Sean Maher V Barry’s Public House, Clonmel (represented by Kieran T. Flynn & Co., Solicitors)
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 Barry’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 Barry’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 respondents did not attend the Hearing but maintained in written submissions that the refusal occurred because the complainant was under the influence of alcohol.
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.
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.
- 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 only been in Barry’s Pub on a few occasions. The last being on a Sunday afternoon about a year beforehand. He had no problem getting served that day. However, he claims that this may have been because there were no doormen on duty on Sunday afternoons.
- On 17 August 2002, he arrived at Barrys at around 10.30 pm on his motorbike and parked a few feet from the door.
- There were two doormen on duty. He knew one of the men from seeing him around Clonmel for a number of years. He also believes that that man would have known him as the person who had lost a leg in a motorbike accident
- As he was taking off his helmet and gloves, the man he knew held out his arm and said “You won’t make it tonight” in a sneering fashion
- When he asked for an explanation, he got no reply. There were no accusations made that he had drink taken. At the time, other people were being admitted.
- 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.
- When he indicated to the doormen that he would be considering an equality complaint, the two men “smirked” at him.
- He then left and 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 Barrys to them.
Evidence of Garda Inspector Kevin Bohen
- Inspector Bohen recalls meeting Sean Maher at a checkpoint in Clonmel with Sergeant Tom Phelan around August 2002.
- 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.
Evidence of Respondents - Background Note
In October 2002, the Equality Tribunal received correspondence from Kieran T. Flynn & Co, Solicitors stating that they were acting on behalf of Barry’s Public House and enclosing written witness statements from the two doormen who the respondents say were on duty on 17 August 2002. The solicitors also stated that they proposed to call the two men as witnesses should the matter go to Hearing.
In the witness statements provided in 2002, both doormen state that the refusal occurred because the complainant was under the influence of alcohol. No other reason is given in either statement.
In reply to a letter from the Equality Officer in August 2004, informing them that the Hearing would be heard shortly, the solicitors informed him that the business had been sold in the meantime and that their client was no longer trading.
The respondents’ solicitors were formally notified of the Hearing date by registered post on 14 December 2004. However, at the appointed time for the Hearing, 10 am on Wednesday 2 February 2005, nobody appeared on behalf of the respondents.
At that point, the Equality Officer phoned the Solicitor’s Office to establish the position and spoke to Mr Ian Flynn. Mr Flynn confirmed that the notification had been received and that all correspondence from the Equality Tribunal had been copied to the respondent at his last known address. The company, when sending the documentation, had also requested the respondent to instruct them as to how he wished to proceed. No reply was received, however, from the respondent in the matter.
As no instruction had been received from their client, Mr Flynn told the Equality Officer that his company would not be attending the Hearing and that they would be relying solely on the witness statements submitted to support their client’s case.
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 Barry’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.
6.3 In the Equality Tribunal’s Guide to Procedures in Equal Status Cases, specific reference is made as follows to situations where a party does not attend a Hearing: “Where either party fails to appear at the Hearing of a complaint and no satisfactory reason has been given, the Equality Officer may proceed to hear and determine the case in their absence. A written decision will then issue.”
The Guide also states that “if the respondent does not appear, this may mean that the case is decided against them. Written material sent to the Equality Tribunal is not a sufficient basis to defend a case, unless the defence is agreed: the respondent should also appear to give their evidence.”
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 In the absence of the respondents at the Hearing, I must base my decision as to whether the complainant has established a prima facie case of discrimination on the evidence which is before me. In this regard, I note that the only reason put forward by the respondents for the refusal was that the complainant was under the influence of alcohol. The complainant, however, argues that this was not the case and maintains that the refusal was connected with his disability. To support his case, the complainant asked for the attendance of the Gardai who allegedly stopped him on his motorbike on 17 August 2002. At the Hearing, however, the Garda witness, while able to confirm that the complainant was sober on the night they met, could not state for definite that it was the 17 August.
Therefore, to enable me to proceed with my deliberations, I must first decide whether I am prepared to accept from the evidence before me that 17 August 2002 was in fact the same night that the Gardai stopped Mr Maher at a checkpoint.
In considering this 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 In the absence of any further evidence from the respondents, I find that there is no other information before me to indicate that there may have been another acceptable reason for the doorman’s decision on the night in question. As a result, I can only conclude, on the balance of probabilities, that the refusal was associated with the doorman’s attitude towards Mr Maher’s disability.
Accordingly, I find that the complainant has established a prima facie case of discrimination on the disability ground, that the burden of proof has shifted to the respondent and that the respondent has failed to rebut the allegation.
7 Decision
7.1 I find that a prima facie case of discrimination has 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 and that the respondent has failed to rebut the allegation.
7.2 In considering the level of redress to award, I have taken into account the fact that the complainant was not seriously disadvantaged on 17 August 2002 as he was able to gain admission to another pub shortly after the refusal by the doorstaff. Accordingly, I order that the respondent pay the complainant the sum of €200 for any humiliation experienced by him.
Brian O’Byrne
Equality Officer
28 February 2005