case on 22 October 2003, I took separate evidence from four
different individuals who all said that they heard Mr McDonnell state that the reason Mr Ward was not being admitted was because he was a Traveller. On the basis of this evidence, I consider that the complainant has established a prima facie case of discrimination on the Traveller community ground, resulting in the burden of proof shifting to the respondents an the onus being put on them to rebut the allegation.
6.6 For their part, the respondents have provided the following information and account
of what happened on 21 September 2001:
- O'Neills Pub was previously known by a different name and had a bad reputation prior to its sale and closure for refurbishment.
- On opening its doors as O'Neills in September 2001, the management decided to apply a very strict dress code. Notices regarding its dress code were displayed and the dress code was rigourously enforced.
- Michael McDonnell was the doorman responsible for security. At the Hearing, he said that the strict dress code had caused some controversy at the time as many people had been turned away.
- The pub was particularly strict about "piercings" and he had refused many people for this reason. He said, however, that a person who agreed to remove the offending jewellery would normally be allowed in.
- Mr McDonnell said that his recollection of the night in question had been hampered by the fact that he could not "picture" the complainant until the Hearing itself. On seeing the complainant at the Hearing, he said that he recognised Mr Ward and remembered that Mr Ward had approached him on one occasion prior to September 2001 with regard to a job he was interested in.
- Mr McDonnell said that he did not know Mr Ward was a Traveller. While he knew thatMr Ward had lived in a particular housing estate near him, he was not aware that a large percentage of the residents of that estate came from a Traveller background.
- He says that he remembers the complainant being refused earlier in the evening on 21 September 2001 because of his piercings and the fact that he was wearing a football jersey. Mr McDonnell denied, however, that he would have given Mr Ward any guarantee at that point that he would be admitted later if he went home and changed.
- His recollection of the later incident is that Mr Ward was told at 9.30 pm that he still did not meet the dress code. This was because Mr Ward was wearing earrings. Mr
McDonnell says that he cannot recall whether he referred specifically to the earrings
when informing Mr Ward of his decision. - Also, he does not recall Mr Ward or anyone else suggesting that Mr Ward was prepared to remove his earrings. If this offer had been made, Mr McDonnell believes that he would probably have agreed to admit Mr Ward.
- Mr McDonnell states that the conversation was amiable, that there was "no acrimony" and that Mr Ward left quietly. As a result, he saw no reason to write a report of the incident.
7.6 On considering the evidence of Mr McDonnell, I find that I have difficulty in accepting that he did not recognise Mr Ward as a Traveller on 21 September 2001 from the jewelery that he wore. I also have difficulty in accepting Mr McDonnell's word that no offer was made, on the complainant's behalf, to have Mr Ward remove his jewelery, as I consider that it would have been obvious to all concerned that Mr Ward's jewelery was the issue on the night. Apart from the wearing of jewelery, no other reason was offered by Mr McDonnell at the Hearing for refusing admission to Mr Ward. No allegation of previous misconduct was made by Mr McDonnell against Mr Ward nor was any suggestion made by Mr McDonnell that, o 21 September 2001, Mr Ward was known to him to be of unsuitable character. I, therefore, consider, on the balance of probabilities, that Mr McDonnell's decision to refuse admission to Mr Ward was influenced by the fact that he was recognised as a Traveller on September 2001. I have also formed the opinion, on the basis of the witnesses' evidence, that Mr McDonnell did make reference to Mr Ward's Traveller identity during the course of the events of 21 September 2001. In the circumstances, I find that the respondents have not provided sufficient evidence to discharge the burden of proof in this case. I, therefore, find, on the balance of probabilities, that the complainant was refused admission to O'Neills Pub on 21 September 2001 and that this refusal was because he was recognised as a member of the Traveller community.
8 Decision
8.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
8.2 In considering the level of redress to award, I am mindful of the fact that the pub was only open a short while at the time of the incident and that no evidence has been provided to indicate that an ongoing policy of discrimination against Travellers prevails. Accordingly, I order that the respondent pay the complainant the sum of €800 for the humiliation and loss of amenity suffered on 21 September 2001.
Brian O'Byrne
Equality Officer
9 January 2004