Mary McCarthy (Represented by the Equality Authority) V Mr Don Crowley, The Laneway Bar, Cork (Represented by Martin A Harvey & Co, Solicitors)
1.1 This dispute concerns a complaint by Mary McCarthy that she was discriminated against, contrary to the Equal Status Act 2000, by the Laneway Bar, Cork. The complainant maintains that she was discriminated against 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 when she sought a drink in the Laneway Bar, Cork on 1 January 2001, she was refused service. The complainant believes that the refusal was because of her membership of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondents, rejected that a discriminatory policy against Travellers was in operation. They maintain that service was refused because Ms McCarthy was accompanied by a gentleman who was intoxicated.
4 Delegation under the Equal Status Act, 2000
4.1 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 has delegated this complaint 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 Background Information
During the investigation of this complaint, an issue arose as to the identity of the correct respondent in the case, due to the fact that the pub was the subject of transfer of ownership negotiations around the time of the incident on 1 January 2001. At the Hearing on 30 September 2003, Mr Don Crowley confirmed that he had control of the premises on 1 January 2001 and he accepted that he was the service provider at the time, and was, therefore, responsible for answering any allegation of discrimination made under the Equal Status Act 2000 against the pub on that date.
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 complainant claims that she was discriminated against on the grounds of her membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment she received in being refused service in the Laneway Bar on 1 January 2001.
6.2 In cases such as this, the burden of proof lies with the complainant who is 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 Pub 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 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 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.
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 Sweeney v EquinoxNightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainant has satisfied me that she is a member of the Traveller community. In relation to (b), the respondents acknowledge that the complainant was not served on 1 January 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 1 January 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.4 In considering whether the complainant has established a prima facie case, I have noted the following:
- Ms McCarthy states that she had never been in the Laneway Bar before and that neither her mother or herself had drink taken that day.
- Ms McCarthy states that when she visited the Laneway Bar on 1 January 2001 with her mother, they had no problem being admitted by the bouncer. However, when she went to the bar herself, the barman refused to serve her stating that it was "regulars only". Ms McCarthy was surprised at this remark as the Laneway Bar was open less than 3 months at the time.
- As she could see no obvious reason for her refusal, Ms McCarthy assumed that the refusal was on account of her membership of the Traveller community
- On 18 January 2001, the complainant notified the owner of the Laneway Bar that she believed that she had been discriminated against and sought an explanation for the treatment she received. She received no response and subsequently lodged a complaint with the Equality Tribunal. Under Section 26 of the Equal Status Act 2000, an Equality Officer may draw an inference from the respondents failure to respond to a notification from the complainant about an alleged act of discrimination. In this case, I consider that it is appropriate to draw such an inference as it is possible that the matter could have been resolved directly between the parties if correspondence had been entered into at the time. On the basis of the evidence provided by the complainant, I can see no reason why she might want to misrepresent the events of 1 January 2001. Therefore, on the balance of probabilities, I am prepared to accept her evidence that she was personally refused service on 1 January 2001 and that she was not provided with a satisfactory explanation at the time. I, therefore, consider that the complainant has established a prima facie case of discrimination on the Traveller community ground, resulting in the burden of proof shifting to the respondents and the onus being put on them to rebut the allegation.
7.5 For their part, the respondents have provided the following information and account of what happened on 1 January 2001:
- Mr James Hickey was the barman on duty on the night of 1 January 2001. Mr Hickey stated that he commenced employment in the Laneway Bar shortly after it opened in October 2000. He was an experienced barman at the time and was not given any specific training by his new employers on the provisions of the Equal Status Act 2000 on being recruited.
- The barman gave evidence stating that the two women arrived on 1 January 2001 accompanied by an intoxicated gentleman, that the gentleman ordered three drinks but was refused service. The man became argumentative and the Gardai had to be called to remove him.
- He said that the women followed the man from the premises after the Gardai had escorted him outside. The women were unknown to Mr Hickey and did not order drinks for themselves.
- The barman wrote a report of the incident in the Manager's diary that night. He said that the diary was no longer available as it was left in the pub when it was sold in late 2001.
- The respondents do not know the name of the intoxicated gentleman nor the identity of the Gardai who dealt with the situation.
- Mr Hickey recalls the manager telling him in late January 2001 that a complaint of discrimination had been made surrounding the events of 1 January 2001.
- The incident on 1 January 2001 would have been recorded on videotape and these tapes would normally have been held for 3 months. The respondents could not explain why the video tape in question was not retained, despite the pub being notified, within 3 weeks of the incident, that a complaint was being considered.
7.6 In order to successfully discharge the burden of proof, I consider that the onus was on the respondents to provide hard evidence to support their account of events of 1 January 2001. In this regard, I would have expected some or all of the following evidence to be produced, all of which could have been produced if due consideration had been given to the complaint from the outset:
the name of the intoxicated man,
the names of, or statements from, the Gardai involved,
the incident reports from that night,
video footage of the alleged incident itself
None of the above have, however, been produced to support the respondents' version of events of 1 January 2001. In the circumstances, I find that I have difficulty in accepting their account of what happened on 1 January and find that the respondents have not provided sufficient evidence to discharge the burden of proof in this case. I, therefore, find that, on the balance of probabilities, the complainant was refused service in the Laneway Bar on 1 January 2001 and that this refusal was most likely on account of her membership of the Traveller community.
8.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
8.2 In considering the level of redress to award, I am mindful of the fact that there is no evidence to suggest that the respondent deliberately practiced a policy of discrimination against Travellers. This view is supported by the complainant's own evidence that two Traveller friends of her mothers were already drinking in the Laneway Bar on the evening in question..
Accordingly, I order that the respondent pay the complainant the sum of €300 for the humiliation and loss of amenity suffered on 1 January 2001.
4 November 2003