Complaint under the Equal Status Act 2000-2008
DEC – S2008 – 052
Noreen & Margaret O’Brien
V
Mustang Sally’s Pub
(Represented by Niall Brosnan & Co. Solicitors)
Noreen and Margaret each referred a claim to the Director of Equality Investigations under the Equal Status Act 2000 of discrimination on the Traveller community ground. 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
The complainants are members of the Traveller community. On Sunday evening, 1st June 2003, they met at Noreen’s home and got a taxi into Killarney town. When they arrived at the respondent premises two settled ladies ahead of them were admitted. The complainants, however, were told that locals only would be admitted. Margaret replied that this was fine as she was a local and she passed the doormen. She slipped on the stairs and heard one of the doormen, named, ask the others if they found a smell in the air. Then he said “Oh watch lads, she has a mobile phone; the ambulance and the Gardai will be here any minute. The complainants walked away and complained to two Gardai they met outside. The Gardai told them it was a civil matter but they could go to the Garda Station if they wished. The complainants did so and made a complaint. They then went to taxi rank and went home. There was a number of settled people there who saw the entire episode and the complainants stated that this was very embarrassing for them.
Summary of the Respondent’s Case
The respondent’s representative made much of the prejudice caused to his client by the delay in processing the claim. He stated that security arrangements, the management and their recording of the CCTV footage have all changed since the incident. The initial hearing was adjourned to allow the respondent to contact the relevant doorman who was only identified at the first hearing. At the reconvened hearing the doorman stated that the two ladies had never arrived at the door of the pub while he was there. He could be certain of this as one of them was known to him. He stated that the alleged incident never took place. The doorman stated that he is friendly with some Travellers and that his father was also friendly with Travellers as well as his work as a councillor. He stated that if one of the complainants fell there might have been an issue around the complainant being drunk but the incident never happened. In addition, if the complainants were on the stairs then would have already passed the doormen and been admitted to the premises. Another witness stated that he did not recall the first doorman making any such comments and he was content that the incident did not happen. He also indicated that the premises had a computer based CCTV system at that time. The manager of the premises at the relevant time was unavailable and the current manager presented some general information. When asked by one of the complainants why there had been no response within the first 30 days after the incident when CCTV would have been available, he replied that perhaps it was not received or no action had been taken until early July. The respondent’s representative replied to the notification on 4th July 2003. Neither of the witnesses is now employed by the pub as the security arrangements have been contracted out.
Conclusions of the Equality Officer
I am satisfied that the complainants are members of the Traveller community. As the occurrence or otherwise of the alleged incident is disputed, I must make a finding of fact before I can proceed. Apart from the comment about an ambulance and the Gardai not being included in the notification, the complainants report of the issue has been consistent. The notification of the incident was sent to the respondent by letter dated 18th June 2003 and a response dated 4th July 2003 was sent by the respondent’s representative. The date of the notification was well within time to allow the respondent to secure a copy of the relevant CCTV which would have considerably aided a decision on the occurrence or otherwise of the incident. In addition, the respondent’s evidence was conflicted on the issue of whether or not the CCTV was computerised at the time of the alleged incident. Further, there are two witnesses, the complainants, that state that the incident took place and two other witnesses, for the respondent, who state that the incident did not take place. Based on the totality of the evidence presented to me I find the complainants evidence more compelling and I find as a fact that the incident took place and the complainants were refused admittance to the respondent premises on 1st June 2003.
This finding of fact assumes that the incident took place as reported relatively consistently by the complainants, including the comment relating to smell. If I accept that the incident took place and that there were comments made in relation smell, then in my view I must accept that this was directly related to the complainants’ membership of the Traveller community, one of whom was known to the respondent’s witness. Therefore, as the complainants were treated less favourably because of their membership of the Traveller community they have established a prima facie case of discrimination on the Traveller ground.
As the respondent has presented no evidence that might rebut such a prima facie case I find that they have failed to rebut the prima facie case of discrimination.
Decision DEC-S2008-052
In accordance with section 25(4) of the Acts, I conclude my investigation and issue the following decision. I find that the complainants were discriminated against on 1st June 2003 when they were refused entry to Mustang Sally’s Pub. I hereby order the respondent to pay each of the complainants €600.
Bernadette Treanor
Equality Officer