Michael McCann V The Licensee, The Old Punch Bowl, Dublin (Represented by Mr. Gavin Mooney, BL, acting on instructions from Kelly Kennedy & Co., Solicitors)
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service - Prima facie case.
1.1 This dispute concerns a claim by Michael McCann that on 6 May 2001, he was denied
a service in the respondent premises on the grounds that he is a member of the Traveller
community. The respondent denies that discrimination occurred. The complainant referred a claim 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 then delegated the case to me, Dolores Kavanagh, 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. The Hearing of the complaint took place on Friday, 20 February, 2004.
2. Summary of Complainants' Case
2.1 The complainant states that he was refused service by a member of the respondent's
staff on 6 May 2001. The complainant returned to the premises the following day and spoke with the respondent who told him that he was barred because of unacceptable behaviour on his part. The complainant indicated at the time that he did not accept this and stated that he believed he was being refused service because of his membership of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondent states that the complainant had been warned on two occasions prior to 6 May 2001 about unacceptable behaviour on his part. On the evening of 6 May 2001 the complainant had been refused service by the manager of the respondent premises because he had again behaved in an unacceptable manner.
4 Prima Facie Case
4.1. 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) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(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 the same, or similar circumstances.
4.2 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, instead the respondent has to prove that there is not. If they
succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5 Prima Facie Case - Complainant
5.1 The complainant is a Traveller and this is not disputed by the respondent. This fulfils
(a) at 4.1 above. Both parties agree that the complainant was refused service on 6 May 2001. This fulfils (b) at 4.1 above. In relation to key element (c) above it is common case that the complainant was a regular patron for a number of years in the respondent premises. The complainant did not adduce any evidence to show why, on the specific occasion of the refusal of service to him on 6 May, 2001, it was his membership of the Traveller community that was the basis for the refusal. He has confirmed in written and oral submissions that the reason proffered to him by the respondent for the refusal was his own repeated unacceptable behaviour. The complainant stated in oral evidence that he recalled having been spoken to by the respondent on an earlier occasion about a complaint from another customer. The respondent and witnesses on his behalf provided evidence to the effect that the complainant had behaved in an unacceptable manner on dates prior to 6 May 2001 and that the complainant had been informed of this on each occasion. In this regard I found the respondent's evidence more compelling than that of the complainant I am satisfied that any customer, whether or not they are members of the Traveller community, would be refused service in the same or similar circumstances.
Having considered all of the evidence provided in this matter I am satisfied that the
complainant has not established a prima facie case of discrimination on the Traveller
community ground. I find therefore that the complainant was not discriminated against on the Traveller community ground 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.
24 February, 2004