Equal Status Act, 2000
Equality Officer Decision
DEC-S2008-038
Michael McDonagh
(represented by Mr. Charles Foley, Solicitor)
-v-
Hurley’s Bar
(represented by Mr. Stephen Nicholas, Solicitor, Nicholas Nolan Solicitors)
Delegation under the Equal Status Act, 2000
This complaint was referred 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 has delegated the complaint to me Enda Murphy, 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 Acts, 2000-2004. The hearing of the case took place on 14th May, 2008.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Mr. Michael McDonagh that he was discriminated against by the respondent on the grounds of his 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.
2. Summary of the Complainant’s Case
2.1 The complainant, Mr. Michael McDonagh, who is a settled Traveller, went to the respondent’s bar at about 10:15 p.m. on Saturday, 14th June, 2003 in order to meet a work colleague with whom he had arranged to meet on the premises for a drink. This was the first occasion that the complainant had visited the respondent’s premises. The complainant claims that he knew the respondent, Ms. Margaret Hurley, from attending dances in Ennis a number of years prior to this incident and he contends that they had dated on a previous occasion. The complainant maintains that Ms. Hurley was fully aware of the fact that he was a member of the Traveller Community. There were approx. 8 to 10 customers present in the bar when the complainant entered on the night in question and he exchanged greetings with another gentleman, whom he knew, upon entering the premises. When the complainant had finished speaking to this gentlemen he turned towards the bar area in order to request service from the barman. However, upon doing so, the complainant noticed that the licencee, Ms. Margaret Hurley had whispered something into the ear of the barman, Mr. Gerry Queally, who refused to afford him service. The complainant sought an explanation from the barman for the refusal but the barman refused to give him a reason. At that stage another one of the complainant’s work colleagues, who was present in the bar, intervened on his behalf and requested the barman, Mr. Queally to serve the complainant, however, the barman refused and walked to the other end of the bar. The complainant was very upset by this refusal and he spoke to a number of customers before leaving the premises. The complainant subsequently went to another licensed premises in the town where he spoke to two of his neighbours and recounted to them the incident that had occurred at the respondent’s bar.
2.2 The complainant emphatically denies that he was intoxicated or drunk on this occasion and claims that he had consumed only a single can of beer while at home immediately prior to visiting the respondent’s premises on the night in question. The complainant claims that there were a number of other customers on the premises at this stage that appeared to be in a state of intoxication. The complainant also denies that he was informed by either the respondent, Ms. Hurley, or the barman, Mr. Queally, on the night of the incident that he would be afforded service in the bar if he returned in a sober condition on a future occasion. The complainant claims that the only reason he was refused service by the respondent was because of his membership of the Traveller Community.
3. Summary of the Respondent’s Case
3.1 Ms. Margaret Hurley, the Licensee and Mr. Gerry Queally, Barman, attended the hearing on behalf of the respondent. The respondent, Ms. Margaret Hurley, leased the bar from February, 2001 until October, 2005 and she stated that the premises had the capacity to cater for approx. 60 to 70 patrons and that its regular customer base included a number of members of the Traveller community. The bar was extremely busy on 14th June, 2003 as it coincided with the Clare/Galway hurling championship match which was taking place in the town and as a result there had been a lot of customers drinking in the bar throughout the day. The respondent claims that a number of customers, including regular customers, had been told during the course of the day that they would not be served any more drink, as they were intoxicated. The complainant, who had never previously attended the respondent’s premises, entered the bar at approx. 10:45 p.m. on this date at which stage there were at least 40 to 50 customers present in the bar. The barman on duty, Mr. Gerry Queally, observed that the complainant had staggered upon entering the premises and he therefore formed the view that the complainant was intoxicated and had already consumed enough alcohol. The complainant spoke to a number of other customers after entering the premises and when he approached the bar, Mr. Queally informed him that he was not being afforded service as it was considered that he had already consumed enough alcohol.
3.2 Mr. Queally, claims that he had never seen the complainant prior to this incident and that he spoke to Ms. Hurley, who was also on duty behind the bar and informed her of the reason why the complainant was being refused service. Ms. Hurley claims that Mr. Queally was a very experienced barman and that she trusted his judgement in relation to his assessment that the complainant had consumed too much alcohol. Mr. Queally admitted it was possible that he may have erred in his judgement regarding the complainant’s state of intoxication; however, it was his genuine belief on the night in question that the complainant had consumed too much alcohol and he claims that this was the reason for the refusal of service. When another customer intervened on behalf of the complainant, Ms. Hurley approached the complainant and this customer and informed them both that the complainant was not being served as the barman had taken the view that he already had enough drink taken. Both Mr. Queally and Ms. Hurley informed the complainant that if he wished to drink on the premises he should return the following day in a sober condition at which stage he would be afforded service. Ms. Hurley denies that she whispered something into Mr. Queally’s ear when the complainant came into the premises. Ms. Hurley also denies that she knew the complainant prior to this incident or that she had dated him on a previous occasion and she claims that she was unaware that he was a member of the Traveller Community. The respondent contends that the refusal of service to the complainant was in accordance with the provisions of Section 15(2) of the Equal Status Acts and that it was in no way attributable to his membership of the Traveller community.
4. Conclusions of the Equality Officer
4.1 At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant, Mr. Michael McDonagh, has established a prima facie case of discrimination. In order to do so the complainant must establish three criteria. It must be established that the relevant discriminatory ground applies to him, i.e. in this case that he is a member of the Traveller Community. It must also be established that the actions complained of actually occurred and finally, it must be shown that the treatment of the complainant 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. He must establish all of these facts if a prima facie case of discrimination is to be established.
4.2 I am satisfied that the complainant is a member of the Traveller Community, and therefore, the first of the three criteria have been satisfied. Neither is it disputed between the parties that the complainant was refused service on the respondent’ premises on 14th June, 2003, thus satisfying the second criteria. The third criterion, i.e. whether the treatment received by the complainant was less favourable than that which would have been afforded to someone in similar circumstances who was not a member of the Traveller community requires further consideration. The complainant claims that he had consumed only one can of beer prior to visiting the respondent’s premises on the night in question and was adamant that he was not drunk or in a state of intoxication. The complainant contends that he was refused service because of his membership of the Traveller Community. The respondent’s case is that the complainant was refused service because the barman had observed him stagger upon entering the premises and as a result believed that the complainant had already consumed too much alcohol.
4.3 I have considered the evidence (outlined above) in its entirety in order to reach a conclusion as to whose evidence is more compelling and on the balance of probabilities an accurate account of the circumstances surrounding Mr. McDonagh’s refusal. I note that the incident took place on 14th June, 2003 and that an important hurling championship match involving Clare and Galway had taken place in Ennis earlier that evening. It is accepted by both parties that there was a large crowd of people around the town for this game and I am satisfied, on the balance of probabilities, that the respondent’s evidence regarding the number of customers that were present in the bar when the complainant entered the premises, i.e. 40 to 50 people, is more compelling than that of the complainant. The barman, Mr. Queally claims that he observed the complainant stagger upon entering the bar and as a result he immediately formed the view that the complainant had consumed enough drink and consequently he decided to refuse him service. I note the evidence of Mr. Queally that he has been working in the bar trade for approx. 30 years and that he routinely observes the demeanour of customers upon entering the premises in order to assess and make a judgement as to whether or not they are intoxicated. I am satisfied, therefore, that the manner in which Mr. Queally assessed the complainant’s state of intoxication/sobriety upon entering the premises on this occasion was consistent with his normal practices in this regard.
4.4 I note the respondent’s evidence that its policy in relation to refusals is based entirely on a person being intoxicated and that this policy is applied equally to all customers. The respondent claims that the bar had been very busy throughout the day and that a number of customers, including regular customers, were refused alcohol during the course of the day as a result of being intoxicated. Having regard to the difficulties that the respondent had experienced in this regard throughout the day, I am of the view it is not unreasonable to conclude that on the night in question the barman would have had reason to be extra vigilant and cautious regarding the serving of alcohol to customers, and particularly, to customers that were not regulars or who were unknown to him, and who appeared to be drunk or in a state of intoxication. Based on the evidence presented, I am satisfied that the complainant was not the only person who was refused service by the respondent on the date in question based on an assessment or judgement by the bar-staff regarding their apparent state of intoxication.
4.5 In the present case, it was not disputed by either party that this was the first occasion the complainant had visited the respondent’s premises and it was also accepted by both parties that the barman, Mr. Queally did not know the complainant prior to the incident. I have found Mr. Queally to be a credible witness and based on the evidence presented, I am satisfied that he was not aware the complainant was a member of the Traveller community when he observed him entering the premises on this occasion. I am also satisfied that it was at the point of entry to the premises that the decision was made by Mr. Queally to refuse service to the complainant. I have found the evidence of the respondent to be more compelling than that of the complainant and in this regard, I have noted that there is an apparent contradiction in the complainant’s evidence regarding the nature of the conversation that he had with Mr. Queally on the night in question. The complainant stated in his direct evidence that Mr. Queally refused to give him a reason for the refusal of service and he denies that he was informed that he would be afforded service by the respondent on another occasion if he presented in a sober condition. However, during the course of cross-examination, the complainant admitted that Mr. Queally may have mentioned something to him about having too much drink taken. In considering the totality of the evidence put forward by both parties, I am satisfied, on the balance of probabilities, that the reason Mr. Queally decided to refuse service to the complainant was based on his assessment of the complainant’s state of intoxication upon entering the premises and not as a result of an instruction given to him by Ms. Hurley to refuse service based on his Traveller identity, as has been alleged by the complainant.
4.6 I note that the licensing laws require publicans to keep an orderly house and Section 15(2) of the Equal Status Act, 2000 provides that:
“Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination”
This section of the Act requires that action be taken in good faith by the publican or service provider for the sole purpose of ensuring compliance with the Licensing Acts. In the present case, I accept that there is a possibility that the barman, Mr. Queally, may have been mistaken in relation to his assessment of the complainant’s state of intoxication/sobriety when he entered the premises. However, I am satisfied that he acted in good faith on this occasion and that his actions in refusing service to the complainant were free from any discriminatory motive. In terms of section 15(2) of the Equal Status Act this does not constitute discrimination. I therefore, find that the complainant has not established that he was treated less favourably than a non-Traveller would have been treated in a similar situation. Accordingly, I find that the complainant has not, therefore, established a prima facie case of discrimination on the grounds of his membership of the Traveller Community.
Record of the incident in an Incident Report Book/Diary
5.1 The respondent, Ms. Hurley indicated during the course of the hearing that it was her practice to keep a record of incidents that occurred in the bar in a diary. However, upon questioning by the Equality Officer, Ms. Hurley stated that she could not recall if she had recorded an entry in this diary regarding the incident that is the subject of the present complaint. Ms. Hurley informed the Tribunal that she would endeavour to locate the diary that she kept for this purpose following the hearing in order to establish if such a record exists and she also undertook to submit this diary to the Equality Officer if it was possible to locate it. The complainant’s representative submitted that the Equality Officer should draw appropriate inferences, firstly, from the respondent’s failure to produce this diary in evidence at the hearing and secondly, in the event that the respondent should fail to produce the diary post hearing.
5.2 The complainant informed the Tribunal subsequent to the hearing that she was unable to locate this diary, or indeed other documentation connected with the business she operated in the bar, as she had become seriously ill towards the end of her tenancy of the bar and as a result, she had not personally removed documentation and belongings from the bar when the tenancy terminated. I am satisfied that the existence, or otherwise, of a diary record of the incident in the present case is not determinative and I therefore find that it is not appropriate to draw any inferences from the respondent’s failure to produce this diary. In the circumstances, based on the evidence presented, I am satisfied that the refusal of service to the complainant was free from any discriminatory motive (for the reasons that I have already outlined above).
6. Decision
6.1 On the basis of the foregoing, I find that the complainant was not discriminated against on the Traveller Community ground contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act. I therefore find for the respondent in this case (DEC-S2008-038).
Enda Murphy
Equality Officer
18th June, 2008