Kathleen Reilly, Nora Reilly, Mary Moran, Margaret Hutchinson and Bridget McCarthy V
Alma Pollard, Bit and Bridle, Killenaule, Co. Tipperary (Represented by the Vintners Federation of Ireland)
Equal Status Act,2000- Direct Discrimination, Section 3(1)(a) -Membership of the
Traveller Community Ground,Section3(2) - Disposal of goods and supply of services,
Section 5(1) Refusal of service in a pub.
The four complainants 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, 1998, the Director then delegated the cases to me, Gerry Hickey, 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 Complainants' case
The summary of the complainants' case is that they entered the Bit and Bridle Pub at approximately 9:00 pm on 26th December 2002 in order to celebrate the birthday of one of the party. They ordered a drink but they were not served and no explanation was given to them as why they were not being served. Very shortly after their arrival they were asked, along with a number of others, including the husbands of the complainants, who were in another part of the bar at that time, to leave. They left at this point but no explanation was given to them as to why they were being asked to leave. The complainants believe that they were refused service and asked to because of their membership of the Traveller Community. They stated that things would not have come to the point where a formal hearing of the matter was required, if an explanation had been given to them at the time as to why they were being asked to leave.
Summary of the Respondent's case
The respondent's case is that the complainants in question were not asked to leave the
premises nor were they refused service. The co-owners of the establishment had been
in possession of the business for one week only when the incident in question occurred. There had been a pub of the same name in business at that location for many years. On the day and night in question a group of men and a child had been in the pub since the early afternoon congregating mostly in the area where the pool table is located. The management had cause to speak to one of the men about the child's unruly behaviour on two occasions. Neither the child nor the father of the child, were related to the complainants. When the complainants arrived some of them spoke to the men in question and it was apparent to the management that the group which had been in the pub for the afternoon and evening was going to be significantly enlarged. This was a matter of concern to the owners as it was their view that the men had too much to drink and that they were now becoming abusive and threatening. The men, at this point, were asked to leave, which they did and the complainants followed them out.
Conclusions of the Equality Officer
At the outset I must 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 complainants was less favourable than the treatment a non-Traveller received or would have received in similar circumstances.
If and when these elements are established, the complainant has then established a prima facie case and 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. In arriving at this Decision I had particular regard to the following points which were given in evidence:
- The complainants are members of the Traveller community and the owners of the Bit and Bridle acknowledge them to be so.
- The complainants acknowledge that the pub has had a regular clientele from among the Traveller community under its previous owners and has continued to do so since the incident in question.
- At the hearing the complainants acknowledged that the respondent does not discriminate against Travellers but said that, on this occasion she did discriminate against Traveller women.
- The group of men who were in pool table area of the pub on the evening in question, included the husbands of the complainants and others were known to them.
- The complainants acknowledged that the men in question had been on the premises since early afternoon on that day but pointed out that neither their alleged behaviour nor the behaviour of the child had anything to do with the complainants.
- The respondent said that shortly after the arrival of the complainants she asked the men and the child to leave the premises. By saying "that's it lads, you've had enough." The respondent contends that she was addressing the men only but that the entire party, both men and women left at that point.
- The complainants acknowledge that they did leave at that point because they were under the impression that the request to go was addressed to all of them.
- The respondent said that the complainants were welcome on the premises at any time and that there had been no intention to discriminate against them on the day in question.
- The complainants acknowledged that the men who were asked to leave on the night in question, their husbands, are customers of the pub once again and have been served without further difficulty.
- The complainants said that the matter would not have reached the stage it had if an explanation for their not being served had been made by the respondent at the time or subsequently when the complaint was first lodged. They would have preferred a mediated settlement of the matter.
I am satisfied that the complainants are members of the Traveller community, and were recognised as such by the owners of the pub, which satisfies (a) above. The complainants allege that there was a refusal of service and that they were asked to leave. Their notification form does not provide any details as to what occurred on the night in question. The respondents heard details of the alleged events for the first time at the hearing .There is a clear conflict of evidence in relation to whether service was or was not provided to the complainants. One and only one of the complainants said they had a drink in their hand and that was said to have been given to them by a friend and not purchased at the bar. On balance I find the evidence that the complainants were not served from the bar to be more compelling. That satisfies the requirement at (b) above. However, I do not find that the treatment received by the complainants was less favourable than the treatment a non-Traveller would have received in similar circumstances. That is, in circumstances where they were on the point of joining a group of boisterous customers who had been on the premises for a long period and were being asked to leave. The men were clearly being asked to leave because of their alleged behaviour and because of the continued presence of the child and not because of their membership, for the most part, of the Traveller community.
I find that the treatment received by the complainants was not less favourable than the treatment a non-Traveller would have received in similar circumstances. The third of the key elements above (c) which needs to be established to show that a prima facie case exists, has not been met, therefore, as no prima facie case has been established, I find that the complainants were not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000.
19 March 2004