Mr. Pat Ward (represented by Mr. Connor Power B.L. instructed by the Equality Authority) V Fox's Bar (Galway) (represented by M. G Ryan & Co. Solicitors)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 15 February, 2001 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, Marian Duffy, 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 The dispute concerns a claim by the above named that he was discriminated against by Fox's Bar on the grounds that he is a member of the Traveller Community. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2.1 The complainant purchased tickets for a New Year's Eve function in Fox's Bar. Together with his wife Ms. Katie Ward and Mr Martin Stokes (deceased) and Mr. Stoke's wife, Ms. Anne Marie Stokes, they went into the respondent's bar around 5pm, but they were refused service and asked to leave. He contends that that the only reason he was refused service was due to the fact that he is a member of the Traveller community
2.2 The respondent submitted that the complainant was not discriminated against on the ground that he is a Traveller, but he was refused service because the manager formed the opinion that the complainant had drink consumed and consequently he was entitled to refuse service.
3 Summary of the Complainant's Case
3.1 The complainant, Mr. Pat Ward is a Traveller is living in a flat in Mervue in Galway with his family. The complainant stated the following in evidence:
- The complainant telephoned the respondent bar on 30 December, 2000 to find out about the price of tickets and their availability for a function the following night, New Year's Eve. He went to the bar the following morning and purchased two tickets. His brother-in-law Mr. Martin Stokes deceased also purchased two tickets. The complainant's wife, Mrs. Katie Ward, and Mr. Stokes wife, Ms Anne Marie Stokes are sisters.
- At about 4pm on 31 December, 2000 together with his wife he went to Mrs. Kate Carr's (his mother-in- law) house, with their children to have them minded. There they had arranged to meet Mr. and Mrs. Stokes who were also having their child looked after by Mrs. Carr.
- They called a taxi and left for Fox's bar where they arrived between 4:30 and 5pm. The function for which they had tickets did not start until 9 pm. The complainant went up to the bar and ordered drinks for himself and his wife and Mr. Stokes also ordered for himself and his wife. The women sat at a table.
- Mr. Stokes went to the toilet. The complainant noticed that as the barman was about to pour the drinks, he was called by a member of management. The barman then informed the complainant "sorry, I am not allowed to serve you." The complainant asked for a reason and the barman told him that management told him not to serve them. He asked for a reason and but the barman refused to give him a reason.
- The complainant then showed the barman his ticket for the function and asked for his money back. After checking with management the money was refunded. The complainant decided that he would leave immediately. Mr. Stokes returned from the toilet and the complainant told him about the refusal of service. Mr. Stokes wanted a reason for the refusal and sought to speak to management.
- The complainant informed his wife that they had been refused service and they both left and went to the Imperial Hotel where they were served until closing time.
- The complainant said that he was dressed neatly as he had been told when he purchased the tickets that neat dress was essential. He couldn't understand why he would not be served and believed that it was connected to his membership of the Traveller community.
- In response to the respondents contention that the barman believed he had alcohol consumed the complainant denied that he had any drink taken.
- The complainant said that he was in the pub on Christmas Eve and was served by the same lady who sold him the tickets for the function. He said that he was also there on another occasion and was served. He believes that the reason he was not served on this occasion was due to the fact that he was being served by a different person and was recognised as a Traveller.
- In response to questions at the hearing the complainant said that he was not sure if the respondent served other Travellers as none of his friends drink there. He said that he is recognised as a Traveller but he is not sure how the settled community identifies Travellers. He believes that Travellers stand out and are easily identified.
Evidence of Mrs. Katie Ward
- Mrs. Ward said that she had arranged with her mother to mind the children for the night. They arrived at her mother's house at about 4pm and left shortly afterwards by taxi for the Fox's pub. She denied that the complainant had drink consumed. She said that they have small children and neither herself or her husband consume drink in front of their children.
- After their arrival in the pub Mrs. Ward and her sister Mrs. Stokes sat down at a table in the pub and her husband and Mr. Stokes went to the counter to order drinks.
- Shortly afterwards her husband came down to them and said that they had been refused service. She said that Mr. Stokes remained at the bar and Mrs. Stokes joined him. Mrs. Ward said that she was very upset at the treatment and left the bar with her husband.
- Mrs. Ward believes that they were recognised as Travellers and this was the reason they were refused service.
- Mrs. Stokes said that she had been in Fox's bar on Christmas Eve and on another occasion and had no trouble in getting served. She believes that not all the bar staff are prejudiced against Travellers. She contends that they may not have been identified as Travellers until Christmas Eve when other Travellers joined them on that occasion. She submitted that the refusal of service on New Year's Eve possibly could have been connected to that occasion.
- On Christmas Eve she was in a group of 5 Travellers and they were all served. Three other Travellers joined them and they were asked to leave. She said that it was coming up to closing time and they were leaving anyhow. She said that she had no complaint about being asked to leave on that occasion, but she believes this led to the refusal of service on New Year's Eve as the Travellers who joined them would have identified herself and her husband as Travellers. In response to the respondent's representative Ms. Ward agreed that the bar was closing around 5pm as it was Christmas Eve and all the staff were ready to leave at that time.
Evidence of Mrs. Ann Marie Stokes
- Mrs. Stokes said that she went to Fox's bar with her late husband and Mr. & Mrs. Ward. Following the refusal of service Mr. & Mrs. Ward left the bar and she joined her husband at the bar counter to find out why they were refused service.
- Mr. Stokes in her presence asked the barman for the drinks that he had ordered and the barman told him that management had instructed him not to serve them. Mr. Stokes than asked to speak to management.
- When the manager arrived Mr. Stokes asked for the reason he was not served. The manager said that he didn't have to give him a reason and he also refused to give his name. Mrs. Stokes said that they then left the bar.
Evidence of Mrs. Katie Carr
- She stated that she is the mother-in-law of the complainant and on 31 December 2000, both her daughters with their husbands brought their children to her house as she was baby sitting them
- At about 4:30 they got a taxi and left for Fox's Bar. She said that she was certain that the complainant or Mr. Stokes had no drink taken. She said that she had experience of seeing them with drink taken and she would definitely have known if they had any consumed on this occasion. She also said that she does not allow any drink in her house.
- Mrs. Carr said that her daughter later telephoned her to check on their children and they were very upset at the fact that they were not served in Fox's Bar.
4 Summary of the Respondent's Case
4.1 The respondent submitted that the complainant was not discriminated against on the Traveller community ground.
- Mr. Craig Wynne was the Manager on duty on 31 December, 2000. He said that he was sitting with friends away from the bar and above the stairwell. He was about 20 to 30 feet away from the bar area sitting on a stool. He saw two customers approach the bar. He said that he didn't notice anything unusual about them as they made their way to the bar.
- The barman signaled up to him and then came up to him. The barman asked if he thought they two men had drink taken. Mr. Wynne said that he confirmed to the barmen that the men had drink taken and not to serve them.
- The barman returned to the bar area and informed the complainant he would not be served. Mr. Wynne said that he then came to the bar area and spoke to the complainant. Mr. Stokes then returned from the toilet and he was also informed by the barman he would not be served. They both asked for the reasons for the refusal of service but he decided not to give them a reason. Mr. Wynne said that in such a situation it is better not to give a reason especially if a person has drink taken.
- He said that they asked on numerous occasions why they would not be served but he refused to give them a reason. They also asked for his name and he refused to give it to them. Mr. Wynne said they both became agitated and verbally aggressive when they were not given a reason for the refusal of service.
- In response to questions at the hearing Mr. Wynne said that he could not say how many drinks a customer would have to have consumed before service is refused. The policy of not serving people who have drink taken varies from person to person but he believes that if a customer had only one drink consumed that he would not notice and that customer would be served. He said that customers are refused if they have the appearance of being drunk.
- Mr. Wynne said that he would recognise customers if they were drunk by their slurred speech, their walk and general posture. He would normally speak to a customer he suspected of having too much to drink and would observe their reactions in a conversation. In this case he believed that the complainant had slightly slurred speech. In response to questions at the hearing Mr. Wynne said that when he made the decision to refuse the complainant he cannot remember which feature of drunkenness the complainant clearly stood out under.
- Mr. Wynne stated that he did not recognise anyone in the group as Travellers and that the refusal of service was not connected to their membership of the Traveller community. He said that in general he would not recognise members of the Traveller community. He was at school with a number of Travellers and knows these people to be Travellers otherwise he would not recognise Travellers.
Evidence of Mr. Ronan Lawless
- Mr. Lawless is the owner of Fox's Bar. He said it is a local type of bar and as it is near the Railway station it also has transient customers.
- There is no policy about not serving Travellers and Travellers are served in this premises and also in the other three bars Mr. Lawless owns.
- Customers are refused service if they are under age, excessive drink taken, if they raise their fists or cause trouble or if they are known trouble makers. Customers who are refused for being drunk are usually let back in again unless they cause trouble. Troublemakers and customers who are violent are barred. He is not aware if Travellers ever caused trouble in his pub. There are some Travellers barred from the pub but he is unsure how many.
- Mr. Lawless said that he has a notice inside of the door of the pub about Section 15 of the Equal Status Act.
- Mr. Lawless was not on duty on the 31 December, 2000 and he only learned about the complaint when he got the notification from the complainant. The manager on duty has full responsibility.
- The policy in relation to refusal of service is not to give the customer a reason as it tends to agitate them and it is easier not to get into an argument if you don't give a reason.
5 Submission by the Complainants Representative
5.1 The complainant's representative submitted that the only reason the complainant was refused service was because he is a Traveller. In order to be covered by the Equal Status Act, 2000 the complainant must first establish that he is a member of the protected grounds and as he is a member of the Traveller community he has the protection of the Act. The next issue the complainant has to prove he was subject to a specific treatment, in this case he was refused service and it is common case service was refused. He submitted that there was a connection between the refusal of service and membership of the ground. He submitted that it has been long recognised that people who discriminate do not expressly state refusal of service is connected to membership of the Traveller community. He said that inference should be drawn from the facts of the case. It is a fact that Travellers are stereotyped and this stereotyping includes associating Travellers with drink and trouble.
He submitted that the group were refused service after an assessment from the manager, who despite the fact that he was 30 feet away he was able to determine the complainant had drink taken and was able from a brief assessment of Mr. Stokes as he passed by on the way to the toilet to determine that he also had drink taken. The manager did not speak to Mr. Stokes until after service was refused and did not have any conversation with the complainant. He said that it was up to the manager to make a careful assessment on whether the complainant had drink taken. He submitted that the Manager saw the complainant and his friends entering the pub, recognised them as Travellers and confused their accents with slurred speech. In response the respondent's contention that the complainant and Mr. Stokes became aggressive after they were refused service the representative submitted that events after the refusal of service was not relevant and if a person is refused service and not given a reason, a person would be annoyed. In any event the complainant did not speak to the Manager.
6 Submission of the Respondent's Representative
6.1 The complainant has failed to make out a prima facie case that they have been discriminated against on the grounds that they are members of the Traveller community. In order for discrimination to occur it has to be obvious to anyone serving the complainant that he is a member of the Traveller community. Travellers are normally recognised by their appearance, but in the complainant's case it is not obvious that he is a Traveller and it was Mr. Wynne's evidence that he did not recognise him as a Traveller. Therefore, as the complainant was not recognised as a Traveller he could not have been discriminated against by the respondent on the grounds that he is a member of the Traveller community. The complainant and his wife have agreed that they were in the respondent's premises on two previous occasion and had no trouble in getting served there. The respondent has no policy of refusing service to Travellers and if he had such a policy he would not have sold them the tickets for the function. On the night in question the specific treatment given to the complainant was no different to the treatment of any other customer who arrived and was suspected of having drink consumed. As it was the busiest time of the year the assessment of the complainant's condition when he arrived in the pub had to be carried out quickly.
7 Conclusions of the Equality Officer
7.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: On any of the grounds specified... (in this case the Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. 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.
7.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as: "Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred."1 If a prima facie case of discrimination is established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. In more recent employment discrimination cases the Labour Court has applied the test and stated: 1 Dublin Corporation v. Gibney EE5/1986 "The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination".2 And in another case stated: "...the claimant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the claimant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed."3 The practice of shifting the burden of proof in discrimination cases was also applied in very clear terms by the Supreme Court in Nathan v Bailey Gibson4 and referred to by the High Court in Conlon v University of Limerick.5 In Nathan v Bailey Gibson the Supreme Court stated: "In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant's sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the complainant's sex." While these were both indirect discrimination cases, it seem that the principle should by logical extension apply to direct discrimination cases if it applies to indirect discrimination cases.
7.3 I have identified the key issues for decision concerning establishing a prima facie case as follows:
5 Conlon v. University of Limerick  ILRM 131
4 Nathan v. Bailey Gibson  2 I.R. 162
3 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011
2 The Rotunda Hospital v. Noreen Gleeson DEE003/2000
(a) is the complainant covered by the discriminatory ground? ( in this case is he a member of the Traveller community?);
(b) was the complainant refused service by the respondent on 31 December, 2000?
(c) evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
7.4 I am now going to examine issues I have identified above and consider whether the complainant has established a prima facie case of discrimination. If those elements are established, the burden of proof shifts to the respondent. This means that the difference in treatment is assumed to be discriminatory on the relevant ground unlessit is rebutted by the respondent. In such cases it is not necessary for the complainants to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not.
7.5 Issue of Traveller Identity
In the Equal Status Act, 2000 the Traveller community ground is defined as follows: "means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland". I am satisfied that the complainant is a member of the Traveller community as defined by the Act and he is therefore covered by the discriminatory ground In relation to (b) above I am satisfied that service was refused, but the reason for the refusal is in dispute. The next issue for consideration is whether the complainant was treated less favourably than another person not covered by the discriminatory ground, would have been treated in similar circumstances.
7.6 The complainant's case is that he was refused service in the respondent's premises for no good reason and he believes this occurred because he is member of the Traveller community. He denied that he had any drink consumed when he came to the respondent's premises. The complainant's witness also supported the complainant's case that he had no drink consumed before he entered the respondent's premises. The complainant' representative said that people who discriminate against members of the Traveller community will not expressly state that the refusal of service is connected to membership of the Traveller community. Direct evidence of discriminatory treatment is rarely available and inference have to be drawn from the circumstances of the refusal of service.
7.7 The respondents case is that the complainant was refused service because the barman formed the opinion that he had drink taken and consequently he was entitled to refuse service. It was submitted by the respondent's representative that the complainant, nor anyone else in the group, were recognised as members of the Traveller community. He also submitted that the complainant was not treated less favourably than a non-Traveller customer entering the pub with excess drink taken.
7.8 There was a complete conflict of evidence in relation to what happened on the day in question and I am therefore going to consider the totality of the evidence in relation to the prima facie case. I note that the complainant and his wife were served in the pub on two previous occasions and also that the complainant had been sold a ticket for the New Year's Eve function. The complainant said that the person who sold him the ticket was the same bar woman who served him when he was in the pub previously. He believes he had not been served before by the barman who refused him service on New Year's Eve. The complainant in evidence denied that he had any drink taken on the night in question and he was supported in this by three witnesses. The complainant believes that the barman recognised him as a Traveller and was refused service for this reason. In support of this contention the complainant's wife said that that they were not recognised as Travellers until Christmas Eve and on the next occasion they were in the pub service was refused.
7.9 In relation to the refusal of service, I note that the complainant's evidence was that the barman was about to serve him when he was called away. The complainant's evidence is that he ordered his drinks and he had no further conversation with the barman until he was told by the barman on his return that the manager said that he was not to be served. If I am to accept the complainant's evidence, it would appear that the barman did not think that the complainant had excess alcohol consumed and that it was solely Mr. Wynnes decision to refuse service to the complainant. I note that the complainant said that he did not speak to Mr. Wynne, but Mr. Wynne stated he spoke to the complainant after the barman had refused the complainant service. The barman who could have been of assistance to the investigation was not available to give evidence. It is clear from the evidence of Mr. Wynne that he only spoke to the complainant after he instructed his barman to refuse service. I note from Mr. Wynne's evidence that when he saw the complainant and the late Mr. Stokes approach the bar, he said that he noticed nothing unusual about them. He had a further glance at Mr. Stokes on his way to the toilet but there was no evidence that he considered Mr. Stokes to be drunk. It is clear therefore that Mr. Wynne did not notice that the complainant had too much to drink when he first noticed him on his way to the bar.
7.10 The next event was the barman's signal to Mr. Wynne and their conversation about refusing service on the grounds that the complainant had too much to drink. Mr. Wynne's evidence in relation to this conversation is that the barman asked him if he thought that the complainant and Mr. Stokes had too much to drink and he (Mr. Wynne) confirmed that they had. However at this point it appears from the evidence that Mr. Wynne had neither spoken to or noticed anything unusual about the complainant. I note Mr. Wynne's evidence in relation to customers whom he suspects of having too much drink consumed is that, he would observe them, speak to them and look at their reactions, would also note if their speech was slurred and these features would determine whether or not a customer could be served drink. Mr Wynne neither spoke to the complainant or Mr. Stokes before making a decision to refuse service and the complainant's evidence is that the barman only spoke to him to refuse service. I am of the opinion that if the complainant had too much to drink that Mr. Wynne would have noticed it as he approached the counter. Mr Wynne's evidence in relation to the events were contradictory. Firstly he stated that the complainant had slurred speech but there was no evidence that he spoke to the complainant prior to refusing service. He did say in evidence that he spoke to the complainant after service was refused. I note that in response to question about the features of drunkenness he was unable to say which specific feature led him to believe that the complainant had too much to drink.
7.11 In considering the evidence in this case I found that the evidence provided by the complainant and his witnesses to be more compelling than the evidence of the respondent. In particular, I found that Mrs Ward and Mrs Carr provided convincing evidence in relation to the complainant's sobriety. I note that the complainant and his witnesses also submitted that they were served in a hotel bar following the refusal of service. I believe if the complainant had too much to drink he would not be served elsewhere. It is my opinion, based on the totality of the evidence before me and the convincing evidence of the complainant's witnesses, that the complainant had not got too much to drink on 31 December, 2000 when he was refused service for this reason. I am satisfied that there were other reasons for the refusal of service. The complainant stated that while the bar was not busy other non-Traveller customers were being served. I believe that non-Traveller customers who had not too much drink consumed would have been served in similar circumstances. I am also satisfied that if Mr. Wynne was refusing non-Traveller customers on the grounds that they had too much to drink, that he would have made a more careful assessment of their condition, and would have applied the assessment he normally applies to customers suspected of having too much to drink, as outlined by him, before refusing service. In this case Mr. Wynne refused service without applying any of the procedures he would normally apply. I find therefore that the complainant was treated less favourably than non-Traveller customers would have been treated in similar circumstances. I am satisfied therefore, on the balance of probabilities, that the complainant has established a prima facie case of discrimination.
7.12 The next question I have to consider is whether the respondent has provided sufficient evidence to rebut the prima facie case raised by the complainant. As I have found above that I am not satisfied that the respondent has established that he was entitled to refuse service on the grounds that the complainant had too much drink consumed, I have to examine the evidence to see if there was any other reason for the refusal of service. I note Mr. Wynne stated in evidence that when the barman approached him about the sobriety of the complainant, he immediately recognised to whom the barman was referring, even though Mr. Stokes was in the toilet and Mr. Wynne was at the bar. It seems to me the reason Mr. Wynne immediately recognised the customers the barman was speaking about is that he recognised them as Travellers as they approached the bar and that this was the reason his attention was drawn to the complainant and Mr. Stokes. I note from the evidence of the respondent that Travellers are served in his pub and that the complainant and his wife accept that they were served there on two occasions in the past. The evidence of Mrs. Ward convinced me that they were not recognised as Travellers until Christmas Eve. The respondent in evidence stated that Travellers are regularly served in the pub. The complainant has provided no evidence to dispute the respondent's evidence in relation to serving Travellers. I accept therefore that the respondent does not have a policy of discriminating against Travellers, but the only inference I can draw from the evidence on this occasion is that service was refused to the complainant because he is a member of the Traveller community.
7.13 Mr Wynne stated that after the refusal of service that complainant and Mr. Stokes were aggressive and abusive. The complainant's case is that he did not speak to Mr. Wynne at all and his only conversation was with the barman. In considering this point I note that the respondent's evidence is that these events occurred after service was refused and when the complainant and Mr. Stokes were seeking a reason for the refusal of service. I find therefore even if the complainant was aggressive his aggression had nothing to do with the reasons for the refusal of service as he already had been told he would not be served. Furthermore if a person is refused service and is not given a reason, while accepting that aggression is not justified, I am satisfied a person would be very annoyed and could only assume that the reason for the refusal was connected to his membership of the Traveller community. I find therefore that the respondent has failed to rebut the prima facie case made out be the complainant.
8.1 On the basis of the foregoing and on the balance of probabilities, I find that the respondent did unlawfully discriminate against the complainant contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
8.2 Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. 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."
8.3 Under the above Section the maximum amount of compensation I can award is €6,349 but the maximum award would not be appropriate in this case. In considering the amount of compensation which would be appropriate, I have taken into account the effect the discriminatory treatment had on the complainant and the night out he had planned.
I order Fox's Bar to pay the complainant, Mr. Pat Ward the sum of €600 to compensate him for the distress, embarrassment and inconvenience caused to him.
1 July, 2003