Sandra Kelly and Michael Connors (represented by Tony Elser, Solicitor ) V The Hideout, Wexford (represented by Reynolds and Co., Solicitors )
This dispute concerns a complaint by Sandra Kelly and Michael Connors that they were
discriminated against, contrary to the Equal Status Act 2000, by the Hideout Pub,
Tomhaggard, Wexford. Michael Connors, who is a Traveller, maintains that he was
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. Ms Kelly, who is not a Traveller,
claims that she was discriminated against by association, in terms of section 3(1)(b) of the
Equal Status Act, because she was in the company of a member of the Traveller community,.
2. Summary of the Complainants' Case
2.1 The complainants state that they went out for a drive together after tea on 8 August
2002 and arrived at the Hideout Pub around 9pm. When they went into the pub, Mr Connors went to the bar for a drink but was refused and escorted off the premises. Ms Kelly followed him. They say that they were given no reason on the night nor was Ms Kelly given a reason when she contacted the pub the following day. They maintained that the refusal occurred because Michael Connors was recognised as a Traveller by the owner.
3 Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that Mr Connors was refused service because he appeared to already have drink taken.
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. Complainant's Evidence
- Michael Connors, a friend of Ms Kelly's brother, was doing some tiling work in MsKelly's house over a number of weeks in August 2002.
- On Thursday evening, 8 August 2002, after Mr Connors had finished his days work,
Ms Kelly and he decided to go for a drive along the coast in Ms Kelly's car.
- Having visited some of the local scenic spots, they decided to have a drink around 9
pm. Neither had had a drink already that day
- As Ms Kelly had been in the Hideout once before, she suggested that they stop there. Michael Connors had never been in the pub before
- When they entered the pub, there was only a small group of women and children
already there. Ms Kelly sat down while Mr Connors went to the bar.
- Mr Connors ordered a pint of Smithwicks for himself and a Diet Coke for Ms Kelly,
who was driving.
- The owner himself, Mr Stephen Lawlor was behind the bar.
- Mr Connors said that Mr Lawlor began to pour the pint but then stopped suddenly and made a comment such as "I won't do this or "I can't do this"
- Mr Lawlor then came out from behind the bar and escorted Mr Connors to the door.
At the door, Mr Connors informed Ms Kelly that he was not being served and she followed him outside
- Mr Connors said that he was so shocked by the incident that he did not think of
asking for an explanation
- Mr Connors said that, while no mention was made of his membership of the Traveller
community, he believes that Mr Lawlor would have recognised this from his mannerisms.
- Ms Kelly said at the Hearing on 4 November 2004, that she felt so embarrassed over
what had happened that she undertook to contact the pub the next day to establish why service had been refused.
- The next day she rang the pub and spoke to Mrs Lawlor about the incident.. Mrs
Lawlor told her that her husband was out and that she would have to speak to him. When Ms Kelly eventually spoke to Mr Lawlor, he refused to give her a reason and told her that he "was not obliged to give a reason"
- On 16 August 2002, the complainants sent notification forms to Mr Lawlor indicating
that they were considering lodging complaints of discrimination if they did not receive an explanation from him for the refusal of service. When no reply was received, the complainants decided to proceed with a complaint to the Equality Tribunal Evidence of Respondent, Mr Stephen Lawlor
- Stephen Lawlor is the owner of the Hideout and has run the pub with his wife for 10
years. The vast majority of customers are locals
- The pub has never had any serious incidents on its premises nor has it ever had any
problems with Travellers. A few Travellers from the area visit the pub on occasion.
- Mr Lawlor said that he had grown up with Traveller children in his school and was
taught to have respect for them
- It is very rare that anyone is refused service in the pub. The only real incident in
recent times was when a group of English men were refused service. This was because, before they reached the pub door, Mr Lawlor saw them staggering across the carpark and said that it was clear that they were heavily under the influence of alcohol.
- Mr Lawlor said that there have been occasions inn the past when regulars have had
too much alcohol on the premises. Instead of asking them to leave, Mr Lawlor said that he would normally let them stay until the end of the night when he would drive them home himself. No one was ever barred after having too much drink on the premises.
- Mr Lawlor himself was behind the bar on 8 August 2002. The pub was relatively
quiet that evening.
- He recalls the complainants coming in but he did not recognise either of them.
- When Mr Connors came to the bar and ordered drinks, Mr Lawlor got the impression
that he had drink taken already from the fact that his eyes were "dilated" and his speech was slurred.
- When questioned further at the Hearing, Mr Lawlor said that he could not recall
detecting a smell of alcohol from Mr Connors' breath nor having noticed him staggering
- Mr Lawlor took a decision not to serve him and came out from behind the bar and
escorted Mr Connors to the door. He did not give him an explanation.
- Mr Lawlor said that he did not recognise Mr Connors as a Traveller at the time.
- Ms Kelly herself was not refused service that evening. She had sat down and never
sought a drink in her own right. If she had, he would have had no problem serving her.
- Mr Lawlor recalls speaking to Ms Kelly a day or two later on the phone. Ms Kelly
was very polite on the phone. He recalls her asking for an explanation for the refusal but, as he had not encountered such a situation before, he declined to give her one.
- Mr Lawlor recalls receiving the notification forms about the complaint. His
recollection is that he passed them to his solicitor to deal with them. Mr Lawlor said that he thought his solicitor had responded but now accepts that this did not happen.
Additional Information In advance of the Hearing, the respondents were asked to provide a list of witnesses that would be attending the Hearing on 4 November 2004. In response, their solicitor submitted a written list of six witnesses who they said would be in attendance. On the day of the Hearing, none of these witnesses were present. On being asked about their whereabouts, the respondents explained that the six were members of the Traveller community who had visited the Hideout on several occasions in recent years. The respondents acknowledged, however, that none of the six had been informed of the Hearing or asked to attend prior to their names being communicated to the Equality Tribunal. The respondents said that when they did approach two of the potential witnesses a few days prior to the Hearing both indicated that they were not willing to attend unless they were formally summonsed. The respondents admitted that no contact whatsoever had been made with the other four potential witnesses prior to the Hearing. While I consider that it was somewhat discourteous of the respondents to supply a list of witnesses to the Tribunal without their prior consent, I am prepared to accept that this occurred because of some confusion between the Tribunal's procedures and those of the
courts, rather than an attempt to deliberately mislead the Tribunal with regard to the
attendance of the witnesses.
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. Section 3(1)(b) of the Act states that discrimination shall be taken to occur where a person who is associated with another person is less favourably treated in a situation where similar treatment of that other person on any of the discriminatory grounds would constitute discrimination.
In this particular instance, Michael Connors claimed that he was discriminated against on the grounds of his 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 admission to the Hideout on 8 August 2002. Sandra Kelly claimed that she was discriminated against because she was associated with a member of the Traveller community contrary to Sections 3(1)(b) of the Equal Status Act, 2000
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to
demonstrate that a prima facie case of discrimination exists, must establish facts from which discrimination could be inferred. 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.
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) Existence of a discriminatory ground (e.g. the Traveller community ground)
(b) Establishment of facts to show that specific treatment occurred
(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
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.
7.2 With regard to (a) above, Mr Connors has satisfied me that he is a member of the
Traveller community and Ms Kelly has satisfied me that she was in Mr Connor's company at the time of the incident. In relation to (b), the respondents acknowledge that Mr Connors was refused service on 8 August 2002 and that Ms Kelly accompanied him off the premises. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 8 August 2002 was less favourable than the treatment someone not associated with the Traveller community ground would have received, in similar circumstances.
7.3 In considering whether the complainants suffered discrimination on the Traveller
community ground, I consider the following to be the key factors:
- The evidence before me indicates that Michael Connors was never in the Hideoutbefore and that he was not known to Mr Lawlor.
- The evidence before me also suggests that the complainants had no drink taken that
evening. While Mr Lawlor has stated that Mr Connor's speech was slurred and eyes dilated, he has also admitted that he does not recall a smell of drink from Mr Connors nor does he recall him staggering.
- Mr Lawlor has indicated that he has been somewhat lenient in the past with customers who got intoxicated on his premises and that it was only on a very rare occasion that he actually refused someone service because they appeared under the influence of alcohol. This would appear to indicate that Mr Lawlor's refusal of service to Mr Connors was not in keeping with his normal practice.
- In the days and weeks following the incident, Mr Lawlor was contacted both by
phone and in writing by the complainants seeking an explanation as to why service was refused. In relation to the phone conversation with Ms Kelly, Mr Lawlor has admitted that she was very polite in asking for an explanation. However, he declined to give her one for reasons best known to himself. If Mr Lawlor had believed that he had a genuine reason for refusing service to Mr Connors, I cannot understand why he would not disclose it to her when she politely phoned him the next day.
7.4 If Mr Lawlor or his solicitor had availed of the opportunities afforded them to
offer an explanation for the refusal to the complainants, it may have been possible for them to resolve the matter between themselves, thereby obviating the submission of a complaint to the Equality Tribunal. The respondents did not, however, avail of these opportunities.
7.5 Section 26 of the Equal Status Act 2000 provides that the Equality Officer can draw
an inference from the fact that a respondent did not reply to a notification under Section 21.
In this case, I consider that it is appropriate for me to draw such an inference as, in my
opinion, it is possible that the matter could have been resolved between the parties if the
respondents had engaged the complainants in conversation in the days and weeks after 8
August 2002. They chose, however, not to do so.
7.6 Overall, I consider that the manner in which the respondents dealt with this complaint
leaves a lot to be desired. The respondent had several opportunities to resolve the matter
before it got to the Hearing stage but chose not to take them.
7.7 On the basis of the evidence before me, I have formed the opinion, on the balance of
probabilities, that Mr Lawlor did recognise Mr Connors as a member of the Traveller
community on 8 August 2002 and that this was the primary reason he was refused service. I also consider that Ms Kelly suffered as a result of being in the company of Mr Connors in that she did not obtain the drink she had expected. In Ms Kelly's case, I consider the treatment she received was less favourable as I consider that she would not have been deprived of a drink if she had entered the pub in the company of a non-Traveller. For this reason, I consider that she suffered discrimination because of her association with a member of the Traveller community.
Accordingly, I find that both complainants have established a prima facie case of
discrimination and that the respondents have failed to rebut the allegation.
8.1 In the case of Michael Connors, I find that a prima facie case of discrimination has
been established 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 (DECS2004-193).
8.2 In the case of Sandra Kelly, I find that a prima facie case of discrimination has been
established on the basis of her association with a member of the Traveller community in
terms of section 3(1)(b) of the Equal Status Act 2000 and that the respondent has failed to
rebut the allegation (DEC-S2004-192).
8.3 I order that redress of €500 be paid to each complainant for the humiliation and loss
of amenity suffered on 8 August 2002.
17 December 2004