Mr. Michael McCarthy Jnr & Mr Patrick Ter McCarthy, Cork (Represented by the Traveller Visibility Group) V Mr. Barry Kennedy, Breda's Bar
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Membership of the Traveller Community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub
Both Mr. McCarthys 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 cases 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.
Summary of the Complainant's case
The complainants' case is that they entered Breda's Bar at 3.45 pm and ordered a drink. They were refused because they believe they were recognised as Travellers. They had been in a number of other Public Houses and had been refused in all of them. By the time they were refused in Breda's Bar they had purchased paper and a pen to note the incidents. Both complainants made it clear that they did not want any monetary award but only wanted to be able to enter a public house like anyone else. They stated that they would be happy if the owner could guarantee that they would not be refused again.
Summary of the Respondent's Case
The respondent's case is that neither the owner, Mr. Kennedy, nor the lessee Ms. Breda Corbett, had ever met the complainants. The person who allegedly made the refusal has since died. Both the owner and the lessee apologised if the complainants were refused while sober. However, they pointed out that they are no longer responsible for the management of the premises and therefore could not give a guarantee of future service.
Conclusions of the Equality Officer
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 ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants 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 complainant has established a prima facie case and 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.
I am satisfied that the complainants are members of the Traveller community, which satisfies (a) above. The complainants allege that there was a refusal of service. Their notification form does not contain such information as would allow the respondents to distinguish the incident from other refusals. While it does indicate the date of theincident, it states "Refused service - no reason given". Neither does the complaint form contain a description of the incident, as it only refers to the notification form. The respondents stated that they were unaware of any such incident but expressed regret if such an incident did take place. It seems odd, where the complainants made such an effort to record the incidents of that afternoon, that there is no description of the incident available except that presented by the complainants at the hearing. In addition, the complainants were unclear as to the time they set out to enter the first bar. It was initially stated that they left home around 12.30 to go to the first bar. They apparently tried four to five bars and were refused in all of them. The complainants could not explain how it took until 3:45pm to reach the respondent premises and changed their time of setting out to 2:30 pm. In the light of the evidence presented I am not satisfied that the complainants have established, on the balance of probabilities, that the incident took place. Therefore, File No. ES/2002/39, 99 McCarthy (2) v Kennedy & Breda's Bar DEC-S2003-126-127 the requirement at (b) above has not been satisfied and I find that the complainants have not established a prima facie case of discrimination on the Traveller ground. It is commendable that the complainants have shown a willingness to accept an apology from the respondents, as it is also commendable that the respondents should make it in the face of such a lack of information.
I find that the complainants were not discriminated against on the grounds of their membership of the Traveller community by the respondents on 6/9/2001.
21 October 2003