John McCarthy V The Greyhound Bar
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 Acts 1998 and 2004 and under the Equal Status Acts 2000-2004, the Director has delegated the 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 complaints took place in Killarney on Friday 22nd July 2005.
1. Dispute
1.1 This dispute concerns a claim by Mr. John McCarthy that he was discriminated against on the grounds of his membership of the Traveller Community when he went to the Greyhound Bar in Tralee on 10th July 2002. He 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 that is contrary to Section 5 (1) of the Act.
2. Summary of the Complainant's case
2.1 Mr John McCarthy said that he is a member of the Traveller community who was brought up in Tralee but moved to and settled in England over fifteen years ago where he continues to live with his wife and children. He said that in July 2002 he was back in Tralee with his family to visit his mother who still lives in the town and on 10th of July he met with a friend to go for a drink in the town. They went to the Greyhound Bar at about 7 p.m. from his mother's residence. He said it was not his first time in the bar but on any previous occasion when he was served there it was when a "bar lady" was on duty. They both went to the counter to order drinks. He said the respondent Mr. Aidan O'Connor was serving that evening and that he came to them and asked Mr. McCarthy and his friend if he could speak to them outside. Mr. McCarthy said that when they went outside, Mr. O'Connor told them "lads not tonight". Mr. McCarthy said that he understood this to be a refusal because of their Traveller status. He said others who were not Travellers were being served in the pub which was not very busy, while they were there. He said that the entire incident lasted no longer than a few minutes.
2.2 Mr. McCarthy said that he and his friend then went to another pub in the town where they were served. He has never returned to the Greyhound Bar since then and he said he believed that the refusal of service was because he and his friend were recognised as Travellers.
2.3 Mr McCarthy said he felt particularly offended at such treatment because in his experience such a refusal was something he had only experienced in Ireland and he or his family never had any difficulty in getting served when they went out to socialise in England. He also said that that in his experience he was less likely to be refused when he went to a pub on his own than some other Travellers as he was not readily identified as a Traveller but said that any time he went out for a drink in Ireland with his wife, who he said would be recognised a Traveller, they were invariably refused. He felt that his (and his family's) socialising was restricted by this situation.
3. Summary of the Respondent's Case
3.1 The respondent Mr Aidan O'Connor agreed that he would have been serving in the pub when the complainant came into the Greyhound bar on 10th July 2002 with his friend although he did not recall the particular occasion referred to in the complaint and thought that a different incident which had happened in the pub some months previously was the subject of this complaint. He accepted the complainant's word that he had been refused on the evening of the 10th July 2002 and that the complainant believed it was because of his Traveller status.
3.2 The respondent said that the Greyhound Bar generally had a local clientele and that it had a few members of the Traveller community as regular customers. He said that he would not consider the complainant to be easily recognisable as a Traveller. 3.3 He said in his experience he would only take someone aside to say he'd prefer he'd go somewhere else if he considered that the person had enough drink taken or if the had a track record of bad behaviour. Re-affirming that he did not know the complainant or have a record of the events in the bar on 10th July 2002, Mr. O'Connor said that the only reason he could think of for the refusal was that the person with Mr. McCarthy had a record of trouble. He said if Mr. McCarthy were to come in to the Greyhound bar today he would be served. He said that he could not say anything of the person that was with him.
4. Conclusions of the Equality Officer
4.1 First, I must 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 her complaint. He must (1) establish that 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 covered by the discriminatory ground would have received in similar circumstances.
4.2 In this case it is not a fact in dispute that the complainant is a member of the Traveller community, thus satisfying the first of the criteria outlined above. Furthermore it is not disputed that the complainant did not get served in the respondent bar although the respondent does not recall the particular occasion complained of by the complainant. The third criteria to be met by the complainant in establishing a prima facie case is whether there is evidence that the treatment afforded to the complainant on the evening in question was less favourable than that which would have been someone in similar circumstances who was not a member of the Traveller community.
4.3 The evidence of the complainant Mr. McCarthy has been that on seeking service in the Greyhound Bar he and his friend were taken aside and asked to go elsewhere while others who he said were not members of the Traveller community were being served. The respondent did not contradict the complainant's view in this regard but did not recall the incident. I accept that this is sufficient to satisfy the third test on the balance of probabilities and that the complainant has established a prima-facie case of discrimination on the Traveller community ground.
In circumstances where the complainant has established a prima-facie case of discrimination, the burden of proof shifts to the respondent who must show that the refusal of service to the complainant was for non discriminatory reasons if the complainant is not to succeed in his complaint of discrimination. In this case the respondent did not dispute the complainant's assertion that he was refused on the occasion complained of. He did not contradict the complainant's evidence that others who were not Travellers were being served in the pub at the time. I note also that the respondent stated that he would serve the complainant if he were to come into the Greyhound Bar today which leads me to believe that the complainant did not have a track record of behaviour which would have given the respondent grounds for refusing him. I therefore conclude that the respondent has not rebutted the prima facie case established by the complainant John McCarthy.
5. Decision and Redress
5.1 The complainant having established a prima facie case of discrimination which has not been rebutted by the respondent succeeds in his complaint of discrimination on the Traveller community ground (DEC-S2005-116). In determining the amount of redress appropriate for the effects of this discriminatory act, I have noted the complainant's distress in relation to different treatment he received on a visit back to his native country compared to that which he receives in England. I have also, however, noted that the respondent in this case did not dispute the assertions of the complainant and did not put him through a lengthy process in having to establish his case. I consider that this mitigates somewhat the effects of the discrimination and I am taking this into account in my award in this case. I therefore, order that the respondent Mr. Aidan O'Connor pay Mr. John McCarthy the complainant he sum of €300 (three hundred Euro) and that he issue a written invitation to the complainant and his wife within 42 days of the date on this decision, which states that they are welcome at any time as customers of the Greyhound Bar subject on the same basis as any other customer.
Mary O'Callaghan
Equality Officer
9th September 2005