Keywords
Equal Status Acts 200-2004- Direct discrimination, Section 3(1)(a)- Traveller Community Ground, Section 3(2)(i)- Disposal of Goods and Services, Section 5(1)- Refusal of service- Prima facie case, - Failure of respondent to attend hearing - Rebuttal
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 Mullingar on Wednesday 8th February, 2006.
1. Dispute
1.1 The complainants allege that they were subjected to discriminatory treatment when they went to Bambrick's Bar in Mullingar on 7th December 2002 and were refused service. They maintain that 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 they were refused access to goods and services because of their membership of the Traveller community.
1.2 The respondent did not appear at the hearing and provided no evidence other than the initial response to the complaint.
2. Summary of the Complainant's Case
2.1 The complainants all described going to Bambrick's on the 7th December 2002 after meeting up in the home of the McDonagh's. They had been in the pub previously when it was under different ownership but this was the first time they had gone there since the respondent had taken over the premises. All of the complainants said that they were from Mullingar town and would be known in the area as Members of the Traveller community. The said that they all went to the pub together, Mr. Joyce indicating that they went by taxi. Three of the complainants indicated that they arrived at the pub at about nine o clock. Mrs. McDonagh said that she thought it was some time between 9:30 and 10 p.m. None of the complainants had been to any other pub that night before going to Bambrick's that night. They said they would not have described the pub as their local.
2.2 Mr. McDonagh said that when they went into the pub, he approached the counter to order drinks for the group. He said a bar man called Paul approached him and told him I am not serving you. Mr. McDonagh asked why and was told "Boss's orders". He then asked if he could see the manager and was told he was busy but Ray Smith the manager then came out and said "I'm not serving you and that's it." The other complainants said they had got seats in the pub while this was going on and noticed the refusal. Mrs. McDonagh recalled her husband seeking a reason and being told by the manager that he did not have to give a reason. All of the complainants said the incident lasted just a few minutes and they all got up and walked out of the pub. Mrs. Joyce said that she was very embarrassed. They said that they went to another local pub where they were served.
2.3 All four complainants confirmed that they were members of the Traveller community. They said that they did not notice other Travellers in the pub but there were a number of locals who were not Travellers and who would have known them there and who were drinking in the pub while the refusal was going on. None of the complainants had returned to Bambrick's since then as they said that their experience on that night led them to believe that Travellers would not be served in the pub.
2.4 When questioned about an allegation in the respondent's response to the notification of complaint that he had previously broken ashtrays in his pub Mr. Joyce said that this was the first time he had been in the pub under Mr. Smyth's management before the incident complained of and that the alleged action could not have occurred. He said he had been a regular on the premises to the extent that he went there once or twice a week when the premises were under different ownership. His wife said she went there at weekends for the Karaoke nights but this was under the management of the previous owner. She said the pub had changed ownership just a short time before this incident occurred. All of the complainants said that they had never been refused in that premises previously, although Mr. McDonagh said he had been refused elsewhere due to his Traveller status. Mr. Joyce said he knew which pubs he could go to. Neither of the women complainants had been refused service previously.
3. Respondent's Evidence
3.1 The respondent did not attend the hearing of the case and offered no evidence other than a written response to complainant's statutory notification of complaint when it was made to him. In that response it was said that the refusal occurred because it was Mr. Joyce who came to the respondent's attention when he entered the pub and he was recognised as someone who had been involved in an earlier incident in the pub where ashtrays were broken. The respondent maintained in the responses to the complainants that none of the other complainants were subject to a refusal.
4. Conclusions of the Equality Officer
4.1 At this point in my considerations the burden of proof rests with the complainants. I must first consider whether the complainants in this case John Joe and Christina Joyce and Julie-Ann and John McDonagh have established a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria. It must be established that each of them is covered by the relevant discriminatory ground i.e. in this case that he or she 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 complainants 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 they fail to establish any of these three facts, then they do not establish a prima-facie case of discrimination under the Equal Status Act 2000 and their complaints of discrimination fail. If they do establish a prima facie case the burden of proof shifts to the respondent who must then rebut the case of the complainant if the complaints are to fall.
4.2 In this case it has been established to the required degree, i.e. on the balance of probabilities, through the uncontested evidence of the complainants that they are members of the Traveller community. Secondly it has been established that they were refused service on the evening complained of. I consider that the refusal of any one of the complainants when he was ordering for the group constitutes a refusal of the group particularly when it does not appear to have been indicated to the any of the complainants at the time of the refusal that the refusal was specifically directed against that person. In fact the evidence has been that when an explanation for the refusal was sought that night, the respondent refused to provide one. In relation to the provision of less favourable treatment, the evidence provided at the hearing of these complaints is that the other people in the pub at the time the complainants were there and of whom none were members of the Traveller community were being served. Accordingly from the evidence available to me in this case I conclude that the complainants have established prima facie cases of discrimination on the Traveller community ground and the respondent must provide a satisfactory rebuttal to that case to defeat the case of the complainants.
4.3 As noted previously the respondent did not attend the hearing of this case and accordingly did not provide any rebuttal evidence other than that contained in the written response to the statutory notification of complaint made by the complainants shortly after the incident occurred. I am satisfied that the respondent had been notified of the hearing and that it was taking place at the time and venue notified to the parties a number of weeks in advance of the date set. Having considered all of the evidence available to me in this case, I conclude that the respondent has not rebutted the prima facie case of discrimination established by the complainants.
5. Decision and Redress
5.1 Where a prima facie case of discrimination has been established and has not been rebutted by the respondent the complainant must succeed in his/her complaint. In this case the complaints of John Joe Joyce (file reference ES/2003/0049), Christina Joyce (file reference ES/2003/0050), Julie-Ann McDonagh (file reference ES/2003/0052) and John McDonagh (file reference ES/2003/0053) are upheld. Where a complainant succeeds in his/her complaint an order for redress in respect of the effects of the discrimination must be made. I therefore, order that the respondent publican pay the complainant's John Joe Joyce, Christina Joyce, Julie-Ann McDonagh and John McDonagh the sum of €250 each as redress for the effects of the discriminatory treatment. In making this award I am taking into account that the complainants did get served elsewhere later in the evening on which the incident complained of occurred- DEC-S2006-029.
Mary O'Callaghan
Equality Officer
7th April 2006