Margaret O'Leary & Ors V The Sallynoggin Inn, Dublin
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub - prima facie case - refused because of association with previous conduct.
1. Delegations
1.1 The complainants each referred a claim 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 delegated the cases to me, Dolores Kavanagh, 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.
2 Summary of Complainant's Case.
2.1 The complainants state that they were discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the grounds that they are members of the Traveller community when they were refused service in the respondent's premises on 2 March, 2002.
3. Summary of Respondent's Case
3.1 The respondent denies that the complainants were discriminated against and that service was, in fact, refused because of previous unacceptable behaviour on the part of some of the complainants.
5 Prima Facie Case
5.1 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) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(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, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6. Prima Facie Case - Complainants
6.1 Mr. James Lucas, complainant did not attend at the Hearing of his complaint and he could not therefore establish a prima facie case of discrimination.
6.2 The remaining complainants are members of the Traveller community and this is not disputed by the respondent. This satisfies (a) at 5.1 above. It is common case that the complainants were refused service in the respondent premises on 2 March 2002 and this satisfies (b) at 5.1 above.
6.3 In relation to key element (c) at 5.1 above I regard the following as the relevant facts in determining whether the complainants were treated in a manner which was less favourable than non-Travellers were, or would have been treated, in the same or similar circumstances:
? Both parties gave evidence that Travellers regularly attend at the respondent premises.
? Both parties referred to the attendance at the premises for a Wolfe Tone concert, on a specific night, of a number of Travellers, some of whom are directly related to some of the complainants.
? The respondent gave evidence of incidents arising on that particular night, following the Wolfe Tones concert, and security staff were adamant that a number of the complainants took part in these incidents. Specifically, named complainants refused to leave the premises after closing time and sat on the floor of the premises and refused to move.
? Video evidence was submitted by the respondent which clearly indicated that a serious, violent, incident occurred in the premises on a date after the instant complaints arose. While it is impossible to determine the identities of the persons taking part in this incident from the video tape, the respondent is adamant that two of the complainants took part.
? One of the complainants who had vehemently denied ever taking part in any violent incident in the respondent premises, on hearing that video evidence was to be introduced, stated that he "could not remember" whether he had ever been involved in any violent incident at or in the respondent premises.
6.4 In light of the above and having carefully considered all of the evidence presented in this matter I am satisfied that the respondent refused service to the complainants on the basis that a number of them were genuinely associated by the respondent's staff with previous incidents of unacceptable behaviour. The complainants were not refused because they are Travellers or because they were being associated with Travellers, but rather, because they were being associated with unacceptable behaviour. I am satisfied that the respondent could, and did, refuse service on the basis of association with such unacceptable behaviour, and that non-Travellers would be refused service in the same or similar circumstances.
6.5 The complainants have therefore failed to satisfy key element (c) at 5.1 above and have therefore failed to establish a prima facie case of discrimination.
7 Decision
7.1 I find that the complainants were not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
__________________________
Dolores Kavanagh
Equality Officer
22 September, 2005