Michael Conroy (represented by the Tallaght Traveller Community Development Project) V Molly Heffernans Pub (represented by Mulcahy Robinson, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Mr Michael Conroy that he was discriminated
against, contrary to the Equal Status Act 2000, by Molly Heffernans Pub, Tallaght. 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) of
the Act.
2. Summary of the Complainant's Case
2.1 The complainant states that when he sought entry to Molly Heffernans Pub, Tallaght
on 21 October 2001, he was informed by the doorstaff that "only regulars" were allowed in.
The complainant believes that he was refused admission on the grounds of his membership of the Traveller community as the doorman knew him personally and knew that he was a
member of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondents, reject that a discriminatory policy against Travellers was in operation. They maintained that all doorstaff had been made fully aware of the provisions of the Equal Status Act 2000 and had been instructed only to refuse people who were drunk or who had been barred previously.
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 her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated this 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 favourably
than 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 the 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 the treatment he received in being refused admission to Molly Heffernans Pub on 21 October 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 refused admission on 21 October 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 21 October 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
6.4 Background Information
In his original complaint, Michael Conroy identified Sunday 14 October 2001 as the date on which the incident occurred. He says that, on that day, he met his nephew Charlie Maughan with a view to watching a Leeds United match on television. The respondents, for their part, have referred to the manager's written report of the incident which shows the incident happening on Sunday 21 October 2001. Having checked the football reports for the dates in question, subsequent to the Hearing, I have established that Leeds United had no game on 14 October 2001 but did play in a televised match against Chelsea on Sunday 21 October 2001. For this reason, I am proceeding on the basis that the incident complained of occurred on Sunday 21 October 2001. Both parties in this case asked for Mr Charlie Maughan to appear as a witness on their behalf as they felt that his evidence would support their version of events. The respondents requested his attendance to show that the pub was happy to serve Traveller customers such as Mr Maughan while the complainant wanted him to give evidence as to what actually happened on 21 October 2001. Mr Maughan, who is a Traveller, is a nephew of Michael Conroy, and had been a regular drinker in Molly Heffernans since it opened in 2000. He now lives in Mayo.
6.5 The principal pieces of evidence before me are as follows:
- The complainant, Michael Conroy, says that he had visited the pub on several occasions with his brother up to a few months prior to the incident and had no problem getting served. Mr Conroy believes that he was served as he was not readily identifiable as a Traveller.
- Both Mr Conroy and Mr Maughan say that they were met by a doorman, Mr A, on
arriving at Molly Heffernans at 4pm on 21 October 2001 to watch a football match on
television. Mr A was well known to both gentlemen and Mr A was well aware that both
were members of the Traveller community. Mr Conroy said that he had never seen Mr A in the pub before that day - The complainant says that Mr A knew Mr Conroy was a Traveller from the fact that Mr A regularly worked as a security guard at a site next to the Halting Site where Mr Conroy lived. Mr Conroy said that he and Mr A often had conversations with each other at the entrance to the Halting Site.
- Mr Maughan used to frequent Molly Heffernans a lot from the time it opened in 2000. He said that many Travellers were regular customers in the pub during its first year, when the original manager was in charge.
- Towards the end of 2000, Mr Maughan had to stay off alcohol for a number of months for medical reasons. When he started frequenting Molly Heffernans again in early 2001, a new manager, Mr Noel Kennedy, was in charge. From that time onwards, he says that he noticed that the "situation had changed" and that Travellers were no longer being admitted to the pub.
- Mr Maughan said that the staff knew him to be a Traveller and that he was the only
Traveller who was allowed drink in the pub on a regular basis since 2001. He is not sure why he was the only Traveller being served but believes that it could have been because he spent a lot of money in the pub, he was not troublesome and had many friends among the non-Traveller customers who drank there. - On a few occasions, Mr Maughan had sought to bring Traveller relatives into the pub
with him but always had difficulties with staff. On one occasion, the pub allowed him
bring his parents in for a drink but only after he had pleaded with the doorman and
explained who they were. - Mr Maughan recalled that on another occasion, after he had brought Mr Conroy's son in for a drink, Mr A approached him in the bar, on recognising the son from the Halting Site, and asked them to leave saying to Mr Maughan "you know the f***ing story". Mr Maughan took this to be a reference to the fact that other Travellers were not allowed to drink in the pub.
- When Mr Maughan arrived with Mr Conroy on 21 October 2001, he said that Mr A again said to him "you know the f***ing story", in refusing Mr Conroy and himself admission. On both these occasions, Mr Maughan was allowed into the pub later the same day when he returned by himself. Mr Maughan states that the occasion he was with Mr Conroy was the only occasion on which he had been stopped at the door of Molly Heffernans and refused admission while in the company of someone else.
- On 21 October 2001, Mr Conroy said that he asked for the manager on being refused by Mr A. When the manager, Mr Noel Kennedy, arrived he reinforced Mr A's decision and told Mr Conroy that he was not being admitted as he "was not a regular". In the course of the conversation at the door, Mr Conroy says that Mr A denied to the manager that he knew Mr Conroy.
- Mr Conroy said that he then accused the manager of discrimination on the Traveller
community ground to which the manager replied "you are not getting in now" and closed the door - The owner of the pub, Mr John Crowe, gave evidence at the Hearing that Molly
Heffernans never practiced a policy of discrimination against Travellers. He said that the pub had many Travellers as customers in the first year that the pub was open but that a number of them stopped frequenting the pub following a violent incident when his original manager was attacked by unknown Travellers. - In December 2000, some weeks after the attack on the original manager, Mr Crowe
employed another manager, Mr Noel Kennedy, who was very experienced, having
managed another local pub for many years. Mr Crowe said that he fully supports Mr
Kennedy in the manner in which the pub is run and is satisfied that Mr Kennedy has
never engaged in discriminatory practices. - Mr Crowe stated that Molly Heffernans engages a security firm to supply doorstaff. There were four regular doorstaff who worked in Molly Heffernans in 2001. Mr A was one of these. The security firm had initial responsibility for the training of staff on equality issues and Mr Crowe is satisfied that this training was provided.
- Mr Crowe said that the pub now has a number of regular Traveller customers and referred to the many Traveller women who play bingo there on week nights.
- Mr Kennedy gave evidence that he had 25 years experience in the pub trade and had previously worked as a bar manager for seven years in another local pub.
- Many new staff were recruited when Mr Kennedy took over and he said that, on account of the recent incident involving the previous manager, he felt that he needed to give them specific instructions as to how to deal with Traveller customers in the future. In this regard, Mr Kennedy said that, on taking over as manager, he emphasised to all staff that no one was to be refused admission unless they appeared intoxicated or had been barred previously.
- Mr Kennedy said that these instructions were communicated to all doorstaff including Mr A. Staff were also told that if any problems occurred, arising from these instructions, that they were to refer the matter immediately to Mr Kennedy and he would deal with the situation directly himself.
- Mr Kennedy said that on 21 October 2001, Mr A called him to the door saying that he
had refused a man whom he thought had drink taken. When he spoke to the man, Mr
Kennedy said that he himself got the same impression and told the man to " leave it out for today". - On seeing Mr Conroy at the Hearing on 28 November 2003, Mr Kennedy immediately expressed surprise and said that he was definitely not the same man he remembered from 21 October 2001. Mr Kennedy said that the man he refused on 21 October 2001 was someone he knew from another local pub and that Mr Conroy was definitely not that man.
- Mr Kennedy said that he distinctly remembers the man in question arriving in the
company of Charlie Maughan. He refused the man because, in his opinion, he had drink taken. No one made any reference to the man being a Traveller, according to Mr Kennedy. - Mr A was not brought to the Hearing to give evidence by the respondents. They say that they were unable to trace him as he no longer works for the security firm. The
complainant questioned this, saying that he knew where Mr A lived and that he often sees him around the area.
6.5 On listening to Mr Charlie Maughan at the Hearing, I found him to be a very credible
witness. I am also persuaded towards accepting the evidence of Mr Maughan by the fact that both parties have indicated that they were prepared to rely on his evidence to support their case. On the basis of Mr Maughan's evidence and the other evidence provided, I consider, on the balance of probabilities, that the attitude of the respondents towards Travellers "hardened" following the violent incident involving un-named Travellers in late 2000. I also consider that, on taking charge after the violent incident, that Mr Kennedy would have been made aware of it by the owner and one of his functions would have been to ensure that a similar incident did not happen in the future. Accordingly, I have a difficulty in accepting Mr Kennedy's assertion that, on his arrival, he gave specific instructions to staff about Travellers and advised them not to refuse anyone, unless they appeared intoxicated or had been barred previously.
6.6 In considering whether discrimination occurred, I note the points made by the
respondents that Mr Conroy had previously drank in the pub while Mr Kennedy was manager and that Mr Maughan has been able to bring his parents in with him for a drink. These points are countered, however, by the complainant's evidence that Mr Conroy is not readily identifiable as a Traveller and Mr Maughan's claim that he had to plead for his parents to be served.
6.7 With regard to the events of 21 October 2001, there is complete conflict over who
was refused on the day. While both sides agree that the person in question arrived with Mr
Maughan, there is total disagreement as to the identity of the person. In this regard, it is clear that the evidence of Mr A would have been invaluable and I consider that the onus was on the respondents, as Mr A's employer, to bring him to the Hearing to give his account of what happened. In the absence of Mr A's evidence, I find that I must rely on the testimony of those who did appear at the Hearing to assist me in deciding, on the balance of probabilities, what I consider actually happened on 21 October 2001 and, in this regard, I find that I am more inclined to accept the account given by Mr Conroy and Mr Maughan rather than that provided by Mr Kennedy.
6.8 I therefore, find, on the balance of probabilities, that Michael Conroy was refused
admission to Molly Heffernans on 21 October 2001 and that the reason for his refusal was
that he was recognised as a member of the Traveller community. Accordingly, I find that Michael Conroy was discriminated against by the respondents on 21 October 2001 contrary to the provisions of the Equal Status Act 2000, on the grounds of his membership of the Traveller community.
Decision
7.1 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. I also find that the respondents have failed to rebut the allegation.
7.2 In considering the level of address to award, I have taken the following points into
account:
- Molly Heffernans only opened in 2000
- The evidence before me strongly indicates that Mr Crowe did not practice a policy of
discrimination against Travellers when the pub opened and openly welcomed them as customers up until the very serious incident in late 2000. - It would appear to me, however, that the violent incident in November 2000 clearly had a significant impact at the time on the respondents attitude towards Travellers and it is this change in attitude which I consider resulted in the complainant and other Travellers receiving less favourable treatment than non-Travellers did, over the following 12 months.
- I am also persuaded somewhat by Mr Crowe's own evidence that the situation has
improved over the past two years, from a Traveller perspective, and that some members of the Traveller community are once again regular customers in the pub. I would, however, urge Mr Crowe to ensure that all staff are reminded of their obligations under the Equal Status Act 2000 with regard to Travellers to ensure that no further allegations of discrimination are made against his pub in the future. For the above reasons, I consider that a heavy penalty is not warranted in this case and I order that the respondent pay the sum of €500 to the complainant for the hurt, humiliation and loss of amenity suffered on the day.
Brian O'Byrne
Equality Officer
28 January 2004