Ms. Anne Mongans (represented by Mr. Shaun Elder, Solicitor) V Eileen Baker (Baker Street, Licensed Premises, Ennis)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 23rd January, 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, 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 Ms. Anne Mongans that she was discriminated against by Eileen Baker on the Traveller community ground, in that she was refused access to a service which is generally available to the public in the respondent's pub. The complainant alleges that the respondent discriminated against her in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Acts, 2000 - 2004, contrary to Section 5(1) of that Act.
2 Summary of the Complainant's Case
2.1 The complainant's case is that she entered the respondent's pub on 10th December, 2000 at about 8:15 pm with her husband. She went up to the bar and asked for a drink for herself and her husband, but the respondent Ms.Baker waved her hand and indicated she was not serving her. The complainant said that she returned to the pub on 15th December, 2000 to find out the reason she would not be served. She spoke to Ms. Baker who she alleges told her she was not the licensee and she could not give her a reason.The complainant said that she had a completed notification form (ODEI 5, a notification of the complaint to the respondent in accordance with Section 21 2(a) of the Act) with her which she served on the respondent. The complainant said that she told the respondent that she would not take a case about discriminatory treatment on the Traveller community ground if the respondent agreed to serve her. She said she asked the respondent to telephone her with her decision on whether or not she would serve her. The respondent did not respond and the complainant lodged the complaint with the Director.
2.2 In response to the respondent's case the complainant denied that her husband had misbehaved in the pub on a previous occasion and as a result her husband was barred. The complainant claimed that her sister-in law telephoned her to tell her that, Ms. Baker had informed her, that she had initiated a new policy of serving only a couple of Travellers, after she reopened the pub following the renewal of her license.
3 Summary of the Respondent's Case
3.1 The respondent submitted that the complainant was not discriminated against on the Traveller community ground. Ms. Eileen Baker submitted that she was the licensee of the pub for a number of years up until, February, 2001. The complainant and her husband were regular customers of the pub. One night in late July or early August, 2000, she returned to the pub from a night out. It was after closing time and she observed it was very noisy and unruly and she decided that she would have to take some action to control the pub.3.2 The complainant and her husband were there in a group of about 10 people. There was also a large group of people in their early twenties. Both groups were singing and making lots of noise. The respondent said that she asked each group to stop singing and to keep the noise levels down as it was past closing time. It was about 11:45pm. She explained to each group that there would be consequences for her license if the Gardaí heard the noise. She does allow singing in the pub, but the customers in question were singing after closing time and this was in breach of her license. She said that as soon as she left the table where the group was sitting the complainant's husband resumed singing. She requested him to stop on at least 4 occasions, but he ignored her request and continued singing. Ms. Baker said that Mr. Mongan had a lot of drink. She eventually succeeded in getting the whole group to leave.
3.3 The respondent submitted that she was closing the pub that night for a few days before renewing her lease which was terminating that night. She felt on the night that she had no control over the pub and she decided she would have to make changes in the way the pub was run. She decided that she would not serve customers who had failed to show respect in the pub or to obey her orders. She decided she would not serve the complainant's husband or a number of the younger group who had failed to obey her order that they should cease singing. She did not communicate this decision to the complainant's husband on the night in question or to the members of the younger group. Some of this group were also subsequently refused service.
3.4 The pub was reopened a few days later and the next time the complainant came into the pub she was accompanied by her husband and she refused them both. She also refused other customers who did not stop singing on the night in question. She submitted that she would have served the complainants after a period of time and she communicated this to the complainant's sister-in law who telephoned her to find out why the complainant was refused. She submitted that the complainant came into her premises and gave her an ultimatum about serving them. The complainant wanted her to give an undertaking that she would be served and if the respondent refused the complainant was going to lodge a complaint of discrimination.
4. Conclusions of the Equality Officer
4.1 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, 2000 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".
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.3 I have identified the key issues to establish a prima facie case as follows:
(i) Is the complainant covered by the discriminatory ground? (in this case is she a member of the Traveller community?)
(ii) Was the complainant subjected to specific treatment?
(iii) Is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
4.4 I am now going to examine issues I have identified above and consider whether the complainant has established a prima facie case.
4.5 Definition of Traveller
In the Equal Status Act, 2000 the Traveller community ground is defined as
"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. .
4.6 It was accepted by both the complainant and the respondent that the complainant was refused service in the pub on 10 December, 2001, so the second element of the test has been established.
4.7 I am now going to examine the third element of the test to see if the complainant has produced sufficient evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that he was treated less favourably than a non-Traveller would have been treated in similar circumstances.
4.8 I note that the complainant was a regular customer of the respondent's pub for a number of months prior to the date she was refused and it is also clear that the complainant was served without any difficulty up until August 2000 I am satisfied something happened at that time which prompted Ms. Baker to refuse service to the complainant and her husband. I note that the complainant agreed in evidence that her husband was singing and that the respondent requested him to stop. The complainant submitted however that the singing was earlier in the night and after he was requested to stop they went home and arrived there at about 11 pm. I have concluded however from the evidence that the complainant's husband refused to stop singing when requested to do so and that the respondent decided to impose a temporary bar on him for this behaviour and that he would have been allowed back in after a period of time. I am satisfied from the evidence that the complainant was refused service on 10 December 2001 because she was in the company of her husband, who had been barred for his misbehaviour in August, 2000.
4.9 I am also satisfied that the respondent did not impose a restriction on the number of Travellers she would serve. It is clear that the respondent decided that she needed to take certain measures in order to maintain control of the pub and to protect her license and she made a decision to exclude any customer who disobeyed her order that the singing should cease. I conclude therefore that the complainant was not treated less favourably than a non-Traveller customer would have been treated in similar circumstances. If a non-Traveller entered a pub in the company of a person who was barred, I am of the opinion that person would also be refused service. I find therefore, that the complainant has failed to establish a prima facie case of discriminatory treatment.
4.10 I would like to point that the respondent did not give the complainant the reason for refusing her service until the day of the hearing. I believe it would have been helpful to the complainant if the respondent had given her accurate information either at the time service was refused, or provided her with a response to the notification of the complaint. The respondent responded to the Tribunal and stated that she had a sign over the bar which stated that management had the right to refuse service on the premises to any person.This was not an accurate response and differed greatly from the evidence provided to the hearing. The purpose of the notification procedure and request for information from the respondent under Section 21 of the Act is to enable the complainant, from the response receive, to decide whether or not to refer the case to the Director. If the respondent had been more forthcoming with a response the complainant would have been in a better position to make an assessment of her case.
5.1 On the basis of the foregoing I find that the complainant was not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Acts 2000 and in terms of Section 5(1) of that Act.
13 December, 2004
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