Ms. McCarthy 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, the Director then delegated the case to me, Bernadette Treanor, 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. The hearing took place on 16/2/2006.
Summary of the Complainant's case
Ms. McCarthy met a friend in Blackpool, Cork, on 28th October 2001 and they entered the Berehaven between 9:30pm and 10:30pm. They had been to another bar before entering and had taken two drinks each. When they entered the Berehaven Ms. McCarthy's friend ordered a drink each and was served. Subsequently Ms. McCarthy also ordered a drink each and was served. When her friend ordered a third round, Ms. McCarthy stated that she was refused. Ms. McCarthy went to the barman and asked for a reason and was told "You won't make it tonight girls". She asked for his name and wrote down the name the barman gave her. The complainant and her companion went to another bar and stayed until around 11pm. Ms. McCarthy stated that she had been in the respondent premises a number of times before and had never been served before 28th October 2001. In evidence she stated that she and her companion were served two rounds while in her notification form she stated that they were served three. She stated that as it had been a long time ago she was not entirely clear on exactly how many drinks had been served to her. A witness on behalf of the complainant, a non-Traveller, indicated that she had been in the bar on 28th October 2001 and had been speaking to the complainant while they were drinking and when they were refused. After the complainant left she asked the barman what was the problem and was told that it was none of her business. In evidence she indicted that she was unable to identify any reason for the refusal. During the hearing Ms. McCarthy spoke about the difficulties around socializing in their own home district.
Summary of the Respondent's Case
Mr. Healy, the licensee, stated that the barman involved had now emigrated and was unavailable to present evidence on his behalf. Mr. Healy himself does not work in the bar. Another barman was present at the time of refusal but due to a last minute hospital cancellation he was also unavailable on the day of the hearing. He provided a short witnessed statement indicating that when he came on duty on 28th October 2001 the barman who subsequently refused the complainant's companion asked his opinion of the two ladies stating that he thought the complainant had consumed enough alcohol. The second barman was also of that opinion. While Mr.Healy requested an adjournment two days prior to the hearing which was refused, during the hearing he indicated that he did not require an adjournment to allow the second barman to give his evidence in person.
Conclusions of the Equality Officer
I am satisfied that Ms. McCarthy is a member of the Traveller community and it was agreed that the incident took place. The only matter in dispute is the reason for the refusal. Ms. McCarthy disputed the evidence presented in the witness statement which indicated that her intoxication was the reason for the refusal. While she admitted to having a number of drinks she disputes that she was intoxicated. She is supported in this by her witness who indicated that she could not identify any reason for the refusal. I am satisfied that this witness spoke to the complainant for a period more than sufficient to have identified if she had been intoxicated or not. On the other hand, the respondent stated that the barman who refused the complainant and her companion had considerable experience in the bar trade. He also presented a statement from a witness which indicated that the complainant was intoxicated. I indicated to the respondent that the statement had limited value as evidence and that as the witness was not present he could not be examined on why he believed the complainant and her companion were intoxicated. In short, the respondent did not have any witness to the incident present at the hearing to present evidence as to what happened.
In considering the evidence presented to me, both in person and by statement, I find the complainant's evidence more compelling. I find that she has established a prima facie case of discrimination on the Traveller ground. The burden of proof therefore shifts to the respondent to show that there was a reason, other than the complainant's membership of the Traveller community, for the refusal. While the respondent did present another reason, her alleged intoxication, I find that his evidence was insufficient to discharge this burden.
I find that Ms. McCarthy was discriminated on the Traveller ground when she was refused on 28th October 2001.
Decision DEC-S2006-020
I find that the respondent has failed to rebut the complaint of discrimination made by Ms. McCarthy and this decision is therefore in her favour.
Redress
In light of the specific circumstances of this case I do not feel that a large award against the respondent is warranted. I therefore order the respondent to pay McCarthy the sum of €500 for the effects of the discrimination.
Bernadette Treanor
Equality Officer
6th April 2006