Mr. William Quilligan V Mr. Richard Condon t/a Marguerites Restaurant (Newcastle West) (represented by Robert Cussen and Son Solicitors)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 27 March, 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 Mr. William Quilligan that he was discriminated against by Marguerites Restaurant 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 stated that together with his brother, brother-in-law and nephew he went into the respondent's premises on 2 January, 2001 to have a meal but he was 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 complainant had been barred from the premises.
3 Summary of the Complainant's Case
3.1 The complainant, Mr. William Quilligan is a settled Traveller living in Newcastle West, Limerick. The complainant stated the following in evidence:
- He went into the respondent's restaurant to have a meal with his brother, brother-in-law and his nephew. He was in the queue at the counter and one of the staff called Mr. Richard Condon, the owner of the restaurant.
- Mr. Condon came behind the counter and said that "we are not serving your equals in here". The complainant stated this statement meant that Mr. Condon was not serving members of the Traveller community. His brother then asked Mr. Condon if they were not being served because they are members of the Traveller community and he submitted that Mr. Condon replied "yes".
- He submitted that he may have been mixed up by Mr. Condon with another William Qilligan who took a claim due to falling in the restaurant.
- He said that he offered to leave the restaurant and Mr. Condon could serve the rest of the party, but Mr. Condon rejected this offer and said that he was calling the Gardaí.
- The complainant submitted that he felt he was very badly treated by Mr. Condon and that he was upset and demeaned by the way Mr. Condon treated him in front of other customers in the restaurant.
- 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 questions at the hearing the complainant stated that he was in the restaurant with a number of other people in or about July 1999, and a few days later when he went in again Mr. Condon told him he had a complaint from a customer about his behaviour in the restaurant. The complainant said that he asked Mr. Condon to have a meeting with the customer and Mr. Condon refused. The complainant said he heard no more about it and he was served by Mr. Condon on that occasion.
- The complainant said that he got on well with Mr. Condon and he cannot understand why he was treated in such a manner by him on 2 January, 2001.
4 Summary of the respondent's case
4.1 The respondent submitted the following in evidence:
- Mr. Richard Condon stated that he runs a restaurant in Newcastle West which serves breakfast, lunches, teas, coffees and cakes. There is also a bakery attached.
- The respondent denied that the complainant was discriminated against on the ground that he is a member of the Traveller community.
- Mr. Richard Condon stated that the complainant , Mr. Pa Quilligan and three other men entered the restaurant on 2 January, 2001. The complainant was refused service because he was barred from the restaurant due to a previous incident of misbehaviour.
- About a year and a half prior to 2 January, 2001 the complainant was in the restaurant with a number of other men. The group were sitting at two tables. One of the waitresses brought to Mr. Condon's attention their behaviour. They were shouting, disruptive, disorderly, standing at each others tables and refused to move when staff were passing by. They were also using abusive language and in general were very loud.
- Mr. Condon said that he approached the group and asked them to behave. All the group stopped the behaviour except the complainant. The complainant became abusive and he decided that he would not serve him again and he informed the complainant he would not be served again.
- Mr. Condon had served the complainant in the past and never had experienced his abusive tone before. He said that he would normally allow customers a second chance as they will usually stop the behaviour when asked to do so and if they persist they are not served again. On this occasion the complainant did not stop the abusive behaviour and he was barred as a result. Mr. Condon said that he has a lot of elderly customers and he needs to protect them from disruptive conduct.
- Mr. Condon said that he had no recollection of serving the complainant a few days later and he believes he was not in the restaurant again until 2 January, 2001.
- When the complainant entered the premises on 2 January, 2001 Mr. Condon said to him "I am not serving you - I have had trouble with you before". The complainant protested and said that he had never caused trouble in the past. Then the complainant's brother interjected and became loud and aggressive and physically prevented other customers from getting to the food counter stating that if he would not be served then nobody else would be served.
- Mr. Condon told the group that he was calling the Gardaí which he did. The party including the complainant had left before the Gardaí arrived.
- Mr. Condon said that he was well aware of the identity of the complainant and he did not mix him up with the other Mr. Quilligan.
- Mr. Condon denies that he discriminates against Travellers. He said that there is a large population of Travellers in Newcastle West and they are served in his restaurant almost every day. Before the complainant caused trouble he was served in the restaurant. The complainant's brother and his son were served shortly before the incident on 2 January, 2001.
- Mr. Condon employs Travellers and at present he has two Travellers employed in the bakery area. He also had two other Travellers in his employment in the past.
- Mr. Condon has a number of people barred from the restaurant with the exception of the complainant they are all non-Travellers. He has barred a woman who allowed her children to interfere with the milk jugs and chairs. Another person is barred for being constantly drunk and a woman also has been barred for causing trouble.
5 Conclusions of the Equality Officer
5.1 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.
5.2 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.
1 Dublin Corporation v. Gibney EE5/1986
In more recent employment discrimination cases the Labour Court has applied the test and stated: "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
5.3 I have identified the key issues for decision concerning establishing a prima facie case as follows:
(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 2 January, 2001?
(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.
5.4 I am now going to examine issues I have identified above and consider whether the complainant has established a prima facie case. 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 unless it 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.
5.5 Issue of Traveller Identity
In the Equal Status Act, 2000 the Traveller community ground is defined as follows:
3 Dr. Teresa Mitchell v. Southern Health Board (Cork University Hospital) DEE011
2 The Rotunda Hospital v. Noreen Gleeson DEE003/2000 "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.
5.6 The complainant's case is that he was refused service in the respondent's premises and he believes this occurred because he is member of the Traveller community. The respondent's case is that the complainant was barred from the premises for abusive behaviour and that in the circumstances he was entitle to refuse him service on 2 January 2001. The complainant denied that he had been barred from the restaurant for his behaviour. I note the incident concerning the alleged barring took place sometime in 1999 and before the Equal Status Act came into operation on 25 October, 2000. The matter I have to consider is whether the complainant was barred as stated by the respondent when he entered the restaurant on 2 January, 2001.
5.7 I note that the complainant did admit in evidence that he was in the restaurant on one occasion with a number of friends some time in 1999 and a number of days later when he entered the restaurant again Mr. Condon told him he had complaints that he had insulted customers. While the complainant states he was served by Mr. Condon on that occasion and there was no indication that Mr. Condon had barred him, the complainant was not in the restaurant again until 2 January, 2001. Mr. Condon in evidence stated that he barred the complainant for his behaviour sometime in 1999 and that he has no recollection of him being in the restaurant again until 2 January, 2001. I am satisfied that the complainant was not in the restaurant again after Mr. Condon spoke to him about his behaviour either on the day of the misbehaviour or some days later. I am of the opinion that the reason the complainant was not in the restaurant again until 2 January, 2001 was that he knew he was barred. The complainant produced no corroborative evidence to support his contention that he was not barred.
5.8 The complainant said that he knew Mr. Condon very well and accepted that he was served in the restaurant in the past without any difficulty. I am of the view that something happened in the relationship which led Mr. Condon to refusing service to the complainant. Having considered the evidence of both the complainant and Mr. Condon, I find the evidence of Mr. Condon to be more credible than the complainant's evidence. I am satisfied that the complainant was barred for his behaviour and that when he entered the restaurant on 2 January, 2001 he was refused service for this reason. Mr. Condon stated in evidence that he bars people for continuing to misbehave, and in the complainant's case he continued to be abusive after he was warned, and as a result he was barred. I am satisfied on the evidence that the respondent does not operate a discriminatory policy against Travellers. Likewise I am satisfied that he applies the same rules and procedures to Traveller customers as those which apply to non-Travellers. I find that the complainant was not treated less favourably than non-Traveller customers are treated in similar circumstances when he was refused service on 2 January, 2001. I find therefore that the complainant has failed to establish a prima facie case of discrimination.
6.1 On the basis of the foregoing I find that the respondent did not 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.
1 July, 2003