Martin Kiely (Represented by Noonan Linehan Carroll Coffey Solictors) V Cantorland Limited t/a the Blackrock Inn (Cork) (represented by Mr. Pearse Sreenan B.L. instructed by Stokes & Co., Solicitors)
The complainant referred a claim to the Director of the Equality Tribunal on 21st June 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 Kiely that he was discriminated against by the Blackrock Inn on the ground that he is a member of the Traveller Community. The complainant alleges that the respondent discriminated against him 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 Mr. Kiely’s case is that he booked the function room in the Blackrock Inn for a party on 24th December 2001, and when he arrived there with a group of about sixty to seventy of his friends, they were refused entry to the party. The complainant submitted that he believes that the refusal was due to the fact that he and his friends are all members of the Traveller community. The respondent submitted that the complainant was not discriminated against on the ground that he is a Traveller, but he was refused entry because the venue was not booked for a function on 24th December 2001. The respondent agreed that he received an enquiry about the availability of the function room, but the booking was never confirmed in accordance with the policy for booking the function room of the Blackrock Inn.
3 Summary of the Complainants’ Case
3.1 Mr. Martin Kiely stated that he is a Traveller and a business man and he decided to organise a party for his relatives and friends as members of the Traveller community find it difficult to get service in pubs. He approached Marlboro Entertainments and Promotions where he spoke to Mr. Roy McCarthy. He gave Mr. McCarthy his requirements for a party to be held on 24th December 2001. He said that he needed a venue to hold sixty to seventy people and he also required entertainment. A number of days later Mr. McCarthy contacted Mr. Kiely to say he had found a venue and he needed a deposit for the entertainment. Mr. Kiely said that he called to Mr. McCarthy with the deposit of £50 and while he was there Mr. McCarthy telephoned the Blackrock Inn to confirm the booking. Mr. McCarthy also booked a karaoke entertainer. Mr. Kiely said that he told Mr. McCarthy he did not need food at the party.
Mr. Kiely said that he subsequently received two telephone calls from the Blackrock Inn inquiring if he needed food. Mr Kiely then got tickets printed for distribution amongst the invitees. He kept the name of the venue off the tickets because he wanted the numbers limited to sixty to seventy people and he was afraid that if other people heard about the party they would turn up at the venue. He also hired a bus to take the people to the party. He sold the tickets to the invitees for £5, the ticket was to provide entry to the bus and entry to the function at the Blackrock Inn.
On 24th December Mr. Kiely said that he arrived at the venue by bus at about 9pm. As they approached the door of the venue he could see that the people were being refused entry. He said that two men were blocking the door and refusing entry to the venue. He was told that there was no party booked and that the function room was booked by the golf club. Mr. Kiely said that the function room was in total darkness. The karaoke entertainer was also there and she already had been told that there was no party booked.
Mr. Kiely said that he was very aggrieved and embarrassed because he had organised the party. He asked the management to call the Gardaí. The Gardaí arrived and Mr. Kiely related what had happened. The Gardaí were sympathetic and advised Mr. Kiely to consult his solicitor. They then got back on the buses to return home. Mr. Kiely said that he went to his local pub where he was served.
In response to the respondent’s claim, that the booking was not made and that the party could not be accommodated on their unexpected arrival, Mr Kiely stated that the booking was made and he was contacted by two different managers from the Blackrock Inn after Mr. McCarthy had made the booking enquiring about the requirements for the party. He denied that Mr. McCarthy told him to contact the Blackrock Inn directly or that he gave him the telephone number of the respondent.
4 Summary of the Respondent’s Case
4.1 The respondent submitted that the complainant was not discriminated against on the Traveller community ground. It was submitted that Mr. Kiely had not booked the function room for the 24th December 2001. Mr. David Canty assistant manager stated that he recalled getting an enquiry from Mr. McCarthy of Marlboro Entertainment about the availability of the function room for a party on the 24th December 2001. He told Mr. McCarthy that the function room was available, but if the party required food that the room would not be available as it was Christmas Eve and the pub would be closing early. He also told Mr. McCarthy that his client would have to contact the Blackrock Inn directly and to discuss the requirements and to pay a deposit. Mr. Canty said that he had no further contact with Mr. McCarthy and his client did not contact the Blackrock Inn to pay the deposit or to confirm a booking.
4.2 At about 9:30pm on the 24th December a bus full of people arrived outside the pub. Mr. Kiely approached the door seeking admission to a party. Mr. Canty said it was at this stage that he recollected the telephone call about the availability of the function room. He told Mr. Kiely that they could not be admitted as no booking had been made and the bar was not set up or stocked and they had not got adequate staff on duty that night to cater for such a large party. It was Christmas Eve and the pub was closing at 11pm so that staff could get home for Christmas.
4.3 Mr. Rory O’Leary, Manager, stated that the policy in relation to booking the function room was that a member of the party seeking to make a booking would have to meet with the Manager of the Blackrock Inn to discuss the requirements for the party and a booking deposit would have to be paid. He said that it is not possible to take a booking on the telephone. He said that he would be reluctant to hold a function on Christmas Eve and if food was required he would not accept a booking. If he held a function on Christmas Eve he would have required at least two weeks notice. A number of the staff live outside Cork city and they would have to leave early on Christmas Eve and the pub would be closed at 11pm.
4.4 Mr. Roy McCarthy of Marlborough Entertainment said that his company is an entertainment agency and organises bookings for a number of entertainers. He said that Mr. Kiely contacted him about organising a Christmas party around 6th December, 2001. He was looking for entertainment and a venue for the party. Mr. McCarthy said that that he took the details and told Mr. Kiely he would contact him again. He contacted a karaoke entertainer and asked her to keep the date free. Mr. McCarthy said that he does not normally book venues for functions but on this occasion he contacted a number of venues on behalf of Mr. Kiely. He telephoned the Blackrock Inn and spoke to Mr. Canty who informed him that the function room was available on the night. Mr. Canty told him to get his client to contact him directly about the function. If the party required a full meal they would not accept a booking.
4.5 Mr McCarthy then contacted Mr. Kiely and he came into his office the following day with the deposit for the karaoke entertainer. Mr. Mc Carthy told Mr. Kiely that the Blackrock Inn was available for the party but he would have to contact the Blackrock Inn direct to make the arrangements. He wrote down Mr. Canty’s name and telephone number and gave it to Mr Kiely. He understood that Mr. Kiely would make the booking himself as instructed with the Blackrock Inn. Mr McCarthy confirmed the booking with the karaoke entertainer. Mr. McCarthy said that he had no further contact with either Mr. Kiely or the Blackrock Inn until the 24th of December when he was contacted by the karaoke entertainer and informed that there was no function in the Blackrock Inn. Mr. McCarthy said that as far as he was concerned he only booked the entertainer and the booking of the function room was a matter to be sorted by Mr. Kiely with the Blackrock Inn. He only enquired about the availability of the function room and relayed the information he got from Mr. Canty to Mr. Kiely.
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 discrimination 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) is the complainant covered by the discriminatory ground? (in this case is he a member of the Traveller community?)
(ii) was the complainant subjected to specific treatment?
(iii) is there evidence that the treatment received by the complainant 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 complainant and the respondent that the complainant was refused entry to the Blackrock Inn on 24 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 complainant has produced sufficient evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that the complainant had received less favourable treatment. The complainant’s case is that he had a booking for a function at the Blackrock Inn on 24 December 2001 and he was refused access. He submitted that the Blackrock Inn became aware earlier that evening when a number of Travellers called to the respondent’s premises looking for tickets to the function that the booking was for a Traveller function. He believes that the respondent, at that stage, realised that the booking was for a Traveller function and this is the reason the booking was cancelled. The respondent stated that there was no confirmed booking made. They accepted they had received an enquiry about the availability of the function room from Marlborough Entertainment, but it was not followed up and Mr. Kiely, as instructed by Mr. McCarthy, did not contact the respondent to discuss his requirements or pay a deposit in accordance with the policy for making a booking.
5.8 There was a complete conflict of evidence in relation to the events surrounding the incident so it is necessary for me to determine which evidence on balance is the more compelling. Having evaluated the evidence presented by both parties I am satisfied that Mr. Kiely was instructed to contact the respondent directly in relation to booking the function room. I believe that Mr. Kiely was either mistaken in his belief that the function room was booked, or that he may have misunderstood the instructions given to him by Mr. McCarthy of Marlborough Entertainment. The complainant stated in evidence that he was contacted on two occasions by the Blackrock Inn following the booking concerning his requirements for the party. The two witnesses for the respondent denied that they contacted the complainant and said that as there was no booking made it was not necessary to contact the complainant. The complainant did not produce any independent evidence in relation to this point. On balance I found the evidence of the respondent witnesses to be more compelling on this point. I am satisfied that the respondent was not in telephone contact with the complainant about his requirements for the party.
5.9 Overall I found the evidence of Mr. McCarthy of Marlborough Entertainment most compelling and I have concluded that the respondent’s function room was not booked by him for the complainant’s party. He merely made an enquiry about its availability and passed on the information to the complainant. As the complainant failed to make contact with the respondent the function room was not booked and the respondent was unable to accommodate the party when they unexpectedly arrived and hence the reason for the refusal of access. I find that Mr. Kiely was not refused entry to the respondent’s premises because he is a Traveller. He was refused because he had not booked the function. I am satisfied that the complainant has not established that he was treated less favourably than non-Travellers would have been treated in a similar situation. I find, therefore, that he has failed to establish a prima facie case of discriminatory treatment.
6. Decision
6.1 On the basis of the foregoing I find that Mr. Martin Kiely was not discriminated against by the respondent, the Blackrock Inn on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act.
______________________
Marian Duffy
Equality Officer
30th June, 2005