DEC-S-2005-040 Mr.Martin Nevin,
DEC-S-2005-041 Mrs Winifred Nevin,
(Represented by Kevin P. Kilrane & Co., Solicitors) V Patricia McKeon Publican (Longford) (represented by Groarke & Partners Solicitors)
The complainants referred a claim to the Director of the Equality Tribunal on 25th February 2002. 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, 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 Act, 2000.
1. Dispute
1.1 The dispute concerns a claim by Mr. Martin Nevin and Mrs.Winfred Nevin that they were discriminated against by Patricia McKeon, Publican, on the ground that they are members of the Traveller Community. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Acts, 2000-2004, contrary to Section 5(1) of that Act.
2 Background
2.1 The complainants’ case is that when they entered the respondent’s bar on 31 December, 2001 and requested a service they were refused. The complainants submitted that they believe that the refusal of service was due to the fact that they are members of the Traveller community. The respondent submitted that the complainants were not discriminated against on the ground that they are Travellers, but they were refused service because Mr. Nevin had been barred from the pub because of his behaviour on previous occasions.
3 Summary of the Complainants’ Case
3.1 The complainants stated that they are members of the Traveller community living in Longford. At about 7:50 pm on 31 December 2001 they entered the respondent’s pub to have a drink. They both approached the counter and Mr. Nevin ordered two drinks, a pint of shandy for himself and a brandy for his wife. He said that the barmaid was filling the drinks and as she did so a man approached her and said something to her. The barmaid then came back to Mr. Nevin and told him she could not serve them. Mr. Nevin asked for a reason but the barmaid made no reply. Mr. Nevin said that there were other people in the bar at the time and he felt embarrassed about being refused.
In response to the respondent’s response, Mr. Nevin denied that he had been barred from the premises for about twenty years and that he had been barred again in 1997. Mr. Nevin also denied that he was in the pub in 1997, or that he became involved in an argument with Mr. McKeown, and that he struck his fist off the counter during this dispute. Mr. Nevin submitted that he had never being in the respondent’s premises before. He also submitted that he was off alcohol due to a medical condition. In support of this claim Mr Nevin submitted a medical report.
3.2 The complainants submitted that the only reason they were treated in such a manner by the respondent was due to the fact that they are members of the Traveller community.
4 Summary of the Respondent’s Case
4.1 The respondent submitted that the complainants were not discriminated against on the Traveller community ground. It was submitted that the complainants were refused service because Mr. Nevin was barred. Mr. John McKeown, the then proprietor of the pub, said that Mr. Nevin was barred on the first occasion about 20 years ago. He was with a number of people who had caused a disturbance in the pub and as a result they were all barred.
He submitted that Mr. and Mrs. Nevin came into the pub in the summer of 1997, (not Summer 2000 as stated in the response to the complaint) and they were served by Ms. Rose Percival, who was not aware that Mr. Nevin was barred. Mr. McKeown said that he saw the complainant in the pub on the security camera and he came into the bar. He intended to refuse Mr. Nevin because he was barred, but Mr. Nevin approached the counter, and after serving him a box of matches he complained and demanded his money back. He then struck his fist off the counter and abused Mr. McKeown. Mr. Nevin then asked him for a drink and Mr. McKeown refused him and told him he was barred. Mr. McKeown gave evidence that he was confused about the date of this incident, he thought it occurred in the Summer of 2000, but he now knows it occurred sometime in 1997.
Mr. McKeown said that subsequently he was having a drink in another pub and he was approached by Mr. Nevin and his son. They demanded the reason Mr. Nevin was not served in McKeown’s. He told them to come into his pub next day and he would explain to them. Mr. McKeown said that he felt threatened by the aggressive nature of this approach. He also submitted that Mr. Nevin knew full well that he had been barred from McKeown’s.
4.2 Ms. Rose Percival said that she was working in McKeown’s and in or about the Summer of 1977 the complainants came into the pub. She did not know that Mr. Nevin was barred before she served him, but she was informed by Mr. McKeown later. She gave evidence that she had worked in another pub and she knew the complainants. She was surprised to learn that they had been barred from the respondent’s premises as they had never caused any trouble in the other bar. She was instructed by Mr. McKeown over the telephone not to serve them. She told Mr. McKeown that he would have to speak to them himself as she knew the complainants. Mr. McKeown entered the bar and spoke to Mr. Nevin. She heard Mr. Nevin having a dispute with Mr. McKeown.
4.3 Mr. McKeown’s daughter took over the license of the pub in 2001 and she said that she was aware from her father that Mr. Nevin was barred. Her husband Mr. Graham Carr said that he had worked in the pub for a number of years and he was told by Mr. McKeown that Mr. Nevin was barred. On 31st December 2001 he saw Mr. and Mrs Nevin in the pub and he told the barmaid not to serve them as they were barred.
The respondent denied that the pub operates a discriminatory policy against Travellers. It was submitted that Travellers regularly drink in the pub and in fact the complainants’ son and some of his grandchildren are regularly served there.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
“On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, thediscriminatory grounds ... are ...
that one is a member of the Traveller community and the other is not.”
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000-2004 must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainants, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
5.3 I have identified the key issues to establish a prima facie case as follows:
(i) are the complainants covered by the discriminatory ground? (in this case are they members of the Traveller community?)
(ii) were the complainants subjected to specific treatment?
(iii) is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
5.4 I am now going to examine the issues I have identified above and consider whether the complainant has established a prima facie case.
5.5 Definition of Traveller
In the Equal Status Act, 2000 the Traveller community ground is defined as follows:
“means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a share history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”.
I am satisfied that the complainants are members of the Traveller community as defined by the Act. .
5.6 It was accepted by both the complainants and the respondent that the complainants were refused service on 31 December, 2001 so the second element of the test has been established.
5.7 I am now going to examine the third element of the test to see if the complainants have produced sufficient evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that discrimination had occurred. The complainants case is that they were asked to leave the pub on 31 December, 2001 for no good reason and they believe this occurred because they are members of the Traveller community. The respondent’s case is that Mr. Nevin was barred from the premises for over twenty years and that he was again told in 1997 that he was barred. On both occasions it was submittedby the respondent that Mr. Nevin had created trouble in the pub.
5.8 There was a complete conflict of evidence in relation to the events surrounding the refusal of service on 31 December 2001, so it is necessary for me to determine which evidence I found to be more compelling. Mr. Nevin denied that he was barred from the pub and submitted that this was the first occasion he had been in the respondent’s premised and he was supported in this evidence by Mrs. Nevin.
The respondent’s case was that the Mr. Nevin had been barred because of his behaviour on two previous occasion. I found the evidence given by the respondents and his witnesses to be more compelling than the evidence of the complainants. In particular I found the evidence of Ms. Rose Percivel to be very credible. She gave evidence that the complainants had been in the pub sometime in 1997 as she knew both of them from another pub she had worked in. She said that she was surprised that they had been barred from this pub as they had not caused any problem in the other pub.
5.9 I am satisfied from this evidence that the complainants had been in the respondent’s premises in 1997. I am also satisfied that Mr. Nevin was barred over twenty years ago because of a disturbance in the pub and that in the Summer of 1997 Mr. McKeown again related to Mr. Nevin that he was barred.
Mr Nevin was therefore barred on the 31st December 2001 when he entered the respondent’s premises. I am now going to examine the evidence to see if the policy in relation to barring discriminated against Travellers. The respondent submitted in evidence that customers are barred for a variety of reasons including being drunk, disorderly, aggressive to staff, fighting or breaking glasses. Once a person is barred they are not allowed back in unless the incident is not so serious and the person involved apologises for their behaviour. It was submitted that Mr. Nevin was barred for causing trouble and that he has never apologised for this behaviour and that he continues to be barred. I am satisfied from the evidence that the policy of the pub in relation to barring customers did not discriminate against Travellers. I find that the barring of Mr. Nevin on both occasions was not associated with his membership of the Traveller community and that he was barred for behaviour that a non-Traveller customer would have been barred for engaging in, in similar circumstances. I find therefore that Mr. Nevin was not refused service on 31st December 2001 because he was a Traveller, but that he was refused service because he was barred. I find that Mr. Nevin has failed to establish a prima facie case of discriminatory treatment.
5.10 I find that the only reason Mrs. Nevin was refused service was because she was in the company of her husband who had been barred. I am satisfied that a non-Traveller in the company of a person who was barred would also have been refused service in similar circumstances. I find that she has failed to establish that she was treated less favourable that non-Traveller customer would have been treated in similar circumstances and that she has failed to establish a prima facie case of discriminatory treatment.
6. Decision
6.1 On the basis of the foregoing, I find that the complainants, Mr. Martin Nevin and Mrs. Winifred Nevin, were not discriminated against by Ms. Patricia McKeown Publican, on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Acts, 2000 -2004 and in terms of Section 5(1) of that Act.
______________________
Marian Duffy
Equality Officer
10th June, 2005