William Moorehouse(represented by Nicholas Hosey BL instructed by Augustus Cullen and Company Solicitors) V The Old Forge(represented by Mason Hayes and Curran Solicitors)
Delegation under the Equal Status Act, 2000
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 this complaint to me Mary O’Callaghan, 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.The hearing of the case took place on Thursday 10th February 2005.
1. Dispute
1.1 This dispute concerns a claim by Mr. William Moorehouse that he was discriminated against on the ground of his membership of the Traveller Community when he sought service at the Old Forge, Wicklow, in February 2002. Mr. Moorehouse alleges that the treatment he received was contrary to Section 3 (2) (i) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public he was subjected to treatment contrary to Section 5(1) of the Act.
2. Summary of the Complainant’s Case
2.1 Evidence of William Moorehouse
The complainant Mr. William Moorehouse said that he went to the Old Forge at about 9.30 pm on the evening of 23rd February 2002. He said that he was not a regular customer of the pub and had already been in another pub in the locality, Paddy O’s, where he had one drink. Mr. Moorehouse said that he was speaking to a friend on his mobile phone as he entered the pub and that his voice could be heard. It was a Saturday night and the pub was reasonably busy.
Mr. Moorehouse said that he approached the counter for service where he ordered a vodka and Red Bull. He said that the woman behind the counter told him that the pub did not stock Red Bull. The complainant then changed his order to Smirnoff Ice and he said he was told to take a seat and the drink would be brought to him. The complainant said that that he was respectably dressed in smart casual clothing on the evening and was wearing a man’s gold chain. He did not consider himself to be in any way dishevelled.
The complainant said that about five minutes after he sat down the bar woman came to him and told him he would not be served and he asked for a reason. He said that he was told that he had been fighting in the pub the week before. He suggested that he should call the Gárdaí as he believed that if there had been a fight involving him in the pub that they could verify what had happened. He said that he had not been involved in any previous incidents in the pub. He said it was suggested that he did not look 18 and he offered his ID but even then he was not served. He said that he asked the barwoman for her name and was told it was Gill Kavanagh. He said he then left.
The complainant said that he is a member of the Traveller community and is a member of one of the few Traveller families in Wicklow. Mr. Moorehouse said that he lived in Rathnew about a mile from Wicklow, where the Old Forge is located. He said that at no point had he been told that he was barred from the Old Forge prior to this occasion. When asked about previous incidents at the pub where it was suggested that he was present, the complainant said that he was not involved. He said that the last time he had been in the Old Forge prior to the date of the incident complained of was St. Patrick’s day, 2001 almost one year previously. Mr. Moorehouse was asked if he was the person referred to in a newspaper item concerning court proceedings arising from events in another licensed premises in Wicklow some weeks prior to the incident complained of and he acknowledged that he was.
The complainant said that he believed that he was recognised as member of the Traveller community when his accent was heard as he walked into the pub speaking on his mobile phone and he believed that this was the reason he was refused service in the Old Forge on the evening of the 23rd February 2002. He said that he believed that this was discriminatory treatment.
3. Summary of the Respondent’s Case
3.1 Evidence of Mr. John Kavanagh Respondent
The respondent Mr. John Kavanagh said that the pub had been under his management since 1999. It has a capacity of 500 patrons and had a mixed clientele. He said he didn’t know the complainant personally but knew of him and knew his father and members of his family from the Bray area. He accepted that Mr. Moorehouse is a member of the Traveller community. Mr Kavanagh said that he wasn’t working in the pub on the evening of the incident complained of but knew of it from reports he had received and through his inspection of the incident book kept at the pub.
Mr. Kavanagh was asked about circumstances that might lead to someone being barred from the premises. He said that depending on the severity of the incident, a barring could be either temporary or permanent. He said that barrings arose from situations such as drunk and disorderly behaviour or violent behaviour for example misuse of an ashtray as a potential weapon. Regarding how people would be informed that they were barred he said that the manager on duty the next time they came in would inform the barred person.
3.2 Evidence of Ms Gillian Kavanagh
Ms Kavanagh said that she was the person who dealt with Mr. Moorehouse the complainant when he came to the pub on the evening of 23rd February 2002. She has been working in the Old Forge since January of that year and at that time she said that she would not have known the regular customers. She said she did not know the complainant and at that time did not know him to be a member of the Traveller community. She recalled that the incident occurred on a Saturday night when two others were working with her at the bar.
Ms Kavanagh said that she recalled the complainant coming into the pub but she said she did not notice that he was using a mobile phone at the time. She said that he approached her at the counter and ordered a vodka and Red Bull and she told him that the pub did not sell Red Bull Another drink was then ordered by the complainant. She recalled asking the complainant to take a seat while she got his drink and she said that she noticed that the complainant was dressed in an unkempt fashion, wearing a leather jacket, and that his shirt was hanging out. She said that he had blonde streaks. She said that she considered that he didn’t seem “comfortable”. Ms Kavanagh said that she was alarmed by the complainant ordering vodka and Red Bull as she said that consumption of this combination of drinks often resulted in trouble and this was why it was not served in the pub.
Ms Kavanagh said that she felt uneasy about the complainant and said that how he presented himself, “the whole package”, was not right. She decided to consult with Michael Wikkelsoe who was working in the pub with her that night. She said that when Mr. Wikkelsoe saw the complainant he told her that he was barred and that he had to be removed before. She said that she then went to the complainant and told him “Sorry I can’t serve you.” She said that she said nothing to him about fighting the week before and that she did not know of any fighting incident in the pub the week before. She said that the complainant then stood up asked her for her name and when she gave it he thanked her and walked out. Ms Kavanagh said that this would be the normal way of refusing someone in the pub. She said that she did not know that the complainant was barred until she was told that he had caused trouble before and had been barred as a result of that. She said that she did not refuse him because she recognised him as a member of the Traveller community and that she had no previous knowledge of the complainant.
Ms Kavanagh was asked why someone might be barred from the pub and she said that disrespect for staff, singing, mishandling an ashtray were reasons. She also said that if someone brought in drink that was not purchased on the premises he/she would be barred. Ms Kavanagh said that the pub did not have a policy of not serving the Traveller community and that Travellers had been served in the pub. Ms Kavanagh was asked about a letter she had written to the complainant shortly after the incident in response to his notification of complaint in which she said that she was not working in the pub on the 23rd February 2002 and that from her enquiries from staff the complainant had not been in the pub that night. She said that this letter had been written as a result of confusion about the date of the incident with the date of her birthday but that she now accepted that the incident had occurred on the 23rd February 2002 and that she had dealt with the complainant that night. She said that a record of the incident was entered in the incident book of the pub. It was agreed that the incident book would be submitted to the Tribunal following the hearing
3.3 Evidence of Mr. Michael Wikkelsoe
Mr Michael Wikkelsoe said that he was working in the pub on 23rd February 2002 and that Ms Gillian Kavanagh and Ms. Aisling O’Mahoney were working there also that night. He said that he remembered the complainant, Mr. Moorehouse being in the pub that night and that he was not served. Mr. Wikkelsoe said that he did not know Mr. Moorehouse to be a customer of the pub.
Mr. Wikkelsoe said that he recalled Gillian Kavanagh asking him about the complainant and saying that she was unsure about serving him. He saw the complainant sitting at the table and he said he told Ms Kavanagh that he was barred following a previous incident. He said he didn’t know the complainant’s name. He said that he was aware that Mr. Moorehouse was a member of the Traveller community.
When asked about the reasons someone might be barred he recalled incidents of people using “hash” in the beer garden, occasions when people had too much drink taken and incidents of aggression. Mr. Wikkelsoe recalled an incident which involved the complainant in the summer of 2000 when he was among a group of young people who were in the beer garden drinking from cans that were not bought on the premises. The group had their shirts removed and were causing hassle. Mr. Wikkelsoe said that when the group were approached the complainant asked him if he thought he was too young. Mr. Wikkelsoe said that the complainant was barred as a result of that incident. He said that the complainant was also present in the pub at an incident at Christmas 1999 with members of his extended family who misbehaved. He said he believed the complainant had been served since the barring and after the incident complained of. He recalled him being in the pub in 2003 and he was served. He said that on that occasion the person that served the complainant was not aware that he was barred. Mr. Wikkelsoe said that if the complainant came into the pub now he would not be served as he remained barred.
Mr. Wikkelsoe was asked about a conversation he had had with the bar manager of a nearby hotel the week before the incident and he said he was outside the pub talking to “Brendan” the manager of the hotel bar, when the complainant walked by. He said that Brendan pointed the complainant out to him and told him that there had been an incident involving the theft of a handbag in the hotel shortly before and that the complainant was connected with the theft. He said that when he was telling Ms Kavanagh that the complainant was barred, he had recognised him in relation to that event also.
Mr. Wikkelsoe said that a person would not be refused because he was a member of the Traveller community but for other reasons such as inappropriate behaviour.
4 Submissions
4.1 During the hearing the respondent was asked to submit the incident books of the pub for the period concerning the incident complained of and for the period surrounding the incident in the beer garden in 2000 which, it had been asserted, caused the barring of the complainant. While the incident book for the year 2002, the year of the complaint under investigation was submitted, the respondent was unable to locate the earlier book.
4.2 The incident book submitted contained no entry for the 23rd February but did have an entry concerning an incident on 2nd of March involving a young man in his twenties. This incident was marked for the Tribunal’s attention in the book to indicate it as the report of the incident complained of.
4.3 On receipt of the book, the complainant, through his representative, made submissions on its contents and a response to these was also received from the respondent. In the complainant’s submission it is asserted that the fact that no incident is recorded for 23rd February 2002 indicates that no serious incident occurred on the date. This, it is submitted, is the date on which it was agreed at the hearing that the alleged refusal of the complainant occurred. It is the complainant’s submission that the absence of an entry in the incident book for 23rd February proves prima facie that the refusal was for discriminatory reasons. The complainant also submits that the entry relating to an incident on the 2nd March 2002 is questionable based on the assumption that the entry was written by Ms Gillian Kavanagh and refers to previous incidents involving the complainant when she, according to her own evidence, was only recently employed in the pub (Ms Kavanagh said in evidence that she had only commenced working in the pub in January 2002). It is also submitted that the direct oral evidence provided by Ms Kavanagh to the Tribunal at the hearing conflicts with that set out in the incident book entry for 2nd March 2002 regarding the behaviour of the complainant. Regarding the previous incidents, allegedly involving Mr. Moorehouse, the complainant submitted that the absence of an incident book containing a record of these incidents provides no proof that such an incident took place. Evidence in relation to the handbag incident at the nearby hotel should be disregarded since no witness to the complainants consequent barring appeared at the hearing.
4.4 The respondent in his submission, made via his legal representative following receipt of the complainant’s submission outlined above, disputed that a prima facie case of discrimination had been established. He submitted that, although it was agreed by all parties that an incident involving the complainant had occurred in early 2002, it was not confirmed that it had happened on 23rd February. The respondent also submitted that the complainant had said he was served in the local hotel following the incident complained of herein. However, when he was presented with information concerning his involvement in the handbag incident in that hotel he accepted the evidence relating to his involvement in that episode. It was submitted he was barred from the hotel since then. The respondent’s submission is that this evidence questions the complainant’s credibility as a witness, particularly regarding his subsequent attendance in the hotel bar.
5 Conclusions of the Equality Officer
5.1 This case concerns a complaint of discrimination under the Equal Status Act 2000. To reach a decision in the case, I must firstly assess whether the complainant has succeeded in establishing a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria in relation to his complaint. He must (1) establish he is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not a member of the Traveller community would have received in similar circumstances.
5.2 In this case it was accepted by both parties to the complaint that Mr. William Moorehouse, the complainant, is a member of the Traveller community and therefore the first of the three criteria outlined above is satisfied. It is also accepted that he was subjected to a refusal when he sought service in the Old Forge on the evening of the incident in question thus satisfying the second of the criteria. The third criterion, that of the provision of less favourable treatment than that which would have been afforded to a person in similar circumstances and who was not a member of the Traveller community, requires greater consideration in order to determine whether a prima facie case of discrimination has been established by the complainant. If it is found that a prima facie case of discrimination exists, previous Tribunal case law has stated that the burden of proof shifts to the respondent to show that the treatment of the complainant was not discriminatory treatment.
5.3 In this case the complainant entered the pub and ordered a drink which he was told the pub did not stock. Upon ordering an alternative drink he was asked to sit down while it was being prepared. After a short time the barperson came to him and told him he would not be served and he left. The complainant says the reason for the refusal of service was that the barperson recognised him as a Traveller when she heard him speaking on his mobile phone as he was entering the pub.
5.4 The respondent barperson says that she was not aware of Mr Moorehouse speaking on his mobile phone and what caused her to check with her colleagues about him was his general unkempt appearance and she was alarmed at the drink he ordered when he came in, as she felt that this drink usually spelt trouble. I have not found the entry in the incident book to be of assistance to me in determining what happened in this case. While there is no entry for the night of 23rd February the date complained of, the entry for the 2nd March does not provide me with sufficient evidence that the person refused on that night was this complainant.
5.5 It is accepted by both parties to this complaint that the incident took place on a Saturday night at approximately 9.30 pm. If I was to believe that it was, as the complainant has asserted, the sound of his voice as he was speaking on his mobile phone that alerted Ms. Kavanagh to the fact that he is a Traveller and led to her consequent refusal, I consider that I would have to assume that the atmosphere in the pub at that time on a Saturday night was one of quiet. I consider that on the balance of probabilities the pub was reasonably busy at that time on a weekend and it was unlikely that the complainant’s voice/accent could be heard from the counter area, where it is agreed that Ms Kavanagh was when the complainant entered. The fact that there were three bar staff on duty at the time supports this view. Furthermore the complainant himself acknowledged that the pub was busy.
5.6 There is a conflict of evidence about the complainant’s demeanour and dress on the occasion of this incident. The complainant says that he was dressed in what could be described as smart casual, while Ms. Kavanagh said that he was dishevelled and unkempt with his shirt hanging out from his leather jacket. I have not been convinced that the manner of his dress alone, whether casual or unkempt, would have been enough to trigger a refusal. Ms. Kavanagh also suggested that the drink ordered by Mr. Moorehouse - vodka and Red Bull alarmed her and suggested that it was associated with trouble. However, there is no suggestion that there was any trouble from the complainant when he was told that the drink was not available and he ordered an alternative. The complainant complied with her request to sit and wait while she got his drink. I am conscious that Ms Kavanagh was at that time a relatively new member of the bar staff in the pub, having only commenced working there just about a month before this incident. I accept that something made her uncertain about the complainant and that this prompted her to consult with Mr. Wikkelsoe a more experienced member of staff who told her the complainant was barred.
5.7 Mr. Wikkelsoe’s own evidence sets out that he had quite a detailed knowledge of the complainant, although it would appear that Ms Kavanagh, when she refused him, had not been told anything other than that the complainant was a barred person who had caused trouble in the past. What I have to determine here is whether the treatment shown to Mr. Moorehouse was less favourable that that which would be afforded to any person in similar circumstances who was not a member of the Traveller community. In the light of the evidence presented I consider that a member of the bar staff with the limited experience of Ms Kavanagh would correctly have sought the advice of a colleague if she was unsure about a customer. On being presented with the information that this customer was barred from the pub for non discriminatory reasons, she then refused to serve him. I consider that if she had been provided with this information in relation to any customer regardless of his status the customer would not have been served. In this case therefore, I conclude that the third of the criteria set out above has not been met by the complainant in this case.
6 Decision
6.1 I find that the complainant William Moorehouse (DEC-S2005-023) has failed to establish a prima facie case of discrimination on the Traveller community ground. I have found the evidence presented shows on the balance of probabilities that the demeanour of the complainant on the night in question gave cause to Ms Kavanagh to seek advice from a more senior colleague regarding the complainant. On being informed he was barred for misbehaviour on the premises in the past she then refused him and this was not related to his membership of the Traveller community. The evidence of Mr Wikkelsoe regarding the complainant’s past behaviour on the premises gives a background to the reasons for the complainant being barred at the time and I accept this to be the case. The complaint has not been upheld. I find for the respondent in this case.
Mary O’Callaghan
Equality Officer
24th March 2005