EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2012-042
Tyson Patrick O'Brien and Mikey O'Brien
(represented by Daly, Foran and Associates Solicitors)
-v-
Tralee Snooker Club
(represented by Murphy and Co. Solicitors)
File Reference: ES/2011/0056 and 0057
Date of Issue: 5th December 2012
Key words: Equal Status Acts, Members of Traveller Community, Discrimination, Non-attendance of one complainant, No prima facie case
Delegation under the relevant legislation
1.1. This case concerns complaints by Mikey O'Brien and Tyson Patrick O'Brien that they were discriminated against by Tralee Snooker Club on the Traveller Community ground contrary to 5(1) of the Equal Status Acts 2000 - 2008 [hereinafter referred to as 'the Acts']. On 4th April 2011 the complainant referred a claim to the Director of the Equality Tribunal under the Acts. On 25th May 2012, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2011 and under these Acts, the Director delegated the case to me, Orlaith Mannion, 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. This is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 5th June 2012.
Non-attendance of Mikey O'Brien
2.1 The complainants' representative was notified of the date of the hearing, by registered post, on 17th April 2012. I am satisfied that all reasonable efforts had been made to inform both complainants of the hearing. Mikey O'Brien's representative was aware that this complainant would not be able to attend but did not apply for an adjournment. Mikey O'Brien did not attend the hearing. In the light of the foregoing and in accordance with Section 25(4) of the Act I find that the failure of Mikey O'Brien to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25 has ceased. In relation to Mikey O'Brien, I conclude the investigation of his complaint and find against him. The case continues with Tyson O'Brien as he did attend the hearing.
Summary of Tyson O'Brien's Case
3.1 On the afternoon of 28th January 2011 he and his friend Mikey O'Brien entered Tralee snooker club. He previously had played a few games of pool at this snooker club. Tyson O'Brien submits that while he and his friend were waiting to play a game of pool at Table 13, an employee of the snooker club (Mr Z) approached them. According to Mr O'Brien, Mr Z said they were barred as Travellers had previously caused trouble there. The complainant maintains that he then approached Mr Y (part-owner and manager of the snooker club) to point out that this had nothing to do with them and it was unfair. He submits that he and his friend were forcibly removed. Mr O'Brien states this incident caused him great embarrassment. He has not returned since.
Summary of Tralee Snooker Club's case
4.1 The respondent did not provide a written submission. At the hearing, Mr Y gave evidence. He said that both Mikey O'Brien and Tyson Patrick O'Brien had attended the snooker hall many times. However, on 28th January he submits that Mikey O'Brien was particularly aggressive. Mr Y states that he observed him banging a coin loudly against the desk of the cash office. According to Mr Y, when Mr Z told Mikey O'Brien to have patience in a neutral tone, Mr O'Brien's anger escalated. Mr Y submits that Mikey O'Brien launched into a tirade of abuse at Mr Z. Mr Y said that he felt obliged to intervene and asked both Mikey O'Brien and Tyson O'Brien to leave. Mr Y denies forcibly removing them from the premises. He asked them to leave and they acquiesced. He submits that he does not discriminate but will not tolerate aggressive behaviour in the snooker club. He said that he would not object to Tyson O'Brien attending again provided Mikey O'Brien was not with him. Mr Y submits that subsequent to this incident Mikey O'Brien shouted abuse at him from on the street.
4.2 Mr X (majority shareholder of Tralee Snooker Club) also gave evidence. He admits he was not present for this incident. Mr X said that he took over the premises in 2007 and prides himself on 'running a good house'. As a businessman, he submits that he has an 'open door' policy towards customers so long as they behave. Mr X maintains that the Gardaí in Tralee have commented to him more than once how little trouble the snooker club had caused. He said that he has been in the fairground business for many years where he has had regular business dealings with Travellers. He said the snooker club is frequented by Travellers as well as the settled community. He reiterated Mr Y's offer to welcome Tyson O'Brien back to the club provided he behaves.
4.3 Cases cited by the respondent are Michael McDonagh v Hurleys Bar1and Ina McDonagh v Heatons2.
Conclusions of the Equality Officer
5.1 Section 38A of the Acts sets out the burden of proof:
Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.
The issue for me to decide is whether the complainant was discriminated against regarding provision of a service on the Traveller community ground?
5.2 There is a significant conflict of evidence between both sides on this issue. I found Mr Y to be a cogent witness and, on the balance of probabilities, I prefer Mr Y's recollection of events in relation to this incident. I find that the respondent is entitled to avail of Section 15 (1) of the Acts:
For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (the ''customer'') in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located. [my emphasis]
I am satisfied that Mr Y is a reasonable person with significant experience of management and that he genuinely believed Mikey O'Brien's behaviour was causing a substantial risk of disorderly conduct. At the hearing I asked why Tyson O'Brien was also asked to leave. He replied that while not as aggressive as his friend, he made no effort to calm Mikey O'Brien down and was also quite hostile e.g. he also uttered a few expletives himself. Mr Y also pointed out that people usually do not play pool on their own. I am satisfied that if an other person, who was not a member of the Traveller community, was engaging in the same behaviour s(he) would have been treated in the same way.
Decision
In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
(i) I find that Tyson Patrick O'Brien has failed to establish a prima facie case of discrimination on the Traveller community ground contrary to Section 5 (1) of the Equal Status Acts.
(ii) the failure of Mikey O'Brien to attend the hearing was unreasonable in the circumstances and therefore he was unable to establish a prima facie case of discrimination on the Traveller community ground contrary to Section 5 (1) of the Equal Status Acts
Accordingly, the complainants' case fails.
_______________
Orlaith Mannion
Equality Officer
1 DEC-S2008-038
2 DEC-S2011-024