Joseph O'Brien (represented by Michael B. O'Donnell, Solicitor) V Cunningham's Bar, Kildare (represented by James Cody & Sons, Solicitors)
1.1 This dispute concerns a claim by Mr. Joseph O'Brien that he was discriminated against by a member of staff of Cunningham's Bar, Kildare, contrary to the Equal Status Act, 2000, on the grounds that he is a member of the Traveller community in that, on 3 August, 2001, he was refused service in the premises. The respondent denies that discrimination occurred. The complainant 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 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, 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.
2 Summary of Complainant's Case.
2.1 The complainant states that he went, with three companions, to the Silken Thomas pub in Kildare at or about 9.10 p.m. on 3 August, 2001. He ordered a drink which the barman served him. While the complainant was having his drink the security man approached and asked the complainant and his companions to leave the premises. When the complainant asked why they were being asked to leave he was not given a reason. The complainant and his companions left the premises and went across the road to Cunningham's Bar. They were followed there by the bar manager and the security man from the Silken Thomas. The former spoke to the barman in Cunningham's Bar, following which the group was refused further service in Cunningham's. It is the complainant's belief that he was refused service because he is a Traveller.
3. Summary of Respondent's Case
3.1 The respondent submitted that a member of the complainant's party was involved in an incident on an earlier date in the Silken Thomas whereby toilet roll holders were pulled off the wall and the toilet rolls flushed down the toilet causing a blockage and it was for this reason that service was refused on 3 August, 2001 in both premises owned by the respondent.
4. Evidence of the Parties
14.1. Complainant's Evidence
Mr. Joseph O'Brien, Complainant
Mr. O'Brien stated that:-
- He is a member of the Traveller community. Both his parents were Travellers and have now settled, and he himself travels. He spends much of the year abroad.
- On 3 August 2001 he had just arrived in Kildare from France. He pulled in to the Traveller site outside the town and, when settled in, went with three companions to the town to have a drink and socialise.
- He and his three companions entered the Silken Thomas pub on the evening of 3 August, 2001 at around 9.10 p.m. They were each served a drink. When they were having their drink the security man approached them and asked them to leave the premises. The security man refused to give them a reason for asking them to leave.
- The group left the Silken Thomas and went across the road to another premises, Cunningham's Bar. They were each served by the barman. The manager and the security man from the Silken Thomas, Mr. Vivian Carroll, and Mr. Gary Murphy respectively, followed them across the road and into Cunningham's. Mr. Carroll instructed the barman in Cunningham's not to serve the complainant's party. The barman in Cunningham's subsequently refused to further serve the complainant or his companions.
- The group left the second premises and went to a third. They were stopped at the door of the third premises by the doormen who refused to let them enter. The security man from the Silken Thomas came to the entrance of the third premises and told the complainant and his companions that they would not be served in any pub in the town as they were Travellers.
- One of the complainant's companions tried to push past the security men to enter the third premises. The security men responded by dragging the members of the complainant's group out of the doorway and physically throwing them out into the street.
- Mr. O'Brien had lodged a report of assault with the Gardaí the following morning.
- Mr. O'Brien had never been to the Silken Thomas or either of the other two premises before. He had only arrived at the halting site near the town that day. He had, in the course of a visit some two months previously, stayed at a site off the Curragh but had not been in Kildare town or Naas at any time during his previous stay.
- Mr. O'Brien vehemently denied that he was involved in any fight or incident later on the evening of 3 August as stated by the respondent in written submissions. He had left the town following the refusal at the third premises and was driven home late that night and had not gone back to the town at any time.
- Mr. O'Brien is satisfied that the only reason he and his companions were refused service was because they were recognised as Travellers and were refused solely on the basis of their Traveller identity.
4.2 Respondent's Evidence
Mr. Joseph Flanagan, Director, Cunningham's Bar
Mr. Flanagan stated that:-
Written reply to notification by complainant
- The manager of the Silken Thomas, Mr. Vivian Carroll, had witnessed an incident, one week prior to 3 August, 2001, involving one of the complainant's party in which toilet roll holders were pulled off the wall in the gents toilet and the rolls were flushed down the toilets, blocking them.
- Because of the previous incident, Mr. Carroll was entitled not to serve the complainant's party. Mr. Carroll also felt, in good faith, that the complainant and his companions had already consumed liquor to the extent that if any more were served to them that there was a strong likelihood of disorderly conduct and behaviour.
- Any person who misbehaves on the premises is refused service and asked to leave.
- Mr. O'Brien did suggest that the reason he was being refused service was because he is a member of the Traveller community.
- Mr. O'Brien and his companions went to Cunningham's Bar across the street. Mr. Carroll noticed the group enter Cunningham's and, as the latter is part owned by Mr. Flanagan, went to the bar in Cunningham's and informed the barman that the group had already been refused a second drink in the Silken Thomas and that they were not to be served in Cunningham's.
- When refused further service in Cunningham's Bar the complainant had again asked why he was being refused and was told by the barman that he would lose his job if he served them. The complainant had, at this time, stated that he had a tape recorder and that he had recorded the conversation and the next time the owner of the pub would hear from him would be in the Office of the Director of Equality Investigations.
- Later in the evening, at around 11.45 p.m. When the Silken Thomas had closed, Mr. Carroll the manager heard some noise outside the pub and, on investigating same, found that the complainant and his party were involved in a fight.
Oral evidence at Hearing
- Mr. Flanagan is a Director of Cunningham's Bar and the Silken Thomas and the staff in both premises cooperate with one another. If there is a difficulty with customers in one bar the staff there alert the staff in the other bar of the particular problem so as to avoid any difficulty arising.
- It is Mr. Flanagan's experience that it is better to refuse service to an entire group than one individual member of the group, as the latter usually leads to the other members of the group supporting the individual and this can escalate an incident.
Mr. Vivian Carroll, Manager, Silken Thomas
Mr. Carroll stated that:-
Oral evidence at Hearing
- The incident whereby toilet roll holders were taken from the wall in the gents toilets in the Silken Thomas occurred about one month before the refusal of service to the complainant.
- The pub had closed at the time, when a large number of Travellers entered. The doors of the pub were open to allow air in as it was hot and humid at the time. They were refused service as it was after closing time. Some of the Travellers went to use the toilets. When they had left the premises a staff member reported that there was a mess in the gents toilets because toilet roll holders had been taken down and the toilet rolls had been placed in the toilet bowl and these had blocked the toilet.
- The incident was not noted anywhere and the toilets had not been checked before the Travellers went to use them.
- Mr. Carroll recognised the group who entered the premises as Travellers because of their dress and accents. He would normally recognise Travellers in this way. One of the group in question was in the complainant's company on the night of 3 August, 2001 and it was because of this person's previous behaviour that the complainant and his companions were asked to leave the Silken Thomas.
- Mr. Carroll could not recall specifically that the complainant's companion had actually gone to use the toilets on the night in question, but he did recall that he was on the premises and was argumentative when told that he would not be served. He had left the premises with the other Travellers.
- On the night on which the complainant was refused service, i.e. 3 August, 2001, Mr. Carroll was in the office looking at a security monitor. He saw the complainant's group come into the Silken Thomas and recognised the complainant's companion as the the same person who had entered the premises a month earlier, after closing time.
- He, Mr. Carroll, did not take action immediately as he wanted to allow time to ensure that it was the same person who had "caused the problem".
- He had left the office and spoken with Gary (Mr. Gary Murphy), the security man. He asked Gary whether he recognised the same man from the earlier incident. Gary had confirmed that it was the same man.
- Gary, the security officer, then approached the complainant and his companions and asked them to leave the premises.
- Mr. Carroll told the barman not to serve any more drink to the group.
- Mr. Carroll saw the group go across the road and enter Cunningham's Bar. He went across the road to Cunningham's and told the barman, Ian (Mr. Ian Moore), that the group had been refused service in the Silken Thomas and that he was not to serve the group any more drink.
- Mr. Carroll did not witness the complainant and his companions fighting outside the Silken Thomas later in the evening.
Mr. Ian Moore, Barman, Cunningham's Bar
Mr. Moore stated that:
Oral evidence at Hearing
- He was the barman on duty on 3 August, 2001 when the complainant and his companions entered the bar. He served each of them a drink.
- Shortly after the complainant's party entered Cunningham's Mr. Vivian Carroll and Mr. Gary Murphy entered the bar. He was approached by Mr. Carroll, manager in the Silken Thomas and told not to serve any more drink to the complainant or his companions.
- He told the complainant that he could not serve him any more and that if he did he could lose his job.
Mr. Nigel Flanagan, member of staff, Cunningham's Bar
Mr. Flanagan stated that
- He was in Cunningham's (off duty) on the night in question. He had a good view of the premises.
- He saw three men enter the bar separately and meet up once inside.
- He saw Mr. Carroll and Mr. Murphy enter the premises. Mr. Carroll went to speak with Ian, the barman.
- Four people began to remonstrate with Ian. After a while the four people left the premises.
Mr. Gary Murphy, Security Officer, Silken Thomas and Cunninghams
Mr. Murphy stated that:-
Oral evidence at Hearing
- Prior to 3 August, 2001 the complainant and one of his companions were involved in an incident in another premises in Naas.
- When the group entered the Silken Thomas on 3 August, 2001 the manager, Mr. Vivian Carroll had approached him and asked whether he recognised a member of the group and Mr. Murphy had said that he did. Mr. Murphy was not aware of the incident whereby the toilet roll holders had been taken from the wall in the gents toilets. He recognised the complainant and his companion from the earlier incident in another premises.
- Mr. Murphy explained that he runs a security company which provides security services to many of the pubs in Kildare town and to some premises in Naas. The complainant had been involved in an incident, following a refusal of service, in the premises in Naas, in the course of which he had begun to kick furniture around. Mr. Murphy had intervened. On that occasion a bystander had asked why Mr. O'Brien and his companion were being refused service and was informed by Mr. Murphy that it was because they had caused trouble previously in yet another premises.
- Mr. Murphy, after speaking with Mr. Carroll in the Silken Thomas, had approached the complainant and his group, had spoken with them for some time to ensure that they were the same people who had previously caused trouble in another premises and when he was satisfied that they were, asked them to leave.
- When the complainant's group went across the road to Cunninghams Bar, Mr. Murphy followed them across. He also notified the security men in a third premises, which is under separate ownership to the Silken Thomas and Cunninghams, that the group was not to be admitted. He was called to the third premises by the door security men a while later because there was "trouble in the doorway" with the complainant's party. He went to the premises and informed the complainant's group that they would not be served.
- Mr. Murphy had logged the alleged incidents in which the complainant and his companion were involved on earlier dates and would forward copy reports to the Equality Tribunal following the Hearing. (No such reports were submitted)
Written submission prior to Hearing by legal representative for Respondent
- The respondent has no case to answer under section 5 of the Equal Status Act 2000 as the complainant and his companions were admitted to, and served in, the Silken Thomas.
- When the actual identity of the complainant and his previous conduct ( in relation to the toilet roll holders being damaged) were ascertained he was no longer welcome on the premises.
- His subsequent behaviour (fighting outside the Silken Thomas at closing time) bears out the fact that the bar Manager's assessment of him was correct .
- The barman at the Silken Thomas was under a duty to inform his colleagues in Cunningham's Bar that the complainant had previously been involved in unlawful conduct in the Silken Thomas and the law imposes a duty on managers of licensed premises to ensure that alcoholic drink is not served to persons who are likely to engage in disorderly or criminal conduct.
The respondent's legal representative summarised on behalf of his client stating that:-
- The complainant was associating with troublemakers and could not deny that his companions had been involved in trouble as he had stated that he was abroad a lot and would not therefore be in a position to comment on their behaviour in his absence.
- Two people, namely the manager and the security officer in the Silken Thomas had recognised the complainant and one of his companions independently of one another.
The manager had observed the group on closed circuit T.V. for some time to ensure that this was the case.
He disputed that the complainant is a Traveller because -
- (i) The complainant had stated that he carried out business abroad. He is therefore a prosperous businessman and not a Traveller.
- (ii) The complainant does not look like a Traveller. (The representative declined to clarify how a Traveller should look)
- (iii) The complainant had stated that his parents put him and each of his siblings through school. Therefore the complainant was educated
5 Matters for consideration
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
5.3 Section 3 (2)(i) provides that: "As between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not."
5.4 Section 5 (1) states that "a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ".
5.5 Section 15(1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person 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 provision of services 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 services are sought".
Section 15(2) of the Equal Status Act 2000 states that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999, shall not constitute discrimination". In this particular case the complainant claims that he was discriminated against because he is a member of the Traveller community while the respondent maintains discrimination did not arise.
5.6 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 of the complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6. Conclusions of the Equality Officer
6.1 I am satisfied that the complainant is covered by the Traveller community ground as defined in the Equal Status Act 2000 and in accordance with (a) at 5.6 above. While this is disputed by the representative for the respondent, who stated that the complainant did not "look like a Traveller", that the complainant was "a prosperous businessman" and could not therefore be a Traveller, and that the complainant "had been educated", it is clear from written evidence and oral evidence provided by the bar manager, Mr. Carroll, that he was directly associating the complainant with an alleged incident specifically involving, according to Mr. Carroll himself, Travellers. Section 3(1)(b) of the Equal Status Act 2000 states that discrimination shall be taken to occur where a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph 3 (1)(a), constitute discrimination. Therefore, whether the respondent's representative accepts the actual Traveller status of the complainant or not, the complainant was clearly associated with Travellers by the respondent's staff. The complainant is therefore covered by Section 3(1)(b) of the Equal Status Act 2000. The complainant has provided written and oral evidence of refusal of service to him by the respondent' staff, which has been confirmed by the respondent, and this fulfills (b) at 5.6 above.
In relation to key element (c) at 5.6 above the complainant was refused service, according to the respondent, because (i) he was associated with a member of a group of Travellers who allegedly caused damage in the respondent's premises on an earlier date and (ii) he was clearly intoxicated.
The respondent's staff approached the complainant and his companions, spoke to them and then asked them to leave. According to the complainant no reason was given for this request and he had asked whether the refusal was based on his membership of the Traveller community. The respondent has indicated that the complainant did raise the issue of his Traveller status at the time. When the group left the Silken Thomas as requested they were followed by two members of staff to another premises and refused service there also on the instructions of the manager of the Silken Thomas, without, according to the complainant, any explanation for the refusal on either occasion. While I would accept that any licence holder would be entitled to refuse service to any person, whether Traveller or non- Traveller, in circumstances whereby the person was honestly associated with a person or persons who had behaved in an unacceptable way on an earlier occasion or occasions, I am satisfied based on all of the evidence, for the reasons outlined below, that the respondent's staff did not act from such an honest belief in this specific case.
6.2 In written evidence submitted by the respondent's legal representative prior to the Hearing of this complaint it was stated that the complainant was personally involved in an incident on an earlier date in the Silken Thomas, whereby damage was caused to the gents toilets. In a written letter from the respondent himself , and in the course of the Hearing it was clearly stated that the complainant was not personally involved in any such incident but that one of his companions on 3 August 2001 was identified by the bar manager of the Silken Thomas as having been involved in the said incident.
The bar manager stated in oral evidence that the alleged damage to the gents toilets was found after a group of Travellers had made their way onto the premises after closing hours. He could not verify, however, whether the damage was or was not incurred before the group of Travellers had arrived on the premises as the toilets had not been checked before the Travellers arrived on the premises.
Neither could the bar manager verify that the person with whom he was associating the complainant had even visited the gents toilet on the night on which the damage had allegedly occurred, nor could he clearly identify the man in question other than to say that he was a "big man". The manager had taken no action on the occasion on which the damage had allegedly occurred. He had not recorded the incident or reported same. In circumstances where he would be responsible for reporting damage to his superiors, and where the nuisance caused was serious enough that people might be barred as a consequence, I find this odd. The manager could provide no supporting evidence that the incident had actually occurred, or that the damage alleged was directly attributable to any member of the group of Travellers, who, while perhaps entering the premises after closing hours, had entered through doors that were wide open, possibly giving the impression that the premises was still in fact open. In summary therefore, the doors of the pub were still open when the Travellers entered. The man with whom the complainant is being associated by the bar manager may have been in the group but may not have been in the toilets at all on the night in question. Even if he had visited the toilets on the night in question there is no evidence to show that the damage which the respondent alleges occurred to the toiletswas caused by the Traveller group as the toilets were not checked earlier in the night. This is considerably less conclusive than the respondent's statement that the bar manager had "witnessed" the damage being caused to the toilets. According to the bar manager himself he did not witness same. In short, there is nothing specific to associate the complainant with the allegations made by the respondent, nor indeed is there anything specific that associates any of the complainant's companions with the alleged damage to the gents toilets.
The security man who asked the complainant and his companions to leave the premises stated in the course of the Hearing that he was not aware of the incident involving damage to the gents toilets, but rather, based his request to the complainant's group on an entirely different incident, allegedly involving the complainant personally, in another premises on another, unspecified, date. This was the first time that reference was made to any such alleged incident, despite having numerous opportunities to refer to it in ongoing correspondence, and effectively removing the ability of the complainant to properly defend himself against this allegation. The complainant, in evidence stated that he had not been to the town in question, and had not therefore been to the premises in question. The security man's statement is also at variance with the bar manager's statement i.e that he asked the security man, in relation to the toilet incident, "if it was him", meaning was the complainant's companion the man who was on the premises on the earlier occasion when the damage to the toilets had occurred, and to which the security man had replied that it was. The security man was asked in the course of the Hearing whether he had recorded details of the earlier alleged incident in the other premises, (with which he says he was associating the complainant), in writing. He responded that he had and would submit a copy of the incident report following the Hearing. This record would be key in determining whether the alleged previous incident involving the complainant had ever occurred. No such document was ever submitted.
6.3 Neither the bar manager nor the security man has provided any supporting evidence that any of the alleged incidents involving either the complainant personally or his companion, actually occurred, nor have they provided any evidence that the complainant was either personally involved in these alleged incidents or that any clearly identifiable member of his group on 3 August, 2001 was involved in any such incident. I am conscious of the right of the complainant and his companions to their good name and that it is for the respondent to substantiate at minimum, to a reasonable extent any allegations that they were involved in incidents giving rise to damage on his property if he is to use that reason as a basis for refusing service. In this case the respondent has not substantiated such allegations and has not, therefore, satisfied the requirements of Section 15(1) of the Equal Status Act.
While I am conscious of the fact that the complainant has not provided any supporting evidence in support of his complaint and that none of the complainant's companions on the night in question attended on his behalf at the Hearing, nor did they provide any other evidence to support him. However, the evidence provided by the respondent and the witnesses on his behalf is such that of itelf it casts much doubt on its reliability and therefore the respondent's credibility. If the refusal of service was as straightforward as the respondent would have it, then why did the reasons for the refusal and the evidence to support these reasons keep changing, and in a manner that allows themt to be discredited quite readily. On balance I find the complainant's evidence more compelling.
6.4 The respondent also stated that the complainant and his companions had excess alcohol taken and that this was a further reason for refusing service to them on 3 August, 2001. I am satisfied that this was not the case. Two of the respondent's own staff, i.e. the barman in the Silken Thomas and the barman in Cunningham's, initially served the group without any difficulty whatsoever and never raised the issue of any member of the group having any alcohol taken prior to serving them. It was only on the instructions of the bar manager on each occasion that further service was refused. As Mr. Carroll was in his office when the party arrived in the Silken Thomas and he only spoke with the security man on leaving the office, I am satisfied that it is most unlikely that he would have been able to tell whether any member of the complainant's group had drink taken unless it was glaringly obvious that this was the case. Given that the group were served by the respondent's staff without question I am satisfied that no member of the group was obviously under the influence of alcohol.
6.5 The bar manager and the security officer then followed the group to another, separate premises which is part owned by the respondent. The bar manager gave instructions to the barman in the second premises that the group was not to be served. The security man gave evidence that he also instructed doormen in a third premises not to allow entry to the group. The complainant stated in evidence that the security man, when speaking to them outside the third premises, had clearly stated to the group that they would not be served in any pub in the town because they are Travellers. While the security man denied saying this he referred to the fact that the complainant had said that he was going to take them to the Office of the Director of Equality Investigations.
I would clarify that where a respondent makes allegations of previous misconduct on the part of a complainant and where it is established that there are clear or reasonable grounds for making such allegations, I would have no hesitation in finding that the respondent in those circumstances acted in accordance with either Section 15 (1) or 15(2) of the Equal Status Act, (see DEC-S2002-017, DEC-S2002-023-025, DECS2002- 105, and DEC-S2002-129-130). In the instant case, a number of allegations have been levelled at the complainant, none of which have been detailed or substantiated, most of which are inconsistent or contradictory and do not stand up to close scrutiny . It is not possible to attach a great deal of weight to such allegations. It is not sufficient for the respondent to claim a defence under Section 15(2) of the Equal Status Act and then not to show that he or his staff acted in an honest belief that a breach of the Licensing Acts would arise from service to the complainant or his companions.
On balance, taking all of the evidence into consideration, I am satisfied that the bar manager, while watching the complainant and his companions enter the premises on the security monitor in his office on 3 August 2001 identified the complainant and his companions as Travellers, left the office and approached the security man and either asked him to verify from their accents whether they were in fact Travellers, or asked him directly to get them off the premises. I am satisfied that it was for this reason that the security man approached the group and asked them to leave the premises and subsequently ensured that they were denied service in two other premises. Neither the bar manager nor the security man employed in the Silken Thomas has established to my satisfaction that they acted in good faith for the sole purpose of ensuring compliance with the Licensing Acts, 1833 to 1999 as required by Section 15 (2) of the Act.
6.6 In the absence of any credible alternative reason for the treatment afforded the complainant, taking all of the circumstances into consideration, I find that an inference of discrimination on the Traveller community ground arises. The manager, Mr. Carroll, has failed to show that he could reasonably associate the complainant and his companions with damage arising on the respondent's premises. In fact, as I have indicated above, he has failed to show that there is anything to associate the complainant with. I am satisfied therefore, that Mr. Carroll, in approachimg the security man about the complainant and his companions was not doing so out of an honest belief that they were associated with Travellers who had caused trouble in the premises previously, but rather, was doing so simply because they were, in fact, Travellers and he recognised them as such. This is clearly less favourable treatment than that which would be afforded non-Travellers in the same or similar circumstances.
The burden of proof shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were nondiscriminatory. I find that the reasons provided above by the respondent for the refusal of service have been shown to be unsubstantiated and, in many respects, inconsistent and contradictory and do not satisfy the requirements of Section 15 (1) or (2) of the Equal Status Act 2000. As no further non-discriminatory reasons were presented by the respondent for the refusal of service I find that the refusal of service to the complainant was discriminatory on the Traveller community ground. In this case I find that, in complying with the instruction of the bar manager from the Silken Thomas not to serve the complainant or his companions, which instruction I have found in my earlier decision in relation to the Silken Thomas to be discriminatory, the barman in Cunningham's discriminated against the complainant.
I find that the complainant was discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i), of the Equal Status Act and in terms of Section 5(1) of that Act.
8. Vicarious Liability
8.1 While the refusal which constituted discrimination is directly attributable to the bar man in Cunningahm's Bar on the night in question, Section 42(1) of the Equal Status Act, 2000 provides that:
"Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval" As the barman was clearly acting within the scope of his employment in the course of the discrimination I find that his employer, the licensee of Cunningham's Bar, is vicariously liable for the barman's actions in accordance with section 42(1) of the Equal Status Act.
9.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action which is so specified."
9.2 I hereby order that €1000 be paid by the respondent to the complainant for the effects of the discrimination I also order that the respondent take immediate steps to review all of its customer service practices to ensure that they are fully compliant with the requirements of the Equal Status Act 2000, and that all staff involved in the direct provision of services to the respondent's client base be fully trained in the scope and requirements of the Act.
21 February, 2003