THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC – S2009-022
PARTIES
Mr. Michael Stokes and Mrs Margaret Stokes
and
Ms Carmel Cunningham and Noddy’s Bar
(represented by Hegarty & Co., Solicitors)
File Reference: ES/2002/748-749
Date of Issue: 6 April 2009
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Traveller community ground, section 3(2)(1) - Supply of goods and services, section 5(1) - Refusal of service in Pub
1 Delegation under the Equal Status Acts, 2000 - 2007
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. The complaint was originally assigned for investigation to Mary O’Callaghan, Equality Officer on 16 November 2006 but was relinquished by her on her departure from the Equality Tribunal in September 2007.
On 10 October 2007, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O’Byrne, 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 - 2007. My investigation commenced on 23 October 2007 with the full Hearing of the complaint being held on 28 January 2009.
2 Dispute
This dispute concerns a complaint by Michael and Margaret Stokes that they were refused service in Noddy’s Bar, Ballybeg on the instruction of the then manager, Ms Carmel Cunningham. The complainants allege that the refusal was because they were known to be members of the Traveller community.
3 Summary of Hearing
3.1 At the Hearing on 28 January 2009, the complainants gave evidence that they had been regular drinkers in Noddy’s Bar for many years without any problem. On 29 June 2002, they called to the pub at 8pm and were served a drink by Mr Jackie Cassidy. When they sought a second drink, Mr Cassidy told them that he had just received an instruction from the manager, Ms Carmel Cunningham, that they were not to be served any more drink. When they consulted the doorman, Mr Pat Tobin, in the matter, he confirmed to them that Ms Cunningham had given an instruction not to serve them. Ms Cunningham had left the premises at that point.
Both Mr Jackie Cassidy and Mr Pat Tobin appeared as witnesses at the Hearing and both confirmed that Ms Cunningham had given them an instruction not to serve Mr and Mrs Stokes. Both said that they could not understand the reasoning for Ms Cunningham’s instruction as the Stokes had never caused trouble in the pub before. Both witnesses indicated that the only assumption they could arrive at was that Ms Cunningham did not want them on the premises because they were members of the Traveller community.
3.2 Ms Carmel Cunningham also gave evidence at the Hearing. She said that she knew Michael Stokes from seeing him in the pub on several occasions. Margaret Stokes was unknown to her. She was aware that Michael Stokes was a member of the Traveler community.
At the Hearing, she referred to a very serious incident that had occurred in the pub on St Patrick’s Day 2002 involving a dispute over a darts match. She said both Travellers and non-Travellers were involved and the Gardai had to be called. She accepted, however, that the Stokes were not present that night. She said that she became afraid and concerned after that incident over who was let into the pub
With regard to the events of 29 June 2002, Ms Cunningham said that she had no recollection of the incident whatsoever and could not recall giving any instruction to anyone not to serve the Stokes. She also said that she had only become aware of the equality complaint itself in 2008 when she received correspondence from the Equality Tribunal. Reference was then made to the original complaint notification form which had been sent in 2002 by registered post to Ms Cunningham and which she had signed for on 29 July 2002. When shown her signature on the delivery record, she accepted it was hers but said that she could not remember the notification form itself.
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his/her actions were driven by factors which were non-discriminatory.
4.2 From the evidence before me, I am satisfied that the Stokes were refused service on the instruction of Ms Carmel Cunningham on 29 June 2002. I have also formed the opinion, on the balance of probability, that Ms Cunningham gave the instruction solely because of the complainants’ membership of the Traveller community.
5 Decision
I find that a prima facie case of discrimination has been established on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts 2000 – 2008 and that the respondents have failed to rebut the allegation.
I award each complainant the sum of €500 for the upset and humiliation caused on the night.
Brian O’Byrne
Equality Officer
6 April 2009