David & Bernard McDonagh (Represented by Justin Sadleir Solicitors) V O'Hallorans Pub, Ennis (Represented by Cahir & Co. Solicitors)
David and Bernard McDonagh each 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, the Director then delegated the cases to me, Bernadette Treanor, 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.
Summary of the Complainant's case
The complainants entered the respondent premises at around 3.55 pm on 2/7/2001 by the main door. Bernard ordered two pints but was ignored by the lady behind the counter. David McDonagh asked to see the owner who arrived minutes later. He gave the order again to him but was told "I'm not serving you". David reminded the owner of previous assurances that he would be served but the owner replied "I don't care, I'm not serving you". The complainants left at that point. They feel that in the absence of any other reason the refusal was because of their membership of the Traveller community. Summary of the Respondent's Case The respondent states that on 2/7/01 the regular barman failed to show up for work and they had just received their usual weekly delivery. This delivery had been hastily left in the cellar and was blocking the way to the cold room. While Mr. O'Halloran was in the cellar trying to sort this out, his wife was in the bar. She had opened the bar expecting her husband to be finished any moment. However when it became clear that the cellar work was so extensive, combined with the fact that Mrs. O'Halloran had to go home to attend to her children, they decided to close the bar until 6pm.They maintain that while all the doors were open, the bar was closed when the complainants entered and that the refusal was because of this and not because of their membership of the Traveller community.
Conclusions of the Equality Officer
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the Traveller 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 another person received, or would have received, in similar circumstances,where that person is not a member of the Traveller community.
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.
The respondent accepted, and I am satisfied, that the complainants are members of the Traveller community. It was also common case that there had been a refusal of service on 2/7/01. These satisfy (a) and (b) above. In consideration of (c) above the following issues arise.
Mr. O'Halloran stated that when he was in the cellar he was not aware that his wife had opened the bar, i.e. opened the front door of the bar. This normally took place at 3pm. Mrs. O'Halloran stated that she had opened the bar, in the absence of the barman, since it would normally have been open at that time. She was not aware that the work her husband was engaged in would detain him so long. It is clear that at this point, the bar was open to the public, that Mrs. O'Halloran was behind the counter and covering the bar, and that the couple had not discussed any plans for the 3pm to 6pm period. When the complainants entered, the bar was open. Mrs. O'Halloran refused them. Since she was not aware that the bar would have to close there must have been some other reason for the refusal. When David McDonagh asked to speak to Mr. O'Halloran, she contacted her husband in the cellar by mobile phone and he came up to the bar. Their plans may have been discussed briefly on the phone or perhaps when Mr. O'Halloran entered the bar. In any event, if the discussions took place, then on the basis of the respondent's own evidence, it was after the initial refusal.
From evidence presented at the hearing it is clear that at least David McDonagh was known to the respondents and that there was a history of interaction between them which had apparently been settled to the satisfaction of both parties. Since the respondent failed to respond to the notification sent to them by the complainants it is open to me to draw such inferences as seem appropriate, in accordance with section 26 of the Equal Status Act, 2000. I am satisfied that it is appropriate to infer that when the complainants entered, Mrs' O'Halloran knew them or at least one of them. She also knew their background.
The only reason presented for not serving the complainants was that the bar was closed. There was no suggestion by the respondent that the complainants raised any risk in respect of Section 15(1) of the Act, and indeed there was no contradiction of the complainants' evidence that previous discussions about being served had been amicably settled.
In the absence of a reasonable basis for the refusal I am satisfied that it was based on the complainants membership of the Traveller community. I find that the complainants have established a prima facie case of discrimination on the Traveller ground. The respondents have stated that they had intended to close the pub until 6pm that day and that the complainants were simply unfortunate to have arrived when they did. Had they arrived at any other time there would not have been a difficulty and the complainants are not barred at the moment. This position is untenable since, as discussed above, the arrangements for closing the pub were not in place until after the initial refusal at least. The respondent has failed to rebut the prima facie case of discrimination.
I find that the complainants, David and Bernard McDonagh, have established a prima case of discrimination on the Traveller ground that the respondent has failed to rebut. I find that the complainants were discriminated against on 2/7/01 because of their membership of the Traveller community when they were refused service by the respondent.
I order the respondent, O'Hallorans pub, to pay each of the complainants €600 for the effects of the discrimination.
7 July 2004