Fiona Kiely, Kathleen Tuohy and James Kiely (Represented by Padraig Hogan BL instructed by Hughes Kehoe and Co. Solicitors) V The Telescope Bar (Represented by B.M. Owens and Co. Solicitors)
Delegation under the Equal Status Act, 2000
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 Acts 1998 and 2004 and under the Equal Status Acts 2000-2004, the Director has delegated these complaints 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 Portlaoise on Wednesday 3rd August 2005.
1. Dispute
1.1 This dispute concerns a claim by Ms Fiona Kiely, Ms Kathleen Tuohy and Mr. James Kiely that they were discriminated against on the grounds of their membership of the Traveller Community when they went to the Telescope Bar in Birr Co Offaly to join friends for a drink on 17th June 2002. They allege that the treatment they 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 they were subjected to treatment that is contrary to Section 5 (1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants said that they were all natives of Birr although Ms Kiely and Mr. Kiely who are husband and wife, had been living away from the town for some time but had returned to live there some months prior to this incident. On the night of the 17th June 2002 the three complainants were in another bar in the town with friends, a Mr G and a Mr. McCarthy who is Ms Tuohy's partner. At some time between 8 and 9 p.m. Mr G and Mr. McCarthy went to the Telescope Bar together and they arranged that they would meet Mr. Kiely, his wife and Ms Tuohy there later.
2.2 Shortly afterwards the three complainants went to the Telescope Bar. Mr G offered to buy the complainants a drink but they declined. Ms Fiona Kiely approached the person serving behind the bar, Mr. Aidan Hogan the bar manager to place her order.
2.3 Evidence of Fiona Kiely
Ms. Kiely said that on approaching the counter the respondent refused to serve her and she enquired why. According to Ms Kiely no reason was given to her at that time and she felt she was being ignored. She said that in her opinion the pub was not very busy at the time.
Ms Kiely said that the complainants asked for the Gardaí to be called and the respondent did so. They then went outside the door of the pub to wait for the Gardaí to arrive. She said that they were only in the pub for about 5 minutes and were speaking to the Garda outside for about a further 10 minutes. She said that the Garda had said that they had done nothing wrong. She said that after speaking with the Garda the group went home. It was put to Ms Kiely that Mr. Hogan the respondent, in refusing to serve them had referred to previous trouble involving the group and this was the reason they were being refused. Ms Kiely said she did not know of this trouble.
Ms Kiely said that she and her husband had been in the pub 4 or 5 times previously where they had played pool. She acknowledged that on occasions the respondent would have joined them in a game of pool and had a drink with them. She said they had never had any difficulties being served. She said that on the night of the incident complained of she had already had about 4 glasses of lager in another pub before going to the Telescope Bar. When asked if she was aware of any problems involving her husband and another person in the Telescope Bar, she said that she was not and that as far as she knew she had been with her husband on each occasion he visited the Telescope Bar.
Ms Kiely said that the respondent knew herself and the other complainants to be settled Travellers and she had concluded this was why they were refused on the night in question.
2.4 Evidence of Kathleen Tuohy
Ms Kathleen Tuohy said that she went to the Telescope Bar with the Kielys after they left the other Bar. She said that she and her partner Mr. James McCarthy would have considered themselves regular customers of the Telescope and that she knew Mr. Aidan Hogan the manager from when they attended school together. She said that she had always been served in the pub when she went there.
She recalled that it was Ms. Kiely who went to the counter to order for the group but that Mr. G a friend of theirs who was already in the pub with her partner, James McCarthy, had offered to purchase their drinks. She said that Aidan Hogan had refused them saying that James Kiely and herself had been involved in an incident in the pub where someone had been knocked from a stool and they had "kicked her to death". She said that one of the complainants, James Kiely, then asked Mr. Hogan to call the Gardaí, which he did. When they arrived, the Gardaí went into the pub first while the complainant's group waited outside the pub. Ms. Tuohy said that when they came out the Gardaí confirmed that that there was nothing wrong and that they had no record of the alleged incident involving the person being knocked from a stool.
When asked Ms. Tuohy said that she did not know of any row at the pub involving any of the three complainants. She also said that on the night of this incident she would not have considered herself to be drunk as she'd had just 3 glasses of lager since she went out that night at about 7.30 p.m. Ms Tuohy said that she is a settled member of the Traveller community and she believed that this was the reason she was refused that night. She had no knowledge of Mr Aidan Hogan saying he was refusing to serve the group because they were drunk. She said that she had since heard that Mr Aidan Hogan believed that she was bringing too much Traveller custom to the pub and that he had said he wanted to clean the place up.
2.5 Evidence of James Kiely
James Kiely said that he had gone with the two ladies to the Telescope Bar after leaving another bar in the town where he'd had 4-5 drinks. Although not entirely sure of the time, he thought that it was about 9.15 p.m. when they went to the Telescope. He recalled that as they went in Mr. G a friend of theirs got up to order them a drink but Mr Kiely said that it was OK "Fiona (his wife) will get it" and Ms. Kiely went to call for a drink. He said that Aidan Hogan was the person behind the bar. He said he noticed something was wrong and he stepped forward to see what was going on and asked why the barman was not serving. He said that he was told that he had knocked a girl off a stool previously and that Ms Tuohy had kicked and beaten her. Mr Kiely said that he knew nothing of this alleged incident and said that they would not be leaving until the police came. Mr Hogan called the police and Mr. Kiely said the group waited outside the door. He said that the Gardaí confirmed that they had never received a complaint about the "stool" incident and that they could see no reason why the group were being refused. Mr Kiely said that the group just left. Mr Kiely said that as far as he could see the pub was not very busy and that those customers on the premises were being served. He said after leaving the Telescope Bar that that they went back to the pub they had been in earlier and were served.
When asked if he recalled any argument involving himself and a Mr. McCarthy in the pub shortly before the night of the refusal Mr. Kiely said he did not but on further questioning recalled an incident about a year previously when himself and Mr. Mc McCarthy had argued about the purchase of a Jeep. He said he would not have called it a row but said that words were exchanged between the two men. He was not exactly sure of the date but on the intervention of one of his colleagues he agreed it was during Vintage Week in Birr which was in August. When asked if this was the reason for the refusal he said his belief was that the refusal was because they were Travellers.
2.6 Evidence of Mr. James Mc McCarthy (Witness)
Mr. McCarthy was in the Telescope Bar when the complainants entered the premises on the evening of the incident complained of. He said he had been with them earlier in the other pub before going to the Telescope with Mr G. He mentioned that another couple (named) had also come in around that time. He said that both Mr. G and Mrs Kiely were refused on that night by the respondent Mr. Hogan. He said there was talk of a woman having been assaulted, as if that was the reason for the refusal. What he had heard about that incident was that Ms Tuohy was supposed to have assaulted some woman, knocked her to the ground and they had to be separated. He said that it was Mr. Hogan who had said this. Mr. Mc McCarthy said that they were not drunk but had a few drinks earlier in the other pub. When asked if he had ever been involved in an argument with Mr. Kiely in the pub, Mr. Mc McCarthy said that he may have had words with him about a shot he took in a pool game at one time but he did not consider it to be an argument and he said when asked that he had no recollection of being asked to leave the premises on that occasion. He accepted on cross examination that this could have been about three weeks before the incident complained of.
3. Summary of Respondent's Case
3.1 Evidence of Mr. Aidan Hogan
Mr Hogan said that he was working behind the bar on the night of the incident complained of and was there when the complainants came into the pub. He said he knew Ms. Tuohy well as he had been at school with her, and she and James Mc McCarthy who is her partner were regulars in the pub. He said that there had been a bit of trouble involving Ms Tuohy in the pub on a few occasions but nothing major and an apology had always resolved it. Mr. Hogan said he managed the bar for his brother who owned the business. He said that he would have known all three complainants as Travellers. He said that the Kielys had been in the premises a number of times and he would have considered all of the complainants regulars in the pub at the time of the incident complained of. Mr. Hogan said that people would normally be refused in the Telescope Bar if they were drunk or were disorderly. He said that the reason for refusing this group was because there had been trouble when James Kiely had hit James McCarthy during a row in the pub on a previous visit about three weeks before the date of the incident complained of. He said that he also considered the complainants were drunk when they came into the pub. They joined Mr G. From his recollection Mr. Hogan said that it was Mr. G who placed the drinks order for the complainants and that he refused because they were too drunk. He said that Mr. Kiely became aggressive at that point and wanted the Gardaí to be called. Mr. Hogan said that that he never said anything to the group about a person being knocked from a stool.
Mr. Hogan acknowledged that there was no trouble from the complainants on the evening complained of and that having remained for about 20 minutes they were about to leave when the Gardaí came. He had called them on his own initiative but agreed that James Kiely had also asked for Garda attendance. He did not make a formal report to the Gardaí. Mr Hogan named one of the Gardaí who attended and it was agreed by the complainants that this particular Garda and another unnamed Garda attended the incident. Mr. Hogan said that the complainants had not been back to the pub since then. He said that he was the only person serving in the bar that night although other staff members were on the premises as patrons.
3.2 Evidence of Ian Brummel (witness)
Mr. Brummel said that he worked as a barman in the Telescope bar at the time of this incident but was not on duty that particular night. He said, however that he was in the pub that night drinking at the bar counter area when the complainants came in. He said he was in the pub from about 7-8 p.m. 'til closing time. Mr. Brummel said he was with a colleague from the bar, Maurice Flynn. He said he recalled the complainants coming in to the pub at about 9 o clock and he believed they had a good few drinks taken at that time. When asked how he knew this he said that one would know. He said that there was an exchange between Ms. Tuohy and Mr. Hogan and that Mr. Hogan had said that she'd had enough and then he asked her to go. He said that he knew Ms. Tuohy as a regular customer but not the Kielys.
When questioned about the alleged incident involving someone being knocked from a stool Mr. Brummel initially said he recalled it but subsequently submitted that he was not at all sure about the alleged incident. He said he did recall an incident from about three weeks earlier where Mr. Kiely and Mr. McCarthy were in the middle of the bar floor and where the pool table had been removed to enable a band to set up.
When asked if he remembered the Gardaí attending the incident complained of here he said he did not recall.
Evidence of Maurice Flynn (witness)
Mr Flynn said that although he did work as a barman in the Telescope Bar he was not on duty on the night of the incident complained of. He had gone to the Telescope bar to play pool with a friend (named) and some other friends. He said that Mr. Brummel was not with his group but could have been drinking at the bar. Mr Flynn said that he saw a discussion between Aidan Hogan and a group at the bar but did not hear what was being said. The pub was not very busy at the time. He said that he was at the pool table when the encounter between the complainants was going on so he couldn't really say why the group were told to leave.
Conclusions of the Equality Officer
First, I must assess whether the complainants have succeeded in establishing prima facie cases of discrimination. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish they are covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances.
In this case it is not a fact in dispute that the complainants are members of the Traveller Community thus satisfying the first of the criteria outlined above. Furthermore it is not disputed that the complainants did not get served in the pub although there are differences between the parties as to whether Mr G or Ms Kiely actually placed the order. However it is clear from the evidence that the order was being placed for drinks for the three complainants and that there was a refusal because of this. I consider this sufficient to satisfy the second of the three criteria set out above. Regarding the third of the criteria, i.e. whether the treatment was less favourable than that someone who was not a member of the Traveller community would have received in similar circumstances. I must consider the evidence in its entirety.
The following points are regarded as particularly relevant to my considerations.
There has been evidence from both parties of disorderly incidents involving one of the complainants and one of the witnesses on a previous occasion in the Telescope Bar. Although evidence was provided that the reason for the refusal was an alleged incident involving two of the complainants and where a person was knocked from a stool and "kicked to death". This does not appear to have been substantiated.
The complainants had already had some drink before going to the Telescope Bar on the evening complained of. I also note that the complainants have said that they had been to the Telescope Bar several times previously and had always been served.
In addressing these points Section 15 (1) and Section 15 (2) of the Equal Status Act 2000 must be considered.
Section 15 (1) states that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought."
Considering the evidence of all the parties to this complaint at least one incident of disorderly conduct occurred in the pub in the period leading up to the date of the incident complained of here. The evidence of Mr. McCarthy and of Mr. Hogan the respondent refers to an incident between Mr Kiely one of the complainants and Mr. Mc McCarthy although the severity of this incident varies between the two sides. I have found the evidence of the respondent's witnesses on this issue to be unclear and uncertain and this evidence was anything but compelling. However, I consider on the basis of the evidence presented by both sides to the complaint that a disorderly incident did occur previously which changed the ongoing customer -business relationship between Mr. Hogan and Messrs. Kiely and Mc Carthy when they were in the pub together. I consider that this incident satisfies the defence which applies under Section 15(1). I therefore consider that it was reasonable under the circumstances to refuse all three complainants when they arrived together.
I also note the fact that the complainants had already been drinking before coming to the Telescope Bar and while the amounts consumed (3-5 drinks each) may or may not have resulted in them being drunk at the time of arriving at the Telescope Bar, I do consider that to serve the group more drink in the knowledge of this previous incident also invokes Section 15(2) of the Act states that
"Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination."
Decision
On the basis of the foregoing I decide that Fiona Kiely (DEC-S2005-126), Kathleen Tuohy (DEC-S2005-127) and James Kiely (DEC-S2005-128) have not established prima facie cases of discrimination under the Equal Status Act, 2000 and, the complaints do not succeed.
Mary O'Callaghan
Equality Officer
16th September 2005