Michael McCarthy Jnr & James McCarthy, Cork V St. Luke's Tavern, Cork (Represented by P.J. O'Driscoll & Sons Solicitors, Cork)
Headnotes
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Membership of the Traveller Community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub - prima facie case - no defence presented - credibility of evidence
Michael McCarthy and James McCarthy 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 22/9/2001, at around 6.15 pm, the complainants entered St. Luke's Tavern. They had had two pints each in another licensed premises. They ordered two pints of the lady serving. She began to fill the order when she looked at the complainants again, stopped and said "We'll leave it off today lads". When she was asked why she repeated what she had said. The complainants left the premises. They feel that the refusal is because they are Travellers, because they look like Travellers, talk like Travellers and because they were out at that time. They were not intoxicated. The complainants' representative was unavailable for the hearing and the complainants were provided with copies of their papers by the Equality Officer. After some discussion they elected to proceed with the hearing in the absence of their representative and requested some time before the hearing began to review their papers.
Summary of the Respondent's Case
The respondent did not attend the hearing personally but was represented by a solicitor. Since they did not attend no defence was presented. However the solicitor, during crossexamination, highlighted a lack of detail, a number of inconsistencies, and generally questioned the credibility of the evidence presented by the complainants.
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 complainant was less favourable than the treatment another person received, or would have received, in similar circumstances, where that person is not a member of the Traveller community. 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. In respect of (a) above, the respondent's solicitor had no difficulty in accepting that the complainant's are members of the Traveller community. The complainants allege that on 22/9/2001 they were refused service in the respondent's premises. The respondent, through his solicitor, in the response to the statutory notification stated that the complainants were refused on 22/9/2001 because they had consumed intoxicating liquor to the extent that the respondent was concerned about compliance with the provisions of the Licensing Acts. This satisfies (b) above. In respect of (c) above, the complainants assert that the refusal was because they are members of the Traveller community and not because they had been drinking. By their own admission they had already taken some alcoholic beverages. In their evidence they were initially unclear as to where they had been drinking earlier. They did not recall clearly in which other pubs they had attempted to gain service and been refused. They refused to speak about incidents which allegedly took place in these other pubs. There was confusion as to whether or not they had had a child in their company, with one complainant appearing to prompt the other. There was no clarity as to which day of the week the incident related to and when asked what they had been doing before they went drinking, one complainant stated that he had been checking horses and getting his child from school. The respondent solicitor stated that the 22/9/2001 was a Saturday and aske if the complainant's child normally goes to school on a Saturday. The Solicitor suggested that the complainants had such a number of complaints that they were unclear which case they were addressing at the hearing and had arrived knowing only the name of the pub. They had found it necessary to review their papers before the hearing to remind themselves of what they had written. He suggested that they had so many cases that they could not remember the particular incident involved. The complainants pointed out that they did not have to provide the number of complaints that they had with the Tribunal. The Equality Officer clarified the matter stating that any information provided in respect of a complaint, that is for the purposes of any investigation, was confidential until such time as it is included in a published decision. This is in accordance with Section 36(2). The solicitor proceeded by questioning the complainants about alleged incidents of which he was aware. The complainants declined to answer. When the Equality Officer asked if other incidents had occurred the complainant said no. The Solicitor asked the complainants how it was that they could not remember any details in respect of the day the incident took place but could remember the incident with absolute clarity. Watching the cross-examination of the complainants it was apparent that the credibility of their evidence in respect of this incident was greatly diminished. The complainants allege that the landlady's actions in beginning to serve them, hesitating, looking at them again and reconsidering whether or not to serve them amounted to evidence that she had recognised them as members of the Traveller community and refused them on that basis. However, these actions are also consistent with the possibility that the landlady was assessing them in respect of their level of intoxication and by their own admission the complainants had been drinking previously. Since the complainants have not presented any evidence that suggests that the refusal was because they are Travellers, other than their assertions, and when considered in the light of the reduced credibility of their evidence, I am not satisfied that, on the balance of probabilities, the refusal was because of their membership of the Traveller community. I am not satisfied that a non-Traveller would have been treated more favourably. I find that the complainants have failed to satisfy the requirement at (c) above and have therefore failed to establish a prima facie case.
Decision DEC-S2004-006-007
I find that the complainants have failed to establish a prima facie case and therefore this
decision is in favour of the respondent.
Bernadette Treanor
Equality Officer
19 January 2004