Breda Berry & 5 Ors
(Represented by Mr. Barry Fitzgerald, B.L.,
acting on instructions from B.T.A.P.)
V
The Sheldon Park Hotel, Dublin
(Represented by Ms. Liz Walsh, B.L.
acting on instructions from Stewart & Co., Solicitors)
1. Dispute
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 attended at the respondent premises circa lunchtime on 30 May 2003 at which time they state that they were refused drinks service at the bar in the premises. The complainants state that the refusal of service was based on their membership of the Traveller community and was therefore discriminatory.
3. Summary of Respondent's Case
3.1 The respondent states that there was no refusal of service to any of the complainants and that, while there was some confusion as to whether the group, comprising 20-30 persons, had made a booking for lunch, service was provided to the group notwithstanding the fact that the premises was extremely busy at the time.
4 Prima Facie Case
I must first consider whether the existence of a prima facie case has been established by each of the complainants. 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.
5. Prima Facie Case - Complainants
5.1 I am satisfied that all of the complainants are members of the Traveller community in accordance with (a) at 4 above and this is not disputed by the respondent.
A number of complainants, namely Ms. Breda Berry, Ms. Ann Grogan and Ms. Bridget Connors, state that they did not seek bar service on the day in question. As these complainants did not seek this service from the respondent they could not therefore have been refused same. Nor was any evidence provided to show that any person in the complainant's group sought service on their behalf on the day in question. These complainants have not therefore, satisfied (b) at 4 above and have not therefore established a prima facie case of discrimination in relation to the provision of a service by the respondent.
5.2 The remaining complainants, namely (i) Ms. Margaret Cash, (ii) Ms. Bridget Wall and(iii) Ms. Ann Connors state that they went to the bar of the respondent premises on the day in question and ordered drinks and were refused service.
5.3 (i) Ms. Margaret Cash
Ms. Cash states that when she entered the bar she went to speak to her aunt who had arrived earlier and who was seated at one of the tables. Her aunt informed her that some members of the group had been refused service and asked Ms. Cash to order a drink at the bar and see what happened.
Ms. Cash states that when she went to the bar and ordered a coke and a glass of water the bar person refused service but gave her a glass of water. Ms. Cash states that this was a humiliating and embarrassing experience.
The bar person in question states that service was not refused to Ms. Cash.
In circumstances where the evidence provided by both parties is equally compelling, where Ms. Cash states that she was provided with a glass of water and in the absence of witnesses in this regard I am not satisfied, on the balance of probabilities, that Ms. Cash has satisfied (b) at 4 above. Ms. Cash has not therefore established a prima facie case of discrimination in relation to the provision of a service by the respondent.
5.4 (ii) Ms. Bridget Wall
Ms. Wall states that she went to the bar along with Ms. Margaret Cash when she arrived at the premises and that they were both refused service. Ms. Wall specifically states that the "manager" ( a male) refused them bar service and that they then went to take a seat and wait for other members of their group to arrive.
Evidence provided by both parties to this matter indicates that the manager in question was not present in the bar when the group arrived. A spokesperson for the group requested to speak with the manager, subsequent to the alleged refusals of service, and he came to the bar a short time later.
Ms. Margaret Cash provided evidence to the effect that she went to the bar on her own, after she had spoken with her aunt, as set out above.
In the circumstances Ms. Wall has not established to my satisfaction, on the balance of probabilities, that she requested and/or was refused service by the respondent's staff. Ms. Wall has therefore failed to satisfy (b) at 4 above and has not therefore established a prima facie case of discrimination in relation to the provision of a service by the respondent.
5.5 (iii) Ms. Ann Connors
Ms. Connors states that while standing at the bar of the respondent premises on the day in question she heard other members of the group discuss the fact that some members of the group had been refused service. She ordered a drink for herself and was refused service by the manager.
Evidence provided by both parties to this matter indicates that the manager in question was not present in the bar when the group arrived. A spokesperson for the group requested to speak with the manager, subsequent to the alleged refusals of service and he came to the bar a short time later.
In the circumstances Ms. Connors has not established to my satisfaction, on the balance of probabilities, that she requested and/or was refused service by the respondent's staff. Ms. Connors has therefore failed to satisfy (b) at 4 above and has not therefore established a prima facie case of discrimination in relation to the provision of a service by the respondent.
As none of the complainants has established a prima facie case of discrimination on the Traveller community ground it is not necessary for the respondent to provide a rebuttal.
6 Other Matters
Having carefully considered the totality of the evidence in this matter I am satisfied that while the complainant group has not established a prima facie case of discrimination this is not to say that issues did not arise in relation to the provision of service to them and their colleagues (some 13 other persons, both Traveller and non-Traveller) on the day in question.
However, the evidence provided by both parties indicates that the issue most likely arose with regard to the arrival of a large group to the premises on a day where the respondent staff were aware that they had a very heavy workload ahead of them. The complainant group stated in evidence that they had not pre-booked tables. While I accept that the premises provides a carvery lunch, I also accept that a member of the larger group specifically approached the staff of the premises and stated that a booking had been made. Some considerable confusion arose thereafter but, ultimately, the group was facilitated and served.
I note that the complainant party alleged that two of them had experienced refusals of entry/service in the respondent premises previously but the exact circumstances of those alleged refusals are unknown, were not the subject of this investigation and are therefore unclear and unsupported by evidence. No weight has been given by me to those allegations as a consequence.
I note further that some of the complainants indicated that they had attended at, and booked functions in, the respondent premises previously and had experienced no difficulties whatsoever with service.
Finally, it is of some concern to me that (i) the manager who interacted with the spokesperson for the complainants on the day in question provided reasons at that time for not wanting to allow the group to be served which simply did not stand up to scrutiny and were unnecessary. This is not to say that all of the reasons provided were untrue or that they were related in any way to some of the group's Traveller identity and (ii) certain statements made by one of the witnesses for the respondent at the Hearing of these complaints, while not of themselves discriminatory, reflect a poor understanding of diversity and cultural issues, specifically Traveller issues. The respondent might wish to consider in-depth and formal training in this regard for all staff.
7 Decision
7.1 I find that the complainants, Ms. Breda Berry, Ms. Ann Grogan and Ms. Bridget Connors, Ms. Margaret Cash, Ms. Bridget Wall and Ms. Ann Connors have failed to establish a prima facie case of discrimination on the Traveller community ground.
__________________________
Dolores Kavanagh
Equality Officer
23 January, 2008