Ellen Burke (Represented by Waterford Travellers CDP) V Tatty Barry's Taverns t/a Noddy's Public House (Represented by Dobbyn & Mc Coy Solicitors)
Delegation under the Equal Status Act, 2000
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 me Mary O'Callaghan, 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. The hearing of the case took place in Waterford on Friday 29th October 2004.
1.1 This dispute concerns a claim by Ms. Ellen Burke that she was discriminated against on the ground of her membership of the Traveller community when she was in Noddy's Bar, Ballybeg, Waterford. Ms. Burke alleges that the treatment she received was contrary to Section 3 (2) (i) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public she was subjected to treatment contrary to Section 5(1) of the Act.
1.2 The respondent disputes the allegation of discrimination and submits that the treatment of the complainant arose from an incident which resulted in her being barred.
2. Summary of the Complainant's case
2.1 The complainant said that she went to Noddy's bar with her husband on 30th August 2001. While she was there she was joined by her sister in law who arrived in a state of distress with her husband, having been at the funeral of her brother the previous day. She said that she didn't know which day of the week it was. The complainant said that she only went to the pub occasionally particularly on special occasions and she had not experienced problems. On the night in question she said that the group were served drink throughout their visit by different members of the bar staff. She said that she had not had any problem in the pub on previous occasions. She said that there was no refusal on that night and they left at closing time.
2.2 The complainant said that she had been trying to calm her sister in law down when the barman who was collecting glasses approached them and asked them to keep the noise down. The complainant said that she explained that she was only trying to console her sister in law and she explained why she was upset. She said there was no shouting but that her sister in law was talking to her and crying. She said that on the following day when her husband and daughter in law were in the pub he was told that she was barred as she had caused an incident in the pub.
2.3 Subsequently she returned to the pub to see the manager in the off-licence area of the pub with her daughter. She said she was told that the manager would investigate the situation and that she was not really barred and that he would check it out. She said that he mentioned there would be evidence on video, which she asked to see, but the manager said that it was private and for his use only. The complainant said that she said that she would speak to a solicitor and then left. After calling back to the pub a number of times she was finally told on 18th October 2001 after being served a drink by the barman, that she was barred. She said that the manager Mr. Morrissey then approached her and told her to leave the pub as she was barred and he threatened to call the Gardaí. She said that she never received an explanation for her barring from the management of the pub.
2.4 The complainant said that neither she nor any of her family had been back to the pub since. In her complaint form the complainant referred to the fact that the discrimination commenced on 17th March 2001 and that at that time she had considered lodging a complaint but declined to do so as she was served in the pub subsequently.
2.5 The complainant's daughter also gave evidence of returning to the pub with her mother some days after the incident complained of.
2.6 The complainant who said that she is a member of the Traveller community said she believed the reason she was barred was because of this.
3. Summary of the Respondents case
3.1 The respondent manager Mr. Brian Morrissey said that he had worked in the pub for in excess of 10 years and during that time it had changed hands a number of times. He said he was working there at the time of this incident having been invited to work there by the owners when the pub was experiencing difficulties. He said that the pub had a mixed clientele drawing a mainly local trade as it was off the main road. He said that there were a number of members of the Traveller community among the clientele. He said that overall the pub had a capacity of 300-350 patrons with the bar accommodating 70-80 customers. 3.2 He said that he knew the complainant as a fairly regular customer. He said that her husband and sons came in 2 or 3 times weekly to play pool and Ms. Burke would come into the pub to join them about once a fortnight usually later in the night after 10.00pm. He said that he considered her to have been a regular customer as she was seen regularly in the pub. Mr. Morrissey said that from his recollection, the incident precipitating this complaint occurred at approximately 12.30am on the night of 1st -2nd September rather than 30th August 2001, as outlined by the complainant. He said that at that time there were about a dozen customers in the pub and he was working there with two other staff members.
3.3 Mr. Morrissey said that his attention was drawn to the incident by the sound of breaking glass. He said that he was in the office and selected a view of the pub on the video system. By that time the incident had calmed as the complainant and her party were leaving the premises. He said that the complainant was being escorted off the premises by her husband and that one woman was being pulled by the hair. He said that the subsequent action taken by him against the complainant was in the interest of safety. He had been told by a customer that there was a row.
3.4 Mr. Morrissey said that the following day when the complainant's husband came into the pub he called him over and told him that his wife would not be welcomed back. He said that Mr Burke said they were both "at it". Mr. Morrissey said that Mr. Burke was served in the pub that day. He said that his opinion is that he does not bar people but that people bar themselves through their behaviour. He said that he knew the complainant and her family to be members of the Traveller community.
3.5 Mr. Morrissey said that the next time he encountered the complainant was about one week later when she came into the off-licence. He said that she explained that she had been trying to stop two other women from fighting. He said that he told her others had said there was a serious row and that a customer had reported it. He told Mrs Burke she was barred then.
3.6 Mr. Morrissey said that Mr. Burke continued to come into the pub after that and on occasions Ms. Burke the complainant was noticed in the pub when she sat in a quiet corner area and others bought her drink. He said that he still felt she wasn't welcome and if he spotted her he would refuse her service. Mr. Morrissey said that he had been told if he served Ms. Burke that this action under investigation here would be dropped. He said he had heard that the complainant intended calling a barman from the pub as a witness.
3.7 Regarding the availability of video tape, Mr. Morrissey said that at the time he knew of this complaint he had retained the tape in a safe place in the pub premises. However, the pub had again changed ownership since the incident and he was no longer employed there, having retired. He said he had attempted to locate the tape in advance of the hearing of this matter but had met with no success in doing so.
3.8 Mr. Morrissey said that what he had told Ms. Burke regarding the tape was that he would provide it to a solicitor or a Garda if they requested it, as it was taped on a special format and could not be accessed on a regular video player. No request was received.
3.9 Mr. Morrissey said that the complainants barring resulted from violence on her part and not because of her membership of the Traveller community.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case. In order to do so, the complainant must satisfy three criteria in relation to her complaint. She must (1) establish he is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not a member of the Traveller community would have received in similar circumstances.
4.2 In this case it is not a fact in dispute that the complainant is a member of the Traveller Community thus satisfying the first of the criteria outlined above. Furthermore it is not disputed that she has been barred by the complainant as a result of the events which occurred during the incident complained of. This is sufficient to satisfy the second criterion. The third criterion to be met by the complainant in establishing a prima facie case is whether there is evidence that the treatment afforded to the complainant by the respondent was less favourable than that which would have been given to another person in similar circumstances who was not a member of the Traveller community. In considering this third criterion I have concluded that the evidence provided by the complainant does not, on the balance of probabilities, support the contention that the treatment she received from the respondent resulting from the incident outlined was less favourable than that which would be afforded to another person who was not a Traveller in similar circumstances. I have based this conclusion of the following.
- The fact that there is clear evidence that some form of altercation took place etween the complainant and another woman (possibly her sister in law) in the pub that night which in my view would have raised concerns among those present in the pub that serious disorder might break out.
- The fact that this incident appears to have broken out late in the night approaching
closing time when it appears that the complainant and her party had been in the pub for some time and had been served earlier.
- The fact that the complainant in her complaint form raised a previous incident of
discrimination in March of 2001 yet when queried about this at the hearing was not sure if she had actually been on the pub premises that day.
4.3 Accordingly I find that the complainant Ellen Burke has not established a prima facie case of discrimination.
5.1 In circumstances where a prima facie case of discrimination has not been established by the complainant the respondent does not have any case to rebut and therefore, I find for the respondent in this case.
26th November 2004