Martin, Mary, Anthony & Nancy 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 16 February, 2003.
3. Summary of Respondent's Case
3.1 The respondent denies that the complainants were discriminated against and states that service was refused because it was felt that some members of the complainant group 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 they 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 complainants were refused service in the respondent premises on 16 February, 2003 and 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 associated the female complainants with the male complainants as they entered the premises, and regarded them as a group.
The barman does not recall what drinks were ordered by the male complainants who sought service at the bar.
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 the attending Garda 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 he formed no opinion as to the sobriety of the complainant group and would never do so in the circumstances. He does recall that there was a smell of intoxicating liquor but, due to his proximity to the pub at the time, he could not state for definite that the smell was coming from the complainants. He stated that the complainant group were polite and courteous to him at the time.
The Garda formed his opinion after a lengthy conversation with the complainants while the barman who refused service to the complainants had to make a decision in a matter of seconds as to whether to serve or refuse the group.
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 the bar staff feel that they have sufficient drink taken then they will not receive 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 parties have provided equally credible oral evidence in the matter and there is nothing to separate them. I am not satisfied, therefore, that the complainant's have established, 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.
6.5 The complainants have failed to satisfy key element (c) at 5.1 above and have therefore failed to establish a prima facie case of discrimination.
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