Mary Berry, Mary Connors, James Connors, Alice Berry, Thomas Berry and Bridget Connors V The Wexford Arms, Wexford Town (represented by James Cody and Sons, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Mary Berry, Mary Connors, James Connors, Alice Berry, Thomas Berry and Bridget Connors that they were discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the staff of the Wexford Arms, Wexford Town on the grounds of their membership of the Traveller community. The complainants maintain that they were discriminated against 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 Complainants’ Case
2.1 The complainants state that when they entered the Wexford Arms on the 27 or 28 December 2002 they were refused service by the barman on the grounds of their membership of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainants were not refused service but were only asked to wait a few minutes as the barman was very busy at the time.
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 Parties
Note There is a dispute between the parties as to the actual date of the alleged refusal of service. Three of the complainants formally notified the respondents that the alleged discrimination had occurred on the evening of Friday 27 December 2002 while three others identified Saturday 28 December as the relevant date in their notifications. The respondents maintain that the incident occurred on 27 December 2002 while the Garda witness says that his records identify 28 December 2002 as the date in question.
There is also a dispute between the parties as to whether two of the complaints are admissible. In the case of both Mary Connors and James Connors, the respondents received notifications addressed to “Neill Finn, The Wexford Arms”. They maintain that no one by that name has ever been involved with the pub and therefore the notification cannot be deemed to be admissible. For her part, Mary Connors explained how she obtained the name “Neill Finn”. She said that, when completing the notification form, she rang Directory Enquiries and obtained the phone number of the Wexford Arms. She then rang the number and, when someone answered, she asked for their name and was told “Neill Finn”. She then hung up.
- The complainants explained that most of them belonged to the Berry family and that they and their husbands/wives were staying with their parents Mary and Paddy Berry in Wexford over the Christmas.
- On the day before the alleged refusal, the two male complainants and two other male family members, including Paddy Berry, went to the Wexford Arms for a few hours in the afternoon and played pool while having a few drinks. The respondents, PJ Feeney and Jacinta Feeney were both on the premises that afternoon and recall the men being there. All parties agree that there was no problem with service and that no difficulties arose.
- On the day of the incident, the six complainants plus Paddy Berry and Michael Connors (Bridget Connors’ husband) decided to visit the Wexford Arms at 7.30 pm that night. No one had left the house or had a drink earlier that day, according to the complainants.
- They all walked to the pub with the men arriving before the women. The complainants state that the pub was not very busy at the time.
- The men went into the back lounge behind a partition where Thomas Berry says he ordered a pint of Smithwicks and a glass of Lucozade. Mr Berry says that he was served these drinks and paid for them at the counter.
- By then the rest of the group had arrived into the lounge at which point the complainants say that Mr Feeney announced that he was not serving them as there was “too many of you in it”. When one of the women asked Mr Feeney why they were not being served, they say that he refused to say anything and kept his head down.
- The complainants then decided to call the Gardai.
- In her own evidence, Mary Berry, the mother, said that she personally felt very embarrassed and humiliated on the night as she was the person who lived in the locality and was known to many of the customers.
- She said that she distinctly heard Mr Feeney say “There are too many of you people in it” which made her particularly ashamed as her local supermarket manager was sitting close by and could see what was happening.
- Mary Berry said that, when he arrived, the Garda realised how upset she was. She said that he apologized to her for not being able to do anything and asked her if she would like to go to another pub for a drink. She was too embarrassed and upset, however, to go anywhere else.
- Mr P.J. Feeney gave evidence that two of the men arrived first and he served them. He says that he does not recall Thomas Berry being one of these men. He says that he recalls serving two drinks to an elderly man at which time another man arrived and ordered a drink for himself.
- Mr Feeney says that the pub was busy at the time with a number of customers at the bar side of the partition waiting for drinks. He was the only barman on duty and was looking after the bar and lounge by himself. Despite this, he says that he decided to get the third man his drink.
- At that point, Mr Feeney says that the rest of the group arrived in the lounge. As he had other customers waiting to be served, he told the rest of the group that they “would have to wait a few minutes”.
- In response, one of the females starting shouting at him and asking to see “the boss”. He advised them that the “boss” would not be there until 9 pm. He said that further loud shouting ensued and the lady said that she was calling the Gardai.
- At that point, the elderly man who had been served handed back his drink and he gave him his money back. That man and another man then left the pub.
- Mr Feeney said that the group appeared well behaved up until that point and there was no indication that they had drink taken.
- When the Garda arrived, Mr Feeney said that he spoke to him briefly and the Garda said something about being “careful about rights”. He said that he expected the Garda to talk to him again later but he never came back to him.
- The complainants stated that, on the arrival of Garda Patrick Booth and a colleague, they reported to them that they had been discriminated against. In reply, Garda Booth informed them that he “can’t make them serve you” and advised them to call to the Garda Station the next day to report the incident. When they called to the Garda Station the next day, they were advised about their rights under equality legislation.
- When asked why Paddy Berry and Michael Connors did not lodge complaints or attend the Hearing as witnesses, Bridget Connors explained that they were both very quiet individuals who wanted to avoid attention. She said that this was the reason they left the pub early after the refusal, the reason they did not lodge complaints themselves and also the reason they did not attend as witnesses.
- When asked whether they kept an incident report diary, the respondents confirmed that they did but explained that no entry had been made on the night in question
Evidence of Respondent’s witness, Mr Leo Moran.
- Mr Moran lives in Dublin and was delivering a van to Wexford on the day in question. He had never been in the Wexford Arms before nor did he know the owners prior to that day.
- He went into the Wexford Arms sometime after 7 pm on the night in question and was sitting halfway up along the bar. He said that the barman was busy serving people in both the bar and lounge.
- He said that he had ordered a pint of Budweiser from the barman and was waiting for it when he heard voices from the lounge area. He said that he could not see the people who were involved. However, he heard a woman getting very “irate” and a man trying to “pacify” her by saying that there “were others before you, you have to wait your turn”. He heard the woman saying that if she was not served “there would be serious trouble”.
- Overall, Mr Moran said that he thought the incident was too trivial to call the police.
- Mr Moran said that he never was served his pint that night because of the incident and that he eventually left after the Gardai had gone.
- When asked how he came to be a witness at the Hearing, Mr Moran explained that he saw an advert in the Irish Times in early 2003 asking for people who were in the Wexford Arms between 26 and 28 December 2002 and who witnessed “a party of 8 men and women, well dressed and well spoken, come into the premises, demand to be served by the lone barman who was trying to serve both bar and lounge customers.” The advert stated that expenses would be reimbursed.
- Mr Moran said that he phoned the number given and eventually met the owner, Mrs Jacinta Feeney in Ashford to discuss the matter. As a result of their meeting, Mr Moran agreed to attend the Hearing and give evidence.
- Mr Moran said at the Hearing that he had been paid expenses already for his trip to Ashford and that he also expected that he would get expenses for attending the Hearing.
- When asked why they had not brought some of their regulars to the Hearing as witnesses, the respondents said that they had approached a few but that they did not want to get involved.
Note At the Hearing, Thomas Berry stated that he recognised Mr Moran from the fact that they both lived in the same Estate in Dublin. On account of this, Mr Berry felt that he would have recognised Mr Moran if he had been in the Wexford Arms on the night in question. However, he does not recall seeing him there and questioned his evidence. In reply, Mr Moran said that he was definitely there and was in his working clothes but that he himself did not recall Mr Berry being present.
Evidence of Garda Patrick Booth
- His recollection is that the incident occurred on Saturday 28 December 2002. He was in the Garda patrol car and got an instruction to deal with a “dispute” at the Wexford Arms. When he arrived he noted that the pub was not “overly busy”.
- He spoke to Mary Berry who told him that the group had been refused because they had allegedly caused trouble the night before. Garda Booth recalled that Mary Berry was very upset over the incident.
- He then spoke to Mr P.J. Feeney who confirmed to him that the group had been refused because they had “caused trouble the night before”. When questioned as to how clear his recollection was of that night, Garda Booth said that he was 100% certain that this was what Mr Feeney had said to him that night.
- At the Hearing, Garda Booth undertook to provide the Equality Officer with a copy of the notes he made on the night together with a copy of the written report he had prepared in February 2003 in relation to the incident.
- Garda Booth said that recalled advising Mr Feeney that, while he could refuse service to the group, that he would have to have a proper reason.
Note Subsequent to the Hearing, Garda Booth submitted a copy of the hand-written note he had made on the night, a copy of the Station’s record of Mary Berry’s phone call complaining about the Wexford Arms and a copy of his written statement dated 18 February 2003 giving his account of what was said on the night of the incident.
These documents were passed to the parties on 11 March 2005 inviting observations. The complainants phoned subsequently to say that they had no comments to make while the respondents did not reply at all.
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 in the Wexford Arms.
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 respondents acknowledge that the complainants were refused service on 27 or 28 December 2002. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.3 On considering the evidence before me as to the exact date of the incident complained of, I find that there is no clear evidence before me to indicate the actual date of the alleged refusal of service. Three of the complainants formally notified the respondents that the alleged discrimination had occurred on the evening of Friday 27 December 2002 while three others identified Saturday 28 December as the relevant date in their notifications. The respondents maintain that the incident occurred on 27 December 2002, but did not make a written record of it in their diary at the time, while the Garda witness says that his records identify 28 December 2002 as the date in question.
While there is some confusion as to the actual date of the incident, I note that there is still all-party agreement that the refusal as described did take place. Accordingly, I consider that it is appropriate for me to continue with my deliberations despite the fact that the actual date of the incident has not being identified.
7.4 Section 21 of the Equal Status Act 2000 requires that a complainant must notify the respondent, within 2 months of the alleged act of discrimination, of the nature of the allegation against them. Otherwise, the complaint may be dismissed for non-compliance with statutory procedures.
In this case, there is a dispute between the parties as to whether two of the complaints are admissible. In the case of both Mary Connors and James Connors, the respondents received notifications addressed to “Neill Finn, The Wexford Arms”. They maintain that no one by that name has ever been involved with the pub and therefore the notification cannot be deemed to be admissible.
For her part, Mary Connors explained how she obtained the name “Neill Finn”. She said that, when completing the notification form, she rang Directory Enquiries and obtained the phone number of the Wexford Arms. She then rang the number and, when someone answered, she asked for their name and was told “Neill Finn”. She then hung up.
Unless people are established regulars of a particular pub, the likelihood is that they would not know the name or identity of the pub owner. In previous situations where people have sought to bring a complaint against a publican for an alleged act of discrimination under the Equal Status Acts, the standard practice was for the notification to be addressed to “The Manager” of the pub in question or to the name of the pub itself. This practice has been accepted over the years as fulfilling the notification requirement under Section 21 of the Equal Status Act 2000.
In the case before me, it would appear that Mary and James Connors went to additional lengths to try and ensure that the notification was properly served. However, by so doing, they ended up identifying the respondent’s surname as Finn instead of Feeney.
The purpose of Section 21 is to ensure that the respondent is made aware of the fact that a complaint is being considered against them and that they are not disadvantaged by the fact that they are only made aware of a complaint many months after the alleged incident. In this particular case, the respondents have confirmed that they did receive the notification forms from Mary and James Connors and that they did associate them with the complaints from the group of people who had been refused service on 27/28 December 2002. For this reason, I do not consider that the fact that the notifications were addressed to the right pub but with the wrong name on them put the respondents at any noticeable disadvantage. Accordingly, I have formed the opinion that Mary and James Connor’s complaints are admissible under the Act.
7.7 In the case before me, I am faced with totally conflicting evidence as to what was said to the complainants on the night. The only witness the respondents brought has stated that he heard the barman asking someone to “wait their turn”. However, as the witness has admitted that he could not see who the remark was addressed to, I find that his evidence leaves a doubt in my mind as to whether the remark was made to the complainants themselves or to some other customer.
Accordingly, I find that the only witness available to me on whom I can truly rely for an independent report is the Garda witness. Of interest here is that Garda Booth has said that he clearly recalls both parties referring to some alleged trouble the previous day and that he has a clear recollection that Mr Feeney informed him that the reason for the refusal was the complainants’ behaviour the previous day.
If this had been the real reason for the refusal, I cannot understand why Mr Feeney did not use it in his defense at the Hearing. Instead, Mr Feeney said at the Hearing that no trouble occurred the previous day, that there was no actual refusal on 27/28 December 2002 and that the complainants were simply asked to “wait their turn”. This statement by Mr Feeney causes confusion in my mind as to the veracity of his evidence as, if Mr Feeney was simply too busy to serve the complainants, I cannot understand why he did not give this apparently logical explanation to Garda Booth on his arrival.
In considering the above, I find that I have a difficulty with the credibility of Mr Feeney’s evidence and, accordingly, I find, on the balance of probabilities, that I am more disposed to accepting the evidence of the complainants in the matter. I, therefore, consider that Mr Feeney did recognise the group as Travellers on arrival and decided that he did not want to serve them because of the number that were present.
As I do not consider that Mr Feeney would have adopted the same approach in similar circumstances if a group of non-Travellers had arrived, I consider that his decision on the night constituted discrimination on the Traveller community ground contrary to the provisions of the Equal Status Act.
7.8 I, therefore, consider that the complainants have established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed 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.
8.2 I order that Mary Berry, the mother of some of the complainants, be paid the sum of €500 for the serious upset and humiliation she suffered on the night (Decision DEC-S2005-031) and I order that the remaining complainants be paid €100 each for the loss of amenity suffered (Decisions Dec-S2005-032/036).
Brian O’Byrne
Equality Officer
17 May 2005