Michael Mc Donagh (Represented by Michael Lanigan and Company Solicitors, acting on Instructions from the Equality Authority) V Ivan's Bar (Represented by Mr. Niall O'Driscoll BL instructed by P.J. O'Driscoll and Company Solicitors)
Equal Status Act, 2000 - Membership of the Traveller Community - Section 3 (2)(i)
- Supply of Goods and Services Section 5 (1) - Establishment of a Prima Facie Case
-Risk of disorderly behaviour Section 15(1) - incident book
Delegation under 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 on Thursday 11th March 2004.
1.1 This dispute concerns a claim by Mr. Michael Mc Donagh that he was discriminated against on the ground of his membership of the Traveller community when he sought service at Ivan's Bar Kilmallock Co. Limerick, in August 2001. Mr. Michael Mc Donagh alleges that the treatment he 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 he was subjected to treatment contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 Mr. Mc Donagh said that on the 14th August 2001 he and his wife had been visiting a relative in hospital in Limerick and afterwards they drove to Kilmallock to visit his mother who lived there. He said he went to Ivan's Bar where his mother was waiting. On entering the bar his wife went to a corner area where his mother was already seated and he went to the counter and started conversing with two customers he knew, who were Non-Travellers. He said the respondent was behind the counter serving the two men with whom Mr. Mc Donagh was talking and once he finished serving these two men their drinks the respondent walked away and went to the other end of the bar and started serving other customers. The complainant said that he became annoyed and followed the respondent down to the end of the bar and asked to be served but that the respondent refused him saying "I'm not serving you." The complainant said that he sought a reason for the refusal but was given none and he asked the respondent to call the Gardaí but the respondent would not.
2.2 The complainant said that he remonstrated with the respondent saying that he did not want to have to go to the courts (This referred to a situation in 1999 when an objection was made by local travellers to the renewal of the licences of a number of pubs in the Kilmallock area, when they were refusing to serve members of the Traveller Community. The objection was initially upheld in the District Court but was later lifted on appeal to the Circuit Court when it was accepted that the premises involved were serving Travellers.)
2.3 The complainant said that the respondent then said to him that "I'm not serving you. Judge O'Leary isn't sitting in Limerick any more."
2.4 The complainant said that he wasn't a regular in the pub as although he had grown up in Kilmallock and members of his family including his mother and brothers still lived there, he had been living in Dungarvan Co. Waterford since he married. He had been to the pub on a few occasions in 1999.
2.5 The complainant said that he then left the pub and went across the road to Houlihan's another pub in the town where he was served without any difficulty.
2.6 When asked why he believed the refusal was because he was a member of the Traveller community. He replied "what other reason would he have?"
3. Summary of the Respondent's Case
3.1 The respondent said that he was not a native of Kilmallock and had purchased the pub in March 1999. He said that the bar had a capacity of about 300 customers and was divided into 3 different bar areas. The clientele were mainly young people and people who came to the pub to watch soccer. He said that the pub did serve members of the Traveller Community and that it had about 20-30 local Traveller customers. He said that he wouldn't have known the complainant to be a customer of the bar but his mother, a brother and a sister were regular customers.
3.2 The respondent said that on the evening of this incident there were between 30 and 40 people in the pub. He recalled that he had just come on duty in the bar and that his son Philip had just finished his shift. He was serving the two people beside Mr. Mc Donagh. He did not speak to Mr. Mc Donagh. When he finished serving the two customers, he went to another part of the bar to serve other customers as they had been there longer than Mr. Mc Donagh. He said that while he was doing a transaction at the till Mr. Mc Donagh started shouting and abusing him, saying that the respondent wouldn't serve him because he was a member of the Traveller Community and that he wanted the Gardaí called. He said that it was at this point he refused to serve the complainant. He said he had served the complainant previously but on this occasion he had become very abusive and he refused him. He said he didn't feel it was necessary to call the Gardaí. He didn't think that Mr. Mc Donagh came to the bar again after that night but on one occasion a man who could have been the complainant or his brother had come and he didn't serve him. He said that they were very alike.
3.3 The respondent said that he ran a very strict pub and that many people had been barred. He said the number of Non-Travellers barred by far outnumbered the number of Travellers barred from his pub. He said that he would bar someone from the pub for loudness, abuse or fighting. He said any person behaving in the way the complainant as behaving that night would have been refused. The general practice in this regard was to ask the person to leave and if he/ she returned he would not serve that person. The respondent did say, however, that he would normally give people a second chance.
3.4 The respondent said that there had been a number of serious incidents in the pub in the previous year not all of which of which involved members of the Traveller community, but he accepted that none of these incidents involved Mr Mc Donagh, the complainant. In a written submission the respondent referred to the fact that he was hospitalised as a result of one of these incidents.
3.5 When asked, the respondent said that he kept an incident book to record incidents in the pub and he submitted it at the hearing. The book (annual diary) submitted recorded the refusal of the complainant on the date complained of and a small number (no more than a dozen) of other incidents. Two of the entries were records of the fact that the complainant had been served in the pub on separate occasions about a week prior to the incident complained of. The respondent observed that the majority of incidents were recorded in the "staff book" which he did not bring with him to the hearing.
4. Conclusions of the Equality Officer
4.1 In considering this complaint I must in the first instance consider whether the complainant has established a prima facie case of discrimination. In order to establish a prima facie case of discrimination three criteria must be met. These are:
(1) that he is covered by the relevant discriminatory ground, in this case the Traveller community ground
(2) that he has been subjected to specific treatment by the respondent.
(3) that he has been treated less favourably than someone who was not traveller would
have been treated in similar circumstances.
4.2 I am satisfied and it is agreed by both parties to this complaint that the complainant is a member of the Traveller community and therefore the first of the three criteria outlined above is met.
4.3 With regard to the second criterion, it is agreed by both parties that the complainant was refused service on the night in question and therefore, I am satisfied that that the complainant was subjected to specific treatment by the respondent.
4.4 The final criterion to be satisfied if the complainant is to establish a prima facie case of discrimination is whether the complainant was treated less favourably than someone who was not a member of the Traveller community would have been in similar circumstances. In this case, the complainant on entering the pub went to the counter where the respondent was serving two other customers (who were not Travellers), who the complainant spoke to and the respondent on finishing serving the two customers, walked away from where the complainant was standing to serve others in the bar. The complainant who became annoyed because of this action followed the respondent to the other end of the bar and complained that he was not being served and requested service. At this point he was verbally refused by the respondent who then refused to call the Gardaí at the complainant's request. I have been satisfied that the treatment of the complainant was less favourable than that which would have been afforded to someone who was not a member of the traveller community. Therefore, the complainant has established a prima facie case of discrimination on the ground of his membership of the Traveller Community.
4.5 In situations where a prima facie case of discrimination has been established by the complainant, the burden of proof shifts to the respondent and there is an assumption of discriminatory treatment on the part of the respondent, unless he successfully rebuts the case of the complainant. I must now consider whether the evidence of the respondent is sufficient to rebut the prima facie case established by the complainant.
4.6 The respondent's evidence has been that he believed that the complainant was abusive towards him by shouting to demand a reason for non-service. He submitted that anyone who behaved in this way would have been treated in a similar fashion. However, I consider that this interaction between the two men happened after the complainant perceived he had been refused. The respondent provided no evidence that he indicated to Mr. Mc Donagh that he would return to serve him when he walked away from him and went to serve other customers. I consider that that any reasonable person would consider that he was not going to be served in such circumstances and that it was at that point the refusal occurred.
4.7 The respondent also raised the fact that here had been a number of incidents in the premises, one of which resulted in him being hospitalised but he acknowledged that the complainant was not involved in these incidents. He also alleged that the complainant's family had been involved in an incident in the premises the previous Christmas and that he believed that the complainant had been abusive towards him on that occasion but he acknowledged that the complainant's brother was very like him. On another occasion in 2001 he accepted that he may have mistaken the complainant's brother for the complainant.
4.8 The respondent provided a 2001 incident book for inspection which contained a very small number of entries, two of which were entries recording the fact that the complainant was actually served, others concerning customers with no connection to the complainant and other's including the record of the complainant's refusal on 14th August 2001, referring to the fact the fact that the complainant was refused (at the hearing the respondent acknowledged that one of these entries may have mistakenly referred to the complainant when in fact it was his brother who was subjected to a refusal). The paucity of entries in this book despite the fact that the respondent gave evidence that he was aware of many incidents in the pub resulting in a large number of people being barred and the newness of the incident book presented, 3 years after it was claimed to have been completed in 2001, has led me to the conclusion that it was not completed contemporaneously with the alleged "incidents" reported within. On this basis I cannot give weight to the information contained in book provided.
4.9 Section 15(1) of the Equal Status Act 2000 states that....nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods of premises, or to provide services or accommodation or services and amenities related to accommodation to another person ("the customer") in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located. In order to raise this defence the respondent must show from his knowledge and experience of the complainant that there was a significant risk of criminal or disorderly behaviour. The respondent has said that he didn't know the complainant to be a customer of the bar but that he did know other members of his family. In terms of previous incidents at the pub, particularly those which gave rise serious criminal behaviour, it was accepted by the respondent that the complainant, Mr. Mc Donagh was not involved in these incidents and there appears to be no reason why the respondent's experience in relation to these incidents should cause him to believe that this particular complainant posed a serious risk. Where there is a possibility that the complainant may have been present on a disruptive occasion previously the evidence was that it was an incident involving a large group of family members which may have included the complainant. On the occasion under investigation, Mr. Mc Donagh approached the respondent alone, although, it is accepted that his mother and his wife were seated in another part of the premises. Furthermore the evidence from both parties was that the verbal exchange lasted for just a minute or two and it appears from the evidence this was after the respondent had walked away from Mr. Mc Donagh. The complainant then left the premises. While a somewhat angry response may not have been the most desirable in these circumstances it does not appear to be the cause of the alleged discrimination in this case. I conclude that there is insufficient reason for the respondent to decide that there was a substantial risk of criminal or disorderly behaviour or damage to property on the part of the complainant. I conclude therefore, that the respondent has not rebutted the prima facie case of the complainant.
4.10 I do, however, accept that the complainant exhibited and voiced his indignation perhaps even anger at not receiving service when he first encountered the respondent at the counter. I also acknowledge that the effect of this on the respondent may have been compounded by the fact that the respondent had suffered as a result of previous incidents in the bar, which did not have any connection with this complainant. On the basis of this I am prepared to accept that the actions of the respondent may have been mitigated somewhat by these circumstances.
5.1 I find on the evidence that the complaint of discrimination by the complainant Michael Mc Donagh is upheld and that he was subjected to discriminatory treatment on the Traveller Community ground by the respondent in this case, the licensee of Ivan's Bar, Mr. Ivan Whitley.
6.1 The maximum amount of redress that can be awarded to a complainant where there is a finding of discrimination in his/her favour is €6,349. In this case I do not consider that the maximum is warranted.
6.2 I consider the appropriate redress for the effects of the discrimination in this case to be €500 and order that the respondent pay the complainant the said sum of €500.
4th June 2004