Ms. Mary Collins & Mr. Hugh Collins V. Killzale Limited t/ Liz Delaney's Pub (Dublin)
(Represented by Mason Hayes & Curran Solicitors)
Delegation under Equal Status Act, 2000
The complainants referred a claim to the Director of Equality Investigations on 31 January 2002 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 Ms. Mary Collins and Mr. Hugh Collins that they were discriminated against by Liz Delaney's Pub on the ground that they are members of the Traveller Community. The complainants alleges 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, who are husband and wife, allege that they were discriminated against by the respondent contrary to the Equal Status Act, 2000, when they were refused entry to the respondent's bar on 15 September, 2001. The complainants contend this occurred because they are members of the Traveller community. They submitted that they approached the door of the respondent's bar in the company of their uncle Mr. Patrick McDonagh, Mr. McDonagh was admitted and they were stopped by the doorman, Mr. Gary Payne. They allege that they were told by Mr. Payne that he was not admitting them because he didn't know them and that "there is already enough of ye in there". The complainants said that they understood this to mean that there were enough members of the Traveller community in the pub already. They said that they were told by Mr. Payne to return on a quiet night and he would consider admitting them. The complainants went to Coolock Garda Station and were accompanied back to the respondent's premises by two
Gardaí. The Gardaí spoke to Mr. Payne, but the complainants were still not admitted to the pub. The complainants believe that the respondent operated a quota system, in that he limited the number of Travellers admitted to the pub on any one night. In response to the respondent's case Mr. Hugh Collins denied that he was abusive. The complainants said that while they were not regulars in the pub they had been there on a number occasions including twice the previous week and had been admitted without any difficulty and had an expectation of being admitted on this occasion.
3. Summary of the Respondent's Case
3.1 The respondent's case is that the complainants were not known to him and it was for this reason entry to the pub was refused. Mr Gary Payne proprietor said that he took over the pub five years ago and at that time the pub had a very bad reputation. He set about cleaning up the pub and he now rarely encounters any trouble. He said that he normally works on the door himself and his policy usually is to engage people he does not recognise in conversation before admitting them. On the 15th September, 2001, the
complainants were in the company of Mr. McDonagh, a Traveller and a regular customer, when they sought admission to the pub. Mr. Payne said that he asked Mr. McDonagh to vouch for the complainants and he refused. Mr. Payne then engaged the complainants in conversation to establish if he knew them. At this stage Mr. Collins became verbally abusive and Mr. Payne made up his mind not to admit them. The complainants left and returned an hour later in the company of two Gardaí. Mr. Payne told the Gardaí that he was
refusing to admit the complainants on the ground that Mr. Collins was aggressive. Mr. Payne agreed in evidence that he did recognise Ms. Mary Collins as a customer.
4. Conclusions of the Equality Officer
4.1 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 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 demonstrate that a prima facie case of discrimination exists. I have identified the following the key conditions to be satisfied to establish a prima facie case:
(i) are the complainants covered by the discriminatory ground? (in this case are they members of the Traveller community?)
(ii) were the complainants refused service by the respondent on 15 September 2001?
(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?
If and when those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is not necessary for the complainants to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not.
4.3 I am satisfied that the complainants are Travellers and that they were refused service by the respondent on 15 September 2001. Therefore conditions (i) and (ii) have been satisfied. In considering condition (iii) above I have examined the evidence to see if the
complainants produced sufficiently hard 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 customer would be treated in similar circumstances.
4.4 The complainants contend that they were refused entry to the pub on the ground that they are members of the Traveller community and that the respondent operates a quota system in relation to the number of Travellers admitted to his pub at any given time. The respondent's case is that he did not recognise the complainants. After engaging them in conversation Mr. Collins became verbally aggressive and for this reason he decided not to admit them. I note that Mr. Payne said that he would have admitted the complainants if Mr. McDonagh had vouched for them. While the complainants deny that Mr. McDonagh was asked to vouch for them, they submitted that, if Mr. McDonagh refused to vouch for them it was due to difficulties Travellers have in getting served. As he is a regular in the pub he may have been in fear that he would not be served again and it was for this reason he would not attend the hearing of this case as their witness. They also submitted that they observed non-Traveller customers who they knew being admitted without any difficulty
on the night in question.
4.5 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 that the evidence of the respondent. I note that the complainants were in the pub on a number of occasions and that Mr. Payne in his evidence said that he recognised Ms. Collins as a customer on that night. I also note that Mr. Payne's evidence in relation to whether Ms. Collins could have entered the pub was contradictory. He said that he told Ms. Collins that she could enter the pub and he also said that he informed the
Gardaí on their arrival that Ms. Collins could have entered the pub. Later in his evidence Mr. Payne said that he told the Gardaí that both complainants were refused entry. I also note that on this occasion Mr. Payne departed from his criteria for admitting customers. He said that he will allow in customers he recognises or customers who can be vouched for by a known customer and he recognised Ms. Collins as a customer, yet he did not admit them to the pub. The complainants said that while they were not regular customers they had been in the pub and had been there on two occasions the previous week and
had an expectation of being admitted. They made Mr. Payne aware of this and that they knew one of the security men employed there but he was not on duty that night. I am satisfied from the evidence that Mr. Payne applied the criteria he applies in deciding whether to admit potential customer differently to the complainants than he applies it to other customers in that he recognised Ms. Collins as a customer and he did not ask her to vouch for Mr. Collins, her husband, on the day in question. Instead he engaged them in conversation which resulted in both of them being refused entry. I am satisfied therefore that the complainants were treated less favourably than non-Travellers customers would be treated in a similar circumstance. I find that the complainants have succeeded in establishing a prima facie case of discriminatory treatment.
4.6 The respondent's representative submitted that the respondent was entitled to discriminated in accordance with Section 15(1) and 15(2) of the Equal Status Act, 2000 for the purposes of complying with the Liquor Licensing Acts. Firstly I am going to consider Section 15(1) of the Equal Status Act, 2000, to see if the respondent was entitled to invoke this Section. Section 15(1) provides that: "nothing in this Act prohibiting discrimination shall be construed as requiring a person to provide services in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than the discriminatory grounds, that the provision of the services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought." To invoke this Section the respondent must show that there was a substantial risk of criminal or disorderly conduct or behaviour if the complainant was to be served. I find that the defence under Section 15(1) of the Equal Status Act does not apply in the circumstances as the respondent has not shown that the complainants and in particular Mr. Collins acted in a manner which constituted a substantial risk of criminal or disorderly conduct or behaviour prior to having been refused entry. Mr. Payne in evidence stated that Mr. Collins became verbally aggressive. Mr. Collins denied that he was abusive or aggressive and said that he was trying to tell Mr. Payne about the Equal Status Act and Mr. Payne used abusive language to him. I am satisfied that if the complainants verbally protested this occurred after they were refused entry and it was not the reason entry was refused in the first place. It is
understandable in the circumstances that the complainants would protest, given that they had been in the pub on a number of occasions and had an expectation that they would be admitted on this occasion. Furthermore, the complainants had been in the pub previously and Ms Collins was known to Mr. Payne and there was no evidence provided that disorderly conduct occurred on these occasions. I also think it would have been very unlikely that the complainants would have reported the matter to the Gardaí if they had
been so disorderly.
4.7 I am also going to examine if the action taken by the respondent on 15 September 2001 was taken in good faith. The licensing laws require publicans to keep an orderly house and Section 15 (2) of the Equal Status Act, 2000 provides that: "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination." As I have stated above I found the evidence of the complainants to be more compelling than the respondent's evidence and I have based this belief on the contradictory nature of the evidence presented Mr. Payne. I am not satisfied that the decision of Mr. Payne to refuse entry to the complainants was without a discriminatory motivation and consequently taken in good faith. Mr. Payne said that he recognised Mr. McDonagh as a Traveller he did not recognise the complainants as Travellers. However, overall the evidence has convinced me that the complainants were recognised as Travellers, that there were a number of Travellers already on the premises and that and this was the reason for refusing them entry. I am satisfied on the evidence that while the respondent serves Travellers he restricted the number he allowed to enter the pub on this occasion. In considering this point I have noted the Decision in the case of McDonagh v Castle Inn DEC-S2001-22 where the Equality Officer stated: "he has chosen to implement a "quota system" for Travellers. This action, to me, is totally contrary to the provisions of the Equal Status Act 2000." I am satisfied on the evidence that Mr. Payne operated a "quota system" for
Travellers and this was the reason they were refused entry and advised to return on a quiet night. I find therefore, that the respondent has failed to rebut the prima facie case raised by the complainants. In conclusion I would like to point out that I do not accept that it could be assumed that Mr. Payne would have taken any discriminatory action against Mr. McDonagh if he had attended this hearing as a witness. In any event Section 3(2)(j) of the Equal Status Act provides that victimisation is a discriminatory ground.
5.1 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. I order the respondent, Liz Delaney's Pub to pay the complainant Ms. Mary Collins and Mr. Hugh Collins the sum of €500 each for the distress, loss of amenity and inconvenience caused to them by the discriminatory treatment.
12 February, 2004