Michael and Christopher McCarthy (represented by Lees Solicitors) V Flanagan's Bar, Listowel (represented by Maura E. Hennessy & Co, Solicitors)
This dispute concerns a complaint by Michael and Christopher McCarthy that they were discriminated against, contrary to the Equal Status Act 2000, by Flanagan's Bar, Listowel. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1)(a) 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 complainants state that they were initially served in Flanagans on 23 December 2001 but then asked to leave with no reason given. They maintain that this was on the grounds of their membership of the Traveller community.
3 Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainants were refused service because one of the complainants had been seen involved in a brawl in the street previously.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were 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 has delegated these complaints to myself, Brian O'Byrne, 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.
5.1 Evidence of Complainants
- Christopher McCarthy and Michael McCarthy are brothers
- Both have lived all their lives in Listowel
- They are both members of a settled Traveller family
- Neither brother was ever in Flanagans before
- The complainants recognised the barwoman, Ms Breda Slemon, when they entered the bar on 23 December 2001 at 9 pm. She was a neighbour of theirs but they did not know beforehand that she worked in Flanagans
- Michael McCarthy ordered 2 pints and Ms Slemon served them.
- They played pool for a while during which time Christopher was served a further 2 pints by Ms Slemon
- When Michael went up for a third round, Ms Slemon told him she had been instructed by the manager not to serve him. No reason was given to Michael McCarthy.
- Michael McCarthy does not recall Ms Slemon mentioning anything about a "street brawl"
- Christopher McCarthy recalls Ms Slemon speaking to him separately about the incident at the end of the bar but is not sure whether she referred to Michael having been seen involved in a "street brawl"
- The McCarthys have never been involved in trouble in a pub anywhere.
- Michael McCarthy said that, at no time, was he ever involved in a "street brawl" in Listowel, as alleged by the respondents, and referred to the fact that no Garda evidence had been produced to substantiate the allegation
- Michael McCarthy said that he had only one minor conviction against him but that it was for an incident which occurred after 23 December 2001
- Christopher McCarthy said that he himself had never been involved in any form of trouble
5.2 Evidence of Respondents - Mr Fergus Flanagan, Current Manager
- Flanagan's Bar has been run by the Flanagan family since 1998
- It is a small bar with a capacity of 100
- The bar caters mainly for local customers and has at least one regular Traveller customer.
- At present, approximately 15/20 people are barred
- As the bar does not distinguish between Travellers and non-Travellers, Mr Flanagan cannot say whether any of those barred are Travellers
- The bar does not operate a policy of discrimination
- Flanagan's Bar employs one fulltime and two part-time staff.
- Fergus Flanagan has been managing the bar for the past 6 months. He was not involved in the bar before that as he was living in Dublin.
- Prior to that, his brother Mike ran the bar. Mike, who is now in America, was the manager in December 2001
- Some days prior to the Hearing, Fergus Flanagan said that he phoned his brother Mike in America to ascertain full details of the incident on 23 December 2001 and the circumstances surrounding it.
- Fergus Flanagan said that he did so because his brother was not available to travel home for the Hearing
- Mike Flanagan told him that he had personally seen Michael McCarthy involved in a "street brawl" outside Flanagans in early 2001. He distinctly remembered Mr McCarthy because of a small scar on his face.
- When Mike Flanagan arrived in the bar on 23 December, he immediately recognised Michael McCarthy. However, in order to make sure it was him, he asked Ms Slemon to confirm it. When Ms Slemon confirmed that it was Michael McCarthy in the bar, he told her about the "street brawl" and instructed her not to serve him any more. The instruction only related to Michael.
Evidence of Respondents - Ms Breda Slemon, Barstaff
- Ms Slemon has known the McCarthys for years as they come from the same neighbourhood. She knew Christopher better than Michael and was on friendly terms with him.
- She knows them to be settled Travellers
- At no time was Ms Slemon ever told to treat Travellers differently than non-Travellers. She is not aware of the bar operating a policy of discrimination against anyone
- She recalls the McCarthy brothers arriving on 23 December 2001 and greeting her on arrival
- They both seemed quite sober
- She served them two rounds of drinks while they were playing pool
- While they were at the pool table, Mike Flanagan came in for a brief visit and, on seeing the McCarthys, mentioned Michael McCarthy by name and asked her to confirm that it was him who was playing pool
- When Ms Slemon confirmed that it was, Mr Flanagan described to her how he had seen Michael McCarthy involved in a "street brawl" outside the bar some months earlier . He then instructed her not to serve him any more drink
- She is satisfied that Mr Flanagan's instruction only related to Michael McCarthy and not Christopher
- Mr Flanagan left before the complainants sought another drink
- When Michael McCarthy came to the bar for another round, she told him that the manager had instructed her not to serve him any more.
- She then went to the end of the bar and explained to Christopher, who she knew better, what the manager had said to her about Michael being involved in a "street brawl"
- The two brothers were very courteous and left quietly soon after
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service in Flanagan's Bar on 23 December 2001.
6.2 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Bar DEC-S2002-097/100)
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 by the respondent
(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.
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.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as McCarthy v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents accept that the complainants were refused service on 23 December 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 23 December 2001 was less favourable than the treatment two non-Travellers would have received, in similar circumstances.
7.4 I note that in this case a certain amount of hearsay evidence has been put forward by the respondents in relation to the role played by Mike Flanagan on 23 December 2001. In considering how hearsay evidence has been interpreted previously by the courts in this jurisdiction, I have had regard to the following statement in Cullen v Clark  IR 378 per Kingsmill Moore J:" there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay" In the case before me, the respondents have put forward the evidence of two witnesses, Breda Slemon and Mike Flanagan. Ms Slemon, who was on duty that night, gave her evidence at the Hearing and the complainants were afforded an opportunity to cross-examine her. On theother hand, Mike Flanagan's account of what happened on 23 December 2001, was relayed through his brother, based on a telephone conversation between the pair prior to the Hearing. Because of the manner in which this evidence was presented, the complainants were not afforded an opportunity to cross-examine Mike Flanagan which, in accordance with natural justice and fair procedures, should have been available to them. In the circumstances, I find that it would be inappropriate of me to admit the hearsay evidence of Mike Flanagan in this case. I, therefore, propose to base my deliberations solely on the evidence of Ms Slemon and the complainants themselves.
7.5 In considering the evidence of Ms Slemon, I find the following points to be the most compelling
- Ms Slemon has said that she was never instructed to treat Travellers differently from others. This is borne out by the fact that she had no hesitation in serving the McCarthys, who she knew to be Travellers, on their arrival on 23 December 2001
- Ms Slemon says she clearly recalls Mike Flanagan quoting Michael McCarthy's name and asking her to confirm that it was he who was playing pool.
- Ms Slemon has also stated that Mike Flanagan explained to her the reason why she was not to serve Michael McCarthy (his alleged involvement in a "street brawl")
- Ms Slemon has said that she was in no doubt that Mike Flanagan's instruction on the night only referred to Michael McCarthy and not Christopher.
7.6 In this case, I am particularly persuaded by the evidence of Ms Breda Slemon who I found to be a very credible witness. While Ms Slemon was employed by the respondents, I note that she was friendly with the complainants and, therefore, I cannot see any particular reason why she would choose to give a distorted account of what happened on the night. I am, therefore, prepared to accept that Ms Slemon's account of what happened on 23 December 2001 is reasonably accurate and that she was happy to serve the complainants until such time as Mike Flanagan identified Michael McCarthy and instructed her not to serve him on account of the "street brawl" he had allegedly seen him involved in.
7.7 Of importance here is that Ms Slemon has stated that Mr Flanagan instructed her not to serve Michael McCarthy, having first identified him by name. This indicates to me that Michael McCarthy was refused service because of who he was rather than what he was (a member of the Traveller community). I have, therefore, formed the opinion that Michael McCarthy was refused service, not because he was a Traveller, but because Mike Flanagan believed he recognised him as someone he had seen involved in a "street brawl". I am also prepared to accept Ms Slemon's word that Mr Flanagan's instruction referred solely to Michael and not Christopher, which supports the respondents claim that Christopher was not refused service on the night.
7.8 The complainants have questioned the accuracy of Mike Flanagan's recollection that Michael McCarthy was involved in a "street brawl" and point to the fact that no Garda record of the "street brawl" has been produced. In the absence of Mike Flanagan himself and the fact that no hard evidence has been produced to say if or when thisalleged incident actually occurred, I find that I am unable to reach any conclusion as to whether or not the alleged "street brawl" incident actually occurred. However, I am persuaded by Ms Slemon's evidence that Mike Flanagan did have some genuine concerns (possibly unfounded) about Michael McCarthy on seeing and identifying him on 23 December 2001 and that this was the reason why he was refused further service, rather than the fact that he was a Traveller.
7.9 Accordingly, I find that Michael McCarthy was treated in the same manner on 23 December 2001 as a non-Traveller would have been treated in similar circumstances where an individual was identified (or mistakenly identified) as someone who had been in trouble previously. I am also satisfied that there is no evidence to show that Christopher McCarthy himself was refused service on 23 December 2001 and, therefore, I find that he has not established a prima facie case of discrimination in his own right.
7.10 I, therefore, find that the respondents acted no differently in dealing with the situation on 23 December 2001 than they would have done if two non-Travellers had arrived on the premises and the circumstances had been similar Accordingly, I find that a prima facie case of discrimination on the Traveller community ground has not been established by either complainant.
8.1 I find that the complainants have not established a prima facie case of discrimination 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.
8.2 Accordingly, I find in favour of the respondents in the matter.