Patrick Sheridan and Jerry Sheridan (represented by the Equality Authority) V Molly B's Pub, Rathkeale (represented by Lees Solicitors)
1. Dispute
This dispute concerns a complaint by Patrick Sheridan and Jerry Sheridan that they were discriminated against, contrary to the Equal Status Act 2000, by Molly B's Pub in Rathkeale, Co Limerick. 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 Molly B's Pub on Sunday 1 July 2001, they were refused service and told "locals and regulars only" by Mr John Lynch, the owner. They maintain that this occurred because Mr Lynch recognised them as members 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 two complainants were not regulars, 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 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 Background Note
These complaints are two 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, Michael Hegarty and Jim Sheridan, who visited the pub at different times to the two complainants, 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.
- On Sunday afternoon 1 July 2001, Patrick Sheridan and his son-in-law Jerry Sheridan went for a walk in Rathkeale. Around 3 pm they arrived outside Molly B's. As it was a warm day, they decided to go in and have a mineral.
- When they entered, they say that they ordered two minerals from Mr Lynch. Mr Lynch
refused them saying that they were not regulars. When they left the pub, Patrick Sheridan walked home by himself. - Jerry Sheridan met with Patrick O'Brien on the street. They decided to visit another pub but were refused service there also. The two men then split up.
- The complainants state that neither of them met any of the other complainants, apart from Patrick O'Brien, that day.
- Patrick Sheridan said that he only met Richard O'Brien a few days later when he himself was going to consult a solicitor about his refusal in Molly B's. Richard O'Brien advised him on how to lodge a complaint of discrimination.
- 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.
- Mr Lynch acknowledged at the Hearing that he had recognised the complainants as
members of the Traveller community. - At the Hearing, Mr Lynch gave evidence that the two complainants had arrived at 7.30 pm. He said that he was sure of the time as it was the fourth occasion that Travellers had called to his pub that day.
- He also recalled the time of the visit as it was the third visit he had received from
Travellers after the Gardai had been called in relation to the earlier incident with Richard O'Brien, Michael Hegarty and Jim Sheridan. - Mr Lynch agrees that he refused the complainants and says that it was primarily because of the earlier incident with the three other Travellers and the Gardai and partly because they were not regulars and the pub was busy.
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 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 Molly B's Pub on 1 July 2001.
6.2 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.
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 complainants have satisfied me that they are members of the Traveller community. In relation to (b), there is agreement that the complainants were
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 complainants was less favourable than the treatment two non-Travellers 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 complainants called at 7.30 pm and that he was only serving locals and regulars. He also states that his decision to refuse service to the complainants 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 the complainants because he recognised them as Travellers 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 complainants as members 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 complainants' 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 the complainants 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 neither Patrick nor Jim Sheridan had any direct involvement in the earlier incident, it seems clear that the refusal to serve them came about because Mr Lynch associated them with the three other Travellers who had claimed discrimination earlier and this action by Mr Lynch, 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 complainants have 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 complainants were directly discriminated against on the Traveller community ground and also that they were 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 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 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 am still somewhat puzzled by the inconsistencies in the written and oral evidence provided by the complainants in relation to the timing of the
incident. I order that the respondent pay each complainant the sum of €200 for the hurt and humiliation suffered. I also order that Mr Lynch ensures that the complainants are served in the future in Molly B's Pub, on exactly the same basis as a non-Traveller would be served in similar relevant circumstances, should they ever decide to frequent the pub again .
Brian O'Byrne
Equality Officer
17 June 2004