DEC-S2005-201 Ms. Nora O'Brien, DEC-S2005-202 Ms. Mary Rose O'Doherty (represented by Mannix & Co., Solicitors) V JD's Public House (Represented by Lees Solicitors)
Summary of Decision DEC-S2005-201-202
Key words
Equal Status Act, 2000 - Direct discrimination, section 3(1) - Traveller community,
Section 3(2)(i) - age, Section 3(2)(f) - supply of goods and services, Section 5(1) - access to a nightclub, prima facie case, failure to respond to notification, Section 26 - draw inferences.
Dispute
The complainants alleged that they were discriminated against by the respondent on the Traveller community ground in that they were refused a service which is generally available to the public. The complainants alleged that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)((i) of the Equal Status Act, 2000 contrary to Section 5(1) of that Act.
Summary of Case
The complainants, members of the Traveller community, together with their friend Ms. Karen Kavanagh, who is not a Traveller, went out to celebrate Ms. O'Brien's 21st birthday. They attempted to gain entry to JD's nightclub the complainants were refused entry but Ms. Kavanagh was allowed in. The respondent submitted that he saw the group on the street and he believed that they were drunk and this was the reason he instructed his door staff not to allow the complainants in when he saw them on the security video.
Conclusions of Equality Officer
The Equality Officer found that the complainants were treated less favourably than a non-Traveller was treated in similar circumstances and therefore they established a prima facie case of discriminatory treatment. The Equality Officer found that overall that the respondent's evidence was less than convincing and she concluded that it was appropriate to draw an inference under the Act from the respondent's failure to respond to the notification. She found that the reason the complainants were treated less favourably was because of their membership of the Traveller community.
Decision
The Equality Officer found that the complainants were discriminated against by the respondent on the Traveller community ground contrary to Section 3(1) and 3(2) (i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act. She ordered the respondent to pay the complainants, Ms. Nora O'Brien €500 and Ms. Mary Rose Doherty €300 for the effects of the discriminatory treatment.
Equality Officer Decision
DEC-S2005-201-202
DEC-S2005-201 Ms. Nora O'Brien
DEC-S2005-202 Ms. Mary Rose O'Doherty (represented by Mannix & Co., Solicitors)
V
JD's Public House
(Represented by Lees Solicitors)
Delegation under Equal Status Acts, 2000-2004
The complainant referred a claim to the Director of Equality Investigations on 23rd October, 2002 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 Acts, 2000, the Director delegated the case on 29th August 2005 to me, Marian Duffy, 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 took place in Limerick on 15th November 2005.
1. Dispute
1.1 The dispute concerns a claim by the above named complainants that they were discriminated against by JD's Public House on the Traveller Community ground in that they were refused access to the nightclub, a service which is generally available to the public. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000 contrary to Section 5(1) of that Act.
2. Summary of the Case
2.1 The complainants Ms. Nora O'Brien and Ms Mary Rose O'Doherty both Travellers and together with Ms. Karen Kavanagh, who is not a Traveller, went out to celebrate Ms. O'Brien's 21st birthday on 21st July 2002. Ms. O'Brien said that she had 3 drinks and Ms. O'Doherty who does not drink alcohol had some water. Sometime after midnight they attempted to gain entry to JD's nightclub. Ms. Kavanagh was allowed in but both the complainants were stopped and asked for identification. They said that before they produced their identification another bouncer came over to them and said that they were not going to be let in on the orders of the manager. The complainants sought the reason but received no response. They then sought to speak to the manager but he did not come to the door. The complainants said that Ms. Kavanagh then came back out and they all went home. The complainants believe that they were identified as Travellers by one of the bouncers who lives near them in Ballyduff and this was the reason they were not allowed in.
2.2 Mr. Sean Browne, one of the Directors of JD's, said that he was walking to work and he noticed three or four women outside another pub about 6 doors away from JD's messing around and he believed that they were drunk. He said that he had to step off the pavement to get around them. Shortly after arriving in the office he noticed the same women (the two complainants) on the security monitor at the door of the nightclub and he instructed the bouncer over the head phones not to allow them in. He denied that the complainants were not admitted because he recognised them as Travellers or that one of the bouncers identified them as Travellers.
3. Conclusions of the Equality Officer
3.1 It was accepted that the complainants are members of the Traveller community and that they were refused access to the nightclub on 21st July 2002. I have examined the evidence to see if the complainants were treated less favourably than non-Travellers would be treated in similar circumstances. The complainants believe that they were not allowed into the nightclub because they are Travellers and the respondent's case is that the complainants were misbehaving near his premises and he believed that they had too much drink consumed. I believe it is significant that the complainants' friend who is not a Traveller was allowed into the night club without any difficulty. I believe that if Mr. Browne was so concerned about the behaviour of the group he said that he saw near the nightclub he would have instructed his door staff not to let any members of the group into the nightclub. I am satisfied for this reason that the complainants have established that they were treated less favourably than a non-Traveller was treated in similar circumstances.
3.2 As there was a complete conflict of evidence it is necessary to consider which evidence I found to be the more convincing in order to determine whether the prima facie case has been rebutted. Overall I found the evidence of Mr. Browne to be less than convincing for the following reason: The complainants notified the respondent of the complaint by letter dated 23rd August 2002 but received no reply. The complainants were not given the reason for being refused entry to the nightclub until the day of the hearing. In response to a question why a response was not provided, Mr. Browne at first said, that the complaints had not been received by the respondent and he knew nothing about them until he received correspondence from the Equality Officer in October 2005. After I informed Mr. Browne that I was satisfied that the respondent had been notified of the complaints as the Tribunal had received correspondence from a Mr. Gearóid O'Connor, a Director, Mr. Browne then stated that he was aware of the complaints and believed they had been passed to his representative organisation for a response. It is for this reason I found the evidence of Mr. Brown to be less than convincing.
3.3 As I have mentioned above the respondent did not reply to the notification of the complaints sent to him by the complainants solicitor in accordance with Section 21(2)(a) of the Equal Status Act, 2000. Section 26 of the Act provides:
"If in the course of an investigation under Section 25, it appears to the Director-
(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by a complainant under section 21(2)(b),
The Director may draw such inferences, if any, as seem appropriate from the failure to reply,"
In the circumstance I have decided to draw an inference from the fact the respondent failed to comply with Section 26. The most appropriate inference to draw in the light of the conduct of the case by the respondent, in my opinion, is that the decision taken by the respondent to refuse service to the complainants was based solely on the fact they are members of the Traveller community.
3.4 I am satisfied therefore that the complainants were treated less favourably than non-Travellers would have been treated in similar circumstances. I find that the complainants, Ms. Nora O'Brien and Ms. Mary Rose O'Doherty have established prima facie cases of discriminatory treatment which the respondent has failed to rebut.
4. Decision
4.1 On the basis of the foregoing, I find that the complainants Ms. Nora O'Brien and Ms. Mary Rose O'Doherty were discriminated against by the respondent on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act. I order JD's Public House to pay the complainants Ms. Nora O'Brien (DEC-S2005-201) the sum of €500 (five hundred euro) and Ms. Mary Rose O'Doherty (DEC-S2005-202) the sum of €300 (three hundred euro) for the distress and inconvenience caused to them. The higher award to Ms. O'Brien reflects the fact that the celebration of her 21st Birthday was spoiled.
Marian Duffy
Equality Officer
20th December, 2005