Winnie Burke(Represented by Waterford Travellers CDP) V The City Arms(Represented by Newell Quinn Gillen Solicitors)
Delegation under the Equal Status Act, 2000
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 me Mary O'Callaghan, 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 Acts, 2000-2004. The hearing of the case took place in Waterford on Friday 29th October 2004.
Dispute
1.1 This dispute concerns a claim by Ms. Winnie Burke that she was discriminated against on the ground of her membership of the Traveller community when she was in the City Arms, Arundel Square, Waterford in May 2001. Ms. Burke alleges that the treatment she received was contrary to Section 3 (2) (i) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public she was subjected to treatment contrary to Section 5(1) of the Act.
1.2 The respondent disputes the allegation of discrimination and submits that the treatment of the complainant arose from her being identified as someone who had been involved in a violent incident in another premises and who had been connected with a possible theft in the respondent premises shortly before.
2. Summary of the Complainants case.
2.1 The complainant said that she went with her sister to the City Arms on Sunday 13th May 2001 at about 4.45 pm. She said that the pub was fairly busy at that time.She said that she ordered two pints and was served. When she returned to the counter area later to get second drinks, she said that as the barman started to pull the drinks someone called him aside and told him not to serve them. She said that that the barman said to the other person "you tell them." and then he took the drinks back and told her he was not serving her. The complainant said when she asked why she wasn't being served she wasn't given a reason other than that she would not be served. She said that she told the barman that this was discrimination and she and her sister left.
2.2 The complainant said that she had been in the pub a number of times before and whether she was served or not depended on who was at the counter. The complainant said that she had never been barred from the City Arms. The complainant later said that she had never been in the pub previously. She said that she was a member of the Traveller community and she believed that this was the reason she was refused service.
3. Summary of the Respondent's Case
3.1 The respondent said that the pub has been under his management since 1990.He said he regarded it to be a big pub accommodating up to 200 customers. It is not divided into a lounge and bar but is all one area with entrances from the street and from inside the City Square Shopping Centre. He said that the clientele was mixed with a huge passing trade. The premises served food and many people came in to eat as well as to drink. He said he had no recollection of ever seeing the complainant in the pub. He was not there on this occasion.
3.2 The respondent's son who was serving in the bar that day said he had returned from a break at about 4.30. He said that as the women were being served, a security man from the shopping centre mentioned to him that Ms Burke had been barred from both the pub and the shopping centre and this was related to a handbag that had gone missing from the pub. He was also made aware that Ms Burke had been involved in anti social behaviour in another pub.
3.3 When questioned about this latter claim the complainant said that this incident was in another pub and that while she was involved, she wasn't charged in relation to it, her husband was. When asked about a previous criminal conviction she denied this but when her maiden name was pointed out to her in relation to this incident she accepted the respondent's assertion regarding this, but that it had happened prior to her marriage.
3.4 The respondent said he was relying on Section 15.1 of the Equal Status Acts in relation to the treatment of the complainant in the City Arms that day.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case. In order to do so the complainant must satisfy three criteria in relation to her complaint. She must (1) establish she is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances.
4.2 In this case it is not disputed that the complainant is a member of the Traveller community thus satisfying the first of the criteria, outlined above. Furthermore it is not disputed that she was refused service during the incident complained of. This is sufficient to satisfy the second criterion. The third criterion which must be met by thecomplainant in establishing a prima facie case is whether there is evidence that the treatment afforded to the complainant by the respondent was less favourable than that which would have been given to another person in similar circumstances who was not a member of the Traveller community. In considering this third criterion I have concluded that the evidence provided by the complainant does not on the balance of probabilities support the contention that the treatment she received from the respondent resulting from the incident outlined was less favourable than that which would be afforded to another person who was not a traveller in similar circumstances.I have based this conclusion of the following:
- Inconsistencies between the complainant's notification of complaint, her complaint form and her evidence at the hearing as to whether she had been in the pub before this incident of refusal.
- The evidence that she had been involved in disorderly incidents in another pub thisraising the defence allowable under section 15.1 of the Equal Status Acts 2000-2004, i.e.,
"...nothing in this Act prohibiting discrimination shall be construed as requiring a person to provide services...to another person in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods...or the provision of the services, as the case may be 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 goods or services are sought..." - That on balance I found the respondent's evidence regarding the circumstances of this incident to be more compelling than that of the complainant.
4.3 The complainant has not, therefore, established a prima facie case of discrimination on the Traveller community ground.
5. Decision
5.1 Where a prima facie case of discrimination has not been established by a complainant. The complaint will not be upheld. I therefore, find for the respondent in this case.
Mary O'Callaghan
Equality Officer
26th November 2004