Bridgid Hogan & Eileen O’Sullivan -v- The Licensee, The Brog Maker Public House, Cork
Headnotes
Equal Status Act, 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of entry to a pub – Prima facie case.
1. Dispute
1.1 This dispute concerns claims by Bridgid Hogan and Eileen O’Sullivan that they were discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the grounds that they are members of the Traveller community in that on 16 March, 2002, they were refused entry to the respondent premises.
The complainants each 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 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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.
2 Summary of Complainant’s Case.
2.1 The complainants state that they went to The Brog Maker circa 9.15 p.m on 16 March, 2002. They were refused entry to the premises on the basis that they had no identification with them. The complainants returned home and obtained identification and returned to the pub. They were again refused entry, this time on the basis that a private function was taking place and that they had no invitations to this function. The complainant’s friends were present in the pub at this time and later told the complainants that no private function was taking place in the premises. It is the complainant’s belief that they were refused entry because of their Traveller status.
3. Summary of Respondent’s Case
3.1 The respondent failed to respond to correspondence from the complainants or the Tribunal and failed to attend at the Hearing of these complaints. No evidence was therefore presented by or on behalf of the respondent.
4. Background
4.1 Complainants
The complainants state that they went to the respondent premises on the evening in question to meet up with work colleagues for a social evening as prearranged. The complainants worked at that time in a premises (named) across the road from the respondent premises. When they approached the door of the premises they were stopped by the doormen and asked to produce identification/proof of age. Neither complainant had such identification with them as they were both over the required age and did not think it would be required of them. They returned home to obtain identification and returned to the respondent premises. Ms. Hogan returned with her passports and driving license and Ms. Sullivan returned with her passport. On this occasion they were driven to the premises by Ms.Hogan’s brother.
Ms. Hogan’s identification documents were checked. Ms. O’Sullivan’s identification was not checked. The doormen then stated that neither of the complainants could enter the premises as a private function was taking place and they did not have invitations for the function. Ms. Hogan asked the doormen to explain why they had not informed her or her sister, Ms. O’Sullivan about the function earlier when they had said that they would return with identification.
Ms. Hogan had then explained to the doormen that a number of her friends were on the premises and asked that they call one of her friends to the door. The doorman went inside and returned saying that the person described by Ms. Hogan was not on the premises. Ms. Hogan then asked if she could go inside to contact her friends and suggested that the doorman could hold her passport and driver’s license to guarantee her immediate return. The bouncer refused her permission to enter.
Ms. Hogan’s brother then asked why the doormen would not permit the complainants to enter and was informed by one of the doormen that Ms. Hogan’s friends were not inside and a private function was taking place. The doormen refused to give their names when requested by the complainants to do so. Ms. Hogan later acquired the mobile phone number of one of her friends and rang her. The friend informed Ms. Hogan that the friends with whom she had arranged to meet were inside the pub at the time that the complainant’s were trying to gain entrance, and that, to the best of their (the friend’s) knowledge, no private function was taking place. Ms. Hogan also ascertained that the doorman who had entered the premises to seek her friend knew some of the group of friends by name and had not in fact approached them to tell them that Ms. Hogan was at the door. Ms. Hogan was also told that one of the group, aged sixteen, had gained entry to the premises on the pretext that her mother was waiting for her inside.
The complainants saw two young males, non-Travellers, enter the premises without being stopped or asked to produce identification of any kind.
4.2 Respondent
The respondent failed to respond to correspondence from the complainants and the Tribunal and failed to attend at the Hearing of these complaints.
5 Prima Facie Case
5.1 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 a discriminatory ground (e.g. 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 someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 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 complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case - Complainants
6.1 The complainants are Travellers. This fulfils (a) at 5.1 above. The complainants provided written and oral evidence to the effect that they were refused entry to the respondent premises. The respondent has provided no evidence whatsoever to the contrary. This fulfils (b) at 5.1 above. In relation to key element (c) above, the complainants have provided evidence to show that a number of their friends, who are non-Travellers, were permitted entry to the respondent premises without difficulty on the night in question. A witness on behalf of the complainant’s who was in the respondent premises on the night in question provided evidence at the Hearing of these complaints to the effect that the complainants’ friends had not been asked to produce identification or proof of age, and were not refused entry on the basis that a private function was taking place. The witness further stated that no private function was taking place in the premises on the night in question, that the doorman had not approached the group of friends at any time and that, in fact, very few people were on the premises at the time in question.
On balance, I am satisfied that the complainants have established a prima facie case of discrimination on the Traveller community ground.
7 Respondent’s Rebuttal
The respondent failed to respond to any correspondence in this matter either from the complainants or the Tribunal, and also failed to attend at the scheduled Hearing of these complaints. In the circumstances the respondent has failed to provide any evidence whatsoever to rebut the complainant’s prima facie case of discrimination.
8 Decision
8.1 I find that the complainants were discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act. .
9 Redress
9.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
9.2 I hereby order that €1000 be paid to each of the complainants by the respondent for the effects of the discrimination.
__________________________
Dolores Kavanagh
Equality Officer
9 February, 2005