Ann and Michael Connors, James and Ann Cash (Represented by Claire Walsh BL instructed by Rolleston's Solicitors) V The Spa Inn
File Ref: ES/2002/0600-0603
Equal Status Acts 2000-2004
Summary of Decision Nos. DEC-S2005-204-207
Keywords
Equal Status Acts, 2000-2004 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service, Establishment of Prima facie case - Section 42(2) Vicarious Liability
Dispute
This dispute concerned a claim by Ann and Michael Connors, and James and Ann Cash that they were discriminated against on the ground of their membership of the Traveller community when they was refused entry The Spa Inn, Portarlington on 25th April 2002. The complainants alleged that the treatment they 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 They were subjected to treatment contrary to Section 5(1) of the Act.
Summary of the Complainant's Case
The complainants said that when they went to the Spa Inn for a family celebration on 25th April 2002 they were refused service by the barman. Mr. Connors had gone into the pub first and was refused when he ordered for himself and his wife and then Mr. Cash was refused than when he arrived at the pub just a few minutes later and attempted to order. They said the only explanation they could come up with for the refusal was that they were Travellers
Summary of the Respondents Case
The Respondent said that he did not operate his business in a discriminatory manner and that the barman refused the complainants because Mr. Cash had been barred by the same barman previously when he was involved in a dispute with a customer. This was the only reason the group was refused.
Decision
The Equality Officer concluded that on the balance of probabilities the complainants ware recognised as a Travellers by the barman. She found that the complainants were subjected to a discriminatory refusal. The complaints ware upheld and an order of redress of €300 each was made.
Equal Status Acts 2000-2004
Decision Nos. DEC-S2005-204-207
Ann and Michael Connors, James and Ann Cash (Represented by Claire Walsh BL instructed by Rolleston's Solicitors) V The Spa Inn
Delegation under the Equal Status Act, 2000
These complaints were 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 these complaints 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 Act, 2000.The hearing of the case took place in Portlaoise on Monday 21st November 2005.
1. Dispute
1.1 The case concerns claims by Ann and Michael Connors and James and Ann Cash that they were subjected to discriminatory treatment on the ground of their membership of the Traveller community when they went to the Spa Inn in Portarlington on the evening of 25th April 2002. The complainants allege that the treatment they 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 he was subjected to treatment contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 All four complainants said that they went out together for a celebratory drink on the evening of the 25th April in 2002. It was Mr. Cash's birthday and the two couples were also celebrating the engagement of their children (the Connors' son to the Cash's daughter). The Cash's who are from the Portarlington area drove themselves and the Connors' into the town of Portarlington. They said that the Connors' got out of the car to go into the pub while the Cash's went to park the car near by.
2.2 Mr. Connors said that he approached the counter when they went into the bar and ordered drinks for himself and his wife. He said that the barman told him he would not be served and that when he sought a reason, none was given. Mr. Connors said that he and his wife then got up to leave the premises and the met the Cash's who were entering the pub when they reached the door. The Connors' said that they told Mr. Cash that they were leaving and that they shouldn't go in as they would not be served in that pub. Mr. Connors said that Mr. Cash told him that they would be served and he and his wife proceeded into the pub and approached the barman to order their drinks.
2.3 Mr. Cash said that when he got to the counter and placed his order he was also refused by the barman and he was not given a reason for the refusal either. He and his wife then left the pub which he said was not busy but that the other customers who were there were drinking at the time. He and his wife left and joined the Connors' who were by then outside. The complainants said that as they were outside the door of the pub, Mr. Cash received a call on his Mobile phone from a friend and they were invited to join another group who were in another pub nearby. They went there and remained for the rest of the night and were served. The complainants said that they did not know why they were refused and the only explanation they could think of for the lack of service in the Spa Inn was their Traveller status. Mr. Connors said that he was a settled Traveller and had been so, living in the same area of Dublin for nearly 50 years. The complainants said they found the incident to be embarrassing.
3. Summary of the Respondent's Case
3.1 The respondent, Mr. Michael Ryan, said that the Spa Inn was no longer in his ownership as he had lost the business. He had not been working in the pub on the evening complained of by the four complainants but his bar manager was on duty and had informed him of what had happened, later in the evening. He said that he had been told that Mr. Cash, who he said had been barred from the premises by the bar manager as a result of a previous incident, had come in to the pub and was refused, as were those accompanying him. The respondent said that he would not discriminate against anybody and he had decided to serve all comers in his pub as he had witnessed apartheid when he had visited South Africa as a merchant seaman.
3.2 The bar manager, who was present at the hearing, said that it was Mr. and Mrs. Cash rather than the Connors' who came to the bar counter to order drinks initially. He had not encountered the Connors' as he was away from the counter changing a beer keg. He said that Mr. Cash ordered from him when he came back to the counter and he refused him because he knew he was barred. He said that Mr. Cash then left the counter with his wife and went towards the door of the pub and Mr. Connors, who he had by then observed sitting with his wife in the main body of the pub, approached the counter to order 3 drinks. The barman said that he did not know the Connors' but he refused them because he took them to be with Mr. Cash who was at that stage waiting by the doorway of the pub with his wife. He said that the presence of Mr. Cash in their company was the only reason for the refusal of Mr. and Mrs. Connors and Mrs. Cash. The bar manager said that Travellers were served regularly in the Spa Inn and he could recall at least 5 or 6 Travellers who were regulars.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainants have succeeded in establishing prima facie cases of discrimination. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish they are covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants was less favorable than the treatment someone who was different from the complainants with respect to the discriminatory ground, would have received in similar circumstances.
4.2 In this case it is not a fact in dispute that the complainants are members of the Traveller Community, thus satisfying the first of the criteria outlined above. Furthermore it is not disputed that the complainants did not get served in the pub although there are differences between the parties as who approached the counter first. However, it is clear from the evidence that an order was being placed for drinks for the complainants and that there was a refusal. I consider this sufficient to satisfy the second of the three criteria set out above. Regarding the third of the criteria, i.e. whether the treatment was less favourable than that someone who was not a member of the Traveller community would have received in similar circumstances, I have to assess the differing accounts from the parties of what occurred in the Spa Inn on the 25th April 2002 and the limited information provided about an alleged incident involving one of the complainants previously. I must then determine on the balance of probabilities whether what occurred on that night amounted to discrimination under the Equal Status Act 2000. In general I conclude that that there was not a culture of discrimination being operated by the licensee of the Spa Inn at the time of this incident and I accept his assurances in this regard.
4.3 However, I have found the evidence of each of the four complainants to be consistent regarding their experience on the night and on the balance of probabilities conclude that they have established prima facie cases of discrimination on the ground of their membership of the Traveller Community. I found theirs to be a more compelling account of events than that of the bar manager, whose evidence at times did not provide an adequate explanation for his actions and did not rebut the prima facie cases of the complainants, which have been established. Section 42 of the Equal Status Act applies the principle of vicarious liability to employers whose employees or agents engage in the provision of discriminatory treatment in the course of their work and therefore that the treatment of the complainants by the bar manager is deemed to have been carried out by the respondent also.
5. Decision and Redress
5.1 I therefore, find for the complainants Ann Connors (DEC-S2005-204), Michael Connors (DEC-S2005-205), James Cash (DEC-S2005-206) and Ann Cash (DEC-S2005 -207). In such circumstances I must make an order for redress for the effects of the discriminatory treatment. In this case I have noted that the complainants did succeed in having an enjoyable remainder to their evening at another premises but I also note that their evening out which was intended as one of celebration for both couples was marred somewhat by their experience in the Spa Inn. I consider that a sum of €300 (three hundred euro) for each of the complainants to be the appropriate redress and order that the respondent pay this sum to each of the complainants Ann Connors, Michael Connors, James Connors and Ann Cash.
Mary O'Callaghan.
Equality Officer
21st December 2005