David McDonagh (represented by Mr. Justin Sadleir, Solicitor) v Darcy's Korner Pub, Clare (represented by Mr. Robert M. Lee, Solicitor )
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 delegated the complaint 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, 2000.
1.1 This dispute concerns a complaint by David McDonagh that he was discriminated against by the respondent 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 The complainant states that he was refused service in the respondent premises on 12 May, 2001. No reason was given for the refusal at the time. The complainant contends that the real reason for the refusal of service was his membership of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondent states that he does not discriminate against any group in providing service in his establishment.
4 Evidence Provided by the Parties
4.1 Complainants' Evidence
Mr. David McDonagh, Complainant
Mr. McDonagh stated that:-
- He went to Darcy's Korner Pub on 12 May, 2001 at around 9-9.15 p.m. in the company of his wife and others. They had chosen to go to Darcy's Korner Pub because Mr. McDonagh's brother, who drinks in the pub, told them that there was a band playing there that evening.
- Mr. McDonagh lives about three hundred yards from the Korner Pub, but he normally drinks in another premises which is one hundred yards from where he lives. He has lived in the same house for 11 years and has lived in Ennis since 1975.
- On entering the Korner Bar Mr. McDonagh went to the bar with his brother, son and another person in his company while the remainder of the group sat at a table. Mr. McDonagh ordered a can of beer. The barman replied that they did not have cans of beer and then turned towards the office.
- Mr. McDonagh then asked the barman for a pint of beer. The barman stated that he was not serving him on manager's orders.
- Mr. McDonagh walked towards the door where he met with a doorman, Mike Hassett, who was known to him. He told Mr. Hassett what had happened and asked the doorman to have a word with the barman and explain to him that he, Mr. McDonagh, had taken other pubs to court for refusing to serve him. Mr. McDonagh had challenged the licenses of two licensed premises because they had refused to serve him.
- The doorman spoke to the barman but the latter still stated that he would not serve Mr. McDonagh. The group left the pub and returned to Mr. McDonagh's house. They did not go elsewhere because Mr. McDonagh was upset and embarrassed at the refusal of service.
- Mr. McDonagh is well known in the locality and it is widely known that he is a Traveller. He has never been involved in any trouble and is involved in a wide range of community activities. He has only ever experienced difficulties in getting service in pubs. He has not experienced any other form of negative response in local shops etc.
Mr. John Sweeney, witness for the complainant
Mr. Sweeney stated that:-
- Mr. Sweeney was at the bar with Mr. McDonagh when Mr. McDonagh asked for a can of beer. The barman stated that they did not sell cans of beer, and Mr. McDonagh asked for a pint of beer instead.
- The barman walked off and went into a room off the bar. When he returned he told Mr. McDonagh that he was not serving him on manager's orders.
- Mr. McDonagh asked to speak with the manager. The barman said that he was not available. Mr. McDonagh walked to the door of the pub where he spoke with the doorman. The doorman approached the barman and spoke with him. When he came back to Mr. McDonagh he said, no, he won't serve you. The group left the pub.
- Mr. Sweeney wrote to the pub owner a number of times seeking an explanation for the refusal but received no reply. He had not personally asked for service, having seen the way Mr. McDonagh was treated, but he felt an explanation was due and he wanted an assurance that he would be served in the premises in future.
- On passing the pub one day he saw Mr. Walsh, the proprietor, cleaning the premises so he decided to approach him. He did so and introduced himself. Mr. Walsh told him that he would have no problem serving him in the pub. Mr. Sweeney attended at the pub the following week and was served without any difficulty. He has never been back to the premises since. He simply wanted to satisfy himself that he would be served as Mr. Walsh had stated that he would be. When speaking to Mr. Walsh the subject of the refusal to Mr. McDonagh was not discussed.
- On the night of the refusal of service to Mr. McDonagh the latter had not been overtly stressed or annoyed but was embarrassed when he was refused service.
4.2 Respondent's Evidence
Mr. Martin Walsh, Licensee, Darcy's Korner Pub
Mr. Walsh stated that:-
- He had left the pub on the evening in question to attend to some personal matters at home. When he returned to the pub later in the evening he was told of the refusal by the barman who stated that he sensed that the complainant was agitated and stressed when told that cans of beer were not available.
- The doorman had also told Mr. Walsh that they had rung him at home but he was on his way back to the pub when they got through to his house.
- Mr. Walsh has held the lease to the pub jointly with his wife for six years. He does not know Mr. McDonagh. He had left for a short time to go home. He does not normally leave temporary staff on their own in the pub. The barman on duty on the night in question was young and inexperienced. Mr. Walsh had instructed staff that if they had doubts about serving any individual they were not to do so, as the pub had an endorsement already and he was very concerned not to receive any further endorsements.
- The barman, Tom Leahy had stated to him that the complainant had asked for a can of beer, nothing else, and when told that they did not sell them had become agitated. This had made the barman uneasy, especially when he saw the others in the complainant's company arrive in the premises.
- Cans of Bulmers are sold in the Bar. It is not therefore unusual for patrons to request cans of drink.
- There was no manager on duty on the night in question. The bar does not have a manager.
- The bar always has bands or music on Friday-Monday nights inclusive, every week.
- The barman had simply told the complainant that they did not sell cans of beer, this was the case. The complainant had stated that his brother drank in the pub and this demonstrated that the pub served Travellers.
- Travellers are served regularly in the Bar at weekends. Mr. Walsh cannot recall the names of any and is unsure as to how he recognises them as Travellers.
- Mr. Sweeney, the witness for the complainant still drinks in the pub regularly.
- Mr. Walsh submitted a written statement from the barman on duty on the night in question stating that the complainant had become stressed and annoyed when told that cans of beer were not available on the premises and for this reason, in the absence of the owner, he decided to refuse service.
- Mr. Walsh had not responded to correspondence from the complainant's solicitor or the Tribunal as the incident in question coincided with matters of great personal importance and these were uppermost his mind.
- Mr. Walsh had been the chairman of a local representative group for pub licensees and had had to resign from that position as a result of the complaint against him. He had regretted this as he was honoured to hold the position.
Mr. Mike Hassett, security officer, Darcy's Korner Pub.
Mr. Hassett stated that:-
- On the night in question he was on door duty in the pub when he was approached by the complainant who stated that he had been refused service. Mr. McDonagh also stated that he had taken other pubs to court and he would do the same with this one.
- Mr. Hassett spoke with the barman who was nervous and agitated. He asked him to ring the owner, Martin (Walsh) and tell him what was happening. They rang Mr. Walsh's house and were told by Mrs. Walsh that Mr. Walsh had left and was on his way back to the bar. In the meantime the barman refused to serve Mr. McDonagh.
- When Mr. Walsh arrived at the bar the complainant and his companions had left.
- Mr. Hassett submitted a report to the security firm for whom he worked. Publicans are aware that such reports are made and are available.
- Mr. Hassett knows that the complainant is a Traveller and most people are aware that this is the case. The complainant has been in the local papers for having challenged the licenses of other premises. He is known to be a respectable person and there was no reason based on appearance or behaviour why Mr. McDonagh should be refused service on the night in question.
- Mr. Hassett did not see anything about the complainant's behaviour or appearance, which, in his opinion, warranted a refusal of service.
- Mr. Hassett did not notice that Mr. McDonagh was anything more than very slightly agitated when told that he would not be served.
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) provides that discrimination shall be taken to occur where: (a) "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) provides that: "As between any two persons, the discriminatory grounds ... are ...(i) 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 thedisposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public ". 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 that there was no discrimination.
5.5 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 Prima Facie Case - Complainant
6.1 I am satisfied that the complainant is a member of the Traveller community in accordance with (a) at 5.5 above and this is not disputed by the respondent. The complainant has provided evidence that he was refused service in the respondent's premises, which has been confirmed by the respondent, and this fulfills (b) at 5.5 above. In relation to key element (c) at 5.5 above the complainant states that non-Travellers were in the premises and at the bar being served on the night in question when he was refused service. From the evidence provided it appears that the complainant simply ordered a drink. On balance I am satisfied non-Travellers would not be refused service in the same or similar circumstances and that an inference of discrimination arises.
7 Respondent's Rebuttal.
7.1 The case put forward by the respondent regarding the refusal of service is that the barman claimed the complainant became stressed and annoyed when told that cans of beer were not available in the premises and the barman thought it best not to serve him.
8. Conclusions of the Equality Officer
8.1 The barman in question did not appear at the Hearing to provide any evidence as to actual events on the night in question. The written statement submitted by therespondent from the barman cannot be given any great weight as the barman was not available to corroborate it or be questioned thereon. I note that the statement is undated and appears to have had a section, containing what appears to have been the date, cut off. As the statement also contains an apology for being unable to attend at the Hearing, I regard the apparently deliberate omission of the date as at best questionable. The statement could relate to earlier, adjourned dates for Hearing.
8.2 The doorman, who did provide evidence at the Hearing, corroborated the complainant's account. Significantly, the doorman indicated that the complainant was well known locally as a Traveller who had already opposed refusals of service in other public houses, and also that the complainant was not anything more than slightly stressed at the refusal of service, while the young, inexperienced barman was nervous. Other relevant matters
8.3 While I accept that the respondent had a number of pressing personal matters to deal with (details provided to Equality Officer) while the investigation into this matter was ongoing, I cannot accept that these prevented him from responding to correspondence which spanned a period of 22 months. I am satisfied that the respondent either chose, or was advised, to ignore the correspondence in question. In either case, his lack of co-operation was, to say the least, unhelpful, and the entire matter was prolonged unnecessarily as a consequence. Also I am not satisfied that the respondent made any significant effort to ensure that the barman, who refused service to the complainant, and who is the respondent's key witness in this matter, appear at the Hearing to provide important evidence.
8.4 The respondent also stated that he serves Travellers on an ongoing basis but was unable to say how he recognised that they were Travellers, and was unable to name one such customer. He simply referred to the complainant's statement that the complainant's brother drank in the pub from time to time.
8.5 The respondent repeatedly emphasised in the course of the Hearing that he was, from the outset, willing to resolve the issue through dialogue with Mr. Sweeney, the witness for the complainant and would equally have been willing to resolve the matter through dialogue with the complainant, if the complainant had contacted him personally. However, the respondent appears to think that the responsibility for opening such a dialogue rested entirely with the complainant. It was open at all times to the respondent to initiate dialogue with the complainant, either direct or through the complainant's legal representative. He did not do so.
In light of the factors listed below, I find, on balance, that the complainant was discriminated against on the Traveller community ground:-
(i) the absence of any evidence that the respondent instructed his staff about their legal obligations under the Equal Status Act 2000
(ii) the absence of any evidence of a reason why the complainant should not have been served, particularly in light of the complainant's respectability and standing in the community as attested to by the respondent's own witness
(iii) the respondent's failure to produce the barman as a witness at the Hearing, whose evidence is, if not key to, then most relevant to his defence.
(iv) given (i) to (iii) above, the respondent's failure to take any measures to clarify or resolve the situation.
9.1 The respondent has failed to rebut the inference of discrimination. The finding is in favour of the complainant.
10 Vicarious Liability
10.1 While the refusal which constituted discrimination is directly attributable to the bar man in Darcy's Korner 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 at the time, the licensee of Darcy's Korner Bar, is vicariously liable for the barman's actions in accordance with section 42(1) of the Equal Status Act
11.1 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."
11.2 Under Section 27 (1)(a) I hereby order that €1000 be paid to the complainant by the respondent for the effects of the discrimination. In making this order I have taken into consideration the fact that no evidence of a reason for the refusal of service to the complainant has been provided by the respondent. This, combined with the fact that the complainant has incurred costs in terms of time and effort expended in pursuing his complaint in this matter, compounds the original act of discrimination. Furthermore the proximity of the respondent premises to the complainant's residence means that it is particularly unpleasant for the complainant to be discriminated against in a premises which he passes regularly and is thus constantly reminded of.
22 July, 2003