Michael McCarthy, Cork Represented by Traveller Visability Group, Cork V Commons Inn, Cork Represented by Philip Wm Bass & Co. Solicitors
Michael McCarthy 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, the Director then delegated the case to me, Bernadette Treanor, 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.
This dispute concerns a claim by Michael McCarthy that he was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of his membership of the Traveller community in that on 3/1/01 he was denied service in the respondent's premises. The respondent denies that the incident amounted to a refusal of service and maintains that the incident was in turn based on an incident which occurred on the previous evening.
3. Summary of the Complainant's case
Mr. McCarthy entered the Commons Inn on 3/1/01 and was greeted by a comment "Sorry, I got enough out of you last night". He believes this amounted to a refusal of service and was because of his membership of the Traveller community. McCarthy v Commons Inn, Cork
4. Summary of the Respondent's Case
The respondent described an incident which took place on 2/1/01 during which the complainant allegedly created an unacceptable level of noise. The comment on 3/1/01 was made, not as a refusal, but as an indication that the behaviour of the previous evening was considered unacceptable.
5. Evidence of the Parties
5.1. Complainants Evidence Michael McCarthy
- On 3/1/01 Mr McCarthy had just entered the bar when Mr Frederick O'Neill waved his hands at him and said Sorry, I got enough out of you last night". It was because of this statement by Mr O'Neill that Mr. McCarthy felt the refusal was because of his membership of the Traveller community
- Mr. McCarthy had been in the Commons Inn three to four times over a few months but he had also been there on the night of the 2/1/01.
- On 2/1/01 he had been in the bar a short while with his wife when they joined two of Michael's brothers for a few drinks. His brothers left before Mr. and Mrs. McCarthy who then called their son for a lift home. On that night Mr. McCarthy had had no difficulties.
Margaret McCarthy, Witness for Complainant
- On 2/1/01, herself and her husband arrived in the Commons Inn at around 7:30 or 8pm.
- They had been at home before that.
- They ordered a round of drinks and got both.
- They did not order drinks for anyone else.
- In total they ordered 2 to 3 times and were served everytime.
- Her husband's brothers were there and after a short while they joined them for a few drinks. When the brothers left, Mr. and Mrs. McCarthy called their son for a lift home.
5.2. Respondent's Evidence
Mr Myles O'Neill, General Manager, Commons Inn
- The Commons Inn is a suburban bar, not in the city centre.
- The policies relating to refusals are based on the requirements of the Licensing Acts, 1833 to 1999, the need to run an orderly house, Health & Safety requirements, and Safety in the Workplace. More specifically refusals may occur where people appear to be a danger to themselves, other members of the public or to staff, where they are creating a nuisance, indulging in anti-social behaviour or criminal acts on the premises. It has no policies relating to the refusal of members of the Traveller community.
- The percentage of regulars who are members of the Traveller Community is less than 10.
- The afternoon of 3/1/01 had been an unusually quiet, and at around 3pm Mr. McCarthy entered. Frederick O'Neill said "Michael I had enough of you last night". Myles O'Neill did not question this in any way since he had not been present the previous evening.
- When people are refused or barred the right of appeal depends on how severe the incident was. If it was criminal or serious anti-social behaviour there is normally no appeal. Where it relates to boisterous behaviour the person refused can come back a few weeks later to discuss the matter and it is usually resolved.
Frederick O'Neill, Director, Commons Inn
- On 2/1/01, Mr. McCarthy and partner (whom Frederick O'Neill had never met before) arrived at around 2.45pm. They were drinking all afternoon.
- At around 7pm another two people arrived who sat in a different area. Eventually Frederick O'Neill noticed that Mr. McCarthy and his partner had joined them.
- At around 10pm the lady in the group approached the bar to order drinks. Frederick O'Neill replied that the gentleman with her (identified as Mr. McCarthy) could not have any more to drink as he had had enough. She accepted this and ordered a drink for herself and for the others in their company.
- Frederick O'Neill explained that Mr. McCarthy was not aggressive in any way but was shouting rather than talking, and shouting "yahoo". It was boisterousness with no aggression, no one being pushed, simply an overall unacceptable level of noise.
- At around 10:30 one of the gentlemen in the company came up to order a drink and he was told the same. He also accepted this and ordered a drink for all exceptMr. McCarthy.
- Frederick O'Neill did not approach Mr. McCarthy directly on 2/1/01 since he wanted to avoid inflaming him unnecessarily
- Mr. McCarthy had been coming to the bar every Sunday without fail over a period of six years, and had never caused any trouble. It was unusual to see him in the afternoon.
- Frederick O'Neill said he may have had his hand up as Mr. McCarthy approached. However, in his opinion it was simply to warn Mr. McCarthy that he had been out of order the previous evening.
- Frederick O'Neill did not feel that the incident was very extreme and described it as a "yellow card" incident, falling into the category of allowing a person to appeal.
6. Matters for consideration
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 2000 in terms of Section 5 (1) of that Act. 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". 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." 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 ". 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".
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) Applicability of the discriminatory ground (in this case 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 a non-Traveller received, or 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.
7. Conclusions of the Equality Officer
I am satisfied, and the respondent agreed, that Mr. McCarthy is a member of the Traveller community satisfying 6(a) above. Both parties agree that a statement was made by Frederick O'Neill to Mr. McCarthy on 3/1/01 satisfying 6(b) above.
In order to establish a prima facie case and satisfy 6(c) above, it must be possible to show that on 3/1/01 Frederick O'Neill treated Mr. McCarthy less favourably than he would have treated a non-Traveller in the same or similar circumstances. The treatment received by Mr. McCarthy arose as a result of an incident the previous night. Mr. McCarthy stated that on 2/1/01 he left home around 7pm for an evening out and is supported by Mrs. McCarthy in this. The respondent stated that they were in the bar from just before 3pm that day. Mr. McCarthy's wife Margaret stated that she was not refused any drinks for her husband while the respondent stated that at least on two occasions drinks were served to members of the group without a drink for Mr. McCarthy. In any event it appears that several drinks were taken by the time Mr. McCarthy left for home. He was given no indication that the respondent had any difficulties with his behaviour on the night. On the following afternoon, both parties agree that Frederick O'Neill made a comment along the lines of "I had enough out of you last night". It seems likely that such a comment would have been referring to a specific incident or form of behaviour which had been considered unacceptable. I find the respondent's evidence in this regard more compelling and therefore I am satisfied that, on the balance of probabilities, Mr. McCarthy's behaviour had led to an unacceptable level of noise on the previous evening. I am also satisfied that a matter such as this would be drawn to the attention of a non- Traveller in similar circumstances.
Frederick O'Neill has stated that this comment had been intended as an opening statement of a discussion of what he called a "yellow card" incident. It was not a statement of refusal in itself. Had Frederick O'Neill decided on the basis of his experience and knowledge that the incident had warranted a barring, even a temporary one, that may have been acceptable in accordance with section 15(1).
However, it appears that the party had been served on 2/1/01, with the exception of Mr. McCarthy later in the evening. It would seem therefore that the respondent's had no difficulty serving Mr. McCarthy and other Travellers up until the noise level became too high. The respondent knew that Mr. McCarthy was a member of the Traveller community as he had been on the premises on previous occasions and had been served. Therefore it appears that something must have happened to change the respondent's position and I am satisfied that it was Mr. McCarthy's exuberant behaviour on the evening of 2/1/01. It is difficult to see how the incident could be based on Mr. McCarthy's membership of the Traveller community.
On the basis of the evidence presented to me, I find that Mr. McCarthy was not less favourably treated than a non-Traveller would have been in the same or similar circumstances. Mr. McCarthy has therefore failed to establish a prima facie case of discrimination on the grounds of his membership of the Traveller community.
8. Decision DEC-S2003-52
I find that the complainant was not discriminated against on the Traveller ground by the respondent in accordance with Section 3 of the Equal Status Act, 2000 and in terms of section 5 of that Act, in respect of the incident on 3/01/01.
3 June 2003