Stephen & Philomena McCarthy V Cork Bar & Property Management Services Ltd., t/a Mardyke Tavern
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service - Prima facie case.
1. Dispute
1.1 This dispute concerns claims by Stephen & Philomena McCarthy that on 9 September 2001, they were denied a service in the respondent premises on the grounds that they are members of the Traveller community. The respondent denies that discrimination occurred. The complainant 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 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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.
2. Summary of Complainants' Case
2.1 The complainant's state that they were refused service by a member of the respondent's staff on 9 September 2001. The complainants were told that only regulars would be served. When they asked to speak to the manager they were told that he was not there.
3. Summary of Respondent's Case
3.1 The respondent states that the manager of an adjoining premises, also owned by the respondent, was present in the Mardyke Tavern on 9 September and recognised Stephen McCarthy as someone who had been part of a group who verbally assaulted a regular patron in the adjoining premises the previous evening. He signalled the barwoman on duty not to serve the Mr. McCarthy, fearing that there could be trouble.
4 Prima Facie Case
4.1. 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 of the complainant 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 the same, or similar circumstances.
4.2 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. If they
succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5 Prima Facie Case - Complainant
5.1 The complainants are Travellers and this is accepted by the respondent. This fulfils (a) at 4.1 above. Both parties agree that the complainants were refused service on 9 September 2001. This fulfils (b) at 4.1 above. In relation to key element (c) above it is necessary to examine the evidence presented to see if the complainants were treated less favourably than a non-Traveller would be treated in the same or similar circumstances.
5.2 The complainant, Stephen McCarthy indicated in evidence that he and Philomena McCarthy had been patrons of the respondent premises and an adjoining premises, also owned by the respondent, on a number of occasions prior to the night on which the refusal of service occurred. Stephen McCarthy recognised the manager of the adjoining premises to see from such earlier visits to the other premises.
5.3 The manager of the adjoining premises, a witness on behalf of the respondent, provided evidence to the effect that Stephen McCarthy was refused service in the respondent premises on 9 September 2001 because the complainant was recognised as having been part of a group of men who had behaved in an unacceptable manner in the adjoining premises on 8 September 2001. This group had verbally assaulted a regular patron of the other premises as a result of which they were barred from the adjoining premises.
5.4 The manager of the adjoining premises was taking a break in the respondent premises when he saw the complainant, Stephen McCarthy, enter in the company of a woman (Ms. Philomena McCarthy, complainant). The manager signalled the barwoman not to serve the complainants, fearing that there might be more trouble. This was confirmed by the barwoman in question.
5.5 The complainant, Stephen McCarthy states that it was a clear case of misidentification
as he rarely goes out on a Saturday night (8 September 2001 was a Saturday) and he has never been involved in any incident such as that described by the witness for the respondent.
5.6 Having regard to all of the evidence presented in this matter I am not satisfied on the balance of probabilities that the complainants were discriminated against on the Traveller
community ground. Mr. Stephen McCarthy, complainant has stated that this was a case of
misidentification on the part of the respondent's staff. The fact that the complainant himself
has stated that a case of misidentification has taken place indicates that he himself accepts that a previous incident occurred on foot of which he has been wrongly identified as one of those involved, i.e there were non-discriminatory reasons for the refusal of service. Therefore, on balance, it is at least as likely that the complainants were refused service on the basis of a misidentification as on the basis of their Traveller identity. In short, the complainants have not established that they were treated in a less favourable manner because they are Travellers or that non-Travellers would have been treated more favourably in the same or similar circumstances. The complainants have not therefore fulfilled (c) at 4(1) above. They have not therefore established a prima facie case of discrimination on the Traveller community ground.
6 Decision
Having considered all of the evidence provided in this matter I am satisfied that the complainants have not established a prima facie case of discrimination on the Traveller
community ground. I find therefore that the complainants were not discriminated against on
the Traveller community ground contrary to Section 3(1)(a), and 3(2)(i) of the Equal Status
Act 2000 and in terms of Section 5(1) of that Act.
______________________________
Dolores Kavanagh
Equality Officer
17 June, 2004