THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2009-069
PARTIES
Jonathon McCarthy, Paddy McCarthy, Stephanie McCarthy,
Noreen McCarthy, Philomena McCarthy, Sinead O'Brien,
Samantha Harty, Kathleen Harty, Christina Harty, Jessica McCarthy,
Louis McCarthy, Philomena McCarthy, Donna Cambridge,
Louise Keenan, Winnie Keenan, Mary Keenan,
Rosaleen Keenan, Mary McDonagh and Kathleen McDonagh
(represented by Noonan Linehan Carroll
Coffey Solicitors)
and
Grooveyard Limited
(represented by Mr. Conor Power B.L.
on the instructions of Kennedy Fitzgerald Solicitors)
File Reference: ES/2007/0044
Date of Issue: 24th September, 2009
Keywords
Equal Status Act, 2000 - Section 3(1) - Direct discrimination, Section 3(2)(i) - Traveller community - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
These complaints were referred to the Director of the Equality Tribunal on 26th April, 2007 under the Equal Status Acts, 2000 to 2004. On 17th October, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 19th May, 2009 and 23rd June, 2009. Final correspondence with the parties concluded on 30th July, 2009.
1. Dispute
1.1 This dispute concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of their membership of the Traveller Community in terms of Sections 3(1)(a) and 3(2)(i) of the Equal Status Acts, 2000 to 2008 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.
2. Summary of the Complainant's Case
2.1 The complainants claim that they were refused access to the Halloween Disco which was held at the Cork City Hall on 31st October, 2006 and organised by the respondent on the grounds of their membership of the Traveller Community. All of the complainants who appeared at the hearing of these complaints provided both written statements (in advance of the hearing) and oral evidence at the hearing in relation to the alleged incidents of discrimination. The complainants' evidence (both oral and written) can be summarised as follows:
Louis McCarthy, a Complainant
Louis McCarthy was 14 years old at the time of the alleged incident of discrimination on 31st October, 2006 and had never attended a disco prior to this occasion. He arrived at the City Hall with his sister, Jessica McCarthy, and joined the queue to gain access to the venue with a number of his friends. While in the queue he noticed that one of the security personnel was pointing in his direction and when he reached the first ticket check, one member of the security refused him entry to the disco. He was told by the security man that he was not been admitted to the disco because he had been drinking. The complainant stated that he had not consumed alcohol on this occasion or on any other occasion prior to this event. The complainant then telephoned his mother, Sandra McCarthy, to inform her that he had been refused entry to the disco. His mother arrived at the City Hall and approached the member of security who had earlier refused her son entry and asked the reason for this refusal. The security man advised Mrs. McCarthy that her son had taken alcohol and therefore was not permitted entry to the disco. Mrs. McCarthy stated that she advised the security man that her son had not taken any alcohol at which point she was informed that the reason he was being refused entry was that he had been fighting just before entering the queue. Mrs. McCarthy, accompanied by her son, the complainant, attended the Garda Station at Angelsea Street and she claimed that the Gardai on duty were satisfied that the complainant had not taken alcohol. The complainant submitted that he had been well behaved in the queue; neither had he taken alcohol nor had he been fighting in the queue prior to seeking entry to the disco.
Jessica McCarthy, a Complainant
Jessica McCarthy was 13 years old at the time of the alleged incident of discrimination and she had been given a ticket for the disco as a reward for her participation in a local youth group. She arrived at the City Hall with her brother, Louis McCarthy, and joined the queue to enter the disco. While queuing, she was advised by other girls who were in the queue that members of the Traveller Community were being refused entry to the disco. She took off her jewellery and let down her hair in an attempt to disguise the fact that she was a member of the Traveller Community and subsequently gained entry to the venue. While in the City Hall premises at the disco, the disc jockey called out her name. The complainant stated that she was asked her surname by one of the bouncers when leaving the venue and when she replied that her surname was "McCarthy", the bouncer informed her that she would not be allowed back into the disco. The complainant submitted that the only reason she was not allowed to re-enter the disco was because of her membership of the Traveller Community.
Noreen McCarthy, a Complainant
Noreen McCarthy was 16 years old at the time of the alleged incident of discrimination and had also been given a ticket for the disco as a reward for her participation in a local youth club. She arrived at the City Hall with her sister, Philomena McCarthy, and cousin, Stephanie McCarthy, and all three girls entered the queue together. She subsequently split up with her sister and cousin and joined a friend in the queue. When the complainant reached the top of the queue a security man refused her entry and she was instructed to move outside of the railings of the City Hall and to join a separate queue of girls from the Traveller Community who had also been refused entry to the venue. The complainant sought a reason for the refusal of entry from the security person but the response was "no reason". The complainant stated that some members from the settled community started to mock and jeer at her after she had been refused entry to the venue. After the refusal, she noticed that her sister, Philomena, was not in the vicinity and after hearing from someone that she had gained entry to the disco, the complainant requested the bouncer to have her called out of the venue. The bouncer agreed to this request and the complainant's sister, Philomena, arrived out of the venue a few minutes later. The complainant telephoned her mother and asked her to collect herself, Philomena and her cousin, Stephanie, from the venue. The complainant stated that she did not witness any trouble or violent behaviour outside of the venue on the night in question.
Philomena McCarthy (first), a Complainant
Philomena McCarthy was 15 years old at the time of the alleged incident of discrimination and had also been given a ticket for the disco as a reward for her participation in a local youth club. She arrived at the City Hall with her sister, Noreen McCarthy, and cousin, Stephanie McCarthy, and upon arriving she split up with the others and all three girls entered the queue separately. The complainant was advised by others in the queue that members of the Traveller Community were being refused entry to the disco. As a result, she attempted to disguise the fact that she was a member of the Traveller Community by removing her hoop earrings and letting her hair down. The complainant gained entry to the disco and once inside she met with her cousin, Stephanie, as they had pre-arranged before entering the venue. The complainant waited for about 10/15 minutes for her sister, Noreen, to arrive in the venue however she realised that she had not been admitted to the disco. A short time later the complainant's name was called out over the intercom system and she was requested to go to the entrance of the venue where her sister, Noreen, who had not been admitted was waiting for her. The complainant stated that it was the family policy that both sisters were to be together on a night out and as a result of her sister being refused entry the complainant was denied her continued attendance at the disco on the night. The complainant left the venue a short time later after her mother arrived to collect her. The complainant stated that she did not witness any trouble or violent behaviour outside of the venue on the night in question.
Stephanie McCarthy, a Complainant
Stephanie McCarthy was 16 years old at the time of the alleged incident of discrimination and had also been given a ticket for the disco as a reward for her participation in a local youth club. She arrived at the City Hall with her cousins Philomena McCarthy and Noreen McCarthy and all three of them joined the queue for entry separately. The complainant was advised by others while in the queue that members of the Traveller Community were being refused entry to the disco and as a result she changed her appearance to disguise the fact that she was a member of the Traveller Community. The complainant subsequently gained entry to the disco and once inside made her way towards the toilets where she had arranged to meet her cousin, Philomena McCarthy. She met both Philomena McCarthy and Jessica McCarthy in the toilet area and they separated in order to see if they could find Noreen McCarthy. A short time later the complainant's name was called out over the intercom system and when she went to the entrance of the hall she was told by a bouncer that there was somebody outside looking for her. The complainant stated during the course of cross-examination that she was not aware who requested her name to be called out over the intercom system. When the complainant went outside she met her cousin Noreen McCarthy who informed her that she had been refused entry to the disco. The complainant left the venue a short time later after Noreen McCarthy's mother arrived to collect them.
Philomena McCarthy (second), a Complainant
Philomena McCarthy was 16 years old at the time of the alleged incident of discrimination and had also been given a ticket for the disco as a reward for her participation in a local youth club. She stated in evidence that she arrived at the City Hall with her cousin, Ms. X, and both of them entered the queue together. When the complainant reached the top of the queue she was refused entry to the disco by a female security guard. The complainant was asked to stand aside and stand with other members of the Traveller Community who had been refused entry. Following this the complainant tried to change her appearance in order to gain access to the disco and having done so joined the queue again. However, the security guard who had refused her on the first occasion recognised her and refused her entry to the disco for a second time. The complainant stated that she did not witness or cause any trouble at the venue on the night in question and she claimed that the only reason for the refusal of entry to the disco was because of her membership of the Traveller Community. The complainant denied the respondent's contention that she was the person who had crashed through the barrier during the course of an alleged violent incident on the night in question.
Jonathon McCarthy, a Complainant
Jonathon McCarthy was 15 years old at the time of the alleged incident of discrimination. He arrived at the City Hall with his cousin, Paddy McCarthy, and both of them entered the queue together to enter the disco. A member of security approached the complainant in the queue and told him that he had caused trouble on a previous occasion and therefore would not be allowed entry into the disco. The complainant informed the security man that he had not caused trouble on a previous occasion and he stated that the security man told him to get away because he was a Traveller. The complainant stated that he did not witness or cause any trouble on the night and that after being refused he just walked away from the queue and waited for his mother to arrive and collect him from the venue. The complainant submitted that as he had not caused trouble either on that day or on a previous occasion and was well behaved in the queue, the only reason for refusing him entry to the disco on the night in question was because he was a member of the Traveller Community.
Louise Keenan, a Complainant
Louise Keenan was 13 years old at the time of the alleged incident of discrimination and had purchased a ticket for the disco in advance and was attending with friends from school. She was driven to the City Hall by her mother and was accompanied by her sister, Winnie. The complainant entered the queue to get into the disco with Kathleen McDonagh and Rosaleen Keenan, who are members of the Traveller Community, and with two settled friends. The complainant and her friends were well behaved in the queue and passed the time by chatting among themselves. When the complainant and her friends reached the top of the queue a security man refused her entry to the disco. The complainant's two friends, Kathleen McDonagh and Rosaleen Keenan were also refused entry whereas her two friends from the settled community were allowed entry to the disco. The complainant stated in evidence that they were told by a security man that "no Travellers were getting in tonight" and she was told to stand aside and join another group of people who had also been refused entry to the disco. After about 10 minutes the complainant's sister, Winnie Keenan, Mary McDonagh and Mary Keenan joined her after also having been refused entry to the disco. She denied that the reason she was refused entry was because of her age and she stated that a number of younger looking people gained entry to the disco on the night. The complainant and her friends subsequently left the venue and went home on the bus.
When the complainant's mother arrived home at 9:30 p.m. she was surprised to see both her daughters at home and the complainant and her mother went back to the City Hall. The complainant's mother spoke to one of the security guards and asked for an explanation as to why her daughters were refused entry to the disco. The security man wouldn't give a reason and said that he was following the managers orders. The security man refused to tell the complainant's mother who the security man was. The complainant and her mother went to the Garda station on Anglesea Street and two members of the Gardai called down to the City Hall. One of the Gardai approached the security man with the complainant's mother and asked his name and number. The security man replied that he was number 64 but wouldn't give a name. The Garda advised the complainant's mother that they should contact a solicitor regarding the matter.
Rosaleen Keenan, a Complainant
Rosaleen Keenan was 12 years old at the time of the alleged incident of discrimination. Upon arriving at the venue, the complainant joined the queue with Louise Keenan and Kathleen McDonagh to gain entry to the disco. They were accompanied by two friends who were members of the settled community. The complainant and the others in her company were all well behaved whilst in the queue. When the complainant reached the top of the queue a security man refused her entry to the disco and he stated that no Travellers were being allowed entry on the night. The complainant was requested to step out of the queue and to the side and did so. The complainant and both of her friends, Louise Keenan and Kathleen McDonagh who are members of the Traveller Community and had queued together were refused entry whereas both of her friend's from the settled community were permitted entry to the disco. The complainant submitted that the only reason for being refused entry on the night in question was because of her membership of the Traveller Community.
Kathleen McDonagh, a Complainant
Kathleen McDonagh was 13 years old at the time of the alleged incident of discrimination. She arrived at the Cork City Hall with her sister, Mary, and proceeded to join the queue to gain entry with Louise Keenan and Rosaleen Keenan who are members of the Traveller Community and two other friends who were members of the settled community. The complainant and the others in her company were all well behaved whilst in the queue and chatted amongst themselves. When the complainant and her friends reached the top of the queue a security man refused her entry to the disco. The complainant stated in oral evidence that she was not given a reason for the refusal and was requested to step out of the queue and to the side. The complainant and both of her friends, Louise Keenan and Kathleen McDonagh who are members of the Traveller Community and had queued together were refused entry whereas both of her friend's from the settled community were permitted entry to the disco. The complainant submitted that the only reason for being refused entry on the night in question was because of her membership of the Traveller Community.
Winnie Keenan, a Complainant
Winnie Keenan was 15 years old at the time of the alleged incident of discrimination. She was driven to the City Hall by her mother and was accompanied by her sister, Louise. The complainant entered the queue to get into the disco with Mary McDonagh and Mary Keenan, who were members of the Traveller Community and two other friends who were members of the settled community. The complainant and her friends were well behaved in the queue and upon reaching the top of the queue she was told by the security man "sorry not tonight". The complainant asked the security man why she was being refused entry and was told to move on and get out of the way. The complainant and her two friends from the Traveller Community who had queued together were refused entry whilst her two friends from the settled community were allowed entry. The complainant stated in evidence that she heard a security man stating that "they weren't letting Travellers into the disco" on the night. The complainant subsequently left the venue and got the bus home in the company of her sister and cousins. The complainant's mother went back to the City Hall with her sister, Louise, sometime around 9:30 p.m. but the complainant was too embarrassed to return to the venue.
Mary Keenan, a Complainant
Mary Keenan was 15 years old at the time of the alleged incident of discrimination. There was a long queue to gain entry to the disco when she arrived at the City Hall. The complainant joined the queue with Mary McDonagh and Winnie Keenan who are members of the Traveller Community and two other friends who were members of the settled community. The complainant and her friends were well behaved in the queue and upon reaching the top of the queue she was told to step aside by a security man. The complainant and both of her friends from the Traveller Community who had queued together were refused entry whereas both of her friends from the settled community were allowed entry to the disco. The complainant asked the security man why she was being refused entry and was told to wait for a few minutes. She waited for approx. 20 minutes and was told by the security man "no Travellers tonight". The complainant stated that she did not witness any trouble or aggressive behaviour outside of the venue and having been refused entry she subsequently left the venue and got the bus home.
Mary McDonagh, a Complainant
Mary McDonagh was 14 years old at the time of the alleged incident of discrimination. She arrived at the Cork City Hall with her sister, Kathleen, and proceeded to join the queue to gain entry with Mary Keenan and Winnie Keenan who are members of the Traveller Community and two other friends who are members of the settled community. The complainant and her friends were well behaved in the queue and upon reaching the top of the queue she was told to step aside by a security man. The complainant and both of her friends from the Traveller Community who had queued together were refused entry whereas both of her friends from the settled community were allowed entry to the disco. The complainant stated that there was a group of approx. 15/16 other Travellers standing in a separate group who had also been refused entry on the night. The complainant wasn't given a reason for her refusal but she stated in oral evidence that she heard a security man informing her companion, Mary Keenan, that members of the Traveller community were not being allowed entry to the disco that night. The complainant stated that she did not witness any trouble or aggressive behaviour outside of the venue and having been refused entry she subsequently left the venue and got the bus home.
The complainants also presented evidence from Mrs. Sandra McCarthy (mother of Jessica and Louis McCarthy) and Ms. Y, Youth Worker, at the hearing of the complaint.
3. Summary of the Respondent's Case
3.1 The respondent denies that it discriminated against the complainants on the grounds of their membership of the Traveller Community. The respondent presented evidence from Mr. G, Managing Director, Mr. S, Security Guard and Sergeant A at the hearing of the complaint (all of whom were present at the venue on the night of the disco). The respondent is an events management company and it specialises in the organisation of events ranging from teenage discos to corporate events. The respondent was staging a teenage disco/concert for 14 to 18 year olds at the Cork City Hall on 31st October, 2006 and the doors opened for the event at 8 p.m. The capacity of the Cork City Hall for this event was 1,040 and security was of paramount importance given the nature of the clientele that attended an event of this nature. The respondent submitted that it implemented a very strict admissions policy in terms of the age requirements and therefore the security staff on duty at events have to make a judgement call regarding the age of individuals. The respondent has been organising events of a similar nature for a number of years and all of it's security personnel are trained to the highest standards in terms of their obligations to patrons under the Health and Safety and Equal Status legislation.
3.2 The respondent's management and security staff were on duty at the entrance to the event on the night in question when they were approached by a group of approximately 10/12 individuals seeking to gain entry to the event. The management were forced to refuse entry to one of the group, whom it identified as Jonathon McCarthy at the hearing, on the basis that he had a history of violent behaviour and the respondent's staff had been forced to remove him from a previous event for fighting. The respondent stated that when the rest of the group became aware that this individual was being refused entry due to his past history of violent behaviour, they began to shout obscenities, being verbally hostile and aggressive. The group's behaviour then deteriorated into violence and they began kicking the security barriers surrounding the venue. A female from the group, whom the respondent identified in evidence as Philomena McCarthy (second), forced her way through the barriers, obstructed and refused to move away from the entrance and attempted to gain entry to the venue.
3.3 The respondent stated that three of the complainants had already been permitted entry to the event, namely Stephanie McCarthy, Philomena McCarthy (first) and Jessica McCarthy. The respondent stated that Philomena McCarthy (second) requested that an announcement be made over the PA system that these three girls meet her outside of the premises. The respondent's staff acceded to this request and an announcement was made over the PA system requesting these three girls to go to the entrance of the venue. The respondent stated that when the three girls went outside of the venue that other members of the group were causing a disturbance. The protocol for security at teenage events held by the respondent is as follows:
- If a patron is seen to be boisterous, misbehaving, aggressive or in any way abusive in the queue, he/she and the group that he/she is associated with must not be permitted to the venue. The respondent has a no tolerance policy in this case.
- If a patron or a number of patrons get out of control it is necessary to call the Garda Station and this action is only necessary in extreme circumstances.
Having regard to the behaviour of the group and the respondent's security protocol, the management had no option but to refuse entry to this group and telephone the Gardai. On hearing the telephone call being made to the Gardai, the female obstructing the entrance shouted "call the fucking shades, I don't give a shit". When the Gardai arrived the group of people left the venue.
3.4 The respondent submitted that there is no question of the group being refused access to the event on the grounds of their membership of the Traveller Community given that three of the complainants had already been admitted to the event. The group were refused entry due to their hostile, abusive and violent behaviour which had escalated and was creating a potentially dangerous situation as the entrance to the event. The respondent claims that the group were treated in exactly the same manner as any other hostile and violent group would have been treated in similar circumstances. The respondent submitted that the safety and wellbeing of its patrons is of paramount concern at all times and persons who create a potential risk to the safety and wellbeing of others cannot be admitted entry to its events. Given the age profile of the respondent's patrons, it must have a zero tolerance policy in respect of threatening behaviour so that parents are assured of their children's safety at these events. The respondent stated that a total of 38 people were refused entry to the event on the night in question and given the large number of people which attend such an event it cannot record the exact reason why any individual is refused entry, however, there was no question of anyone being refused on the basis of their membership of the Traveller Community.
3.5 The respondent submitted that given the large number of people who attended the event i.e. 1040 people, it could not be certain that all of the complainants attended the event on the night in question or even if they were actually refused entry on the night in question. The respondent confirmed at the hearing that it did not recognise the complainants with the surname Keenan and McDonagh from the night in question and it was therefore not in a position to confirm whether or not they were part of the group of people who were causing a disturbance. However, it submitted that if these complainants were actually refused entry on the night in question it would have been as a result of the fact that security staff would have deemed them to be under the minimum age limit of 14 years of age. The respondent emphatically denied that any of the complainants, or indeed any other person who was refused entry on the night in question, was refused on the basis of their membership of the Traveller Community.
Evidence of Garda Sergeant A
3.6 Garda Sergeant A stated that he was on duty on the night of 31st October, 2006 and that he confirmed that he received a call between 8 p.m. and 8:30 p.m. to attend the Cork City Hall as there had been a report of a disturbance taking place at the venue. Upon arriving at the City Hall, he spoke to Mr. S, Security Manager, who informed him that there had been a incident involving a group of youths who had become aggressive and threatening after they had been refused entry to the event. When Mr. S pointed towards a group of youths that were involved in this incident and who were standing at the opposite side of the premises the youths ran away after noticing that Mr. S had pointed in their direction. Garda Sgt. A stated that he walked around the venue (both inside and outside of the City Hall) and spoke to a number of individuals. He stated that he did not receive any complaints to the effect that a person (or persons) had been refused entry to the event on the basis of their membership of the Traveller Community. Garda Sgt. A stated that he also spoke to a Mrs. Sandra McCarthy (mother of Louis McCarthy and Jessica McCarthy) during this visit to the venue who informed him that she was the mother of a person who had been refused entry to the event. Garda Sgt. A stated that Mrs. McCarthy did not mention or make any claim to him that this refusal was on the basis of being a member of the Traveller Community.
4. Non-attendance of six complainants at the oral hearing
4.1 I notified the parties of the date of the hearing which was scheduled to take place on 19th May, 2009, by registered post, on 6th February, 2009 (the parties were also notified of the date of the resumed hearing which took place on 23rd June, 2009, by registered post, on 21st May, 2009). In the case of both parties, this notice was sent to the solicitor's that were nominated to act on their behalf. I am satisfied that all reasonable efforts had been made to inform all of the complainants of the dates of the hearing. However, six of the complainants namely, Sinead O'Brien, Samantha Harty, Christina Harty, Kathleen Harty, Paddy McCarthy and Donna Cambridge did not attend the hearing on either occasion.
4.2 In the light of the foregoing and in accordance with Section 25(4) of the Equal Status Acts, I issue the following decision. As part of my investigation under Section 25 of the Acts, I am obliged to hold a hearing. I find that the failure of Sinead O'Brien, Samantha Harty, Christina Harty, Kathleen Harty, Paddy McCarthy and Donna Cambridge to attend such a hearing was unreasonable in the circumstances and accordingly, that any obligation under Section 25 in respect of these complainants has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in relation to these six complainants, I conclude the investigation of their complaints and find against these complainants.
5. Issue of jurisdiction
5.1 The respondent raised an issue at the hearing regarding the jurisdiction of the Tribunal to investigate and hear these complaints. The respondent submitted that the present complaints have not been referred to the Tribunal in the proper manner on the basis that all nineteen of the complaints have been referred on a single Complaint Referral Form. The respondent submitted that in cases, such as the present cases, it has been the practice of the Tribunal to require each complainant to submit an individual complaint referral form. The respondent argued that the present complaints, as referred to the Tribunal, constitute a "class action" and it submitted that the Equal Status Acts do not make provision for the referral of such an action. The respondent also referred to the wording contained on the Complaint Notification Form (Form ES.1) and Complaint Referral Forms (Form ES.3) which states "we were refused access to the Halloween Disco, part of the 'Cidona Roadshow' held at the City Hall Cork ... " . The respondent stated that the written submissions forwarded on behalf of seven of the complainants clearly states that they were in fact admitted to the event on the night in question which is contradictory to the information that was included on the Complaint Notification and Referral Forms. The respondent submitted that these complainants have not satisfied the notification requirements as provided for in section 21 of the Equal Status Acts in light of the fact that the information included on the Complaint Notification and Referral Forms in respect of these complainants was inaccurate.
5.2 The complainants submitted that there is no requirement within the Equal Status Acts which makes it compulsory for complainants to submit individual Complaint Referral Forms in situations such as the present cases. It was submitted that it has been the practice of the Tribunal to accept a single Complaint Referral Form on behalf of a number of individuals from the same family group. It was denied that the present complaints, as referred to the Tribunal, constitute a "class action" and it was submitted that the reason the complaints have been referred on a single Complaint Referral Form is due to the fact that all of the complainants were subjected to a common refusal to the event on the night in question. It was submitted that the complainants have complied with the requirements of section 21 of the Equal Status Acts and that the respondent was made fully aware of the nature of the complaint which is evidenced by the fact that it was in a position to complete the Reply to Notification Form (Form ES.2).
Conclusions of the Equality Officer in relation to the issue of jurisdiction
5.3 In considering this issue, I have taken into consideration that the Complaint Notification and Referral Forms (Forms ES.1 and ES.3) are not statutory forms and that there is no compulsion upon a complainant to use either of these forms in order to comply with the provisions of section 21 of the Equal Status Acts. Furthermore, I am satisfied that it has been the practice of the Tribunal to facilitate groups of complainants who have a common complaint by permitting them to refer their respective complaints on a single complaint referral form. However, notwithstanding this, it is clearly the case that a complainant (or group of individual complainants) must comply with the provisions of section 21 of the Equal Status Acts in order to properly refer a complaint to the Tribunal for investigation and decision. In the present cases, I am satisfied that the complainants have complied with the requirements of section 21 of the Equal Status Acts in terms of the manner in which these complaints were notified to the respondent and referred to the Tribunal. Accordingly, I find that the Tribunal does have jurisdiction to investigate and hear the substantive allegations of discrimination that have been made by the complainants in the present case.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
6.2 Having regard to the circumstances of this case, I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainants:
- Did all of the complaints attend the Cork City Hall on the night of 31st October, 2006 and were they actually refused entry by the respondent to the disco?
- If the complainants were refused entry to the disco by the respondent, were they refused entry on the basis of their membership of the Traveller Community?
6.3 In considering the first question identified above, and based on the evidence presented, I am satisfied that all of the complainants are members of the Traveller Community and that they did, in fact, attend the Cork City Hall on the 31st October, 2006 with the intention of gaining entry to the disco which was organised by the respondent on this occasion. I note that the complainants are all either related to each other (i.e. siblings or cousins) and/or were friends of each other who had made arrangements to travel to the venue together or to meet up at the venue upon arrival. It is therefore possible to divide the complainants into two distinct groups based on either their family affiliations or their common friendships with each other. The first such group that I would identify is the complainants whose surname is McCarthy and the second group is the complainants with the surname Keenan and/or McDonagh. I am of the view that it is important to make this distinction as there was evidence presented by the complainants to suggest that the members of these two respective groups did not know each other on the night in question and therefore, did not have any interaction with each other on the night.
6.4 In considering whether or not the complainants have been subjected to discrimination in this case, I note that it was not disputed between the parties that three of the complainants, namely Stephanie McCarthy, Jessica McCarthy and Philomena McCarthy (first) were permitted entry to the venue on the night in question, albeit the complainants claim that they had to change their appearance whilst in the queue in order to disguise the fact that they were members of the Traveller Community. The respondent has claimed that there was an incident of a violent, hostile and aggressive nature outside of the venue on the night in question and it claims that a number of individuals were refused entry to the venue as a result of their participation in this incident. The respondent has claimed that a number of the complainants (namely, the complainants whose surname is McCarthy) were either part of, or associated, with the group of youths who were causing this disturbance and therefore were refused entry to the venue in compliance with its zero tolerance policy in respect of violent or aggressive behaviour.
6.5 Based on the evidence, presented I am satisfied that an incident did in fact occur outside of the venue on the night which involved a number of individuals who were engaging in aggressive, threatening and unacceptable behaviour. I am satisfied that the evidence of Garda Sgt. A is corroborative of the respondent's contention that this incident did actually occur on the night and that it was of such gravity in nature that it warranted the presence of the Gardai at the venue. I am of the view that it is significant to note that all of the complainants denied having witnessed or encountered any kind of violent incident or aggressive behaviour on the night. I have a difficulty in accepting the veracity of the complainants' evidence in this regard given that the evidence adduced would suggest that a number of them were in the vicinity of the premises (either in the queue attempting to obtain entry to the disco or within the perimeter to the venue) when the abovementioned incident was allegedly taking place.
6.6 At the hearing, the respondent identified Jonathon McCarthy as the individual who had caused trouble at the venue on a previous occasion and it claims that it was for this reason that he was refused entry to the disco on the night of 31st October, 2006. I note that Jonathon McCarthy denied in evidence that he had caused trouble at the venue on a previous occasion and it is therefore clear that there is a conflict in evidence between the respective parties regarding this issue. Having regard to the evidence adduced, I have found the respondent's evidence regarding this issue to be more compelling and I am satisfied the reason that Jonathon McCarthy was refused entry to the disco was because the Security Guard, Mr. S, genuinely believed that he had been involved in an incident on a previous occasion. I accept it is possible that Mr. S may have been mistaken in identifying the complainant as the person who was involved in this previous incident, but as I have found Mr. S to be a credible witness, I am satisfied that this was his genuine belief at the time and that the refusal of Jonathon McCarthy was in no way attributable to his membership of the Traveller Community.
6.7 I accept the respondent's evidence that a number of other individuals became involved in the incident upon becoming aware that Jonathon McCarthy had been refused entry to the disco. I note that the respondent identified Ms. Philomena McCarthy (second) as the person who broke through the barrier and started to shout obscenities at the security staff. I also note that Ms. Philomena McCarthy (second) has denied that she was involved in any such incident of a violent or aggressive nature on the night. In considering this issue, I note that there are a number of discrepancies between the evidence given by Ms. Philomena McCarthy (second) at the oral hearing and the information regarding the alleged discrimination that was contained in her written submission to the Tribunal in advance of the hearing. For example, in her written statement it is stated that she entered the queue with her cousin, Noreen McCarthy, whereas in oral evidence she stated that she arrived at the venue and entered the queue with another cousin named, Ms. X. She also stated in oral evidence that all of the information on the written statement that she had provided to her legal representative (and which was submitted in evidence) prior to the hearing was incorrect. I am of the view that these discrepancies in the evidence raise serious doubts regarding the credibility of the Ms. Philomena McCarthy (second) in terms of the allegations of discrimination in the present case. Having regard to the evidence adduced, I am satisfied, on the balance of probabilities, that Ms. Philomena McCarthy (second) did become involved in this incident and accordingly, I find the reason that she was refused entry to the disco was as a result of her involvement in this incident and not because of her membership of the Traveller Community.
6.8 Furthermore, I also accept the respondent's evidence that while the incident was ongoing it received a request from Philomena McCarthy (second) that the names of Stephanie McCarthy, Jessica McCarthy and Philomena McCarthy (first) be called out over the public address system and that an announcement be made for these individuals to meet her outside of the venue. Based on the evidence presented, I cannot accept that these three complainants were denied their continued enjoyment of the disco on the basis of their membership of the Traveller Community but rather that it was as a consequence of having been called out of the venue by one of their companions. I am also satisfied the reason that Noreen McCarthy and Louis McCarthy were refused entry on the night was because of their association or presence with the group of people who were causing a disturbance outside of the venue. I note that Louis McCarthy stated in evidence that he observed his cousin, Jonathon McCarthy, being stopped by security staff in the queue when he arrived at the venue. I am therefore satisfied that he was present at the venue when Jonathon McCarthy was being refused entry and he would have been aware of the situation that was developing at that particular juncture. I accept that I have not been presented with conclusive evidence to suggest that Louis McCarthy or Noreen McCarthy were directly involved in the disturbance that ensued, however based on the evidence adduced, I am satisfied on the balance of probabilities, that the reason they were refused entry to the disco was based on their association with a group of individuals that were causing a disturbance and not as a result of their membership of the Traveller Community.
6.9 I have also noted that none of the McCarthy's have claimed in evidence that they were informed by security staff on the night that they were being refused entry because they were members of the Traveller Community. This is completely at variance with the evidence given by the Keenan's and McDonagh's who gave evidence that members of the security staff had informed them (or that they had heard a member of the security staff stating) that Travellers were not being allowed into the venue on the night. I am of the view that it would be highly unlikely, in the first instance, for members of an experienced team of security personnel (as was the situation in the present case) to actually inform an individual or group of individuals they were being refused entry because they were Travellers and secondly, that if this reason was in fact being proffered on the night that it would only be only be given to one group of individuals and not to another group. Having regard to the totality of the evidence adduced, I find, on the balance of probabilities that, the reason Jonathon McCarthy, Philomena McCarthy (first), Jessica McCarthy, Stephanie McCarthy, Philomena McCarthy (second), Louis McCarthy and Noreen McCarthy were refused entry to the disco was as a result of their association with a group of individuals who were causing a disturbance outside of the venue and not because of their membership of the Traveller Community. Accordingly, I find that these complainants have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller Community.
6.10 In considering the cases of Mary Keenan, Rosaleen Keenan, Winnie Keenan, Louise Keenan, Mary McDonagh and Kathleen McDonagh, I note that the respondent was unable to confirm or adduce any evidence that these individuals actually attended the disco on the night in question or that they were refused entry to the disco on the night in question. Neither did the respondent adduce any evidence to suggest that they were involved in the disturbance that took place outside of the venue. The respondent has submitted that if these individuals were, in fact, refused entry on the night, that this refusal would have been on the basis they were deemed by security staff to be under the age of 14 years and thereby did not comply with the strict age requirements which the respondent enforced at this type of event. I have noted from the contemporaneous notes recorded by Mr. G, Managing Director, on the night of the disco that a total of 38 people were refused entry to the event. Mr. G stated in evidence that these individuals were refused entry for a variety of different reasons ranging from a person being under the minimum age of 14 years to a person being intoxicated or engaging in unacceptable behaviour. Given that there was in excess of 1,000 people in attendance at the event, I accept that it would have been impossible for the respondent have a clear recollection of (or to maintain a record of the name) of every individual who was refused entry to the disco on the night.
6.11 I have carefully considered the evidence adduced by the complainants regarding their alleged refusals and I note that there are a number of discrepancies in the oral evidence adduced by the complainants at the hearing when compared to the information contained in the written statements given to their legal representative prior to the hearing of the complaints. In the cases of Mary Keenan, Rosaleen Keenan, Louise Keenan, Winnie Keenan and Mary McDonagh, they all stated in oral evidence at the hearing that they were either told by a security man (or that they heard a security man stating) that Travellers were not being allowed entry to the venue on the night. I am of the view that it is highly significant that the written statements furnished by these complainants do not contain any mention whatsoever of them being refused entry for this reason or of having heard a security man put forward this reason for their refusal on the night. This evidence is hugely important in terms of the core issue to be decided in the present cases i.e. as to whether the complainants were discriminated against on the grounds of their membership of the Traveller Community and I would expect that this information would have been included in the complainant's written submissions regarding the events of the night if in fact it had happened on the night.
6.12 I also note that Kathleen McDonagh who was in the queue together with both Louise Keenan and Rosaleen Keenan stated in oral evidence that she was not given a reason for her refusal by the security man. This is in conflict with the oral evidence given by Louise and Rosaleen Keenan who both claimed that they were informed by a security man that Travellers were not being allowed entry on the night. I am of the view that these conflicts in evidence raise serious doubts regarding the credibility of the complainants in terms of their accounts of the alleged discrimination on the night of the disco. I have also taken into consideration that Rosaleen Keenan was aged 12, Kathleen McDonagh and Louise Keenan were aged 13, Mary McDonagh was aged 14 and Mary Keenan and Winnie Keenan were aged 15 on the night of the disco. It is therefore the case that three of the complainants did not comply with the minimum age requirements for entry to the disco. I am satisfied from the evidence adduced by the respondent that the age limits for entry to the youth disco were strictly enforced and that a number of individuals were refused entry for this reason on the night.
6.13 Based on the evidence adduced and having regard to the conflicting evidence put forward by the complainants, I am satisfied, on the balance of probabilities, that the complainants were refused entry to the disco on the basis that they were deemed by security staff on the night not to comply with the minimum age requirements and not as a result of their membership of the Traveller Community. Accordingly, I find that Mary Keenan, Rosaleen Keenan, Winnie Keenan, Louise Keenan, Mary McDonagh and Kathleen McDonagh have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller Community.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainants have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller Community in terms of Sections 3(1) and 3(2)(i) of the Equal Status Acts, 2000 to 2008.
Enda Murphy
Equality Officer
24th September, 2009