Jerry Sheridan & Patrick O'Brien (represented by the Equality Authority) V Ms Theresa Foley Foley's Bar, Rathkeale (represented by Lees Solicitors)
1. Dispute
This dispute concerns a complaint by Jerry Sheridan & Patrick O'Brien that they were discriminated against, contrary to the Equal Status Act 2000, by Foley's Bar in Rathkeale, Co Limerick on 1 July 2001. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1)(a) 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 complainants state that, when they entered Foley's Bar on Sunday 1 July 2001, they were refused service and told " regulars only" by Ms Theresa Foley. They maintain that this was on the grounds of their membership of the Traveller community.
3 Summary of Respondent's Case
3.1 The respondent denied that she operated a discriminatory policy againstTravellers.She maintained that she could not specifically recall the complainants beingrefused but said that, if they had been refused service, it was because they were notregulars. The owner of the pub, Mrs Theresa Foley, said that she only catered forneighbours and regulars and did not want any strangers on the premises.
4 Delegation under the Equal Status Act, 2000
4.1 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 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 complainants claim that they were discriminated against on the grounds of their 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 service in Foley's Bar on 1 July 2001.
5.2 In cases such as this, the burden of proof lies with the complainants who are 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 Lion 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 complainants. 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 complainants 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 McCarthy v Equinox Nightclub DEC-S2002-031.
6.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), there is a conflict of evidence over whether the complainants visited Foley's Bar on 1 July 2001. To determine whether a prima facie case exists, I must, therefore, consider whether I am prepared to accept that the complainants were refused service on 1 July 2001 and, if so, whether I consider that the treatment afforded the complainants was less favourable than the treatment two non-Travellers would have received, in similar circumstances.
6.4 In deliberating on the evidence before me, I consider the following points to be the
most important and persuasive:
- Theresa Foley ran Foley's Bar herself for 20 years after the death of her husband. She is now retired having sold the pub in 2002.
- Ms Foley said that she made very little profit from the pub and only ran it for enjoyment. She said that she catered solely for neighbours and regulars and that " no strangers were wanted".
- Mrs Foley also said that she had "lovely regulars" and that "they didn't deserve
disturbances". - She said that the pub used to open from 10.30 am to closing time from Monday to Saturday but only opened at 8pm on Sunday nights. For this reason, Mrs Foley argued that the refusal could not have taken place at the time claimed by the complainants.
- Ms Foley said that she had served some Traveller customers over the years. She specifically recalled asking some Travellers to leave on one occasion for being noisy
- Mrs Foley said that she does not recall the two complainants visiting her pub but does recall an incident where she asked two younger Travellers to leave her premises because she did not know them.
- She remembers receiving several notification forms in relation to alleged incidents of discrimination. She said that she did not reply to them on the advice of other publicans who told her that they had received similar forms and had "thrown them on the fire".
- Mr Sheridan said he was never in Foley's before while Mr O'Brien says that he was there once before when he was served two drinks and asked to leave
- At the Hearing, the complainants stated that they entered Foley's Bar between 3pm and 4 pm on Sunday 1 July 2001 with the intention of watching the Munster Final which was on that day.
- On arrival, they say that Mrs Foley was sitting outside the bar with another woman and were talking to each other. There were no customers whatsoever in the bar apart from the woman speaking to Mrs Foley.
- When they asked for a drink, the complainants state that Mrs Foley informed them that it was "regulars only"
- At the Hearing, the complainants pointed to the fact that they notified Mrs Foley of their intention to lodge a complaint within a few weeks of 1 July 2001 which provided her with an opportunity to rebut the claim that the refusal had taken place at the time stated, based on her contention that her premises had not been open on the Sunday afternoon in question. Instead she chose to ignore this opportunity.
6.5 As stated above, there is a conflict as to whether this alleged incident occurred at the time the complainants state. At the Hearing, the complainants maintained that they were refused between 3 pm and 4 pm on Sunday 1 July 2001 despite their notification forms both stating that the refusal took place "in the evening". The respondent, however, argues that the incident could not have occurred in the afternoon or early evening on the basis that it was not her custom to open the premises on Sundays until 8 pm.
In considering this point, I note that Mrs Foley had the opportunity to clarify the position regarding the time of the alleged incident directly with the complainants before a complaint was lodged against her. This opportunity was presented to her by the complainants when they officially notified her, on Form ODEI 5, that they believed that they had been discriminated against when they called to her premises "in the evening" on 1 July 2001. Mrs Foley, however, by not responding to the notification, chose not to avail of the opportunity to explore the matter further with the complainants at that point.
If Mrs Foley had taken the time to clarify the situation at the time, and had been able to confirm to the complainants that her pub had been closed at the time stated, this would have provided the parties with an opportunity to discuss and possibly resolve the matter between themselves, without it having to go to investigation.
6.6 Section 26 of the Equal Status Act 2000 provides that the Equality Officer can draw an inference from the fact that a respondent did not reply to a notification under Section 21 or did not reply to questions put by the complainant prior to the submission of the complaint. In this case, I consider that it is appropriate for me to draw such an inference as, in my opinion, it is possible that the matter could have been disposed of between the parties themselves if Mrs Foley had responded to the notification indicating that she believed her premises had been closed at the time stipulated.
As Mrs Foley did not avail of the opportunity at the time to clarify whether she was open at the time specified, I am not prepared to accept at this stage, almost three years later, her recollection that her premises were definitely shut on the afternoon/evening of Sunday 1 July 2001. I, therefore, propose to accept, on the balance of probabilities, that the complainants did gain access to Mrs Foley's pub on the afternoon/evening of 1 July 2001 and that they were refused service.
6.7 In the case before me, Mrs Foley maintains that the complainants were refused because they were not among the privileged few who were deemed to be "regulars". The "regulars only" excuse for refusing service is often used for refusing service or admission to customers and the validity of its use has been called into question on many occasions i the past. In some cases, the phrase is validly used to avoid confrontation, in situations where a genuine reason exists (previous trouble, doubt about age, previous convictions etc.) and reference to same at the time of refusal could lead to an altercation.
In many other cases, however, the phrase "regulars only" is used widely in situations where "spur of the moment" decisions are made to refuse individuals whose presence is not required on the premises and Equality Officers have, in the past, found that the phrase has been used by service providers as a means of disguising discriminatory practices.
If a publican is to validly use the excuse "regulars only" to refuse service, I believe that they must be prepared, if challenged, to prove that their actions were totally free from any discriminatory motive. In the case before me, however, I am not satisfied that this was the case as I consider that Mrs Foley would have recognised the complainants as Travellers on their arrival and that this influenced her decision to refuse them service.
6.8 Section 15(2) of the Equal Status Act 2000 provides that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purposes of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination." The nature of "good faith" in the Section 15(2) defence was considered in Conroy v Costello (DEC-S2001-014), where the Equality Officer commented that "In order to take an action in good faith it has to be free from any discriminatory motivation" In that case, the Equality Officer found that the respondent knew the complainant to be a member of the Traveller community and found that this fact had influenced the respondent's decision not to serve him. Accordingly, the Equality Officer found that discrimination had occurred.
6.9 I consider that the case before me is very similar to the above, in that I am satisfied, from, the evidence before me, that the complainants did visit Mrs Foley's premises on 1 July 2001, that they were recognised as members of the Traveller community on their arrival and that this influenced Mrs Foley's decision not to serve them.
6.10 I, therefore, consider, on the balance of probabilities, that Mrs Foley's decision to refuse service to the complainants was influenced by the fact that she recognised the complainants as members of the Traveller community. Consequently, I find that I cannot accept that Mrs Foley's decision constituted "action taken in good faith" as provided for under Section 15(2). Accordingly, I consider that Mrs Foley did discriminate against the two complainants contrary to the provisions of the Equal Status Act 2000.
7 Decision
7.1 I find that the complainants have established a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1)(a), 3(1)(b) 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. I also find that the respondent have failed to rebut the allegation.
7.2 In considering the level of redress to award, I have taken cognisance of the fact that Mrs Foley only took over the pub following the death of her husband and that it would appear that her decision to keep the pub running was guided more by a desire for social contact than for profit. I have also taken note of the fact that Mrs Foley has since retired from the business and has sold the pub. In considering what level of redress is appropriate, I have also taken into account the fact that the complainants visit to the pub was a "spur of the moment" decision. The visit arose from a chance meeting in the street, the complainants had not pre-arranged to meet for a drink and went their separate ways immediately after the refusal. For this reason, I do not consider that the complainants would have been greatly discommoded by the incident. In the circumstances, I consider that redress of €250 for each of the complainants is appropriate in this case for the loss of amenity and any humiliation suffered by them on 1 July 2001.
Brian O'Byrne
Equality Officer
11 June 2004
10