Kathleen and Martin O'Brien
(Represented by Dylan Redmond BL instructed by Tarrant and Tarrant Solicitors)
-v-
John Joes Public House
(Represented by Frizelle, O'Leary Solicitors)
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- Section 15(2) Action taken in good faith
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 Dublin on Tuesday 21st March, 2006.
1. Dispute
1.1 The complainant alleges that they were subjected to discriminatory treatment when they went to John Joes Public House in Arklow on 30th September 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.
2. Summary of the Complainant's case
2.1 The complainants said that they went to John Joes Public House on the evening of 30th September 2002. When they entered they said that the pub was not busy and Mr. O'Brien approached the barman to order a beer for himself and a mineral for his wife who is non drinker. They said that Mr. O'Brien was told by the barman that he could not serve him as the manager had instructed him not to serve them. Mr. O'Brien said that he then enquired of the barman if he knew their names and that barman was unable to identify them. He said that he was told by the bar man that both of the complainants were barred and on the instructions of the manager would not be served. The complainants said they were told it was "boss man's rules" The complainants said that the barman refused to provide them with his name when they requested it but they were told by another customer on the premises that his name was Johnny. They said that the other customers in the pub had been served while they were refused. The complainants said that they found the incident to be embarrassing and humiliating.
2.2 The complainants said that they left the pub at that point and went to a local chip shop where they bought some food and returned to their home which was located in the Arklow area. Mrs. O'Brien said she had never gone back to the pub since then but her husband said that he had been in John Joes a number of times following the incident when he met with friends of his who were also members of the Traveller community. He agreed on being questioned by the respondent's representative that travellers were served on the premises and posited that the pub would be known in the locality and among members of the Traveller community as a Traveller's pub. Mr. O'Brien maintained however that this only came about subsequent to the complainants' lodgement of a complaint of discrimination against the pub. Both complainants stated they believed that the reason they were refused on 30th September 2002 was that the bar man knew them to be Travellers.
3. Summary of the Respondent's case
3.1 The respondent said that the pub had been in her family for 30 years and mainly had a local clientele including members of the Traveller community who lived locally. Refusals mainly arose due to the potential customer being determined as having already had enough to drink. This would have been the pub policy and would have been devised through the input of staff, management and the owners of the pub.
3.2 The barman who dealt with the complainants on the evening in question said he recalled the two complainants coming in to the pub together at some time between 7 and 8 o clock. He said that he noticed that Mr. O'Brien staggered as he approached the bar. He said that the complainants took seats in the corner of the pub and Mr. O'Brien approached the counter. The bar man who said he was the only person serving in the pub that night said that he told Mr. O'Brien that he'd had enough to drink and that he could not serve him any more. He said that he considered that Mr. O'Brien's speech was slurred. He said that he did not know the O'Briens and the only reason he refused the complainants was because he considered that Mr. O'Brien had already had too much to drink. He said he did not tell the complainants that they were barred but he was refusing Mr. O'Brien on that occasion because he was perceived him to be somewhat inebriated. The bar man said the only reason someone would be barred is if he was aggressive and resorted to violence. He said on the night of this refusal Mr. O'Brien followed him around the pub after he had been refused demanding his name and he felt threatened by the behaviour. He said he was nervous about providing his name. He said he recorded the incident in writing the day after and submitted a typewritten sheet to the Tribunal which he indicated was the report made at that time. The bar man said that he had seen Mr. O'Brien in the pub subsequently but not regularly and he could not recall if he had sought service from him on any of those occasions.
3.3 The bar manager said that in his 6 years as bar manager, the pub had a number of Traveller customers and this had increased in recent years. He said at the time of this incident there were about 5- 6 regular customers who were members of the Traveller community and these were drawn from the Travellers who were settled and living in the town of Arklow. He said he did not know Mr. O'Brien.
4. Conclusions of the Equality Officer
4.1 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 complainants in this case, Kathleen and Martin O'Brien have established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that they are covered by the relevant discriminatory ground i.e. in this case that they are members 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. They must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainant if the complaint is to fail.
4.2 In relation to the first point to be established, it is not contested that the complainants are members of the Traveller Community. The second point that the refusal actually occurred is also uncontested, in that all parties agree that the complainants were refused in the respondent's premises on the evening of the incident complained of. The third fact that has to be established for a prima facie case to be established is that of less favourable treatment.
4.3 In this case the evidence of the complainants is that they went to John Joes public house from home not having had any drink taken (In fact Mrs. O'Brien said that she does not drink and the order placed for a Guinness and a glass of Coke would support the contention that one of the complainants was not drinking that evening.). Their evidence is that having entered the pub and ordering a round of drinks, they were refused by the bar man who cited "bosses rules" for the refusal which they interpreted as a statement that they were barred from the premises. In the course of the evidence provided at the hearing it was conceded by the complainants that it may not have been said to them that they were barred but that was their understanding of the action taken towards them that night. They stated that others were being served in the pub while they were not.
4.4 The respondent's evidence has been that the bar man formed the opinion that Mr O'Brien already had enough drink taken when he approached the counter to order drink that evening. The barman cited his view that Mr. O'Brien was staggering and that his speech was slurred in support of this perception of Mr. O'Brien. He said, and was supported in this view by the respondent and the manager of the pub, that any person seeking to be served drink while already under the influence of alcohol would not be served and that such action is action that would be taken in good faith by a publican in accordance with their obligations under the Licensing Acts. Section 15 (2) of the Equal Status Act 2000 recognises that actions taken in good faith by the holder of a licence in such circumstances shall not constitute discrimination
4.5 Whether Mr. O'Brien had already been drinking when he went to John Joes that night is central to any conclusion as to whether a prima facie case of discrimination can be established in this complaint. The divergence in the stories of the complainants and the respondent regarding this key fact leads me to the position where I must rely on which of these versions I find to be the most compelling account of what happened. In reaching my conclusion I have reflected on the evidence in its entirety in order to determine which of these accounts of events is on the balance of probabilities what occurred that night. Throughout the evidence it has been clear that members of the Traveller community are regularly served in this particular pub. The evidence has been that it is currently regarded as a pub that Travellers frequent as it is recognised as a pub where they will not have difficulty in being served. It is acknowledged that this situation has developed over time and that at the time of this incident there was a smaller number of regular Traveller customers than frequent the premises today. However, I do not feel that the current situation, i.e. the pub being known as a Travellers pub, (one which on the complainant's own evidence is one which he attends and has been served in since the incident under investigation) would have evolved from a situation where Traveller custom was unwelcome or had been rejected. This leads me to the view that on balance the refusal of service to the complainants that night was not rooted in their status as members of the Traveller community but was most likely for some other reason whether that be the perceived intoxication of Mr. O'Brien or some other factor unrelated to their Traveller status. Accordingly I conclude that that the complainants have not established a prima facie case of discrimination.
5. Decision
5.1 I find that the complainants having failed to establish a prima case of discrimination on the Traveller community ground cannot succeed in their complaints. The complaints of Kathleen O'Brien (ES/2003/0039) and Martin O'Brien (ES/2003/0040) do not succeed -DEC-S2006-035.
Mary O'Callaghan
Equality Officer
15th May 2006