Rosara McCarthy V Michael Cotter, Pockott's Restaurant, Tralee
1.1 This dispute concerns a complaint by Rosara McCarthy that she was discriminated against, contrary to the Equal Status Act 2000, by Pockott's Restaurant, Tralee. The complainant maintains that she was discriminated against on the Traveller community ground in terms of sections 3(1) 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 Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Rosara McCarthy that she entered Pockott's Restaurant on Friday 21 September 2001 to have a meal but was asked to leave with no reason given.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainant was not asked to leave but was asked to move to another table as the one she had sat at was reserved.
4 Delegation under the Equal Status Act, 2000
4.1 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 myself, Brian O'Byrne, an Equality Officer, for investigation, hearing anddecision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
Evidence of Complainant
- Ms Rosara McCarthy has lived all her life in Tralee
- She had only briefly visited Pockott's Restaurant once before, for a cup of tea with her sister. She had no trouble getting served on that occasion and recalls seeing Michael Cotter on the premises.
- Anita Quilligan, who appeared as a witness, said that she had been served a number of times before in the restaurant
- Neither the complainant nor any members of her own family had ever been involved in any form of trouble in Pockott's Restaurant
- At 3 pm on 21 September 2001, Rosara, her daughter Katie, her baby son Jamie and her niece Anita Quilligan decided to have a meal in Pockott's Restaurant.
- The group were due to be joined afterwards by two sisters of Ms McCarthy who had gone to the bank.
- The group went in to the restaurant which was very busy at the time.
- They could only see two tables which were empty and these were beside each other.
- One had a reserved sign on it while the other still to be cleared of cups and plates. There was no reserved sign on that table.
- They sat at the uncleared table which was bigger that the normal tables, in that it could seat six people
- As it was a waiter-service restaurant, they waited for service. There were several waitresses on duty.
- They were waiting to be served for more than 10 minutes.
- As the waitresses were serving other tables and no one had approached them, , Ms McCarthy said to a waitress "Excuse me, can we have some assistance please?"
- The waitress responded by saying "You are not being served" and that it was "the manager's orders". No other reason was offered.
- This waitress, Ms A, was the deputy manager of the restaurant at the time.
- They asked to see the manager and Mr Cotter appeared from the kitchen.
- He made some reference to their table being reserved but made no suggestion about moving to another table. He then started shouting "get out, get out, get out" and threatened to call the Gardai
- When Ms McCarthy said she wanted the Gardai, Mr Cotter phoned them.
- While they were waiting a group of girls came in and sat at the reserved table.
- The complainant asked them whether they had reserved a table and the girls said "No"
- The Gardai arrived about 10 minutes later. They spoke to Mr Cotter first and then asked the group to come outside to talk
- Ms McCarthy was very upset and the female Garda waited for her to calm down. The Garda told her that the restaurant had the right to refuse and advised her to go to a solicitor.
Evidence of Respondents Mr Michael Cotter, manager of Pockott's Restaurant
- Mr Cotter ran the restaurant for nine years up until February 2003. The restaurant is now closed
- The restaurant used to be busy all day long as Mr Cotter supplied special breakfasts, lunches and evening meals.
- The restaurant had 24 tables and accommodated over 90 customers
- The restaurant often took reservations but not very often for afternoons
- When a reservation was made, it was normal to put a reserved sign on the table 20 minutes before the reservation time. If the party did not arrive within 20 minutes of the time booked, the sign was then removed. Reserved signs are not put on tables until they have been cleared and cleaned.
- The restaurant had only two 6 seater tables and these were the ones usually reserved for groups. All other tables catered for four people
- Neither he nor his staff have ever discriminated against anyone. Mr Cotter has served Travellers over the years and has never had any problem serving them.
- Staff were told to always be polite to customers and, if any problems arose, to come directly to him in the kitchen.
- On 21 September 2001, Mr Cotter recalls Ms A coming to him in the kitchen and telling him that she was "getting abuse outside from some Travellers".
- Ms A had worked for him for 3 years at that stage. As she is no longer employed by him, he did not consider asking her to attend the Hearing as a witness.
- Mr Cotter asked her whether she had refused them and she replied "No"
- Ms A explained to him that they had sat at a reserved table and that, when she asked themto move to another table, they became abusive.
- He then said "Are you sure you didn't refuse them?" And she again said "No". He then decided to speak to the group himself with a view to calming things down and organising another table for them.
- As soon as he arrived at Ms McCarthy's table, he explained that the table was reserved and asked them would they move to another table.
- He said that the group would not listen to him and immediately subjected him to abusive and foul language
- As their were families in the restaurant, he immediately decided to ask them to leave
- Mr Cotter recognised Anita Quilligan from being served before and knew her to be a Traveller
- Ms McCarthy immediately wanted the Gardai and Mr Cotter himself phoned them
- When they arrived, he explained what had happened and the Gardai took the group outside
- As they were leaving he was subjected to further abusive and threatening language
- Mr Cotter said that a booking had been placed by a group of girls coming from a College Graduation that afternoon and that the two 6 seater tables had being reserved for them
Evidence of Respondent's witness , Mr Dick Usher
- Mr Usher said that he used to work for the Kerry Citizens Information Services but is now retired
- He said that he was attending the Hearing as a witness and as a representative for Mr Cotter
- Mr Usher was a regular customer in Pockotts in 2001
- He was sitting at a table in the restaurant at 3 pm on Friday 21 September 2001
- He remembers loud voices and foul language coming from a nearby table where Mr Cotter was talking to some customers. He does not know how the disturbance commenced.
- He knows that the restaurant used to reserve tables for customers and that reserved signs were only placed on tables when they had been cleaned
- He cannot recall whether or not there were signs on any tables on 21 September 2001
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a servicewhich is generally available to the public. In this particular instance, the complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being asked to leave Pockott's Restaurant on 21 September 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his or her actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge PubDEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of theTraveller community. In relation to (b), the respondents accept that the complainant was asked to leave the Restaurant on 21 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 21 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In deliberating on the case be before me, it is clear that in order to decide whether discrimination occurred, I need to know what occurred between the complainant and Ms A when she approached them at their table. What I do know is that Ms A recognised the group as Travellers at the time, as Mr Cotter has testified that she told him she was "getting abuse outside from some Travellers".
7.5 In reaching decisions in a case such as this, the Equality Officer is heavily reliant on the evidence provided, particularly of key witnesses involved in the incident under investigation. The onus is, therefore, on the parties concerned to produce, at the Hearing, those witnesses who they feel can support their cause. The non-attendance of key witnesses with crucial information, can often prove detrimental to the interests of one or other of the parties. The non-attendance of key witnesses has influenced decisions in the past. In Wall v Wicklow Cabs (DEC-S2002-001) the non-attendance of a key witness, a receptionist, led to the complainant being given the benefit of the doubt over a disputed issue. In McDonagh v Redcove Inn (Dec-S2003-044), the Equality Officer made it clear that the evidence of a barwoman, the key witness, would have been extremely helpful as it would have provided a clear insight into the background and circumstances of the complaint. In that case, however, the respondent chose not to involve his principal witness in the Hearing, resulting in the Equality Officer finding against him, based on the evidence provided by the complainant.
7.6 In this instance, I cannot understand why Mr Cotter chose to ask a customer, with only a peripheral involvement in the incident, to give evidence but did not ask Ms A to attend. In the absence of Ms A at the Hearing, I find that I must assess what seems to have occurred on the balance of probabilities. In order to do so, I must rely on the evidence of the complainant, her niece and the respondent's witness, Mr Usher, with regard to the incident involving Ms A on 21 September 2001. In Mr Usher's case, I note that he has said that he does not know how the incident commenced as he was reading a newspaper at the time. I also note that, at the Hearing, Mr Usher did not clearly identify the complainant as being part of the group he recalls talking to Mr Cotter on 21 September 2001.
7.7 In considering the evidence provided at the Hearing, I note that there is agreement that reference was made at some point to Ms McCarthy's table having been reserved. If this was the case, I would imagine that, on approaching Mrs McCarthy, the logical step for Ms A to have taken would have been to explain the situation and offer to find alternative tables. If this is what happened, as Mr Cotter says, then I cannot understand why the complainant's group got so annoyed. While they may have been upset over having to wait for service, the fact that the waitress was attending to them, as Mr Cotter contends, should presumably have lead to the matter being resolved quickly and without difficulty. The evidence shows, however, that the matter was not resolved amicably and the only explanation I can see for this is that the complainant's party were being treated less favourably by Ms A, because she knew them to be Travellers.
7.8 As stated earlier, the production of key witnesses is essential to enable an Equality Officer to decide on complaints like this. In this case, however, because of the lack of hard evidence, I find that I can only make my decision based on the balance of probabilities. I have, therefore, formed the opinion, based on the information to hand, that Mrs McCarthy's family were treated less favourably than non-Travellers would have been treated in similar circumstances on 21 September 2001 and that this treatment constituted discrimination on the Traveller community ground.
8.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
8.2 In considering the level of redress to award, I note that both the complainant and Anita Quilligan have admitted to having been served previously in the restaurant without encountering any problems. I am satisfied, therefore, that Pockott's Restaurant did not operate an ongoing policy of discrimination against Travellers.
8.3 Accordingly, I order that the respondents pay Mrs McCarthy the sum of €400 for the humiliation and loss of amenity suffered on 21 September 2001.
1 August 2003