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 Act 1998 and under the Equal Status Act 2000, 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 -2004. The hearing of the case took place in Sligo on Friday 3rd February, 2006.
1. Dispute
1.1 The complainant alleges that he was subjected to discriminatory treatment when he went to Mattimoe Public House in Boyle on 10th August 2002 and was refused service. He maintains that this treatment is in breach of the Equal Status Act 2000 in terms of Section 3 (2) (i) and contrary to Section 5 (1) of the Act, i.e. that he was refused access to goods and services because of his membership of the Traveller community.
1.2 The respondent maintains that the complainant was refused service for reasons other than his Traveller Status.
2. Summary of the Complainant's Case
2.1 The complainant, Tommy O'Donnell, said that he entered Mattimoe Public House in Boyle at about 10 minutes past 10 in the evening of 10th August 2002 with a friend of his John McGuinn. The men had been in another pub in the town earlier where they had 2 or 3 pints each. On entering the pub they approached the counter and Mr O'Donnell said that Mrs. Mattimoe, one of the owners of the pub was behind the counter serving. He said that when she saw them she started rushing up and down behind the counter and would not deal with them. He said that Mrs Mattimoe waved her hand at them and saying "I'm not serving you." At that time Mr. McGuinn left the premises. Mr. O'Donnell said that he then approached Mr. Gerry Mattimoe who at that time was also behind the counter and attempted to order a pint of Guinness but Mr. Mattimoe refused him saying that there was a "ban on his type all over the west of Ireland." Mr. O Donnell said he understood this to mean that there was a ban on Travellers. He said that the pub was nearly full and that he did not notice any other Travellers amongst the clientele, most of whom he knew to see from the locality. He said he noted down what had been said to him on a beer mat and proceeded to leave the pub and cross the street to where Mr. McGuinn was waiting. He said that Mr. Mattimoe followed him out and said "and a happy fucking Christmas to you too." Mr. O'Donnell said that only reason for the refusal was because he was a Traveller.
2.2 On cross examination Mr. O'Donnell denied that they had been barred from the premises some years previously due to disorderly conduct and he maintained that this was the first time that he had gone to that particular public house. He said that although he was barred from 4 pub premises in the town of Boyle, he only found out that he was barred from Mattimoe's because the date of this incident was the first time he had been in that pub. He denied he was being economical with the truth. He accepted when it was put to him that he had a number of convictions including one for being in possession of a dangerous implement.
2.3 Mr. John McGuinn gave evidence on behalf of the complainant. He said he left the premises as soon as Mrs. Mattimoe indicated that he and Mr. O'Donnell would not be served. He said he was across the road when he heard Mr. Mattimoe speak to Mr. O'Donnell outside the pub and heard him make the comment regarding a happy Christmas. He said he believed the refusal of the pair was because Mr. O'Donnell was a Traveller and he, although not a member of the Traveller community was in Mr. O'Donnell's company that night. In response to questions from the respondent's representative, Mr. McGuinn denied he was barred from the pub although said he had been refused previously when he entered as the pub was about to close in the middle of the day. He has also been refused there once since the incident complained of here.
3. Summary of the Respondent's Case
3.1 Mr. and Mrs. Mattimoe described their pub as small premises accommodating approximately 50 - 60 customers and which had been under their management for 30 years. It attracted mainly a local business. Mrs. Mattimoe said that while they had no regular Traveller customers, Travellers were served when they came in to the pub. She said she did not know Tommy O'Donnell. Mr. Mattimoe said that he knew Mr. O'Donnell since he was a child and knew many members of his family some of whom used to come into the pub. He knew the family to be Members of the Traveller community. Mrs. Mattimoe said that when Mr. O'Donnell and Mr. McGuinn entered the pub she recognised Mr. McGuinn as someone who was barred from the pub. The Mattimoes described how he had been barred from the premises twice, as following the first barring it came to their attention that Mr. McGuinn has become seriously ill and they decided to re-admit him as a customer. However, Mr. McGuinn later behaved in a manner which required him to be barred again and he had been barred from the pub since. They said that a barred person and anyone with them would never be served in the pub. It was mainly because of this reason that Mr. O'Donnell was refused on that night, although they said that Mrs Mattimoe also found the complainant's behaviour to be intimidating.
3.2 Mr. Mattimoe also recalled that the complainant had been barred previously too but he could not identify when this happened. He said that if Mr. O'Donnell was to come into his pub today he might possibly be served but he was unsure as the complainant was someone who he considered had a bad record. He said that generally letting people back in did not work. He did not elaborate on what this meant.
3.3 On further examination by his representative Mr. Mattimoe identified a number of Travellers including a brother of the complainant who frequented the pub. He denied, on being questioned by the complainant, that he ever made the remark that there was a ban on Mr. O'Donnell's type or that a reference was made to Christmas.
3.4 Additional Points Raised
(a)Fulfilment of notification requirement under the Equal Status Act 2000
It was submitted that the complainant may not have fulfilled the statutory notification requirement.
(b)Garda Evidence
Garda Enda Rowley who has served as a Garda in the Boyle are for approximately 4 years gave evidence that he knew the complainant as a Traveller and said that he had been identified to him when Garda Rowley was assigned to the town, as someone who was occupying the local secondary school grounds. The area had to be fenced off because of this.
4. Conclusions of the Equality Officer
4.1 In relation to the submission made by the respondent that the complainant may not have fulfilled the notification requirement under the Equal Status Act 2000, I have examined the evidence in this regard including the filing of the complaint with the Tribunal. I am satisfied that this was subjected to full checking at the time the complaint was lodged and that the statutory notification requirement was deemed to have been complied with. I conclude that valid statutory notification occurred.
4.2 At this point in my considerations the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant in this case, Tommy O'Donnell, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that he is covered by the relevant discriminatory ground i.e. in this case that he is a Member of the Traveller community. It must also be established that the actions complained of actually occurred and finally it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not a Member of the Traveller community. If he fails to establish any of these three facts, then he does not establish a prima-facie case and his complaint of discrimination falls. If he does establish a prima facie case the burden of proof shifts to the respondent who must then rebut the case of the complainant if the complaint is to fail.
4.3 In relation to the first point to be established, it is not disputed that the complainant is a member of the Traveller community. The second point, that the action complained of actually occurred, is also uncontested in that all parties agree that the complainant was refused in the respondent's premises on the 10th August 2002. In relation to the third point, that of less favourable treatment, I have considered the evidence, both that submitted in advance of the hearing and that presented at the hearing and I note that there are considerable divergences between the accounts of the circumstances of the refusal presented by each of the parties. I must establish which explanation, on the balance of probabilities, explains what occurred during the incident complained of. I have concluded that in this respect, the evidence of the respondent represents a more compelling account of what occurred that night, although I find that the respondent at times expressed a certain naivety regarding a service provider's obligations under the Equal Status Act. I accept that Mr. McGuinn, the complainant's companion on the evening of 10th August 2002, was barred from the respondent's premises at the time of this incident and that any person who was barred or in the company of someone who was barred would not have been served by the respondent. I conclude that the complainant's Traveller status was not an issue in the refusal. The complainant, Tommy O'Donnell, has failed to establish less favourable treatment and does not establish a prima facie case of discrimination. Consequently no rebuttal is required.
5. Decision
5.1 The complainant having failed to establish a prima facie case of discrimination cannot succeed in his complaint (ref: ES/2002/0773). I find that this complaint is not upheld DEC-S2006-027.
Mary O'Callaghan
Equality Officer
4th April 2006