Patrick O'Brien (represented by the Equality Authority) V Molly B's Pub, Rathkeale (represented by Lees Solicitors)
1. Dispute
This dispute concerns a complaint by Patrick O'Brien that he was discriminated against,
contrary to the Equal Status Act 2000, by Molly B's Pub in Rathkeale, Co Limerick. The
complainant maintains that he was 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 complainant states that, when he entered Molly B's Pub on Sunday 1 July 2001, he was refused service and told "locals and regulars only" by Mr John Lynch, the owner. He maintains that this occurred because Mr Lynch recognised him as a member of the Traveller community.
3 Summary of Respondent's Case
3.1 The respondent rejected that he operated a discriminatory policy against Travellers. He maintained that he refused service because the complainant was not a regular, that the pub was very busy at the time and that he had already had problems with other Travellers that afternoon who had made claims of discrimination against him.
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 Background Note
This complaint is one of a total of seven complaints that were lodged against Molly B's Pub in relation to alleged acts of discrimination which all occurred on Sunday 1 July 2001. According to the original complaint and notification forms, the alleged refusals in Molly B's occurred at the following times:
4pm Michael Hegarty, Richard O'Brien and Jim Sheridan
5pm Mr A (Mr A cannot be identified as his complaint was not pursued and he did not give evidence at the Hearings)
6.30 pm Patrick O'Brien
7.30 pm Patrick Sheridan and Jerry Sheridan
The respondent, Mr John Lynch, acknowledged at the Hearing on 25 March 2004, that the refusals had taken place and said that he was satisfied that the times quoted were accurate. All six complainants, whose complaints were heard, stated at the separate Hearings that they had never visited Molly B's since it had been taken over by Mr Lynch in 1992. They maintained that the four separate visits to the pub on 1 July 2001, were taken unknowns to the others, and all denied any suggestion that their visits may have been pre-planned. Patrick O'Brien, Patrick Sheridan and Jerry Sheridan, who visited the pub at different times to Richard O'Brien, gave evidence that, in the hours and days following the refusals, they had individually encountered Richard O'Brien and had discussed with him their refusals and whether the refusals may have constituted discrimination contrary to the provisions of the Equal Status Act 2000.
On foot of these discussions, Richard O'Brien said that he made enquiries on behalf of the
group and succeeded in obtaining a supply of Equal Status Act complaint and notification
forms. As none of the complainants were literate, Richard O'Brien's daughter completed the notification forms (ODEI 5s) on behalf of each of the complainants. In each case, the
complainant gave evidence that they had individually sat down with the daughter while she
transcribed their account of the incident on to the notification forms.
Richard O'Brien subsequently arranged for the submission of all seven complaints to the
Equality Tribunal.
Evidence of Parties.
- Patrick O'Brien said at the Hearing that it was his practice to go for a few drinks every Sunday lunch-time in Rathkeale. It was not his custom to drink during the rest of the week.
- Mr O'Brien said that, on the afternoon of Sunday 1 July 2001, he first called to the two
other pubs he usually visits on Sundays but they were both closed for some unknown
reason. - He then went into Molly B's around 2 pm with a view to watching the Munster Hurling
Final there. There were a lot of people in the bar at the time. - He did not meet any of the other complainants before entering Molly B's.
- When he went to the bar, he ordered a pint of Guinness but the owner Mr Lynch refused him saying "Sorry, regulars only"
- He then left the pub. When he got outside he met Mr Jerry Sheridan and invited him to watch the match in another pub with him. When they were both refused in the other pub, they came out and went their separate ways.
- Mr O'Brien said that he then left Rathkeale and went out of town with another friend at
3pm and they had a few pints in a different pub. Afterwards, Mr O'Brien said that he
went home for his dinner and did not go back into Rathkeale until 7 pm where he went to one of the pubs that had been closed earlier. - He stayed there until closing time. Apart from Jerry Sheridan, Mr O'Brien said that he
did not meet any of the other complainants that day. - Some days later, he met Richard O'Brien and they discussed his refusal in Molly B's. As Patrick O'Brien could not write, Richard O'Brien arranged for him to meet with his
daughter and she assisted him in filling in the notification and complaint forms. - At the Hearing, Mr John Lynch gave evidence that he had been on duty on Sunday 1 July 2001 in Molly B's Pub. He was running the bar by himself and only had his daughter assisting him with the collection of glasses.
- At the Hearing, Mr Lynch gave evidence that Patrick O'Brien had visited his premises at 6.30 pm. He said that he was sure of the time as it was the third occasion that Traveller s had called to his pub that day.
- He also recalled Patrick O'Brien's visit as it happened after the Gardai had been called in relation to the earlier incident with Richard O'Brien, Michael Hegarty and Jim Sheridan.
- Mr Lynch said that he also remembered the time of Patrick O'Brien's visit because, in between the two visits, Mr Lynch had also refused another Traveller at 5 pm who was not a regular.
- Mr Lynch acknowledged that he had recognised Mr O'Brien as a member of the Traveller community and accepted that Mr O'Brien had not been in his pub before.
- Mr Lynch agrees that he refused Mr O'Brien and says that it was primarily because of the earlier incident with the three other Travellers and the Gardai and partly because he was not a regular and the pub was busy.
Note At the Hearing of this complaint on 25 March 2004, the respondent's solicitor asked Mr O'Brien why there was a discrepancy between the time stated on the complaint form (6.30 pm) and the time stated by him at the Hearing (2pm). Mr O'Brien said that he could not explain this discrepancy as his recollection was that he gave Richard O'Brien's daughter the correct time (2pm) when she was completing the form. As he could not read, he was unable to check the accuracy of the daughter's transcription at the time. The solicitor also asked Patrick O'Brien whether he had visited any other pubs that afternoon in the company of any of the other 6 complainants, apart from Jerry Sheridan. Mr O'Brien replied that he had not. The solicitor then referred to a copy of an ODEI 5 form, signed by Patrick O'Brien on 5 July 2001, and sent to another pub in Rathkeale alleging that he had been refused service in that pub at 5 pm on 1 July 2001. Mr O'Brien replied that, on reflection, he thought that the other incident had occurred on another date but accepted that it may have been on 1 July 2001. On being asked how information relating to a totally separate complaint had come into his possession, Mr Lee explained that the information had legitimately come into his possession as the other pub in question had also asked him to act as their legal representative.
6 Matters for Consideration
6.1 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 being refused service in Molly B's Pub on 1 July 2001.
6.2 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.
6.3 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)
7 Conclusions of the Equality Officer
7.1 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.
7.2 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.
7.3 With regard to (a) above, the complainant has satisfied me that he is a member of the
Traveller community. In relation to (b), there is agreement that the complainant was refused
service in Molly B's Pub on 1 July 2001. To determine whether a prima facie case exists, I
must, therefore, decide whether I consider that the treatment afforded the complainant was
less favourable than the treatment a non-Traveller would have received, in similar
circumstances.
7.4 In his defence, Mr Lynch maintains that he was very busy on 1 July 2001 when
the complainant called at 6.30 pm and that he was only serving locals and regulars. He
also states that his decision to refuse service to Mr O'Brien was heavily influenced by the
fact that the Gardai had been called earlier to deal with an incident where Mr Lynch had
refused service to three other Travellers who had then claimed discrimination and had
refused to leave the premises.
7.5 In considering Mr Lynch's claim that he was only serving "locals and regulars" ,
I note that it is not clear from existing licensing legislation whether a publican is obliged
to serve all comers. On the other hand, it is also not clear from the legislation whether a
publican has the power to refuse people they do not know.
What does appear clear, however, (from reference to Cassidy on the Licensing Laws,
2nd Edition, a recognised authority on Irish licensing laws,) is that, if a refusal of service
leads to a court challenge to the renewal of a publican's licence, the publican would then
be required to demonstrate to the Court that the refusal was not based on whimsical or
discriminatory grounds..
7.6 In this particular case, Mr Lynch maintains that one of the reasons the
complainant was refused was because the pub was very busy and that Mr Lynch only had
enough time to serve his locals and regulars. In considering this argument, I find that I
cannot accept it, as I do not believe that Mr Lynch, or any other publican for that matter,
would have displayed the same lack of hospitality in a situation where a non-Traveller,
such as a tourist, had chosen to visit his pub for refreshment.
Consequently, I consider that a discriminatory motive was involved and that Mr Lynch
decided to refuse service to Patrick O'Brien because he recognised him as a Traveller and that the "regulars only" excuse was the simplest way of disguising the true reason for the refusal.
7.7 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.
7.8 I, therefore, consider that the case before me is very similar to the Conroy v Costello
case referred to above, in that I am satisfied, from, the evidence before me, that Mr Lynch
did recognise the complainant as a member of the Traveller community and that his decision was influenced by this fact. I, therefore cannot accept that Mr Lynch's decision constituted "action taken in good faith" as provided for under Section 15(2).
7.9 In considering the second argument, that the reason for the complainant's refusal
was because other Travellers had created difficulties for Mr Lynch earlier, I have noted
the following:
Section 3(1)(b) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where
(i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that other person on any of the discriminatory grounds would
constitute discrimination.
Mr Lynch has maintained that his decision to refuse service to Patrick O'Brien was
influenced by the fact that three other Travellers had caused problems for him earlier that
afternoon when they called the Gardai, claiming that Mr Lynch had discriminated against
them when he refused to serve them.
As Patrick O'Brien had no direct involvement in the earlier incident, it seems clear that
the refusal to serve him came about because Mr Lynch associated him with the three other
Travellers who had claimed discrimination earlier and this, in my opinion, constitutes
discrimination by association under Section 3(1)(b) of the Equal Status Act 2000.
7.10 I, therefore, find that the complainant has established a prima facie case of
discrimination on the Traveller community ground and that the respondent has failed to
rebut the allegation. Accordingly, I find that the complainant was directly discriminated against on the Traveller community ground and also that he was discriminated against by association on 1 July 2001 contrary to the provisions of the Equal Status Act 2000.
8 Decision
8.1 I find that the complainant has 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 has failed to rebut
the allegation.
8.2 While I am satisfied, based on the evidence as a whole, that there was a
discriminatory refusal in this case, I find that there are curious inconsistencies in the evidence provided by Patrick O'Brien, leading me to believe that Mr O'Brien may have been less than frank in his evidence to the Tribunal in this case. For this reason, I do not consider that financial compensation is appropriate in Mr O'Brien's case. However, I do order that Mr Lynch ensures that Mr O'Brien is served in Molly B's Pub, on exactly the same basis as a non-Traveller would be served in similar relevant circumstances, should he ever decide to frequent the pub again .
Brian O'Byrne
Equality Officer
17 June 2004