Michael & Margaret McCarthy (Represented by the Traveller Visibility Group) V Breda's Bar, (Brian Kennedy)
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Membership of the Traveller Community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub
Mr. and Mrs. McCarthy each referred a claim 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, the Director then delegated the cases 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
On 30/12/2000 the complainants had been out with the intention of having a few drinks. They had tried several pubs and been refused before trying Breda's Bar. The complainants entered the bar at 10:35pm and Mr. McCarthy approached the bar. He was told by the barmaid that he had already had too much to drink. It was the way that the barmaid looked at them and spoke to them that suggested to them that the refusal was based on the their membership of the Traveller community.
Summary of the Respondent's Case
The owner and licensee at the time of the incident attended the hearing. He had leased out the operation of the bar to another person at that time while being able to retain the license in his name. He stated that he was not aware of the incident as he had no input into the running of the leased bar. He was not in a position to present a defense but he was willing to offer an apology to the McCarthys for the incident, if indeed it took place.
Conclusions of the Equality Officer
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) Applicability of the discriminatory ground (in this case the Traveller ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a non-Traveller received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie case and 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.
I am satisfied that the complainants are members of the Traveller community. At the hearing they presented credible evidence that a refusal of service took place and this has not been disputed. Their evidence suggests that since they had not had the opportunity to drink before entering respondent premises, they could not have been perceived as intoxicated and refused on that basis. They have also described the manner in which the refusal was delivered suggesting that, in the absence of any other reason, the refusal was based on their membership of the Traveller community. On the basis of the evidence presented I am satisfied, on the balance of probabilities, that the incident took place and that it was based on their membership of the Traveller community. The McCarthy's have therefore established a prima facie case of discrimination on the Traveller ground. The respondent was not in a position to present a defense in this case. He offered an apology to the complainants for any such incident that had occurred. On the basis of this offer the complainants stated that should their case be upheld they did not want a monetary payment in respect of redress and they would be content to accept the apology.
I find that the respondent has failed to rebut the prima facie case of discrimination.
In accordance with Section 42 of the Equal Status Act, 2000, I am satisfied that the respondent, the Licensee of Breda's Bar on 30/12/2000, is vicariously liable for the actions of the barmaid on 30/12/2000.
I find that the complainants, Michael and Margaret McCarthy, were discriminated against on the Traveller ground when refused service on 30/12/2000.
I hereby order that the respondent apologise to the complainants in respect of the incident. Since the respondent apologised in an open and willing manner at the end of the hearing, no further action is necessary.
19th December 2003