William, Mary, Patrick & Mary Corcoran
V
Salmon Leap Inn, Kildare
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub - Prima facie case.
1. Delegations
1.1 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 delegated the cases to me, Dolores Kavanagh, 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.
2 Summary of Complainant's Case.
2.1 The complainants state that they were discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the grounds that they are members of the Traveller community when they were refused service in the respondent's premises on 22 January, 2003.
3. Summary of Respondent's Case
3.1 The respondent denies that the complainants were discriminated against and states that service was refused only to two of the complainants because it was felt that they had sufficient drink taken.
5 Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If claimants succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6. Prima Facie Case - Complainants
6.1 The complainants are members of the Traveller community and this is not disputed by the respondent. This satisfies (a) at 5.1 above. It is common case that the two male complainants were refused service in the respondent premises on 16 February, 2003. On the basis of all of the evidence provided I am satisfied that the male complainants ordered drinks on behalf of their wives and that the refusal of service applied accordingly also to the female complainants. This satisfies (b) at 5.1 above.
6.2 In relation to key element (c) at 5.1 above I regard the following as the key relevant facts in determining whether the complainants were treated in a manner which was less favourable than non-Travellers were, or would have been treated, in the same or similar circumstances:
The barman refused service to the group on the basis of the intoxicated appearance/demeanour of the male complainants who ordered drinks at the bar, William Corcoran in particular. The barman reached his conclusion in a very short time period as he is required to on an ongoing basis.
The barman associated the female complainants with the male complainants as they entered the premises, and regarded them as a group.
The male complainants state that they ordered drinks on behalf of their wives. They therefore sought service on behalf of their wives.
One of the complainants called the Gardaí to the scene following the refusal and states that one of the attending Gardaí formed the opinion that none of the group was intoxicated.
No one in the complainant group made any attempt to obtain a Garda report in the matter or call the attending Gardaí as witnesses for the Hearing of their complaints.
The respondent called one of the attending Gardaí in question to provide evidence at the Hearing of these complaints. The Garda, while not recalling the precise detail of everything that was said on the evening in question, did recall that she offered no opinion as to the sobriety of the complainant group on the night in question and would never do so in the circumstances.
The Garda does recall that she formed the opinion that some of the complainants were intoxicated on foot of the manner in which they interacted with the Gardaí. She stated that the complainant group were agitated and not listening to the Gardaí. One of the complainants in particular, William Corcoran, seemed to be calm and sober in his dealings with the Gardaí.
The complainants produced no independent evidence or witnesses to support their complaints.
The respondent indicated that all patrons are treated in the same manner in that if bar staff feel that they have sufficient drink taken then they will not receive service.
The respondent states that William Corcoran became aggressive and threatening in his behaviour following the refusal of service. This was not the reason for refusing service.
6.4 In light of the above and having carefully considered all of the evidence presented in this matter I am satisfied that both Mr. William Corcoran and Mr. Patrick Corcoran ordered drinks on their own behalf and on behalf of their wives. It is clear from evidence provided that the barman associated the female complainants with the male complainants and regarded them as a group and refused service to them as a group. There is no indication that the barman differentiated between the male complainants and the female complainants in any manner. There is no evidence to the effect that either of the female complainants had any alcohol taken. The female complainants were therefore refused service on foot of their having been associated by the barman with the male complainants.
The barman who effected the refusal of service to Patrick Corcoran on the night in question could not clearly recollect his interactions with Patrick Corcoran as he stated that he was preoccupied with the demeanour of Mr. William Corcoran. The barman does not clearly recall the demeanour of Mr. Patrick Corcoran. I am satisfied therefore that the refusal of service to the group was primarily based on the barman's conclusions in relation to the demeanour of William Corcoran.
The barman refused service to Mr. William Corcoran on the basis of a split second decision as to his sobriety. I am satisfied, based on the evidence of the attending Garda that William Corcoran was not intoxicated on the night in question. The attending Garda came to this conclusion based on a lengthy interaction with Mr. Corcoran.
The fact that I am satisfied that the barman's decision was incorrect does not negate the barman's belief that he was correct. Nor does it mean that the barman refused service on the basis of the complainant's Traveller identity.
The complainants had never been to the respondent premises before and were not known to the bar staff. The complainants have provided no evidence to indicate how the barman would have recognised them as being Travellers. The barman states that he was unaware of the complainant's Traveller identities until they indicated to him that they intended pursuing the matter through equality legislation, on the Traveller community ground.
The respondent barman states that when he refused service to Mr. William Corcoran he became aggressive and argumentative and banged the bar counter repeatedly. This reinforced the decision not to serve him, but was not the basis for refusal initially.
I find that the complainants have failed to establish, on the balance of probability, that the treatment afforded to them was less favourable than the treatment which would have been afforded to non-Travellers in the same or similar circumstances. In short, while I am satisfied that the barman's conclusions in relation to William Corcoran were incorrect, no compelling evidence has been provided to show that such an error would not occur, or has not occurred, in relation to non-Travellers or to show that the refusal was related to the Traveller status of the complainants.
7 Decision
7.1 I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
__________________________
Dolores Kavanagh
Equality Officer
15 November, 2006