Winifred Tuohy, Mary Delaney and Michael Tuohy (represented by Donal T. Ryan Solicitors) -v- Mr James O’Doherty, The Maid of Erin Pub, Tipperary Town (represented by J.J. Fitzgerald & Co., Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Winifred Tuohy, Mary Delaney and Michael Tuohy that they were discriminated against, contrary to the Equal Status Act 2000, by the Maid of Erin Pub, Tipperary Town.
The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) 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 complainants state that they went into Maid of Erin Pub at 3 pm on Friday 17 January 2003 for a cup of tea but when they sought service, a barman informed them that they were not being served. The complainants believe that service was refused because they were recognised as Travellers.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the alleged incident could not have happened as described on the date in question as the pub had ceased trading the previous November and did not reopen until March 2003 when a new lessee took over the running of the pub.
4 Delegation under the Equal Status Act, 2000
4.1 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 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.
5 Evidence of Complainants
- Winifred and Michael Tuohy state that they met Mrs Tuohy’s mother, Mary Delaney, while shopping in Tipperary Town at lunchtime on Friday 17 January 2003.
- They say that around 3 pm they emerged from a Charity Shop next door to the Maid of Erin and decided to have a cup of tea and a sandwich.
- As Mrs Delaney had been in the Maid of Erin before, she suggested that they go in there. Neither of the other complainants had been in the pub before.
- The complainants say that the pub door was open and that they were able to gain access with no difficulty.
- They say that a barman was present wearing a shirt and tie. He was standing behind the bar cleaning glasses. None of the complainants recognized him.
- Mary Delaney says that she recalls a fire burning in the corner at the time.
- There were no other customers in the pub at the time according to the complainants
- Mary Delaney then approached the barman and asked for a cup of tea. She says that he replied that he “did not do it”. Mrs Delaney said that she was surprised at this response as there was a sign over the door outside stating the food was served all day.
- At the Hearing on 20 October 2004, the complainants produced a photograph showing the sign over the door. The photograph also shows the Charity Shop next door which the complainants state they were in prior to the refusal.
- On being told that she was not getting tea, Mrs Delaney said that she then asked for a glass of Guinness. The barman informed her at that point that he was not serving her.
- William Tuohy said that he himself also asked for a glass of Guinness but was also refused.
- When they asked the barman for a reason, they say that he told them that he did not have to give a reason. He also refused to give his name when asked for it. The complainants state that the barman became angry and rude at that point.
- At no time did the barman state that the pub was closed for business, according to the complainants.
- Mrs Delaney said that no reference was made by anyone to their membership of the Traveller community but she felt that this was the reason as the barman looked at them “as if we had two heads”.
- When William Tuohy visited the pub some months later, he said that a different barman was on duty at that time.
5.2 Evidence of Respondent
- Mr James O’Doherty said that his primary business is in agriculture and that over the years he has had regular dealings with members of the Traveller community to whom he supplies horse feed. He said that he knew Mrs Delaney from before through his dealing with other members of the Traveller community.
- Mr O’Doherty said that he and a partner purchased the Maid of Erin in 1999 and that he subsequently bought out the partner in 2001.
- He operated the pub himself until July 2002 at which point he decided to lease it to enable him to concentrate more on his agriculture business.
- In July 2002, his brother, who already ran another pub himself, took over the Maid of Erin on a 5 year lease. Mr O’Doherty’s original staff were let go and his brother brought in his own staff.
- In November 2002, Mr O’Doherty states that his brother suddenly decided to relinquish the lease and handed back the pub to Mr O’Doherty. On account of what happened, Mr O’Doherty said that he had a “falling out” with his brother and that they haven’t been on good terms since.
- As a result of his brother’s departure, Mr O’Doherty said that he was forced to close the Maid of Erin in November 2002 and that it did not reopen for business until March 2003 when a new lessee was found.
- Mr O’Doherty states that his brother gave him back the keys and that, therefore, the brother would not have had the means of opening the pub between Nov 2002 and March 2003.
- Mr O’Doherty believes that the premises remained completely closed for the 4 months except for some decorating and cleaning. The cleaning would have taken place at weekends by his niece who was in college.
- While the pub was closed, all stocks of glasses and any remaining stocks of drink were left in place. These were handed over to the new lessee in March 2003 as part of the lease deal.
- In the interim months, Mr O’Doherty said that the keys were held by a local auctioneer whose job it was to find a new lease holder. The only time the auctioneer opened the premises was to show it to prospective lessees and these visits were always prearranged with Mr O’Doherty.
- The auctioneer has since told him that he has no record of a viewing on 17 January 2003.
- With regard to the comment about a coal fire, Mr O’Doherty said that this could not be correct as the coal fire had been replaced some years previously by a “coal effect” gas fire.
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)(i) of the Act specifies the Traveller community 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 complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment they received in being refused service on 17 January 2003.
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.
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 Traveller community 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 complainants have satisfied me that they are members of the Traveller community. In relation to (b), the complainants state that the incident definitely took place in the Maid of Erin on 17 January 2003 as described. In contrast, the respondents claim that the incident could not have occurred as the pub would have been closed on the date in question. To determine whether a prima facie case exists, I must, therefore, decide firstly whether I am prepared to accept the complainants’ claim that the pub was open on 17 January 2003 and, if so, I must then decide whether I am prepared to accept that the complainants were refused service and whether I consider the treatment afforded the complainants was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.3 At the Hearing of this complaint, the complainant’s solicitor, Ms Selma Ryan, stated that she had been previously unaware of the respondent’s claim that the pub had been completely closed for four months and referred to the reply to the original notification from James O’Doherty which simply stated that “the Maid of Erin was not open for business at 3.00 pm January 17th, 2003”. For this reason, she said that she felt that she was being placed at a disadvantage in having to deal with a different defence at the Hearing as she had not had an opportunity to investigate, to her own satisfaction, the claim that the pub had been closed for months. In response, Mr O’Doherty stated that he had conveyed this information to a colleague of Ms Ryan’s by telephone when he had contacted the solicitor’s office to establish whether the complaint was “a joke”.
At the Hearing, I indicated to the respondents that I also was unaware of the fact that the pub had allegedly been closed for 4 months and asked why this information had not been conveyed to me prior to the Hearing. Mr O’Doherty stated that he was surprised at this and said that he thought that his solicitor would have had submitted the lease details to the Equality Tribunal prior to the Hearing.
7.4 There is a clear conflict of evidence in this case and I find that I have no hard indisputable evidence from either party to convince me that the Maid of Erin was definitely closed or definitely open on 17 January 2003. While James O’Doherty states that he closed the premises in November 2002, it would appear that there were a number of occasions when others were on the premises (decorators, cleaners, auctioneers). In addition, while the evidence suggests that Philip O’Doherty may have relinquished the lease in November 2002, I find that there is little or no evidence before me to convince me that he definitely did not set foot on the premises in the months that followed.
From the complainants’ perspective, one must consider whether there is a possibility that it was another pub, close to the Maid of Erin, that refused them service. This point is raised by the dispute between the parties as to whether a coal fire was burning in the pub on the day in question. In considering this point, I am drawn to the photo produced by the complainants showing the Maid of Erin and the Charity Shop they say they visited immediately beforehand and, based on their description of events, I find it difficult to accept that they could actually have made a mistake in relation to which pub was involved.
7.5 Because of the unsubstantiated nature of the evidence on both sides, I decided, subsequent to the Hearing, that it would be appropriate to ask the respondents to provide me with whatever documentary evidence was available to them to indicate that the Maid of Erin was not trading in January 2003 and that the premises were uninhabited. In particular, I asked for sight of all books and ledgers relating to the business as well as electricity bills and phone bills for the period between April 2002 and March 2003.
In response, the respondents submitted documentation confirming that James O’Doherty closed his own account with his drinks supplier in July 2002. A statement was also submitted from his brother Mr Philip O’Doherty stating that he closed the Maid of Erin in November 2002 and that it remained closed until March 2003. In response to this information, I specifically asked the respondents to supply copies of documentation identifying Philip O’Doherty’s drinks supplier and evidence as to when supplies ceased to be supplied to him. However, despite several reminders to the respondents, this documentation has not been submitted.
In addition, the electricity bills and phone bills which were sought in respect of the Maid of Erin premises up to March 2003 were not submitted in evidence.
As part of my investigations, I also decided to write to the local Gardai for any information they had as to the status of the Maid of Erin in January 2003. In reply, I received a telephone call from Sergeant Dan Mitchell who told me that he certainly recalled the Maid of Erin being closed over Christmas 2002 but could not say for definite that it had been closed entirely for the full four months between November 2002 and March 2003.
7.7 Having considered this complaint on the basis of the evidence that has been put before me, I find that the respondents, in failing to produce the books, ledgers and bills sought, have not satisfied me that the Maid of Erin pub was definitely closed on 17 January 2003. Accordingly, on the balance of probabilities, I am prepared to accept the complainants’ evidence that they did gain access to the Maid of Erin pub on 17 January 2003.
7.8 Having found, on the balance of probabilities, that the complainants did gain access to the Maid of Erin on 17 January 2003, I am also prepared to accept the complainants’ claim that they were refused service and, in the absence of any alternative explanation from the respondents, I am prepared to accept that the refusal arose from the fact that the complainants were recognised as members of the Traveller community.
7.9 Subsequent to the Hearing of this complaint, the respondents made the argument that Philip O’Doherty and not James O’Doherty was the legal licensee of the Maid of Erin at the time of the complaint and that Philip O’Doherty and not James is the correct respondent in this matter. In support of this claim, two publican’s licenses were submitted. The first for the period 17 July 2002 to 30 September 2002 and the second from 17 February 2003 until 30 September 2003. I note, however, that no license has been produced to indicate who, if anyone, was licensed to operate the Maid of Erin between 1 October 2002 and 16 February 2003, the period during which the alleged refusal occurred.
In considering this argument further, I also note that, when the original complaint notification was sent to the Maid of Erin Pub, it was James O’Doherty who responded to it which, in my opinion, indicates that it was he who had responsibility for the pub at the time of the alleged incident and not his brother. This point is further supported by James O’Doherty’s own evidence that Philip O’Doherty had surrendered the lease and relinquished his interest in the pub in November 2002.
On the basis of the above points, I consider that James O’Doherty is the correct respondent in this case.
7.10 Based on the evidence before me, I find that a prima facie case of discrimination has been established by the complainants in the matter and that the respondent have not provided sufficient evidence to rebut the allegation..
8 Decision
8.1 I find that a prima facie case of discrimination has been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation.
I order that the respondents pay each of the complainants €400 for the loss of amenity suffered.
Brian O’Byrne
Equality Officer
24 June 2005