Mr. John Kenny V Mullanes Bar (Waterford) (Represented by Purcell & Cullen Solicitors)
Mr. Kenny 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
On 14 April 2002 Mr. Kenny went to Mullanes with his wife and was refused service when ordering a second round of drinks. He had been in Mullanes two weeks before this for the first time and had had a really enjoyable night. On 14/4/02 he approached the bar for the second time and the lady, who was about to serve him was called away and the owner, Mr. Cunningham, refused to serve him. When asked why, Mr. Cunningham said that he, Mr. Kenny, was drunk. Mr. Kenny said that the earlier drink had been his first but Mr. Cunningham replied that he had seen Mr. Kenny staggering on his way to the bar. Mr. Kenny said "You'll hear from me", and left with his wife. He went to the bar the next day and asked why he had been refused and was told that he had been drunk. Mr. Kenny said that he was not drunk at that point and asked for a drink. Mr. Cunningham said he would rather if Mr. Kenny took his business elsewhere. Mr. Kenny asked if he was barred and was told that he was. Mr. Kenny described a group of non- Travellers in the bar who were very loud and clearly intoxicated, and wondered why they had not been asked to leave.
Summary of the Respondent's Case
The respondent knew that Mr. Kenny had been in the bar two weeks previously and had noted that he had enjoyed himself including singing with the band. On 14/4/02 he noticed Mr. Kenny approach the bar as he returned from changing a barrel. At this point he was alone behind the bar. He told Mr. Kenny that he would not serve him and told him that he had seen him staggering as he approached the bar. When Mr. Kenny came to the bar the next day, he became increasingly verbally aggressive. Mr. Cunningham told him that he did not like his attitude and when Mr. Kenny asked if he was barred he was told that he was. Two witnesses supported the respondent's allegation that Mr. Kenny was unsteady while making his way to the bar for the second time. Mr. Cunningham stated that there was no group of non-Travellers in the bar as suggested.
Conclusions of the Equality Officer
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.
I am satisfied that Mr. Kenny is a member of the Traveller community and the respondent
accepts at this point that this is the case, satisfying (a) above. It is agreed that Mr. Kenny
was refused service on 14/4/02, satisfying (b) above. In respect of (c) above it is necessary to consider whether the refusal was based on Mr. Kenny's membership of the
Traveller community.
The parties to this complaint are largely agreed on what happened during the refusal of service. The differences include whether or not Mr. Kenny had been intoxicated and whether or not he became verbally aggressive the day after the refusal. Mr. Kenny can provide no explanation as to why he had been served two weeks before the incident without any difficulties and not on 14/4/02. Both parties agree that the respondent stated that his reason for the refusal of service was that Mr. Kenny appeared to be intoxicated. The respondent confirmed this in his response to the complainant's notification of the complaint. On the basis of the evidence presented to me I am satisfied that Mr. Cunningham assessed the complainant as intoxicated and I am not satisfied that there was a group of intoxicated non-Travellers present. As Mr. Kenny had been served in the bar on a previous occasion without any difficulty, and as no evidence was presented to the
contrary, I am satisfied that the reason for the refusal was Mr. Cunningham's assessment
that Mr. Kenny was intoxicated. I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller ground.
Decision DEC-S2004-148
I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller ground
Bernadette Treanor
Equality Officer
13 October 2004