Anthony Corcoran and William Corcoran
-v-
Lucan County Bar
1. Dispute
1.1 This dispute concerns a claim by the complainants, Mr. Anthony Corcoran and Mr. William Corcoran, that they were discriminated against by the respondent on the grounds of their membership of the Traveller Community in terms of Sections 3(1)(a) and 3(2)(i) of the Equal Status Act, 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Act, 2000. Mr. Anthony Corcoran also claims that he was discriminated against by the respondent on the victimisation ground in terms of Section 3(2)(j) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants Mr. Anthony Corcoran and Mr. William Corcoran are brothers. Mr. Anthony Corcoran referred a previous complaint against the respondent to the Equality Tribunal under the Equal Status Act, 2000 arising from an incident that occurred on 13 April, 2002. This case was settled through the mediation process conducted by the Tribunal. Following this settlement, Mr. Anthony Corcoran visited the respondent's premises on approx. 8 to 10 occasions but he alleges that on each of these occasions he was victimised by Mr. Denis Fahy, a barman working at the Lucan County Bar. Mr. Anthony Corcoran claims that he was singled out for inappropriate attention by Mr. Denis Fahy who directed disingenuous and insincere remarks towards him in the presence of other customers. This behaviour of Mr. Fahy was carried out in a sneering manner and it was clearly intended to intimidate Mr. Anthony Corcoran and to make him feel uncomfortable while on the premises.
2.2 The complainants visited the respondent's premises on Sunday 14th and Monday, 15th September, 2003 with a group of approx. 15 or 16 relatives and friends. Mr. William Corcoran had only been in the respondent's premises on one or two occasions prior to these dates. On 15th September, 2003, a total stranger called Mr. Noonan sought to join the complainants' group and ordered a round of drinks for them, however he was unable to pay for these drinks which amounted to approx. €40. The members of the complainant's group subsequently paid for these drinks and they requested the bar-staff to remove Mr. Noonan from the premises as he was causing a nuisance. The complainants and the other members of their group continued to socialise in an orderly manner following the removal of Mr. Noonan and the remainder of the evening passed without incident. The complainants attended a family wedding on 16th September, 2003 and returned to the respondent's premises on Wednesday, 17th September, 2003 and again on Thursday, 18th September, 2003. On both of these occasions they were accompanied by a group of 30-40 relatives and friends that were in the vicinity following their attendance at the wedding. During the course of these evenings a number of the members of the group engaged in a "sing-song" in the bar. However, neither the bar staff nor management requested the group to refrain from singing nor did they advise the group at any stage that patrons were prohibited from singing on the premises. The complainants were not aware that the respondent had a policy that prohibited patrons from singing on the premises and the existence of any such policy was not brought to their attention on either of these occasions. The complainants and the other members of their group were very well behaved on both of these occasions and the evenings passed without incident or trouble.
2.3 On Friday, 19th September, 2003 the complainants returned to the respondent's premises with a group of approx. 16-18 relatives and friends. On approaching the bar, Mr. Denis Fahy, the barman, told Mr. Anthony Corcoran that he would not serve the other members of the group as they had been singing in a very loud manner in the bar on the previous two nights and he stated that the bar was losing the custom of its regular customers from the settled community because it was being frequented by a large group of Travellers. Mr. Anthony Corcoran claims that Mr. Fahy stated that he hadn't a problem refusing service to Travellers for the last 35 years and that it was only because of the introduction of the Equal Status Act that he was now compelled to do so. Mr. Fahy did not refuse service to Mr. Anthony Corcoran on 19th September, 2003 and he also accused Mr. William Corcoran of being abusive towards a member of staff during a visit to the premises a few weeks previously. Mr. William Corcoran denied that this incident had taken place. The complainants and the other members of their group then left the premises following the refusal of service by Mr. Fahy.
2.4 On Friday 26th September, 2007 Mr. Anthony Corcoran returned to the respondent's premises for a quiet drink with his wife and a couple of friends. When Mr. Corcoran approached the bar to order a drink Mr. Denis Fahy informed him that he was not being served because he had left the premises on 19th September, 2003 when the other members of the group had been refused service. Mr Denis Fahy indicated that the only reason the complainant had been served in the bar was because of the previous mediated settlement agreement. Mr. Anthony Corcoran then left the premises and has not returned since.
3. Summary of the Respondent's Case
3.1 The complainants attended the respondent's premises on Sunday, 14th September with a group of people and were well behaved on this occasion and didn't cause any trouble. On Monday, 15th September, the complainants returned to the bar with a larger group of people. The respondent submitted that there was an incident involving a Mr. Noonan on this occasion, who ordered a round of drinks for the complainants' group for which he was unable to pay. The respondent acknowledged that these drinks were paid for by members of the group when payment was sought by the bar-staff. Following this incident a number of members of the group began to sing on the premises, however these individuals stopped singing when requested to do so by the bar manager, Mr. Denis Fahy. The respondent submitted that it has a policy that strictly prohibits patrons from singing on the premises and notices to this effect are displayed at various places throughout the premises.
3.2 On Wednesday, 17th September, 2003 a group of approx. 40 people including the complainants came into the bar at around 8 p.m. and divided themselves into two separate groups, one consisting of men and the other group consisting of women. Mr. Denis Fahy, Bar Manager, claims that Mr. Anthony Corcoran informed him early in the evening that the group would be well behaved and that they would leave the premises on time. Towards the end of the evening both of these groups of people began to sing loudly and they also had built up a large amount of drink at their tables. Mr. Denis Fahy approached the group on a number of occasions and informed them that singing was prohibited on the premises and requested them to stop, however these requests to refrain from singing were ignored. The bar staff on duty also had difficulty in getting this group of people to leave the premises and the last members of the group eventually departed at 12:45 a.m. which was long after the drinking up period under the licensing laws. On Thursday, 18th September, 2003, the same large group of people which included the complainants, returned to the bar and again divided into two separate groups of men and women. These groups again began to sing loudly towards the end of the evening and also had built up a large amount of drink. Mr. Allister Richardson, who was the barman in charge on this occasion, approached the groups on a number of occasions and requested them to stop singing, however his requests were ignored by the members of the group. On one such occasion a member of one of the groups responded to Mr. Richardson's request with foul and abusive language. The respondent again had difficulty clearing the group from the premises and they eventually departed at approx. 1:20 a.m. which was well after the stipulated closing time in the licensing laws.
3.3 Mr. Denis Fahy and Mr. Allister Richardson were both on duty on Friday, 19th September, 2003 and having discussed the events of the previous two nights it was decided to refuse service to the complainants and the other members of the group if they returned to the premises as a result of their unacceptable behaviour on these occasions. The respondent submitted that it could not tolerate this type of behaviour and claimed that any group of people irrespective of whether or not they were members of the Traveller community would also be refused service if they behaved in such a manner. The complainants and the other members of the group returned to the respondent's premises later that evening and on arrival Mr. Denis Fahy informed Mr. Anthony Corcoran that he and the other members of the group were not being served on account of their behaviour on the previous two nights. Mr. Anthony Corcoran began to question this refusal and other members of the group surrounded Mr. Denis Fahy and backed him into a corner of the premises. Mr. Fahy stated that their behaviour was extremely intimidating and that he felt threatened by the members of the group. The respondent submitted that the situation was in danger of escalating out of control and that it was necessary for Mr. Tom Treacy, Head of Security to intervene in order to restore calm to the situation. The group dispersed following the intervention of Mr. Treacy and left the premises without any further difficulties. Mr. Denis Fahy stated that the respondent did not operate a discriminatory policy against Travellers and he also denied that he told Mr. Anthony Corcoran on this occasion that he didn't have a problem in refusing service to Travellers for the previous 35 years. Mr. Anthony Corcoran returned to the respondent's premises on Friday, 26th September, 2003 but was again refused service by Mr. Denis Fahy on account of the behaviour of the group of people that he was associated with on the premises the previous week.
3.4 Mr. Denis Fahy totally denied the allegations that he victimised Mr. Anthony Corcoran on any of the occasions that he had visited the respondent's premises following the previous complaint that he referred to the Tribunal. Mr. Fahy denied that he subjected or singled out Mr. Anthony Corcoran for inappropriate attention on any of his visits to the respondent's premises following the mediated settlement of this case. Mr. Fahy stated that the complainant was treated in the same manner as any other customer on every occasion that he attended the respondent's premises following this incident.
4. Preliminary Issue
4.1 At the hearing on 20th September, 2007 the respondent argued that the complaint of Mr. William Corcoran should be deemed inadmissible as the notification required under Section 21(2)(a) of the Equal Status Act, 2000 had not been served on the respondent within the two months specified in the legislation. The respondent pointed to the fact that the ODIE.5 Form completed on behalf of Mr. William Corcoran was dated 19th November, 2003 and as the date of the alleged incident of discrimination was 19th September, 2003, it was argued that this notification was out of time and therefore the complaint should be deemed inadmissible. The complainant, Mr. William Corcoran, submitted that the ODEI.5 Form was dated incorrectly as 19th November, 2003 and claimed that this form, which was completed on his behalf by his solicitor (who has withdrawn as his representative in these proceedings), was in fact delivered by hand to the respondent on 17th November, 2003.
4.2 Section 21(2)(a) of the Equal Status Acts, 2000 to 2004 states that:
"21 - (2) Before seeking redress under this section the complainant -
(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or,
where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of the alleged incident"
In considering this issue, I am satisfied that the complainant's ODEI.5 Form has been dated as 19th November, 2003 and this matter is not disputed by the complainant. However it is the date that the notification was actually served upon the respondent that is at issue in this instance. The complainant's solicitor has submitted correspondence stating that the notification was delivered to the respondent's premises by hand on 17th November, 2003 at approx. 7:00 to 7:30 p.m. and that it was handed to a barman named Brian on this date. The complainant submitted an attendance note at the hearing that was completed by his solicitor in support of his contention that the form was delivered to the respondent on this date. This contention would also appear to be supported by a letter dated 17th December, 2003 that was sent by the respondent to the complainant's solicitor in acknowledgement of its letter dated 17th November, 2003. At the hearing the respondent accepted that there was a barman named Brian working in the bar around this period of time. However, from the records available to it, the respondent was neither able to confirm nor contradict the complainant's evidence that the notification had been delivered on the date as contended.
4.3 Having carefully considered this matter, I am prepared to accept the complainant's contention that the ODEI.5 Form was dated incorrectly and that this document was in fact delivered by hand to the respondent on 17th November, 2003. I am therefore satisfied that the complainant, Mr. William Corcoran, did comply with the provisions of Section 21(2)(a) of the Act in notifying the respondent of the alleged act of discrimination and that his complaint is admissible under the Equal Status Acts.
5. CCTV Footage
5.1 CCTV footage without sound was provided to the Tribunal by the respondent and was viewed by all parties at the hearing. The CCTV footage shows extracts of recordings taken in the bar area of the respondent's premises on the following nights:
- Wednesday night, 17th September, 2003 from 00:37 hours to 00:44 hours
- Thursday night, 18th September, 2003 from 01:18 hours to 01:26 hours
- Friday evening, 19th September, 2003 from 19:48 hours to 20:40 hours
This footage shows that there were people on the respondent's premises on these dates at the aforementioned times. However, given the poor quality of the pictures it is impossible to clearly identify individual characters with any degree of certainty. I am therefore satisfied that this CCTV footage is inconclusive insofar as the present case is concerned and I find that it is of no evidential value to me in deliberating on the issues that have to be decided in this case.
6. Conclusions of the Equality Officer
6.1 At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainants in this case have established a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria. (1) 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. (2) It must also be established that the actions complained of actually occurred and finally (3) 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 the complainants succeed in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must rebut the case of the complainants if its defence is to succeed. If a prima-facie case is not established by the complainant, the complaint fails.
6.2 It is not disputed that the complainants are members of the Traveller community and therefore the first of the criteria outlined above has been satisfied. Both parties agree that the complainants were refused service, however in the case of Mr. Anthony Corcoran there is a dispute regarding the date on which this refusal was effected. The respondent claims that this refusal took place on 19th September, 2003 whereas Mr. Anthony Corcoran claims that the relevant date of refusal was 26th September, 2003. However, for the purposes of satisfying the second of the above criteria, I am satisfied that both of the complainants were refused service by the respondent. I will now proceed to examine the third element of the test in order to establish if the complainants have produced sufficient evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that they were treated less favourably than a non-Traveller would have been treated in similar circumstances.
6.3 The respondent contends that the decision to refuse service to the complainants and the other members of their group was taken as a result of their unacceptable behaviour on its premises on 17th and 18th September, 2003. It is not disputed that the complainants and the other members of the group were afforded service by the respondent on 14th and 15th September, 2003. It is also accepted by both parties that there was an incident involving a Mr. Noonan on 15th September, 2003. However, I am satisfied from the evidence adduced that this incident did not have a bearing on the respondent's ultimate decision to refuse service to the complainants on 19th September, 2003. I note that it is not disputed by the complainants that the group of people they were with had been singing on the respondent's premises on 17th and 18th September, 2003. However, the complainants in their evidence have disputed that they were requested on numerous occasions to refrain from singing or that they were made aware by the respondent that singing was prohibited on the premises. The respondent has submitted that the singing started shortly before closing time on each occasion and that it continued well past closing time despite numerous requests by the bar staff to stop. The respondent also submitted that there were difficulties in clearing the group from the premises on both occasions and despite repeated requests they failed to leave until well after the normal closing time. Mr. Denis Fahy and Mr. Allister Richardson gave evidence that their requests to the group to refrain from singing on the respective nights were totally ignored and of the difficulties that they experienced in clearing the group from the premises on the nights in question. In this regard, I have taken particular note of Mr. Richardson's evidence that, following one such request to the group to refrain from singing, a member of the group responded to his request with foul language.
6.4 On the balance of probabilities, I find the evidence of the respondent to be more compelling on this issue and I am satisfied that the respondent had a policy that prohibited patrons from singing on the premises and that despite being made aware of this policy the members of the complainants' group refused to refrain from singing after being requested to do so on a number of occasions by the respondent's bar staff. I am also satisfied that despite the efforts of the respondent's bar staff that a number of members of the group remained on the premises until after the legally permitted closing time. I note that there is a dispute between the parties regarding the precise date on which Mr. Anthony Corcoran was ultimately refused service by the respondent. I find the evidence of the respondent more compelling on this point and I am satisfied that both of the complainants and the other members of their group were refused service by Mr. Fahy when they attended the respondent's premises on 19th September, 2003. I also note that the respondent has claimed that Mr. Denis Fahy was surrounded by a number of members of the group in an aggressive and intimidating manner when the refusal of service was communicated to the group and that it was necessary for its security man to intervene in order to restore calm to the situation. The complainants deny that either they or other members of the group acted in such a manner towards Mr. Fahy and submit that they were merely seeking a reason for the refusal of service. While I do not condone behaviour such as that described by Mr. Fahy, the fact remains that such behaviour, if it occurred, was after the refusal of service and was not therefore part of the reason for the refusal.
6.5 I have concluded in my deliberations in para. 6.4 above that I am satisfied the group of people that the complainants were associated with did behave in the manner alleged by the respondent on its premises on 17th and 18th September, 2003. In order to ascertain whether the complainants have established a prima facie case of discrimination, I must decide whether the respondent would also have taken the decision to refuse service to a group of people from the settled community, if they had behaved in a similar manner to that of the complainant' group. I am satisfied that the behaviour of the group of people, of which the complainants were members, in singing on the respondent's premises when not permitted to do so and by refusing to leave the premises until well after the stipulated closing time, constitutes disorderly behaviour that is unacceptable in a public house. In conclusion, on the balance of probabilities, I find that the respondent did not operate a discriminatory policy against Travellers and that any group of people that frequented the respondent's premises and behaved in such an unacceptable manner would have been refused service on a subsequent occasion. Accordingly, I find that the complainants were not treated in a less favourable manner than a non-Traveller would be in similar circumstances. The complainants have not, therefore established a prima facie case of discrimination on the Traveller community ground.
7. Complaint of victimisation by Mr. Anthony Corcoran
7.1 I will now consider whether Mr. Anthony Corcoran was victimised by the respondent in terms of 3(2)(j) of the Equal Status Acts. Section 3(2)(j) defines the victimisation ground as follows:
"that one -
(i) has in good faith applied or any determination or redress provided for in Part II or III,...
(iv) has opposed by lawful means any act which is unlawful under this Act, ..."
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the victimisation ground)"
Mr. Anthony Corcoran alleges that he was victimised by Mr. Denis Fahy as a result of a previous case that he referred to the Tribunal against the respondent under the Equal Status Act, 2000. The respondent accepts that the complainant did refer a previous complaint against it under the Equal Status Acts and that this matter was resolved by mediation. I am therefore satisfied that the complainant is covered by the victimisation ground. Mr. Anthony Corcoran claims that he was subjected to insincere and sneering remarks by Mr. Fahy on each of the occasions that he visited the respondent's premises following the aforementioned case. Mr. Denis Fahy totally denied these allegations and claims that he treated the complainant in the same manner as any other customer on each of the occasions that he frequented the premises following the mediated settlement of this case.
7.2 Having considering the evidence of both parties on this issue, I conclude that the account provided by the respondent is more compelling than that of the complainant and that on the balance of probabilities the respondent's evidence is a more accurate account of what occurred. In coming to this conclusion, I have taken particular note of the fact that the complainant failed to confront Mr. Fahy about the alleged inappropriate behaviour and that he also chose to keep frequenting the respondent's premises and saw fit to attend with members of his family on four further occasions between 14th and 19th September, 2003. In the circumstances, I find that the complainant, Mr. Anthony Corcoran has failed to establish a prima facie case of discrimination on the victimisation ground.
8. Decision
8.1 On the basis of the foregoing, I find that the complainants, Mr. Anthony Corcoran (ES/2004/0010) and Mr. William Corcoran (ES/2004/0011) have failed to establish a prima-facie case of discrimination on the Traveller community ground and accordingly their complaints are dismissed. I also find that Mr. Anthony Corcoran has failed to establish a prima facie case of discrimination on the victimisation ground. I therefore find for the respondent in this case (DEC-S2007-080).
Enda Murphy
Equality Officer
19th November, 2007