Martina & Owen Browne, Eileen & Patrick O'Donovan
V
Moloney's Bar, Cork
(Represented by Lees Solicitors)
Martina Browne, Owen Browne, Eileen O'Donovan and Patrick O'Donovan each referred a claim of discrimination on the Traveller ground 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, the Director then delegated the case to me, Bernadette Treanor, 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.
Summary of the Complainant's case
Eileen and Patrick O'Donovan are Martina Browne's parents. Martin and her parents are members of the Traveller community. Owen, a non-Traveller, is married to Martina. The group socialized together weekly and regularly went to the respondent premises on a Saturday night. On 8th February 2003 when they entered they were refused service. They stated that the last time they had been in the bar prior to the refusal was around 16th December 2002. It was Martina's birthday and the band had played a request for her. When asked at the hearing if they had been in the bar on 7th December 2002, when there had been an altercation involving Travellers to which the Gardai were called, the complainants could not say for sure if they were there on that date but they were all clear that they had neither witnessed nor been involved in an altercation in the pub at any time. Martina was pregnant at the time and was not drinking. She had been in and out of hospital five times between November and Christmas. Owen does not drink alcohol. The complainants were very distressed by the refusal. Martina was embarrassed in front of work colleagues and her parents were distressed to have found themselves accused of such troublemaking. The refusal on 8th February was the first refusal they had ever experienced. Martina called the Gardai on the night of their refusal, 8th february 2003 and she pointed out that it is unlikely she would have called them if she had been in trouble with them in December. The complainants stated that some Travellers may cause difficulties but not all Travellers are the same. They believe they were refused because they are Travellers and not because they had caused any difficulties.
Summary of the Respondent's Case
The respondents knew the complainants as they had been in the pub regularly. There is no dispute that there was a refusal on 8th February 2003. The pub had a history of difficulties including riotous behaviour on the premises in 2001, the issue of a warning in 2002 and after the incident in December 2002 they were told by the Gardai not to call them again if they continued to serve 'these people'. They were told that their licence would be objected to. During the hearing of this matter the respondents described the fight on 7th December 2002, insisted that the complainants were involved in it and stated that "they were in the middle of it - they didn't run away from it". They made a general comment about Travellers and said that they had no option but to curtail the serving of Travellers in the Bar. The respondent then qualified this by saying that they "still serve Travellers but if they are involved in incidents and we can recognise them we will not serve them". The respondent is relying on Section 15(2) of the Act as a defence in this case.
Conclusions of the Equality Officer
It was accepted, and I am satisfied, that the Traveller ground is appropriate with respect to the complainants, directly or by association. There is no dispute that there was a refusal of service on 8th February 2003. The complainants state that they believe that they were refused because they are Travellers and that non-Travellers in similar circumstances would not have been so treated. The respondent states that the reason for the refusal was the complainants' involvement in difficulties which occurred on 7th December 2002.
I am satisfied, on the balance of probabilities based on the evidence presented to me that an altercation took place on 7th December 2002 in the respondent premises and that at least some of those involved were Travellers. On that basis also I am satisfied that the complainants had not been involved. It is clear that the respondent had serious concerns about difficulties arising in the pub again, about his licence and about the availability or otherwise of help from the Gardai should a similar situation arise again. It is clear that the respondent felt that the culpability for the fracas in December lay with a number of Travellers. The respondent has failed, on the balance of probabilities to establish that the complainants were involved. In addition, based on the comments made at the hearing, a concern arises about the implementation of a blanket ban on Travellers introduced some time after the fracas. This position is confused, however, by the complainants statement that they had been in the pub without problem some time after 7th December, around 16th December.
In summary, the complainants had been in the pub regularly until they were refused in February 2003. The only thing that appears to have happened to change this was the fracas on 7th December 2002. The respondent has failed, as stated above, to establish the complainants' involvement in this fracas. I find that the complainants were refused service because a number of Travellers had been involved in a fight in the respondent premises even though they were not involved. Since I do not accept that non-Travellers would be similarly refused where they had not been involved in such difficulties, I find that the complainants have been less favourably treated on the Traveller ground and that a prima facie case of discrimination arises.
The respondent indicated that he wished to rely on Section 15(2) of the Acts to rebut such a prima facie case should one arise. However, since I have found that the respondent has failed to establish, on the balance of probabilities, that the complainants had been involved in the fracas, and therefore there was no specific reason for refusing these particular individuals, I cannot accept that the decision to refuse was taken in good faith for the sole purpose of ensuring compliance with the Licensing Acts. I find that the respondent has failed to rebut the prima facie case of discrimination.
Decision DEC-S2007-083
I find that the respondent discriminated against the complainants when they were refused service on 8th February 2003. I hereby order the respondent to pay the complainants €750 each for the effects of the discrimination.
Bernadette Treanor
Equality Officer
27th November 2007