Mr. Michael McCarthy, Mr. Patrick McCarthy & Mr. James McCarthy (Represented by Traveller Visability Group Ltd) V The Eagle Bar (Cork)
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 Mr. Michael McCarthy, Mr. Patrick McCarthy and Mr. James McCarthy that they were discriminated against by the Eagle Bar on the ground that they are members of the Traveller Community, in that they were refused a service which is generally available to the public. 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 Complainants' Case
2.1 The complainants' case is that they were refused service in the respondent's pub on 13 June 2001. They submitted that they entered the pub between 10pm and 10:30pm and Mr. James McCarthy ordered 3 pints of Heineken. The barman refused service saying "sorry lads regulars only". The complainants said that they felt embarrassed and did not reply. They then left the premises.
2.2 The complainants denied that they had too much drink consumed or that this was the reason service was refused. They said that they find it difficult to get served in Blackpool, the area where the Eagle Bar is located. They had tried three other pubs in the area before this pub. The complainants submitted that they had been refused in this particular pub on a number of occasions. After being refused service on this occasion they went into the city centre and got served there. They submitted that they would not have been served in this latter pub if they had too much to drink. They were unable to state the name of the pub where they were served.
2.3 The complainants' representative submitted that, no relevance should be attached to the fact that the complainants could not identify the pub in Patrick Street where they were served, as Travellers would use landmarks to navigate around the city. He also said that Travellers have great difficulty in getting served and they try to disguise their Traveller identity in order to get into pubs. In support of the complainants' case that they had no drink consumed, he submitted it would make no sense for the complainants to disguise their identity and then present themselves at a pub in an intoxicated state.
3.1 Summary of the Respondent's Case
The respondent, Mr. Patrick Coleman, stated that the complainants were under theinfluence of alcohol when they entered his premises and this was the reason for refusing service. He said that he was not present in the pub at the time, but his barman, Mr. Glen Cambridge, related the incident to him later that day. He told Mr. Coleman that 3 Travellers entered the pub and requested service and he refused them because he believed they had enough drink consumed already. Mr. Coleman submitted that Mr. Cambridge would not have used the term "regulars only" as the pub does not operate such a policy. The pub is located in Blackpool and attracts a passing trade and it would not be good for business to have such a policy. Mr. Coleman submitted that a number of Travellers including Mr. James McCarthy's brother are regular customers of the pub.
3.2 Mr. Glen Cambridge did not attend the hearing. He submitted a written statement
stating that he worked for the respondent for 2 years and it was never the policy to refuse customers by telling them "regulars only". He only refused customers if they had too much to drink or if they were unruly. The pub had customers from the Traveller community. He said that he could not recall the incident with the complainants but he often had to refuse customers who had too much to drink.
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." A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. I have identified the key criteria 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 by the respondent?
(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?
I am satisfied that the complainants are members of the Traveller community and that they were refused service by the respondent on 13 June 2001. Therefore criteria (i) and (ii) have been established.
I am now going to examine the evidence to see if the complainants produced sufficient evidence which, in the absence of any convincing contradictory evidence by the respondent, would lead a reasonable person to conclude that they had been treated less favourably than a non-Traveller customer would have been treated. Having carefully considered all the evidence presented to me, I have some doubts regarding the credibility of the complainants' evidence. Even allowing for the weakness in the respondent's case, in that no oral evidence was provided at the hearing from the person who actually refused service to the complainants, I am satisfied on balance that the respondent's evidence was more compelling than the complainants' evidence. Their evidence has failed to convince me that they were treated less favourably than a non-Traveller would have been treated in similar circumstances, and in such circumstances the complainants have not met the third test outlined above. Therefore the complainants have not succeeded in establishing a prima facie case of discriminatory treatment
5.1 On the basis of the foregoing I find that the complainants were not 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.
22 December, 2004