John Stokes (represented by M.A. Regan, McEntee & Partners, Solicitors) V The Priory Inn, Trim
1.1 This dispute concerns a complaint by Mr John Stokes that he was discriminated
against, contrary to the Equal Status Act 2000, by the Priory Inn Pub, Trim. The complainant maintains that he was discriminated against on the Traveller community ground in terms of sections 3(1) 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
2. Summary of the Complainant's Case
2.1 The complainant states that when he sought service in the Priory Inn Pub on a Tuesday in July 2001, he was informed by the manager, Mr Rodney Leonard, that he was barred because of a serious incident in the pub involving Travellers, the previous Saturday night. Mr Stokes, who maintains that he was not present on the Saturday night, says that he was told to come back in 2 months time, when the situation would be reviewed. When he returned to the pub on 11 September 2001, he was again refused service. The omplainant
believes that he was refused admission on the grounds of his membership of the Traveller
3. Summary of Respondent's Case
3.1 The respondents, reject that a discriminatory policy against Travellers was in operation. Mr Leonard maintained that Mr Stokes was involved in the incident on the Saturday night in July and that was the reason he was not served subsequently.
4 Delegation under the Equal Status Act, 2000
4.1 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 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 Matters for Consideration
5.1 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 complainant claims that he was discriminated against on the grounds of his membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused service in the Priory Inn on 11 September 2001.
5.2 In cases such as this, the burden of proof lies with the complainant who is 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.
5.3 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 Pub
6 Conclusions of the Equality Officer
6.1 Prima facie case
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 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 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.
6.2 What constitutes "prima facie evidence' and how a "prima facie case" is established
has been documented and considered in previous cases such as Sweeney v Equinox
6.3 With regard to (a) above, the complainant has satisfied me that he is a member of the
Traveller community. In relation to (b), the respondents acknowledge that the complainant
was refused service on 11 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant on 11 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
6.4 The principal pieces of evidence before me are as follows:
- John Stokes was a regular in the Priory Inn for a number of years up until July 2001. Both parties agree that he was never involved in trouble of any kind in the pub up until that point.
- There is agreement that a serious incident involving Travellers occurred in the Priory Inn on a particular Saturday night in July 2001, as a result of which 10/12 people were barred.
- Mr Stokes maintains that he was not present on the Saturday night and only heard about the incident around the town the following Monday. From the information he received, he was able to establish that at least one cousin of his was involved.
- While he would have been acquainted with some of the others identified as having been involved in the incident, Mr Stokes said that they were not people he regularly drank with when visiting the Priory Inn.
- The complainant states that when he sought service in the Priory Inn Pub on the Tuesday following the incident in July 2001, he was informed by the manager, Mr Rodney Leonard, that he was barred because of the incident in the pub the previous Saturday night. Mr Stokes says that he replied pointing out that he himself had not been present but Mr Leonard refused to serve him.
- Mr Stokes says that Mr Leonard told him to come back in 2 months time, when his
situation would be reviewed. When he returned to the pub on 11 September 2001, he was again refused service by Mr Leonard.
- On 12 September 2001, Mr Stokes forwarded a form ODEI 5 to the respondent, notifying him that he felt that he had been discriminated against and asking for an explanation as to why he was being refused. As no responce was received, Mr Stokes contacted his solicitor and lodged a formal complaint with the Equality Tribunal.
- Mr Rodney Leonard, who was on duty himself on the Saturday night in July 2001
maintained at the Hearing that Mr Stokes was on the premises that night with members of another Traveller family and that it was this group that was involved in the trouble although Mr Stokes did not personally cause any damage.
- As a result of the serious incident, where glasses and ashtrays were thrown and a window broken, Mr Leonard barred 10/12 Traveller customers who were there that night.
- When Mr Stokes visited the pub the following Tuesday, Mr Leonard says that he told him he was barred, for his part in the incident, and that he would reconsider his position in two months time.
- Over the days and weeks following the Saturday night incident, Mr Leonard said that he was subjected to various forms of harassment by several members of the Traveller family who had been barred which led to him deciding that none of the group should be readmitted. Mr Stokes was not party to this harassment, as far as Mr Leonard can recall.
- When Mr Stokes called again on 11 September 2001 with his wife, he informed him that he was still not being served.
- Mr Leonard said that he did not respond to the ODEI 5 form as he believed that Mr
Stokes already knew the reason for the refusal to serve him.
6.5 With regard to the events of the Saturday night in July 2001, there is complete
conflict over whether Mr Stokes was on the premises that evening. While both sides agree
that a serious incident involving Travellers occurred, there is total disagreement as to whether Mr Stokes was involved. In the absence of any independent witnesses, I find that I have no clear evidence to assist me in deciding, on the balance of probabilities, whether Mr Stokes was on the premises on the Saturday night in July. Therefore, in order to decide whether discrimination occurred on 11 September 2001, when Mr Stokes revisited the pub, I propose to focus on the events subsequent to the Saturday night in July.
6.6 Section 15(1) of the Equal Status Act 2000 provides that nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person 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 provision of 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.
6.7 In considering the refusal on the Tuesday night in July, from Mr Leonard's perspective, I note that, at the time, he says that he was suffering serious harassment from members of the other Traveller family and I can understand how he may have felt that readmitting Mr Stokes, who was not directly involved in the trouble, may have led to other Travellers seeking readmission leading to a situation with the potential to "produce a substantial risk of criminal or disorderly behaviour". Accordingly, I consider that, on the Tuesday immediately following the Saturday night incident, that Mr Leonard had a genuine reason for refusing Mr Stokes and his wife and that he was acting in accordance with Section 15(1) in not readmitting Mr Stokes to the pub.
6.8 With regard to Mr Stoke's refusal on 11 September 2001, I note that, by that time,
two months would have passed since the Saturday night in July and Mr Leonard would have had more time to deliberate on the events that had occurred in July. The evidence before me shows that Mr Stokes waited the stipulated two months before returning to the Priory Inn but was once again refused service. On being refused service on 11 September 2001, Mr Stokes immediately followed the procedures outlined in the Equal Status Act 2000 and notified the respondent that he believed he had been discriminated against because of his Traveller identity and sought an explanation from the respondent for the refusal. No reply was received and Mr Stokes proceeded to lodge a complaint.
6.9 If Mr Leonard had taken the time to reflect on the events of July 2001 and had taken
the opportunity to reply to Mr Stokes, setting out the full reason for his decision to refuse
service, this may have presented Mr Stokes with the opportunity to discuss with Mr Leonard whether his recollection of Mr Stokes' presence on the Saturday night was entirely accurate, thereby possibly obviating the submission of a complaint to the Equality Tribunal. Mr Leonard did not, however, avail of this opportunity, despite the fact that Mr Stokes had been a regular customer of his prior to July 2001 and, according to Mr Leonard's own recollection of events of the Saturday night, had not had any direct involvement in the damage done. Section 26 of the Equal Status Act 2000 provides that the Equality Officer can draw an inference from the fact that a respondent did not reply to a notification under Section 21. In this case, I consider that it is appropriate for me to draw such an inference as, in my opinion, it is possible that the matter could have been resolved between the parties if the respondent had engaged the complainant in correspondence on receipt of the notification form.
6.10 In considering whether Mr Leonard was entitled, under Section 15(1), to refuse
admission to Mr Stokes when he returned to the pub after the stipulated two months, I have
taken the following into consideration
- Mr Stokes had been a regular in the Priory Inn for a number of years and, on MrLeonard's own admission, had never caused trouble.
- While maintaining that Mr Stokes was on the premises on the Saturday in July, Mr
Leonard has stated that he was not directly involved in the trouble caused.
- Mr Leonard has also said that he does not believe that John Stokes was involved in the harassment he suffered in July On the basis of the above, I cannot accept that Mr Leonard's refusal of Mr Stokes on 11 September 2001, is covered by the provisions of Section 15(1) of the Equal Status Act 2000 as there is no evidence to suggest that his readmittance at that stage would have produced a "substantial risk of criminal or disorderly conduct".
6.11 As stated above, to determine whether a prima facie case exists, I must consider
whether the treatment afforded the complainant on 11 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances. Having deliberated on the evidence before me, I find that I cannot accept that Mr Leonard would have refused admission to a non-Traveller customer in similar circumstances, where that customer had been a regular in the pub for years, had never been involved in trouble in the pub previously, only had a peripheral involvement in a serious incident that took place in the pub two months earlier and had abided by the publican's request to wait two months before returning to the pub. Instead, I consider that it was Mr Stoke's Traveller identity that was the deciding factor in whether he was to be readmitted or not to the Priory Inn and I consider that Mr Leonard's refusal to readmit Mr Stokes constituted discrimination on the Traveller community ground contrary to the provisions of the Equal Status Act 2000. Accordingly, I am satisfied that Mr Stokes has established a prima facie case of discrimination on the Traveller community ground in relation to the events of 11 September 2001 and that the respondent has failed to rebut the allegation of discrimination.
7.1 I find that a prima facie case of discrimination has been established by the
complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the
Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
7.2 In considering the level of address to award, I have taken the following points into
- Evidence shows that the Priory Inn had many Traveller customers prior to July 2001 and had no problem in serving them.
- The subsequent refusal of certain Travellers was brought about by their involvement in a serious incident in the pub in July 2001.
- There is no evidence before me to suggest that the pub has altered its general policy in relation to Travellers following the incident in July 2001.
7.3 Accordingly, I order that the respondent pay the sum of €600 to the complainant for
the hurt, humiliation and loss of amenity suffered since September 2001. I also order that any ban that still exists with regard to Mr Stokes, in relation to this specific set of incidents, be lifted by the Priory Inn.
12 March 2004