Mr. James McCarthy, Mr Patrick McCarthy & Mr. Timmy McCarthy (Represented by Traveller Visibility Group Ltd) V An Gobán Saor (Cork) (represented by Frank Buttimer & Company Solicitors)
1. Dispute
1.1 The dispute concerns a claim by Mr. James McCarthy and Mr. Patrick McCarthy and Mr. Timmy McCarthy that they were discriminated against by An Goban Saor on the grounds that they are members of the Traveller Community. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Acts, 2000-2004, contrary to Section 5(1) of that Act.
2 Background
2.1 The complainants' case is that when they entered the respondent's bar on 1 October, 2001 and were served a drink by the bar woman. A short time later a man now known to them as Mr. Gary Hyde, the husband of the licensee, approached them and took their drinks away and asked them to leave the pub. Mr. James McCarthy said that, when he questioned the reason for taking their drinks away and requested a refund, he received a punch in the face from Mr. Hyde. The complainants submitted that they believe that the refusal of service was due to the fact that they are members of the Traveller community. The respondent submitted that the complainants were not discriminated against on
the grounds that they are Travellers, but they were asked to leave because two of them had been barred from the pub because of their behaviour on a previous occasion.
3 Summary of the Complainants' Case
3.1 The complainants stated that they are members of the Traveller community living in Cork about one and a half miles from the respondent's pub. Between 5 pm and 6pm on 1st October, 2001 the complainants and Mr. James McCarthy's 5 year old son entered the respondent's pub. They ordered a drink each and were served by a woman behind the bar. They sat at a table near the door. A short while later Mr. Gary Hyde entered the pub and immediately took their drinks away and told them to leave the pub. Mr. Patrick McCarthy said that he followed Mr. Hyde to the bar to get a refund for the drinks. When
he asked Mr. Hyde about getting his money back he was struck on the face by him. He said that he was stunned by the blow and could not remember if he exchanged any words with Mr. Hyde. The Gardaí were called and as soon as they arrived the Gardaí asked them to go outside. They made statements to the Gardaí the next day.
3.2 Mr. James McCarthy and Mr. Patrick McCarthy said that they had been in the pub sometime in September, 2001. On that occasion after being served by the bar woman Mr. Hyde approached them with a hammer and asked them to leave the pub which they did. They denied that they caused trouble in the bar on that occasion. They also denied that they were with Mr. James McCarthy's brother and said that they were with their cousin. The complainants submitted that the only reason they were treated in such a manner by Mr. Hyde was due to the fact that they are members of the Traveller community.
4 Summary of the Respondent's Case
4.1 The respondent submitted that the complainants were not discriminated against on the Traveller community ground. Mr. Gary Hyde said that his wife is the licensee of An Gobán Saor and he works in the pub. Around the 4th September, 2001 James McCarthy's brother Mr. A. was in the pub and customers complained about his behaviour. After observing Mr. A's behaviour Mr. Hyde refused him a drink and asked him to leave. Mr. A
behaved in a threatening manner and threw beer mats at Mr. Hyde before leaving the pub.
4.2 The following day 5th September, 2001, when he came on duty he saw Mr. A in the company of Mr. Patrick McCarthy and Mr. James McCarthy. They had already been served a drink and he decided he would allow them to finish their drinks before asking them to leave because Mr. A had been barred for his behaviour the previous day. Mr. Hyde denied that he approached the group carrying a hammer or that he was in working clothes.
4.3 Mr. Hyde said that he was collecting glasses and he heard the group making aggressive and threatening comments. He was satisfied that the comments were directed towards him. They were spitting on their hands and clenching their fists as if inviting a fight. They sat over their drinks for a long time. They eventually called for more drink and Mr. Hyde refused them and asked them to leave. Mr. James McCarthy threw a box of beer mats at Mr. Hyde. Mr. Hyde barred them and as they left the men made further threats to Mr. Hyde.
4.4 Mr. Hyde said that he was informed on 1st October, 2001 that the complainants were present in the pub. The complainants were sitting beside the door as he entered. Mr. Hyde said that he immediately took the drinks from Mr. Patrick and Mr. James McCarthy and left the drink with Mr. Timmy McCarthy as he had not been barred from the pub. He asked the bar woman to refund the price of the drinks. One of the complainants took back his drink and he again took it off him. Mr. Hyde said that all the complainants became loud and aggressive and they surrounded him and pushed him into a corner. He said that he feared for his safety and he punched Mr. James McCarthy in self defence. Other customers restrained the complainants and Mr. Hyde called the Gardaí.
4.5 The complainants made a complaint to the Gardaí on 2 October 2001 about the incident and about the punch to the face Mr. James McCarthy received from Mr. Hyde. Garda Finbar Philpott was called as a witness to the hearing. He had with him a security video of the incident on 1 October and also statements he took from the complainants and Mr. Hyde. He said that after having investigated the incident it was decided by his superiors that no prosecution was to be taken against Mr. Hyde.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not."
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000-2004 must first establish a prima facie case of discrimination treatment. Once a prima facie case of discrimination has been established by the complainants, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
5.3 I have identified the key issues to establish a prima facie case as follows:
(i) are the complainants covered by the discriminatory ground? (in this case are they members of the Traveller community?)
(ii) were the complainants subjected to specific treatment?
(iii) is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
5.4 I am now going to examine the issues I have identified above and consider whether the complainant has established a prima facie case.
5.5 Definition of Traveller
In the Equal Status Act, 2000 the Traveller community ground is defined as follows:
"means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a share history, culture and traditions including, historically, a nomadic way of life on the island of Ireland". I am satisfied that the complainants are members of the Traveller community as defined by the Act. .
5.6 It was accepted by both the complainant and the respondent that the complainants were asked to leave the pub on 1 October, 2001 so the second element of the test has been established.
5.7 I am now going to examine the third element of the test to see if the complainants have produced sufficient hard evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that discrimination had occurred. The complainants case is that they were asked to leave the pub on 1 October, 2001 for no good reason and believes this occurred because they are members of the Traveller community. The respondent's case is that two of the complainants were barred from the pub because of their behaviour in early September and this was the reason Mr. Hyde took their drinks away.
5.8 There was a complete conflict of evidence in relation to the events surrounding the incident so it is necessary for me to determine which evidence I found to be more compelling. Firstly I am going to examine the incident of 5 September 2001. Mr. James McCarthy and Mr. Patrick McCarthy both stated that they were in the pub with their cousin. Mr. Hyde approached them with a hammer on that occasion after they had been served one drink and asked them to leave the pub. Their evidence was that they left without causing any difficulty and denied that they were abusive and threatening while in the
pub. Mr. Hyde stated that they were in the company of Mr. James McCarthy's brother who had been barred the previous day. He said that they sat over a drink for over an hour and during that time they acted in an abusive, threatening and intimidating manner towards him. When they ordered a drink he refused and asked them to leave.
5.9 Neither party produced any independent evidence in relation to this incident but I found the evidence of Mr. Hyde more credible. I found it surprising that if the two complainants were approached in the manner claimed that they did not complain to anybody or call the Gardaí or report it to the Gardaí at a later time as happened following the incident on 1 October, 2001. I have concluded that the complainants were barred from the respondent's premises by Mr. Hyde on 5 September 2001 for acting in an aggressive, threatening and
abusive manner.
5.10 Mr. James McCarthy and Mr. Patrick McCarthy knew they were barred when they entered the respondent's pub on 1 October 2001. I have found inconsistencies in the complainants' evidence in relation to the October incident. They all stated that Mr. Hyde was the aggressor and that he struck Mr. James McCarthy without good reason when he asked for a refund. Having had the benefit of Garda Philpott's evidence and also his assistance in interpreting the security video, I am satisfied from this evidence that after Mr.
Hyde took away their drinks the complainants acted in a provocative and aggressive manner and that they eventually surrounded Mr. Hyde and pushed him into a corner. The evidence on the security video did not support the complainants' version of events and as already stated raised questions over the veracity of their evidence in relation to the incident on 5 September, 2001.
5.11 Further inconsistencies in the complainants' evidence emerged in that they could recollect some evidence very clearly, but when I asked them for more details, they responded by saying that they could not recall as it was some time since the incidents occurred. Overall I found their evidence to be selective in contrast with that of the respondent. I am satisfied that if a non-Traveller behaved in a threatening and intimidating manner as the complainants did that they would also be barred from the pub.
4.6 I have also considered the complaints in the context of Section 15(1) of the Equal Status Acts, 2000-2004 to see if the respondent was entitled to invoke this defence. Section 15(1) provides that: "nothing in this Act prohibiting discrimination shall be construed as requiring a person to provide services in circumstances which would lead
a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than the discriminatory grounds, that the provision of the services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought." To invoke this Section the respondent must show that there was a substantial
risk of criminal or disorderly conduct or behaviour if the complainants were to be continued to be served. I find that the defence under Section 15(1) of the Equal Status Act applies in the circumstances as the respondent has shown that two of the complainants were barred prior to 1 October, 2001 for acting in an aggressive, threatening and abusive manner. Mr. Hyde had knowledge of two of the complainants' behaviour when they entered the pub on 1 October, 2001. I am satisfied therefore that the decision taken by the respondent on that date was justified in the light of his previous experience with these two
complainants and that he was entitled to invoke Section 15(1) of the Act. I am, therefore, satisfied that the complainants have not established that they were treated less favourably than non-Travellers would have been treated in a similar situation. I find that they have failed to establish a prima facie case of discriminatory treatment.
6. Decision
6.1 On the basis of the foregoing I find that the complainants were not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Acts, 2000 -2004 and in terms of Section 5(1) of that Act.
______________________
Marian Duffy
Equality Officer
12 November, 2004