Martin Sweeney V Mr. Martin Carr (Represented by Kilfeather Keyes Solicitors)
Mr. Martin Sweeney 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, the Director then delegated the case to me, Bernadette Treanor, 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.
Summary of the Complainant's case
The complainant went to Carr's pub on 4/5/02 at around 8:15pm. After he walked in the barman told him that he would not serve him and refused to give a reason. Mr. Sweeney said that he would return to speak to the owner and left. Mr. Sweeney sent a notification of his complaint to Mr. Carr and received a reply. He went back in around 8 to 12 months later and asked to speak to the owner. He referred to a letter he had sent to Mr. Carr about the refusal on 4/5/02. Mr. Carr replied that he would speak to the barman. Mr. Sweeney remained in the bar for the evening on that occasion. When he returned to the bar three weeks later Mr. Carr told him that he had not spoken to the barman but that he would not be served as there had been glasses broken the previous night he was in. Mr. Sweeney maintains that Mr. Carr found out he was a Traveller during the three weeks between visits.
Summary of the Respondent's Case
Mr. Carr was not present on 4/5/02 when Mr. Sweeney was refused but he confirms that a refusal took place. Mr. Carr states that on receipt of the complainant's notification he was able to ascertain that Mr. Sweeney had been refused because he was intoxicated. Mr. Carr replied to the notification on this basis. Mr. Carr has been unable to contact the barman who refused service, as he no longer works for him, and another barman, who has also left his employment was unwilling to attend as a witness and Mr. Carr was unwilling to have him compelled to attend.
Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the Traveller 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 a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie case and 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.
Conclusions of the Equality Officer
I am satisfied that the complainant is a member of the Traveller community and the parties agree that a refusal of service took place. These satisfy (a) and (b) above. In respect of (c) it is necessary to consider the reason for the refusal of service. The complainant states that there was no reason for his refusal as he had not been drinking before going to Carrs. He was refused immediately on entry. The respondent stated that when the notification of the complaint was received he checked the staff roster and asked about anyone refused. At first the staff could not remember and when they did he was told that the complainant was intoxicated. Neither of the staff involved were present at the hearing to give evidence. I find the evidence presented at the hearing by the complainant more compelling than the hearsay evidence presented by the respondent and therefore I cannot accept that a case has been made that the reason for the refusal was Mr. Sweeney's intoxication. In the absence of a sound reason for the refusal I am satisfied that an inference of discrimination arises and I find that Mr. Sweeney has established a prima facie case of discrimination on the Traveller Ground. Although the respondent has made an allegation that the complainant was intoxicated during the first visit, and that glasses were broken on the second visit, based on what he was allegedly told by his staff, he has been unable to present any evidence to support this, in spite of an adjournment of the hearing and a time extension after the second hearing to produce such evidence. On that basis I find that the respondent has failed to rebut the prima facie case of discrimination on the Traveller ground.
Decision DEC-S2004-147
I find that on the balance of probabilities Mr. Sweeney was discriminated against on the Traveller ground when he was refused service in Carr's pub on 4/5/2002.
Vicarious liability
The Equal Status Act, 2000, in section 42, provides that anything done by a person in the course of his or her employment shall be treated as done also by that person's employer. Therefore I find that the actions taken by the barman were actions done also by his employer. I find that M.J. Carr is vicariously liable for the actions of his barman when he
refused Mr. Sweeney service on 4/5/2002.
Redress
Section 27 of the Equal Status Act, 2000 provides for redress for the effects of the discrimination. I hereby order the respondent M.J. Carr to pay Mr. Sweeney €150 for the effects of the discrimination.
Bernadette Treanor
Equality Officer
13 October 2004