John Paul McDonagh, Charles McDonagh, Patrick McDonagh, Eileen McDonagh and Brigid McDonagh (represented by Oliver Roche & Co. Solicitors) -v- The Abbey Hotel, Donegal Town (represented by Dunlevy & Barry Solicitors)
1.1 This dispute concerns a complaint by John Paul McDonagh, Charles McDonagh, Patrick McDonagh, Eileen McDonagh and Brigid McDonagh that they were discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the staff of the Abbey Hotel, Donegal Town on the grounds of their membership of the Traveller community. The complainants maintain that they were discriminated against 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 Complainants' Case
2.1 The complainants state that when they tried to enter the Abbey Hotel on Saturday 16
November 2002, they were refused admission by the manager and doorman on the grounds of their membership of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that the complainants were refused admission because some of their number and other members of their family had been barred from the pub some months earlier.
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 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 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 the treatment they received in being refused admission on 16 November 2002.
5.2 In cases such as this, the burden of proof lies with the complainant who, in order to
demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, 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 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) Existence of a discriminatory ground (e.g. the Traveller community ground)
(b) Establishment of facts to show that specific treatment occurred
(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.
6.2 With regard to (a) above, the complainants have satisfied me that they are members of
the Traveller community. In relation to (b), the respondents acknowledge that the
complainants were refused admission on 16 November 2002. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 16 November 2002 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
6.3 Key Points and Factors
In deliberating on the case before me, I consider the following factors to be the most
compelling and persuasive:
- The complainants consist of three brothers, a sister and Brigid McDonagh the wife of Charlie McDonagh. They all live in a local Halting site in Donegal Town with the
- The McDonaghs are the only Traveller family living in Donegal Town
- Patrick McDonagh stated that he used to drink regularly in the Abbey Hotel most Saturday nights for about a year but stopped drinking there 3 or 4 months before the alleged incidents in November 2002.
- Eileen McDonagh stated that she used to occasionally visit the Abbey Hotel on her own during the day time but never at night with her family
- John Paul McDonagh said that he was only in the Hotel once before, 8/9 years previously.
- Charlie and his wife Brigid say that they were never in the Abbey Hotel before
- There is agreement that the group were refused access to the Hotel on 16 November 2002. The respondents say that this was because some, if not all, of the group had been badly misbehaved in the hotel on 28/29 June 2002 during the Donegal Summer Festival.
- On that occasion, the respondents gave evidence that the McDonagh family arrived in the Hotel with some relatives from Rathkeale. There were about 15 in the group including some children. As the night wore on the group became very boisterous, spilt drinks, became abusive to staff and would not leave when asked.
- Because of the incident, the respondents say that many residents and customers left the Hotel bar early. In order to deal with the situation, the bar was closed early resulting in the group leaving of their own accord at 1.15 am when they had no more drink left.
- As all those present were members of the "McDonagh Clan" the respondents say that, as a result of the incident, a decision was taken to bar all the family from then on. This decision would have been communicated verbally, they say, to those family members who subsequently sought readmission to the Hotel.
- All five complainants deny that they were present in the Abbey Hotel on 29 June 2002 and say they know nothing of the alleged incident
- The respondents say that on 2 November 2002, four of the 5 complainants, two males and two females, sought access to the Hotel but were refused entry. They say that the Gardai were called and that a Garda, who I shall refer to as Garda A, took statements. The complainants all deny that they sought admission on 2 November and say that they had never had trouble with the Abbey Hotel previously.
- Sergeant John McFadden gave evidence at the Hearing saying that he was summoned to the Abbey Hotel on 16 November 2002. He said that his records of the night indicate that the reason given by the respondents for the refusal was that "one of the women had been messing" and had been put out of the premises a few weeks beforehand. He said that no reference whatsoever was made to an incident in June 2002.
- Sergeant McFadden said that he recalls John Paul McDonagh mentioning to him on 16 November that he had also been asked to leave 2 weeks previously "because he was a Traveller". Sergeant McFadden said that he had a clear recollection of this comment by Mr McDonagh.
- Sergeant McFadden took statements from the complainants in the weeks following 16 November. The respondents staff declined to give statements saying that the matter was being dealt with by their solicitor.
6.4 Documentation Submitted Subsequent to the Hearing
- The respondents Incident Report Book contains a reference to an incident on 28/29 June 2002. However, this report in the book is located between reports of separate incidents which occurred on 4 October 2002 and 8 December 2002.
- The respondents accept that the report of the 28/29 June incident was not written
contemporaneously. They say that this was because the instructions given to staff at the time were that only matters which could give rise to litigation, such as a fight or an injury to a patron, were to be recorded in the incident book.
- The respondents state that it was only when they were served with notice of an equality complaint in November 2002 that they felt it necessary to record details of the incident on 28/29 June 2002.
- Other incidents relating to the McDonaghs are also included in the Incident Report Book for 28/12/2002, 8/2/2003, 14/2/2003 and 19/2/2003. However, there is no reference to either 2 November 2002 or 16 November 2002 in the Book.
- The respondents also produced their List of Barring Letters which showed that in
November 2000, both Patrick McDonagh and a Tom McDonagh, who the respondents believe is the complainants' father, received letters from the Hotel's solicitor informing them that they were barred from the Hotel forthwith. Copies of the Barring Letters in question were also submitted in evidence.
- Sergeant McFadden submitted copies of the Garda Statements he took from the
complainants in which they denied that they had caused trouble in the Abbey Hotel
- The Garda Superintendent in Ballyshannon facilitated the Tribunal by checking Garda records from 2002. The records showed that Garda A was not on duty on November 2, as claimed by the respondents. The Superintendent also confirmed that the Gardai had no record of an incident in the Abbey Hotel on 28/29 June 2002 involving the McDonagh family.
- On receipt of the Superintendent's report, the respondents contacted the Gardai themselves, regarding Garda A's attendance at the Abbey Hotel, and received a response stating that Garda A did recall attending the Abbey Hotel on 12 October 2002 ( not 2 November as claimed) and dealing with a complaint therein. The report said, however, that Garda A did not make any notes of the events of that evening.
Note Some months after the Hearing itself, the respondents submitted a personal diary belonging to a member of their security staff which contained a reference to members of the McDonagh family being in the Abbey Hotel on 28/29 June 2002. As that member of staff was not present at the Hearing to give evidence at first hand, I find that I can only regard the contents of his diary as hearsay evidence and I cannot accept it as admissible evidence. I have found the information supplied by the Gardai to be helpful in this case. However, in light of the conflict of evidence over the date of Garda A's attendance at the Abbey Hotel, I find that I am unable to give any significant weight to the evidence provided regarding the events which allegedly occurred on 2 November 2002.
6.5 On considering the evidence provided at the Hearing, I find, on balance, that I am
inclined to accept the respondents evidence that a large group of people, which included
members of the McDonagh family, engaged in aggressive, insulting and threatening behaviour towards customers and staff alike on 28/29 June 2002. I am also satisfied, from the respondents' description of the behaviour involved, that the activities of the group were sufficient to justify the barring of those individuals in the future.
6.6 In their defence, the five complainants maintain that none of them were present in the
Abbey Hotel on 28/29 June 2002. The respondents, for their part, say that at least three, if not all, the complainants were there. While I have no clear evidence as to who was or was not present on the night, I find it hard to accept, on the balance of probabilities, that all of the complainants were elsewhere on the night in question. Of interest here is that, while the complainants state that they had no involvement in the incident on 28/29 June, Patrick McDonagh, who says that he had been a regular in the hotel for a year previously, has admitted that he suddenly stopped frequenting the Abbey Hotel "3 or 4 months" before the alleged incident of discrimination in November 2002, and has not offered any credible reason for his decision to do so, leading me to think that he may have been less than frank in his evidence to the Tribunal at the Hearing regarding his whereabouts on 28/29 June 2002.
6.7 As stated above, I am inclined to accept the respondents evidence that a large group of people, which included members of the McDonagh family, were barred from the Abbey Hotel as a result of engaging in aggressive, insulting and threatening behaviour towards customers and staff alike on 28/29 June 2002. I am also inclined to accept that the decision to refuse all of the five complainants on 16 November 2002 was influenced by the fact that they were recognised as belonging to the same McDonagh family who had caused trouble in the Abbey Hotel the previous June. In order to decide whether the refusal on 16 November was discriminatory, I must, therefore, consider the evidence before me and decide whether I believe the refusal was influenced solely by the fact that the family were known to be members of the Traveller community or whether other factors played a part in the decision.
6.8 In considering this case, I note that there is a similarity between it and another previous
case, McGinley v Aine's Boutique (DEC-S2003-027) where the complainant, a Traveller,
was refused service in a shop because other members of her extended family had caused
trouble previously. In that case, the Equality Officer concluded that discrimination had not
occurred as the decision to bar the complainant was because of her association with a
troublesome family, rather than because of her association with a Traveller family.
6.9 In the case before me now, I note that the complainants' father and Patrick McDonagh
himself, appear to have been regular customers of the hotel up until September 2000 when
evidence shows that they both were issued with barring letters by the hotel's solicitor.
According to Patrick McDonagh himself, he subsequently has been served in the hotel and was a regular there for a year up until Summer 2002. With regard to the other complainants, I note that John Paul McDonagh has stated that he had been served previously in the Abbey Hotel and that he had no problem getting served. For her part, Eileen McDonagh has stated that she did occasionally visit the Abbey Hotel for a drink
and that she had had no difficulty in getting served. Both have also stated that staff would
probably have known them to be Travellers at the time they were served.
6.10 On the basis of the above, it would appear that, over the years, the Abbey Hotel has had no problem in serving members of the McDonagh family as long as they behaved themselves and this is the reason I have a serious difficulty in accepting that members of the McDonagh family were refused admission to the Abbey Hotel on 16 November 2002 solely because the family were known to be members of the Traveller community. Instead, I believe that the refusal on 16 November 2002 arose from the fact that the respondents associated the group with a serious incident which occurred on 28/29 June in which members of the McDonagh family were involved.
6.11 I, therefore, consider, on the balance of probabilities, that, irrespective of whether any
of the complainants were actually present on the night in June, that it was the complainants'
family association with the group that caused trouble on 28/29 June 2002, that led to the group being refused admission rather than the fact that they were known to be members of the Traveller community. I, therefore, find that a prima facie case of discrimination has not been established in this case.
7.1 I find that a prima facie case of discrimination has not been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the
Equal Status Act 2000. Accordingly, I find in favour of the respondents in the matter.
24 September 2004