Winnie & Edward Reilly
(Represented by Tallaght Travellers CDP )
V
The Cuckoo's Nest Pub, Dublin
(Represented by Mason Hayes Curran, Solicitors)
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller Ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Prima facie case.
1. Dispute
1.1 This dispute concerns claims by Winnie and Edward Reilly that on 21 December 2002, they were treated in a discriminatory manner by the respondent. 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 then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of this and other relevant functions of the Director under Part III of the Equal Status Act. Final correspondence between the Tribunal and the parties to this complaint took place on 16 May 2006.
2. Summary of Complainants' Case
2.1 The complainants state that they were treated in a discriminatory manner on 21 December 2002 when they attended at the respondent premises and were refused entry. The complainants were told that they were recognised as being members of a group that had previously been involved in a serious incident on the premises. The complainants state that while they were part of a large group that was present on the premises on the night of the alleged incident, they had left early and were not personally involved in any incident. There was no doorman on duty as they left so the door staff did not witness them leave.
The complainants feel that non-Travellers would not be refused entry in the same circumstances.
3. Summary of Respondent's Case
3.1 The respondent denies that discrimination occurred and states that the complainants were refused entry on 21 December 2002 because they had been part of a group which was involved in a serious incident on the premises on 7 December 2002. A row had broken out between certain members of the group and the row had escalated to the extent that other customers had evacuated the pub and the staff had closed down the pub when the row spilled out into the adjoining car park. The Gardaí had been called to the scene by the owners of a taxi company located beside the car park
3.2 The respondent states that a strict policy is in operation on the premises whereby entry is refused to any/all persons associated with any group who are involved in any form of unacceptable behaviour. A specific example of an incident, following which all members of a group of non-Travellers were barred thereafter, was provided by the respondent.
4 Prima Facie Case
4.1. I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A(1) of the Equal Status Act 2000 (as amended by the Equality Act 2004) states that
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the contrary".
Section 38A(2) states that
"This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person".
5. Prima Facie Case - Complainants
5.1 The complainants are members of the Traveller community and this is not disputed by the respondent. It is common case that the complainants were refused entry to the respondent premises on 21 December 2002.
5.2 I regard the following as the relevant in determining whether the complainant has established facts from which it may be presumed that prohibited conduct, specifically discrimination on the Traveller ground, has occurred in relation to him.
- Both parties gave evidence that Travellers regularly attend at the respondent premises.
- Both parties referred to the attendance at the premises on an ongoing basis of the complainants, prior to an incident arising in December 2002.
- The respondent gave evidence of an incident arising on a particular night, 7th December 2002, whereby a large group of people, in whose company the complainants had attended at the premises, had rowed and behaved in a violent manner such that other customers had to evacuate the area and the staff of the premises had closed and shuttered the premises when the row spilled out into the adjoining car park.
- The complainants state that on the night of the alleged incident on 7 December 2002 they had been in the company of the group in question and had been served, as had the rest of the group, with no difficulty. The complainants left the respondent premises before the row broke out and were not therefore party to it.
- The respondent states that on any given night there are three to four door staff on duty at the only entry to the premises and that there is no way that all three or four doormen would be missing from the door at any one time, as stated by the complainants, unless a serious matter had taken them away from their post, such as the row that broke out on the night of 7 December 2002.
5.3 In light of the above and having carefully considered all of the evidence presented in this matter I am satisfied that the complainants were refused entry to the respondent premises on 21 December because they were associated by the respondent's staff with a group which was involved in an earlier incident on the premises. The refusal to admit the complainants to the respondent premises was a direct result of their being associated by the respondent's staff with the previous incident of unacceptable behaviour. The complainants were not refused because they are Travellers or because they were being associated with Travellers but because they were associated with the unacceptable behaviour of the group who attended at the respondent premises on 7 December 2002. I am satisfied that non-Travellers would be, and have been, refused service in the same or similar circumstances by the respondent.
6 Decision
6.1 I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller ground.
__________________________
Dolores Kavanagh
Equality Officer
18 May, 2006