Ms. Anne O'Brien, Ms. Anne McCarthy, Ms. Bridget McCarthy, Ms. Lisa Quilligan & Ms.Eileen Coffey. (represented by Lees Solicitors) V Sheila's Licensed Premises (Killorglin) (represented by Liam Crowley Solicitor)
Delegation under Equal Status Act, 2000
The complainants referred a claim to the Director of Equality Investigations on 15th October, 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, 2000, 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 the complainants that they were discriminated against by the respondent on the Traveller community ground, in that they were refused a service which is generally available to the public in the respondent's pub. The complainants alleged that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2 Summary of the Complainant's Case
2.1 The complainants' case is that they entered the respondent's pub on 11th August, 2001 between 10:30 and 11pm and were served a drink each. As it was Puck Fair the pub was very crowded. They found some room in the Beer Garden. Some of them found seats on beer crates. About a half hour later one of the complainants, Ms. Bridget McCarthy went to the counter to order a second drink for the group and was served by a different bar person than the person who served them the first drink. On her way back to the group with the drinks, Ms. McCarthy stated that a man who was accompanied by two Gardaí tapped her on the shoulder and the man asked her to leave the bar. She requested the reason and the Gardaí told her to get her things and to leave. She told the Gardaí she had friends in the pub and she would have to inform them. The Gardaí came down to her friends and also requested them to leave. At that stage another 3 Gardaí came into the pub. The complainants asked again for the reason they had to leave and the Gardaí told them that they were called to the pub because it was alleged the complainant party had forced their way into the pub past the bouncers. The complainants requested to speak to
the owner but she refused to speak to them.
2.2 The complainants were accompanied out of the pub by the Gardaí as they were leaving. There was a lady standing near the door, who they now know was Ms. Imelda O'Sullivan, the licensee and she shouted "I want you out of here". While at the door Ms. Lisa Quilligan said that she spoke to the bouncer in the presence of the Gardaí. Ms. Quilligan stated that she enquired from the bouncer if the complainants had forced their way in past him and the bouncer confirmed to the Gardaí that they hadn't. One member of the Gardaí expressed annoyance at the fact that they were called to the pub. The complainants said that they met two men outside the pub and they also had been asked to leave. They told the complainants that they were Travellers living in Limerick.
2.3 The complainants said that they were very upset and embarrassed about what happened. Ms.Quilligan said that she is a Youth Community Worker with Kerry Traveller Group and she is well known. They said that they were embarrassed at having to walk through a crowded pub accompanied by the Gardaí.
2.4 In response to the respondent's case the complainants denied that they were loud or that they were drunk. They also denied that they were asked by the respondent to leave the premises or that they were verbally abusive or aggressive towards her. They submitted that if they had been causing trouble or if they had too much to drink they would not have been served a second drink. The complainants denied that they were drinking Bulmers cider. Ms. Quilligan said that she was not drinking at all that night as she was driving.
They also said that there were no male Travellers in their company as alleged by the respondent.
3 Summary of the Respondent's Case
3.1 The respondent submitted that the complainants were not discriminated against on the Traveller community ground. Ms. Imelda O'Sullivan licensee of the pub said that on 11 August, 2001 she was collecting glasses in the beer garden when her attention was drawn to a group of 5 women who were drinking cans of Bulmers cider. There were also 2 or 3 men in the group. They were drunk and they were using bad language and bumping into other customers. She noticed other customers were moving away from them. She said that she approached them and asked them to keep the noise down but the used bad language to her. She then asked them to leave but they became more verbally abusive. She returned to the bar and informed her husband. She telephoned the Gardaí and asked them to remove a large group of people who had been verbally abusive towards her.
3.2 When the Gardaí arrived the complainants were identified and they all left. Ms. O'Sullivan said that she had no further involvement with the complainants and she did not shout anything at them as they left. She said that she did not know that the complainants were Travellers. There were 2 men in the group and she recognised them as Travellers. They were not abusive to her and she did not ask the Gardaí to have them removed from the pub.
4 Evidence of An Gardaí.
4.1 The complainants' representative sought the names of the Gardaí who attended at the respondent's premises on the night in question, but he received no response. Following a request from me during the course of my investigation, I was provided with the names of two Gardaí who may have relevant information about the incident. I then directed their attendance at the hearing in accordance with Section 34 of the Act. Garda Gerard Baynham attended the hearing and produced a record which he made of the telephone
call from Sheila O'Neill's pub. He said that he could not recollect if he actually took the call but he made the record and it would have been made at the time of the call. The Garda written record stated that the respondent was looking for assistance to remove Travellers. It is the normal procedure, when a call for assistance is received, to put the request on the Garda airwaves and this is what he did. Garda Paula Kelleher provided a written statement as she was unable to attend the hearing. She stated that a call came over the airwaves to attend to a disturbance at the respondent's premises. By the time she arrived there other Gardaí were speaking to the complainants outside the pub and she observed they were shouting. She said that she had no further involvement in the incident.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainants were 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".
5.2 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.
5.3 I have identified the key issues to establish a prima facie case as follows:
(i) Are the complainants covered by the discriminatory ground? ( in this case are they members of the Traveller community?)
(ii) Were the complainants subjected to specific treatment?
(iii) Is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances?
5.4 Definition of Traveller
In the Equal Status Act, 2000 the Traveller community ground is defined as follows: "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 complainants are members of the Traveller community as defined by the Act.
5.5 It was accepted by both the complainants and the respondent that the complainants were asked to leave the pub 11 August, 2001, so the second element of the test has been established.
5.6 I am now going to examine the third element of the test to see if the complainants have produced sufficient evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that they were treated less favourably than a non-Traveller would have been treated in similar circumstances.
5.7 The complainants contend that they were refused further service in the respondent's bar on the 11th August, 2001 on the ground that they are members of the Traveller community. They submitted that it was only after they were served that they were identified as Travellers and this was the reason the Gardaí were called to remove them from the pub. The respondent's case is that the complainants were drunk and loud and used abusive language and this caused customers to leave the beer garden area.
5.8 There was a conflict of evidence in relation to what happened on the night, but having considered the totality of the evidence, I found the evidence of the complainants to be more compelling than the evidence of the respondent. Ms. O'Sullivan in her evidence said she did not recognise the complainants as Travellers and stated that she called the Gardaí to remove a large group from the pub who had been verbally abusive towards her. I note that Ms. O'Sullivan stated that she did not recognise the complainants as Travellers, but this is inconsistent with the record of her telephone call to the Gardaí. It is clear in that written record that the complainants were identified as Travellers and the request was to have them removed from the pub and Ms. O'Sullivan agreed she made the call. I can only conclude from this that Ms. O'Sullivan did mention Travellers in her call to the Gardaí.
5.9 The respondent submitted that the complainants were drunk. However I note that two different members of staff served them drink on the night in question. I also note that Ms. O'Sullivan did not instruct her staff not to serve the complainants after she became aware of their alleged behaviour. Ms. O' Sullivan said that she had no further involvement with the complainants after she called the Gardaí. Ms. O'Sullivan said that her husband was one of the bouncers on the door that night. She also said that she related to him the alleged behaviour of the complainants to him. Yet it is notable that he was not called to give any evidence. Ms. O'Sullivan also said that she was in the bar area after making a telephone call to the Gardaí when she met her husband and told him about the complainants who were in the beer garden but she did not identify them to him. She said that she had no further involvement in the matter yet it appears that Mr. O' Sullivan was able to identify the
complainants to the Gardaí when they arrived. I note that Mr. O'Sullivan said in a statement that he accompanied the Gardaí and identified the complainants to them.
5.10 I have noted above that Mr. O'Sullivan was not called to give evidence and neither were any of the bar staff called. Their evidence would have been of assistance in the matter. I note that the complainants notified the respondent of their complaints in accordance with Section 21(2) of the Act and within one month of the incident. The respondent should therefore have taken steps at that time to ensure that she retained any details she needed to prepare a defence. I have also noted that the respondent did not reply to the notification and it was only after the Equality Officer sought details of the respondent's response to the complaint that a reply was received some seven months after the incident. In that reply Mr. O'Sullivan made no mention that complainants were drunk.
5.11 From the evidence set out above, I have not been convinced that the complainants were intoxicated or that they behaved in the manner suggested by the respondent. I am satisfied on the balance of probabilities that the evidence supports the complainants' case that the Gardaí were called to remove them from the premises because they were identified as Travellers. I also note that there was and undisputed evidence that there were two other male Travellers in the pub and the complainants' case is that they were also
asked to leave. The respondent's case is that the male Travellers in the group did not cause any trouble and they were not asked to leave. The written record of the Gardaí would in my view support the evidence of the complainants that these male Travellers were also removed from the pub. I am satisfied that the purpose of calling the Gardaí was to remove Travellers from the pub. For these reasons I find that the complainants have established that they were treated less favourably than non-Travellers customers would have been treated in similar circumstances. Consequently I find that the complainants have
succeeded in establishing a prima facie case of discriminatory treatment which the respondent has failed to rebut.
6.1 On the basis of the foregoing I find that the complainants were discriminated against by the respondent on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act. Under section 27(1) of the Equal Status Act, 2000 redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that: "the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action which is so specified."
6.2 In considering the amount of compensation to award I have taken into account the uncontested evidence that at least 5 Gardaí came into the pub and escorted the complainants off the premises in front of a large number of customers. There were at least 2 more Gardaí outside the premises. I am satisfied from the evidence of the complainants that this treatment in such a public place greatly upset and humiliated them. I, therefore, order the respondent, Sheila O'Neill's Licensed Premises to pay to the complainants, Ms. Ann O'Brien, Ms. Bridget McCarthy and Ms. Lisa Quilligan the sum of €1,000 each as
redress for the distress, embarrassment and loss of amenity caused to them by the effects of the discriminatory treatment. Ms. Anne McCarthy and Ms. Eileen Coffey did not attend the hearing on any of the two dates arranged and I am not making any award to them for the effects of the discrimination as their presence was not required at the hearing in order to establish a prima facie case. I am making no order under Section 27(1)(b) of the Act as the respondent is no longer the licensee of the premises.
20th December, 2004