Mr. Thomas Mongan V The Coachmans
Delegation under Equal Status Acts, 2000-2004
The complainant referred a claim to the Director of Equality Investigations (now the Director of the Equality Tribunal) on 11 January, 2002 under the Equal Status Acts, 2000-2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000- 2004, 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 Acts, 2000-2004.
1.1 The dispute concerns a claim by Mr. Thomas Mongan that he was discriminated against by The Coachman's Public House on the Traveller community ground The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Acts, 2000 - 2004, contrary to Section 5(1) of that Act.
2 Summary of the Complainant's Case
2.1 The complainant's case is that he entered the respondent's bar on 18th November, 2001 between 8 pm and 9pm. He asked for a pint of Cidona, but the barman refused to serve him. He said that the barman, Mr. Hardy had served him in the past. On this occasion the complainant said that Mr. Hardy told him the pub was not going to serve Travellers any more. The complainant said that he was shocked and asked for the Gardaí to be called. The Gardaí arrived at the pub and asked him to leave which he did. He said that he was a regular customer for about 3 years and he never had any difficulty in getting served.
2.2 On 23rd November the complainant called to see the manager, Mr. Michael Flaherty to discuss the reason he was refused service. Mr. Flaherty told him he was not barred from the pub, but Mr. Hardy would not serve him anymore and there was nothing he could do about it.
2.3 The complainant said he believes that he was not identified as a Traveller by the respondent until shortly before the incident on 18th of November. He said that he was usually in the pub on his own, but about one month before the incident he was with a well known Traveller in the area and he believes he was only identified as a Traveller after that. However, the complainant stated he had been in the pub on a number of occasions after this and he had been served.
2.4 In response to the respondent's case the complainant denied that he had too much alcohol consumed on the night in question. He submitted that if he had too much to drink the Gardaí, who had been called to the pub, would not have let him drive away from the pub.
3 Summary of the Respondent's Case
3.1 The respondent submitted that the complainant was not discriminated against on the Traveller community ground. Mr. Feidhlim Hardy, Assistant Manager, gave evidence that the complainant had too much to drink and it was for this reason service was refused. He said that he knew the complainant as a customer of the pub for a number of years and he also knew he was a Traveller.
3.2 The complainant entered the pub on 18th November and requested a pint. Mr. Hardy said that, in his opinion, he could not serve him alcohol as he was under the influence. Mr. Hardy denied that the complainant asked for Cidona. The complainant requested a reason for the refusal of service and Mr. Hardy told him that he had too much drink consumed. The complainant requested that the Gardaí be called and Mr. Hardy called them. Mr Hardy told the Gardaí that the complainant was not served as he had too much to drink. The Gardaí requested the complainant to leave and he did so.
3.3 Mr. Michael Flaherty, Manager, stated that he knew the complainant as a Traveller. Mr. Hardy informed him that he had refused service to the complainant because he had too much to drink. He said that he was surprised that there was a problem with Mr. Mongan as he had been drinking in the pub for a couple of years and he had no difficulty with him. On 23 November the complainant came to see him and he complained about not being served. Mr. Flaherty said that he explained that he had too much to drink on that occasion,
but that he was not barred and would be served once he had not got too much to drink.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Acts, 2000-2004 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 Acts, 2000-2004 must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.3 I have identified the key issues to establish a prima facie case as follows:
(i) Is the complainant covered by the discriminatory ground? (in this case is he a member of the Traveller community?)
(ii) Was the complainant subjected to specific treatment?
(iii) is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground, would have received in similar circumstances? I am now going to examine the issues I have identified above and consider whether the complainant has established a prima facie case.
4.4 Definition of Traveller
In the Equal Status Act, 2000 the Traveller community ground is defined as follows:
"means the community of people who are commonly called Travellers and who are identified (both by themselves and others ) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland".
I am satisfied that the complainant is a member of the Traveller community as defined by the Act.
4.5 It was accepted by both the complainant and the respondent that the complainant was refused service in the pub on the 18 November, 2001 so the second element of the test has been established.
4.6 I am now going to examine the third element of the test to see if the complainant has produced sufficient evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that he was treated less favourably than a non-Traveller would have been treated in similar circumstances. The complainant case is that he was refused service and asked to leave the pub on 18 November, 2001 for no good reason and he believes this occurred because he is a member of the Traveller community. The respondent's case is that the complainant had too much to drink and this was the reason service was refused.
4.7 I note that the complainant was a regular customer of the respondent's pub for about 3 years prior to the date he was refused. His evidence was that he was served without any difficulty up until 18 November 2001. He submitted that he was not identified as a Traveller until about one month before the date he was refused service. On that occasion he was in the respondent's pub with a well known Traveller and he believes it was only then he was identified as a Traveller. I note however, that the complainant said in evidence he was in the respondent's pub on a number of occasions following this and he was served without any difficulty. The respondent's in evidence stated he knew the complainant as a Traveller and that the pub regularly serves Travellers, as a large number of Travellers live nearby.
4.8 I am satisfied that the respondent knew the complainant is a member of the Traveller community. It is also clear he was served without any difficulty up until 18th November 2001. I am therefore satisfied something happened on the 18th November 2001 which prompted Mr. Hardy to refuse service. The complainant has provided no independent evidence to support his contention that he had no drink consumed. I find that the refusal of service was not connected to his membership of the Traveller community. I am satisfied from the evidence that the complainant was refused service because he had too much to drink. I conclude, therefore, that the complainant was not treated less favourably than a non-Traveller customer would have been treated in similar circumstances. I find that the complainant has failed to establish a prima facie case of discriminatory treatment.
5.1 On the basis of the foregoing I find that the complainant was not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Acts, 2000 -2004 and in terms of Section 5(1) of that Act.
23 November, 2004