Michael Hegarty, Richard O'Brien & Jim Sheridan (represented by the Equality Authority) V Molly B's Pub, Rathkeale (represented by Lees Solicitors)
This dispute concerns a complaint by Michael Hegarty, Richard O'Brien & Jim Sheridan that they were discriminated against, contrary to the Equal Status Act 2000, by Molly B's Pub in Rathkeale, Co Limerick. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that, when they entered Molly B's Pub on Sunday 1 July 2001, they were refused service and told "locals and regulars only" by Mr John Lynch, the owner. They maintain that this occurred because Mr Lynch recognised them as members of the Traveller community.
3 Summary of Respondent's Case
3.1 The respondent rejected that he operated a discriminatory policy against Travellers. He maintained that he refused service because the three complainants were not regulars and the pub was very busy at the time.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were 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 these complaints to myself, Brian O'Byrne, 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.
5 Background Note
These complaints are three of a total of seven complaints that were lodged against Molly B's Pub in relation to alleged acts of discrimination which all occurred on Sunday 1 July 2001. According to the original complaint and notification forms, the alleged refusals in Molly B's occurred at the following times:
4pm Michael Hegarty, Richard O'Brien and Jim Sheridan
5pm Mr A (Mr A cannot be identified as his complaint was not pursued and he did not give evidence at the Hearings)
6.30 pm Patrick O'Brien
7.30 pm Patrick Sheridan and Jerry Sheridan
The respondent, Mr John Lynch, acknowledged at the Hearing on 25 March 2004, that the refusals had taken place and said that he was satisfied that the times quoted were accurate. All six complainants, whose complaints were heard, stated at the separate Hearings that they had never visited Molly B's since it had been taken over by Mr Lynch in 1992. They maintained that the four separate visits to the pub on 1 July 2001, were taken unknowns to the others, and all denied any suggestion that their visits may have been pre-planned. Patrick O'Brien, Patrick Sheridan and Jerry Sheridan, who visited the pub at different times to Richard O'Brien, gave evidence that, in the hours and days following the refusals, they had individually encountered Richard O'Brien and had discussed with him their refusals and whether the refusals may have constituted discrimination contrary to the provisions of the Equal Status Act 2000.
On foot of these discussions, Richard O'Brien said that he made enquiries on behalf of the group and succeeded in obtaining a supply of Equal Status Act complaint and notification forms. As none of the complainants were literate, Richard O'Brien's daughter completed the notification forms (ODEI 5s) on behalf of each of the complainants. In each case, the complainant gave evidence that they had individually sat down with the daughter while she transcribed their account of the incident on to the notification forms. Richard O'Brien subsequently arranged for the submission of all seven complaints to the Equality Tribunal.
Evidence of Parties.
- Richard O'Brien owns a piece of property in Rathkeale directly across the road fromMolly B's Pub.
- He has known Mr Lynch for years as a neighbour.
- At the Hearing, Mr Lynch acknowleged that he knew Mr O'Brien and that he knew he
was a member of the Traveller community.
- On Sunday afternoon 1 July 2001, Richard O'Brien met Michael Hegarty and Jim
Sheridan in Rathkeale and they discussed a mare and foal Mr O'Brien was keeping on his property. Mr O'Brien then invited the other two to accompany him to his property to see the horses.
- Around 4 pm, they decided to go to a pub to watch the Munster Hurling Final which was on that day. As Molly B's was directly across the road, they decided to visit it.
- When they entered, Richard O'Brien ordered three Seven Ups from Mr Lynch. Mr Lynch refused to serve them, however, stating that is was "regulars only"
- Richard O'Brien then called the Gardai and, after half an hour, a Garda from Askeaton arrived. The three gentlemen gave statements to the Garda outside the pub. The Garda did not take a statement from Mr Lynch.
- The three complainants left Molly B's around 4.45 pm. Mr Hegarty and Mr Sheridan split up from Richard O'Brien at that point and went home.
- Richard O'Brien gave evidence that, around the date of the incident, he had become
aware of the Equal Status Act. As a result, he decided to make enquiries with the Equality Authority after the refusal on 1 July 2001. Having spoken to a member of staff, the Equality Authority supplied him with a number of copies of the notification and complaint forms.
- Subsequent to his refusal in Molly B's, he learned over the ensuing hours and days that other Travellers had also been refused on 1 July 2001. On learning this, he arranged for each individual to meet with his daughter and she assisted them in filling in their individual notification and complaint forms.
- At the Hearing, Mr John Lynch gave evidence that he had been on duty on Sunday 1 July 2001 in Molly B's Pub. He was running the bar by himself and only had his daughter assisting him with the collection of glasses.
- He recalls the three complainants arriving around 4 pm. He said that he knew Richard O'Brien and was aware that he was a Traveller.
- The pub was busy at the time with 30/40 customers present watching the match
- Mr Lych said that he recalls the complainants asking for 3 minerals. As it was very busy, he decided that he did not want any more customers and told the complainants that he "was only serving locals".
- Richard O'Brien asked Mr Lynch to ring the Gardai but he refused. Mr O'Brien then rang the Gardai himself. They arrived from Askeaton half an hour later and took statements from the complainants. The Gardai did not ask Mr Lynch any questions. The complainants left at 4.45pm.
Note At the Hearing of this complaint on 25 March 2004, the respondent's solicitor, Robert Lee, asked Mr O'Brien whether he had visited any other pubs that afternoon in the company of any of the other 6 complainants, apart from Michael Hegarty and Jim Sheridan. Mr O'Brien replied that he had not. The solicitor then referred to a copy of an ODEI 5 form, signed by Mr O'Brien on 5 July 2001, and sent to another pub in Rathkeale alleging that he had been refused service in that pub at 5 pm on 1 July 2001. Mr O'Brien replied that, on reflection, he thought that the other incident had occurred on another date but accepted that it may have been on 1 July 2001.
On being asked how information relating to a totally separate complaint had come into his possession, Mr Lee explained that the information had legitimately come into his possession as the other pub in question had also asked him to act as their legal representative.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community, contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being refused service in Molly B's Pub on 1 July 2001.
6.2 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Lion DEC-S2002-097/100)
7 Conclusions of the Equality Officer
7.1 Prima facie case
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) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the
treatment someone, not covered by that ground, would have received in similar
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.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as McCarthy v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of
the Traveller community. In relation to (b), there is agreement that the complainants were refused service in Molly B's Pub on 1 July 2001. To determine whether a prima facie case exists, I must, therefore, decide whether I consider that the treatment afforded the complainants was less favourable than the treatment three non-Travellers would have received, in similar circumstances.
7.4 In his defence, Mr Lynch maintains that he was very busy on 1 July 2001 when the complainants arrived and that he took a decision at that point that he was only serving locals and regulars. In considering whether Mr Lynch was acting in compliance with the Licensing Acts, I note that it is not clear from existing legislation whether a publican is obliged to serve all comers. On the other hand, it is also not clear from the Acts whether a publican has the power to refuse people they do not know. What does appear clear, however, (from reference to Cassidy on the Licensing Laws, 2nd Edition, a recognised authority on Irish licensing laws,) is that, if a refusal of service leads to a court challenge to the renewal of a publican's licence, the publican would then be required to demonstrate to the Court that the refusal was not based on whimsical or discriminatory grounds.
7.5 In this particular case, Mr Lynch maintains that the complainants were refused because he was very busy and that he only had enough time to serve his locals and regulars. In considering this argument, I find that I have a difficulty in accepting it, as Mr Lynch has admitted that he did have the time to approach the complainants at the bar and to hear their request for 3 glasses of minerals. I, therefore, cannot accept that Mr Lynch did not have the time to serve the complainants the 3 minerals requested, as, in my opinion, the supply of these three drinks would not have placed an intolerable burden on Mr Lynch. In addition, I consider that the fact that the complainants were only seeking minerals should have been a clear indication to Mr Lynch that the three men were not planning to stay long. Accordingly, for the above reason, I am not prepared to accept that Mr Lynch was entitled to refuse service on the day simply because the complainants were not
"regulars"and he was too busy.
7.6 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 purposes of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination." The nature of "good faith" in the Section 15(2) defence was considered in Conroy v Costello (DEC-S2001-014), where the Equality Officer commented that "In order to take an action in good faith it has to be free from any discriminatory motivation" In that case, the Equality Officer found that the respondent knew the complainant to be a member of the Traveller community and found that this fact had influenced the respondent's decision not to serve him. Accordingly, the Equality Officer found that discrimination had occurred.
7.7 I consider that the case before me is very similar to the above, in that I am satisfied, from the evidence before me, that Mr Lynch did recognise the complainants as members of the Traveller community and that his decision was influenced by this fact. I, therefore cannot accept that Mr Lynch's decision constituted "action taken in good faith" as provided for under Section 15(2). I, therefore, find that the complainants have established a prima facie case of discrimination on the Traveller community ground and that the respondent has failed to rebut the allegation. Accordingly, I find that the complainants were discriminated against on 1 July 2001 in Molly B's Pub contrary to the provisions of the Equal Status Act 2000.
8.1 I find that the complainants have established a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1)(a) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act. I also find that the respondents have failed to rebut the allegation.
8.2 On considering the sequence of events that occurred on 1 July 2001, I find, on the balance of probabilities, that the refusals most likely occurred in the sequence outlined in the Background Note above and agreed by Mr Lynch, meaning that Michael Hegarty , Richard O'Brien and Jim Sheridan were the first of the seven complainants to be refused in Molly B's that day. On the basis that these gentlemen were the first to visit Molly B's on 1 July 2001, I consider that their refusal occurred primarily because they were recognised as members of the Traveller community. While I am satisfied, on the respondent's own evidence, that there was a discriminatory refusal in this case, I find, in Richard O'Brien's case particularly, that there are curious inconsistencies in the evidence provided, leading me to believe that Mr O'Brien may have been less than frank in his evidence to the Tribunal in this case. For this reason, I do not consider that financial compensation is appropriate in Mr O'Brien's case. However, I do order that Mr Lynch ensures that Mr O'Brien is served in Molly B's Pub, on exactly the same basis as a non-Traveller would be served in similar relevant circumstances, should he ever decide to frequent the pub again (DEC-S2004-069). With regard to the other two complainants, I order that the respondent pay €300 each to Michael Hegarty (DEC -S2004-068) and Jim Sheridan (DEC -S2004-070) for the humiliation and loss of amenity suffered on 1 July 2001. I also order that Mr Lynch ensures that both are also served in Molly B's Pub, on exactly the same basis as a non-Traveller would be served in similar relevant circumstances, should they ever decide to frequent the pub again
17 June 2004