Ms. Catriona Quilligan, Ms Theresa Quilligan Ms. Mary McCarthy, Ms. Amanda O'Brien (represented by Lees Solicitors) V. The Osborne Bar (Tralee) (Represented by Patrick Mann & Co Solicitors)
Delegation under Equal Status Act, 2000
The complainants respectively referred a claim to the Director of Equality Investigations on 1 November, 2001, 5 December, 2001 and 26 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. Catriona Quilligan, Ms Theresa Quilligan Ms. Mary McCarthy and Ms. Amanda O'Brien that they were discriminated against by the Osborne Bar on the Traveller Community ground 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 all members of the Traveller community living in Tralee, allege that they was discriminated against by the respondent contrary to the Equal Status Act, 2000 after they were refused service in the respondent's bar on 24 August, 2001. The complainants contended this occurred because they are members of the Traveller community. They submitted that they do not drink in Tralee because it is difficult to get service. On this occasion the Rose of Tralee festival was taking place in the town and they decided to go out for a drink. As they were walking up the street they saw the Osborne Bar which is about 10 minutes from their homes and they decided to enter.
2.2 Two of the complainants, Ms Catriona Quilligan and Ms Mary McCarthy were stopped at the door and asked for age identification and the other two complainants were allowed in. After having their identification checked Ms. Quilligan and Ms. McCarthy joined the other two at the counter. They submitted that the barman was at the other end of the counter serving other customers and they waited to be served. They said that they were waiting for a while to be served and two of the complainants believed that the barman was ignoring them. The barman approached them and told them that they would not be served. The complainants queried the reason and they were told it was manager's orders. They asked to see the manager but he was not available. On the way out the complainants spoke to the doorman, who had let them in, and asked why they were allowed in when he knew that they would not be served. The doorman told them that he had no problem in allowing them into the pub. He gave his name as Tony. In response to the respondent's case the complainants denied that they shouted at the barman or threatened to have the pub closed down or that they banged an ashtray on the counter.
3. Summary of the Respondent's Case
3.1 The respondent denied that the complainants were discriminated against on the Traveller community ground. They submitted that the complainants were allowed into the pub without any difficulty, but the reason they was refused service was due to their behaviour after they gained admission. The barman on duty, Mr. John McMahon, stated that the complainants became impatient while waiting to be served. He said that he was serving a group of about 10 people at the other end of the counter and he noticed one of the complainants banging an ash tray on the counter. He said that he approached them and told them he was not serving them because they were loud and abusive. One of them asked for a drink and he told them he was not serving them because of their attitude. One of the complainants said that she would close the place down. Mr. McMahon did not have any further dealings with the complainants and Mr. John Wynne, the Manager, and Mr. Tony Horgan came into the bar and the complainants left without any difficulty.
3.2 Mr. Gordan Rivington, a customer who gave evidence on behalf of the respondent, said that he was seated about 3 to 4 feet from the complainants. He said that he did not pay much attention until he heard them talking amongst themselves about why the barman was not serving them. The barman then came down to them and the complainants complained about having to wait over 5 minutes for service. The barman told them he was busy and could not serve everyone straight away. The complainants again asked to be served and the barman told them he was refusing them because of their attitude. Mr. Rivington said that he heard the complainants saying they were going to sue for discrimination. In response to a question Mr. Rivington said that he recalled an ashtray being banged before the barman came over to the complainants. He also recalled the complainants seeking to speak to the manager and being told that the manager was not available.
3.3 Mr. Tony Horgan said that he is employed in Osborne's Bar on security and he normally works on the door. He said that he was not at the door at the time the complainants entered the bar on 24 August, 2001. At some stage he recalls Mr. John Wynne the manager calling him to the bar and he identified the complainants to him. Mr. Wynne told him that they were not being served as they were abusive to the barman. Mr. Horgan said that he asked the complainants to leave and they left immediately. He said that he did not hear the complainants being abusive nor were they abusive when they were asked to leave. During his evidence he initially denied he knew the complainants as Travellers, but later in his evidence he said that he knows the complainants from around town and that he would know them as Travellers. He denied that he was on the door when the complainants entered or that they spoke to him when they were asked to leave or that he told them his name. During the hearing he expressed surprise that the complainants knew his name was Tony.
3.4 Mr. John Wynne said that he is the manager of Osborne's Bar for the past five and a half years. It is a family run business and he is one of the family. He said that it was he who admitted the complainants on the night in question after verifying the age of two of them. He was on duty on the door and about five minutes after the complainants were admitted he heard a commotion and raised voices and he thought he heard the clattering of glasses. He went to the door of the pub and he could see the complainants who were shouting at the barman. He knew from the demeanour of the barman that they were not being served. It is a policy in the bar not to override the decision of the barman who makes a decision to refuse to serve a customer. Mr. Wynne said for this reason he did not intervene on this occasion.
3.5 At this point Mr Tony Horgan came down the stairs and they both entered the bar. Mr. Wynne said that he heard a threat being made of having the place closed down if they were not served. He approached the complainants and asked them to leave. Mr. Wynne said that the complainants continued to be loud and abusive and were creating a scene. They asked to see the manager and he told them he was not on duty as it is not his policy to identify himself as a manager for security reasons. Mr. Wynne said that he identified the complainants as Travellers.
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 25 August 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 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 24 August 2001. Therefore conditions (i) and (ii) have been satisfied. In considering condition (iii) above I have examined the evidence to see if the complainants have produced sufficient 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 in similar circumstances.
4.4 The complainants contend that they were refused service in the respondent's bar on the 24 August, 2001 on the ground that they are members of the Traveller community. They submit that it was only after entering the pub that they were identified as Travellers and this was the reason they were asked to leave. 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 than the evidence of the respondent. In a number of respects the evidence provided by the respondent was less than convincing and Mr Tony Horgan chose to be less than truthful when he was asked if he knew the complainants as Travellers.
4.5 I note that the complainants said that they were standing at the bar waiting on the barman to serve them and they recognised that the barman was busy serving other customers. However, two of the complainants said that they were there about ten to fifteen minutes and they believed that the barman, who looked down a number of times, was ignoring them. They said that when he approached them after serving other customers he told them he was not serving them on the orders of the manager. Mr. John McMahon, the barman, said that while he was serving customers at the other end of the bar he noticed the complainants. He then heard a commotion and one of them banged an ash tray off the counter. On his way up to them to find out what the problem was he made up his mind not to serve them because of their behaviour. The witness for the respondent Mr. Gordon Rivington was sitting close to the complainants. His evidence was that the complainants were talking amongst themselves over why they were not being served. He did not mention anything about a commotion and he only mentioned the ash tray incident after he was asked about it. He said that when Mr.McMahon arrived up to the complainants and told them he was not serving them.
4.6 I consider that there were a number of inconsistencies in the evidence of the respondent. Mr. Tony Horgan, the doorman said that he did not recognise the complainants as Travellers. Yet later in his evidence he admitted he knew some of the complainants to see and recognise as Travellers. He was unable to give an explanation for giving such contradictory evidence. Mr. Horgan also said that he did not have a conversation with the complainants about why he had let them in but was unable to explain how the complainants knew his name to be Tony. I am satisfied that the complainants had a conversation with him either on the way in or out of the pub, otherwise they would not have known his name. I am further convinced that they had a conversation with him by the fact that Mr Horgan accepted in evidence that they could not have known his name.
4.7 Mr John Wynne said that he could hear the complainants making a commotion despite the fact he was at the door of the pub and Mr. Rivington, who was much nearer merely heard the complainants talking amongst themselves about why they were not being served. Mr. Wynne also said that the complainants were very loud and abusive after he asked them to leave but Mr. McMahon, Mr. Horgan and Mr. Rivington did not support this version of events in their evidence. In fact Mr. Horgan said that the complainants left without giving any bother.
4.8 Mr. Wynne, the manager, agreed that the complainants had asked to see the manager. The complainants said that they sought to see the manager because the barman told them they were being refused on manager's orders. I note that Mr. Wynne told the complainants a deliberate untruth and said that the manager was not available. He said that he did this on security grounds. From the evidence before me I cannot believe that there was any justifiable reason on security grounds for being untruthful to the complainants. On his own evidence Mr. Wynne allowed the complainants into the pub leading me to conclude that he had no reason at that stage to consider them a security risk. I consider it was reasonable for the complainants to seek out the manager when they were told that they were being refused service on his orders.
4.9 I am satisfied therefore on balance of probabilities that the behaviour of the complainants did not warrant a refusal of service. For these reasons I find that the complainants have established that they were treated less favourably than non Travellers customers would have been treated in similar circumstances.Consequently I find that the complainants have succeeded in establishing a prima facie case of discriminatory treatment.
4.10 The next question that must be answered is has the respondent rebutted the prima facie case? The respondent in the evidence provided gave two reasons for refusing the complainants, one the banging of an ash tray off the counter, and secondly loud and abusive behaviour towards Mr. John McMahon. In relation to the ashtray the complainants denied that any of them banged the ashtray off the counter or that they used the ashtray to attract the attention of the barman. I note from the respondents written response to the complaint that there was no reference to the ashtray. The respondent also provided in evidence a note of the incident on the daily cash reconciliation sheet and here again the ashtray was not mentioned. Mr. McMahon, the barman, in evidence said that the ashtray incident was the reason he decided to refuse the complainants. If it was the reason for refusing service I am surprised it was not mentioned until the day of the hearing. As I have already stated I found the respondent's overall evidence to be inconsistent and in particular I found the barman's evidence in relation to the ashtray less than convincing and not adequately supported by the witnesses. I conclude therefore that the ashtray incident did not occur as described.
4.11 The respondent's representative submitted that the respondent was entitled to discriminate 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." In order to invoke this Section the respondent must show that there was a substantial risk of criminal or disorderly conduct or behaviour if the complainants were 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 created such a risk prior to the refusal of service. If any words were spoken in anger by the complainants, it is clear from the evidence that this occurred after the refusal of service and was not the reason service was initially refused. In the circumstances the conduct could not be regarded as creating a substantial risk of disorderly conduct.
4.12 I am also going to examine the evidence to see if the action taken by the respondent on 24 August, 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 evidence presented by respondent and I have based this belief on the contradictory nature of the evidence presented by some of the respondent's witnesses. Likewise I am not satisfied that the decision to refuse service to the complainants was without a discriminatory motivation and consequently taken in good faith. The evidence presented has not convinced me that there was likely to be a breach of the Licensing Acts. However, overall the evidence has convinced me that the complainants were recognised as Travellers and that this was the reason for refusing them service. I find therefore, that the respondent has failed to rebut the prima facie case raised by the complainants.
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, the Osborne Bar to pay the complainants Ms. Catriona Quilligan, Ms. Theresa Quilligan, Ms. Mary McCarthy and Ms. Amanda O'Brien and the sum of €300 each as redress for the distress, inconvenience and loss of amenity caused to them by the discriminatory treatment.
30 June, 2004