Sean Maher V Devane’s Public House, Clonmel
1. Dispute
1.1 This dispute concerns a complaint by Sean Maher that he was discriminated against, contrary to the Equal Status Act 2000, by the management of Devane’s Pub, Clonmel.
The complainant maintains that he was discriminated against on the disability ground in terms of sections 3(1) and 3(2)(g) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The dispute concerned a complaint by Sean Maher that he was refused admission to Devane’s Pub by door staff on the night of 17 August 2002 . Mr Maher contends that the refusal arose from the fact that he was disabled.
3. Summary of Respondent's Case
3.1 The respondent denied that discrimination was a factor in refusing Mr Maher. He maintained that the doormen would have known the complainant and would have been aware at the time that the complainant had been involved in trouble previously. The respondents also maintained that the complainant appeared to “ have a few drinks in him” on the night in question.
4 Delegation under the Equal Status Act, 2000
4.1 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 the complaint to myself, Brian O’Byrne, 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, 2000.
5 Evidence of Parties - Complainant
- Mr Maher has lived in Cahir for 22 years.
- In 1988, he was involved in a serious accident on his motorbike and had to have his leg amputated below the knee as a result.
- He says that details of the accident gained a lot of attention around Clonmel and Cahir at the time and he became well known as a result
- It was his custom in 2002 to visit Clonmel a few times each month on his motorbike to meet friends. On the occasions that he would have a drink, he would stay overnight with friends. On the nights that he planned to return to Clonmel, he would only drink Cidona.
- In the years prior to August 2002, he had been in Devane’s Pub on a few occasions both at night and in daytime. He had no problem getting served on any previous occasion. He could not recall whether the same doormen had been on duty before.
- On 17 August 2002, he arrived at Devanes at around 10 pm on his motorbike and parked a few feet from the door.
- There were two doormen on duty. He knew one of the men, Mr A, by name as he used to work as a doorman in Cahir some years previously. Mr A would have known him and would have been aware of his motorcycle accident. He also believes that Mr A would have known that he had lost a leg in the accident.
- Mr A had previously worked as a doorman for a hotel in Cahir and had often admitted Mr Maher to the hotel at the time he was on crutches and recovering from his accident.
- As he was taking off his helmet and gloves, Mr A held out his arm and said “You’re not getting in tonight”
- When he asked for an explanation, he got no reply. There were no accusations made that he had drink taken.
- As he could see no obvious reason for the refusal, he believed that the only conclusion he could come to was that the refusal was related to his disability.
- He then indicated to the doormen that he would be considering an equality complaint but got no response.
- He has no recollection of any other staff member coming to the door that night.
- Afterwards he went to another pub for a Cidona.
- On his way home at 11.30 that night, he was stopped by two Gardai at a checkpoint. He knew one of them by name, Sergeant Tom Phelan. The Gardai asked to see his driving licence, motor tax and insurance documentation.
- He produced all the relevant documentation to them and they were satisfied that everything was in order.
- They then had a conversation about his accident and motorbikes in general and he left them some minutes later. He did not consider it relevant to mention the earlier refusal in Devanes to them.
Evidence of Respondent Mr Michael Devane
Mr Devane is the owner of Devane’s Pub since 1998
He himself did not know the complainant prior to 17 August 2002 and cannot recall seeing him in the pub before
He employs doorstaff from a local security firm for his premises every Friday and Saturday night. The same doormen, Mr A and another man, have been on duty at his premises for a number of years
He described Mr A as a “pillar of the community” who was vastly experienced in security work. He believes that Mr A would have known Mr Maher and would have known about his accident and any other relevant information about him
It was normal practice for Mr Devane to check with his doorstaff at regular intervals during the night
On 17 August 2002, Mr Devane went to the door around 10 pm and found the doormen dealing with Mr Maher who had already been refused. Mr Maher was very “animated” and appeared to have a “few drinks in him”
As Mr Devane trusted the doormen, he saw no reason to dispute their decision to refuse Mr Maher admission. Mr Maher departed after a few minutes
After he received notification that an equality complaint was been considered, he replied to the notification stating that, in the opinion of the security men, Mr Maher was intoxicated on the night in question
At the Hearing, Mr Devane explained that, apart from the belief that Mr Maher had drink taken, the doorstaff also had other concerns about admitting him
Mr Devane explained that Mr A would have been aware at the time, from reports in local newspapers, that Mr Maher had been involved in a number of incidents of unsocial behaviour previously and had appeared in court on several occasions on minor charges.
Mr Devane then proceeded to provide details of a number of occasions where he believed Mr Maher had come to the attention of the local Gardai or had appeared in court.
In response, Mr Maher acknowledged that some of the incidents had occurred but maintained that none had been of a serious nature.
Evidence of Garda Inspector Kevin Bohen
- Inspector Bohen recalls meeting Sean Maher at a checkpoint in Clonmel with Sergeant Tom Phelan around August 2002.
- On the night, he did not know who Mr Maher was until told by Sergeant Phelan
- He says that he stopped Mr Maher and checked his insurance, tax and drivers licence. All his documentation was in order.
- As part of their checkpoint duties, he and Sergeant Phelan also would have assessed Mr Maher for alcohol. Inspector Bohen said that he is satisfied that Mr Maher had no drink taken on the night in question.
- The trio had a conversation then about Mr Mahers accident and motorbikes in general and Mr Maher drove home to Cahir shortly afterwards
- As all the documentation was in order, Inspector Bohen explained that he would have had no reason to record details of the meeting. For this reason he cannot say for definite that his meeting with Mr Maher occurred on the night of 17 August 2002 as claimed by Mr Maher. He could confirm, however, that the night he recalls was the only time he had ever stopped Mr Maher at a checkpoint.
- Inspector Bohen said that, prior to the Hearing, he personally had no knowledge of any of the alleged incidents involving the complainant which the respondent had referred to. This was because of the fact that he was assigned to the Clonmel Garda District and would not be familiar with cases from Cahir.
6. Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) of the Act specifies the disability ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainant claims that he was discriminated against on the grounds of disabilty contrary to Sections 3(1), 3(2)(g) and 5(1) of the Equal Status Act, 2000 in being refused admission to Devane’s Pub.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
7 Conclusions of the Equality Officer
7.1 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) Existence of a discriminatory ground (e.g. the disability ground)
(b) Establishment of facts to show that specific treatment occurred
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
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.
7.2 With regard to (a) above, the complainant has satisfied me that he is disabled. In relation to (b), the respondents have acknowledged that the complainant was refused admission on 17 August 2002. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment a non-disabled person would have received, in similar circumstances.
7.3 The evidence before me suggests that Mr A and Mr Maher knew each other for years and the complainant has himself admitted that Mr A granted him entry to a hotel function at a time that he was clearly disabled.
I have also heard evidence that Mr A would have been aware that Mr Maher had been involved in a number of unsocial incidents in the past and the complainant has accepted that some such incidents had occurred.
An allegation has also been made that Mr Maher appeared to have drink taken on the night in question and this has been put forward as another reason as to why he was refused admission.
In relation to this accusation, Mr Maher has claimed that he was sober and asked for the attendance of Inspector Bohen to substantiate his claim. Inspector Bohen, however, has said that he cannot say for definite whether the night he met Mr Maher was the same night as the refusal, which would appear to undermine Mr Maher’s case.
However, when considering this last matter from a logical perspective, I believe that the following points are relevant:
- The complainant did not know before the Hearing that the Garda would not be able to confirm the date in question.
The complainant sought the attendance of the Garda witness in the belief that the Garda had recorded the date of their meeting and that the Garda would be able to verify that he stopped Mr Maher on 17 August 2002 and that he had no drink taken.
- If the complainant knew that the checkpoint meeting had occurred on another date, and believed that the Garda had made a note of that date, then, in my opinion, there would have been no logic in him asking for the Garda to appear as a witness as the Garda’s evidence ( that 17 August 2002 was not the date they met) would have left the complainant without any evidence to support his claim that he was sober on 17 August 2002.
On the basis of the above, I am prepared to accept that Mr Maher was accurate in his recollection that both the refusal and the Garda meeting did occur on the same night, 17 August 2002. Accordingly, I am also prepared to accept, on the evidence of Inspector Bohen, that Mr Maher was sober on the night of 17 August 2002 and that he was not under the influence of alcohol as claimed in the respondent’s witness statements.
7.4 While I consider that Mr Maher may have been sober on the night in question, this is not sufficient reason to accept that discrimination occurred. I must also be satisfied, on the balance of probabilities, that the primary reason for the refusal was related to Mr Maher’s disability.
On consideration of the evidence before me, however, I find that I cannot arrive at this conclusion - principally because of the fact that Mr Maher has admitted that Mr A would have known him for years, would have been fully aware of his accident and injury yet had allowed him access to other premises on other occasions, after the date of his accident. This to me would suggest that Mr Maher’s disability had not played an influential role in any of the earlier encounters between the two men.
For this reason, I find it hard to accept that Mr A would have suddenly decided to afford Mr Maher less favourable treatment on 17 August 2002 because of his disability when he had not done so before. Accordingly, I consider that there must have been other non-discriminatory factors involved in Mr A’s decision to refuse admittance on 17 August 2002, possibly related to media reports about unsocial behaviour.
I, therefore, find that there is insufficient evidence before me to indicate, on the balance of probabilities, that Mr Maher was refused entry because of his disability. Accordingly, I find that a prima facie case has not been established by the complainant on the disability ground.
7 Decision
7.1 I find that a prima facie case of discrimination has not been established by the complainant on the disability ground in terms of sections 3(1) and 3(2)(g) of the Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
Brian O’Byrne
Equality Officer
15 April 2005