Jim and Margaret Cash (Represented by the Equality Authority) V Molly Heffernan's Public House
Delegation under the Equal Status Act, 2000
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 me Mary O'Callaghan, 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. The hearing of the case took place in Dublin on 11th November 2004.
1.1 This dispute concerns a claim by the complainants that they were discriminated against on the grounds of their membership of the Traveller community when they sought entry to Molly Heffernan's Public House on 1st July 2001.The complainants allege that the treatment they received was contrary to Section 3 (2) (i) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public they were subjected to treatment contrary to Section 5(1) of the Act.
1.2 The respondent maintains that one of the complainant party was noticed to be behaving in a manner that suggested he already had drink taken and should not be served and that this was the basis for the refusal. In relation to the other complainant he maintains that there was no direct refusal to her.
2. Summary of the Complainant's case
2.1 The complainants said that on Sunday 1st July they went from their home in Tallaght to Molly Heffernan's pub which was near their home. Mrs. Cash said that she drove to the pub with her husband who was a passenger in the car. She said that as they approached the door of the pub the doorman told her husband "you can't go in its regulars only." She said that they then asked for the manager and they were told they could talk to him if they came back the following day. She said that she noticed people around and that they were being admitted to the pub while she and her husband were refused. Mrs. Cash said that she and her husband had been living in the area for about 8- 9 months. Before moving to the area they used to go to another pub in Tallaght Village but Molly Heffernan's was nearer to their new home. Following the refusal both complainants drove home. Mrs Cash said that she and her husband were travellers and she believed that they were recognised as such and that was the reason for the refusal as she could not think of any other reason why they were refused entry to the pub. Her husband concurred with this view.
2.2 Mrs. Cash was asked if she recalled the doorman saying that her husband had too much to drink and she said no and that it would not be true to say so. She was asked if she remembered asking the doorman if he knew she was a Traveller and she said she supposed she did ask. Mrs. Cash was asked why she hadn't returned to the pub to see the manager and she said that her husband had done so. She was also asked about the completion of her complaint form and she said that she received assistance in completing it from a Traveller's rights group in Tallaght village.
2.3 Mr. Cash returned to the pub the following day with his son and they asked to see the manager who was sent out to them. He said that he and the manager had a few words. Mr. Cash was asked why he was not served the previous night. Mr. Cash said that the manager said something about the law and that he had a right to refuse. Mr. Cash said that he told the manager that he was going to see someone about this and he then left.
2.4 When asked about the refusal by his representative, Mr Cash said he hadn't been drinking that night and that his wife had driven to the pub as he would not drink and drive. He was also asked if the manager's reference to the law referred to Section 15 of the Equal Status Act and he said he was not sure.
2.5 The complainants were asked to identify the doorman who refused them from among those present and they thought that the doorman was older than Mr. James Reid who was presented at the hearing as the doorman,
3 Summary of Respondent's Case
3.1 The respondent Mr. Crowe said that the pub had been under his management since 1999. He said that he owned a number of pubs. The capacity of Molly Heffernan's is about 210 with the bar accommodating 60 and the lounge holding 150 customers. He said that he does not generally be in the pubs he owns but would visit at times. The pub was run on a day to day basis by his manager. He said he would know a lot of the customers. Mr. Crowe said that Molly Heffernan's drew a completely local trade from West Tallaght where it was located.
3.2 He said that he was not there on the night of this incident but that he had heard about it from the manager. The respondent said that a regulars only policy was not applied in his pub as it was located in a growing area.
3.3 In relation to the Equal Status Act he said that his staff had been informed of their obligations under the Act. He said that the reason for the refusal that night was that the doorman had considered that Mr. Cash had drink taken when he arrived at the pub and that he should not be admitted. It was his understanding that Mrs. Cash had not been refused as it was only her husband had been refused. He understood that the Cash's had not returned to the pub since. A number of the staff members of Molly Heffernan's also gave evidence on behalf of the respondent.
3.4 The respondent said that he would not have considered this type of incident to be a major incident and it was unlikely to be recorded in an incident book. When asked about the availability of video/CCTV evidence of the incident, the respondent said such material was only held for 30 days.
3.5 Evidence of Mr. James Reid
Mr. Reid said that he was working on the door of Molly Heffernan's on the evening of the incident complained of. He said that at some time between 9.30 and 10pm he saw both complainants approaching the door. He said that he thought that Mr. Cash was unsteady on his feet. When he and Mr. Cash started talking he was told by the complainant that he did not have any drink taken. He said, when asked, that he smelt drink from Mr. Cash. Mr. Reid said that he told Mr. Cash that he had too much drink taken and that he would not allow him entry. Mr. Cash asked for the manager but Mr. Reid said that he that he told the complainant that the manager was busy and to come back in the morning. He said the complainants then left and he said he noticed that Mr. Cash was still unsteady on his feet. He said that he didn't notice anything unusual about Mrs. Cash but that they may have
exchanged some words. He said that he did not refuse her entry and he did not say regulars only. Mr. Reid said he had been employed in Molly Heffernan's since 1999 when it opened and had worked in pubs and clubs for a period totalling 17 years. It was put to Mr Reid that the respondent' submission, prepared by his then legal representative, indicated that he had 27 years experience of this kind of work but Mr Reid disagreed with the submission and said that if this was the case he would have been a child when he started work. It must have been an error in the submission. When asked how he recalled so much about the incident Mr. Reid said that he recalled the incident because he was asked questions about it in within days of it occurring. He said that he did not refuse the complainants because of their Traveller status.
3.6 Evidence of Mr David Evans
Mr. Evans gave evidence relating to the visit of Mr. Cash to the premises on the day following the incident complained of. Mr Evans said that he was a member of Molly' Heffernan's staff and he said that Mr. Cash came into the bar at about 10.15 am on the Monday following the incident and that when Mr Evans asked him for his order Mr. Cash asked to see the manager. As the manager was dealing with a drinks rep at the time he asked Mr. Cash to go to the off-licence area. He said that some minutes later when he went to the off-licence he heard voices and he heard Mr. Cash call the manager a "fat so 'n so" and that he was going to take the matter further. He said the manager then closed the hatch through which he was talking to the complainant and walked away. Mr. Evans said that he had never seen the complainant before that and as far as he could recall there was no one with him on this occasion. Mr. Evans said that he accepted that the complainants were Travellers although he did not know them and he would know the Travellers in the area as he lived locally. He also said that he had never been instructed to refuse or discriminate against any group of people.
3.7 Evidence of Mr. Noel Kennedy
Mr. Noel Kennedy stated that he was the manager of Molly Heffernan's. He said that he runs the pub on a day to day basis and that Mr. Crowe does not interfere. He said that he had been working in the pub business for 25 years. He said that Travellers are definitely allowed into the pub. He said that he recalled meeting Mr. Cash, the complainant, when he came to the off-licence after the incident. Mr. Kennedy said that the complainant asked why he was refused and he was told that the doorman believed he had too much to drink. He said there was some name calling from the complainant which he found offensive. Mr. Kennedy said that the main reason for refusing entry would be if someone had too much drink on them. He said that staff had never been instructed to admit regulars only. Mr. Kennedy said that there was an incident book kept at the pub for recording serious incidents but that this incident would not have been considered serious and it would not have been recorded. He said that Mr. Reid the doorman kept him informed of any incidents at the door. He believed the encounter with Mr. Cash in the offlicence was recorded in the incident book. When asked about his knowledge of the provisions of the Equal Status Acts Mr. Kennedy said that he did not know what was in the Acts although he had appeared as a witness for the respondent Mr. Crowe at a previous hearing under the Equal Status Act 2000.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainants have succeeded in establishing prima facie cases of discrimination. In order to do so the complainants must satisfy three criteria in relation to their complaint. They must (1) establish they are covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants was less favourable than the treatment someone who was not a member of the Traveller community would have received in similar circumstances.
4.2 In this case it is not disputed that the complainants are members of the Traveller community, thus satisfying the first of the criteria outlined above. Furthermore it is not disputed that they refused entry to Molly Heffernan's at the time of the incident complained of. This is sufficient to satisfy the second criterion. The third criterion which must be met by the complainant in establishing a prima facie case is whether there is evidence that the treatment afforded to the complainant by the respondent was less favourable than that which would have been given to another person in similar circumstances who was not a member of the Traveller community.
4.3 In this case I am faced with a conflict of evidence in relation to the incident. The complainants on the one hand state that they came to the pub by car from their home and that they had not been drinking. The refusal in their view was rooted in their membership of the Traveller community.
4.4 On the other hand it is alleged by the respondent and his witnesses that one of the complainants showed signs of having drink taken to the extent that he should not be admitted to the pub.
4.5 From the evidence it is clear that only one of those appearing on behalf of the respondent in this case may actually have been present at the incident complained of. I also note that the complainants, while they couldn't be 100% sure, believed that the person who refused them was an older man than Mr. Reid who said he was the doorman who met the complainants. There is also some doubt over who was present at the door arising from the response sent by the respondent's then legal representative to the complainant's representative on 12th April 2002. This states that "The security man who had 27 years experience, formed the opinion from his extensive experience that the man had already consumed too much..." Mr. Reid himself stated that if he had 27 years experience he would have been a child when he started doing security work as he is now 41 years old. The evidence of the respondent himself refers to the practice in relation to the admission of patrons that operated in the pub and to his knowledge of the incident as it was reported to him by others. Mr. Kennedy's and Mr. Evans' evidence is principally concerned with events which occurred subsequent to the refusal when the complainant returned seeking an explanation as to why he was not admitted the previous night. Mr. Kennedy also provided information as to the operation of the pub regarding instructions that would be given to staff in relation to the admittance or non admittance of patrons. His evidence on this was that customers are usually only refused entry if they have too much drink taken and that from the information available to him from Mr. Reid, this was the circumstance that applied in the case of the complainants.
4.6 Mr. Reid, therefore, is the only one of the respondent's witnesses who claims to have actually encountered the complainants on the night of 1st July and it was his impression that informed the other witnesses for the respondent regarding what occurred. Mr Reid said he saw the complainants approaching the door, having left their car and that when Mr. Cash came towards him he observed from his gait that he had drink taken. He also said that he smelt drink from Mr. Cash when he reached the door. Mr Reid also said that he may have exchanged words with Mrs. Cash.
4.7 It is proposed by the respondent; on the basis of Mr. Reid's evidence, that while Mr. Cash was refused as it was considered that he had too much drink taken, Mrs. Cash was not refused. I do not accept this assertion. The evidence from both parties to this complaint is that the couple left their car and went toward the pub entrance at the same time. It has been said that they were seen leaving their car. Mr. Reid's evidence that the couple approached the pub together and were seen arriving together. The refusal would in my view, on the balance of probabilities have been directed at both of the complainants. What remains to be answered, therefore, is whether this treatment was less favourable treatment than another person, who was not a member of the Traveller Community would have received in similar circumstances.
4.8 I note that the respondent agreed at the hearing of these complaints to provide the Tribunal with a copy of his incident book for the dates in question by registered post. It was submitted by the respondent that this contains a record of what happened during Mr. Cash's visit to the off-licence on the Monday following the refusal. It was agreed that the incident book would be provided to the Tribunal by 21st November 2004, 10 days following the hearing. The Tribunal has not received this evidence. No explanation has been proffered for the failure to provide the book. I must also point out that while this complaint was notified to the respondent just 3 days after the event, the respondent still saw fit to delete the CCTV tape rather than retain it as a record which could have provided independent evidence of what occurred and confirm the identity of the doorman on the night of 1st July 2001, of whom there still remains doubt. I find the absence of these pieces of evidence, which it would appear from the hearing, were in existence in the days following the incident surprising and it leads me to conclude that their non availability does not help to sustain the respondent's case.
4.9 Given the conflict in the evidence of the two parties as to whether the complainant had already been drinking prior to going to Molly Heffernan's, I must decide whose evidence was more compelling. In this regard, considering all of the evidence presented I found the evidence of the complainants to be more compelling on this point and I have concluded that neither of the complainants had drink taken prior to going to Molly Heffernan's that night. I note that one of the complainants, Mr. Cash, who is alleged to have had too much drink taken was the one who returned to the pub the following day to seek an explanation for the refusal. I find that this would be an unusual step for someone to take, who had been refused due to intoxication, so soon after the event.
4.10 On the basis that the respondent's evidence was less than compelling regarding the events that occurred on the night of the incident complained of, I have concluded that the treatment the complainants received was less favourable treatment and on this basis I find that the complainants have established prima facie cases of discrimination on the Traveller community ground.
5.1 In circumstances where a prima facie case of discrimination has been proved by the complainants the burden of proof then shifts to the respondent who must rebut the case of discrimination. In this case the respondent has relied on his evidence that only one of the complainant's was refused and that this was on the basis that he was perceived to be intoxicated by the doorman. On the basis of the evidence outlined above I have concluded that neither complainant had drink taken. Mr. Reid's evidence is that he had most likely been speaking to both complainants that night, I have concluded that both complainants were refused.
5.2 Section 42(2) of the Equal Status Acts 2000-2004 states that:
"Anything done by or person as agent for another person, with the authority ( whether express or implied and whether precedent or subsequent) of that person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person". This Section applies the concept of vicarious liability employers for the actions of their employees in relation to discriminatory activity under the Act
5.3 Section 42(3) of the Act states that : "it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee ... from doing that act." The evidence in this case points to the fact that while the respondent may not have actively promoted the use of discriminatory practices by his staff, they were not trained adequately in this regard. I have noted that the manager, who had daily responsibility for the pub said in evidence that he did not know what was in the Equal Status Act. This is despite his admission that he had attended an Equality hearing
previously as a witness.
5.4 In such circumstance I find, therefore, that the respondent has not rebutted the prima facie case of the complainants.
6. Decision and Redress
6.1 In circumstance where the complainants Jim and Margaret Cash have established prima facie cases of discrimination on the Traveller community ground, and which the respondent has failed to rebut, I find that both complaints of discrimination are upheld. I consider that the appropriate redress in this case is as follows, that the respondent pay to Mr Jim Cash the sum of €400 as redress for the discrimination including the loss of amenity suffered and that the respondent pay to Mrs. Margaret Cash the sum of €300 for the discrimination, including the loss of amenity suffered.
21st December 2004