Thomas and Bridget Wall (represented by John O'Leary & Co., Solicitors) V The Red Cow Inn
1.1 This dispute concerns a complaint by Bridget and Thomas Wall that they were discriminated against, contrary to the Equal Status Act 2000, by the management of the Red Cow Inn, Naas Road, Dublin The complainants maintain that they were 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 the Act.
2. Summary of the Complainant's Case
2.1 The complainants state that they brought their baby with them to the Red Cow Inn, Naas Road at lunch-time on Sunday 17 February 2002 with Mr Wall's brother, his wife and their two small children (aged 3 and 1) with the intention of having a meal. At the door, the doorman refused them admission without any reason. When they called the Gardai, the doorman informed the Gardai that they had been refused because they had drink taken.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. In response to the original complaint notification, the respondents stated that the group was refused because the children were extremely unruly and boisterous. At the Hearing itself, the respondents stated that the principal reason for the refusal was that one of the party had drink taken.
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.
5.1 Evidence of Complainants, Thomas and Bridget Wall
- Thomas and Mary Wall, with their baby, had frequented the Red Cow Inn every Sunday for the previous 8 months prior to the refusal
- 17 February 2002 was the first occasion that the family were accompanied by anyone else to the Red Cow Inn
- Mr Wall's brother, Dan, and his wife, Margaret, and their two children (aged 3 and 1)
were staying with them that week (they lived in Carlow at the time)
- On 17 February 2002, the group decided to go to the Red Cow inn for their Sunday lunch. They travelled in separate vehicles.
- On arrival, they parked in the car park back to back. They had no dealings with any car park attendant that day.
- The two men carried the two younger children towards the entrance in carry chairs while Margaret Wall led the older child by the hand.
- When they reached the entrance, a doorman stepped out and said to them "Not today Lads". He refused to give any reason for their non-admittance.
- When they asked for the Manager, the doorman refused to call anyone else saying that he was the "Head of Security".
- Thomas Wall then called the Gardai. When the Gardai arrived, Thomas Wall complained that they had been refused for no reason and asked the Gardai to do something about it.
- The Gardai then spoke to the doorman who informed them that the group was refused because "they had drink taken". The complainants immediately denied this to the Gardai and Mr Wall told the Gardai that he was willing to take a breathalyzer test, if the Gardai had one with them.
- One of the Gardai, Ciaran Crowley, told them that it was a civil matter and gave Mr Wall his name and phone number if their solicitor wanted to contact him
- The group then left the Red Cow Inn and went home.
5.2 Respondents' Evidence
Note In the respondents' reply to Bridget Wall's original complaint notification about the
incident on 17 February 2002, the following was stated:
"The Car Park Attendant observed a group alight from their transport and proceed through
the car park. His attention remained on this group because the children in the party were
extremely unruly and boisterous and, in the opinion of the Attendant, were not properly
supervised by the adults in the party. In his concern for all patrons of our facilities, the
Attendant made contact with the Security Personnel, and acquainted them with that which he had observed. As a means of having first-hand knowledge of the situation, the Security Personnel went to observe the party - your party, Mrs Wall - as it approached and, having witnessed the goings on, they made a decision that they would not allow access to the group".
Evidence of Mr Pat Power, Financial Controller
- The Red Cow Inn has been run by current management since 1988
- It is a large pub with a varied clientele. A Hotel was added to the complex in 1996
- On Sundays its restaurant and carvery would normally serve up to 1500 meals
- Travellers are regular customers in the pub
- The pub does not discriminate against anyone
- The Red Cow Inn employs two Car Park Attendants whose duty is to ensure that vehicles are correctly parked
- The Car Park Attendants have walkie talkies but only use them to inform security of
situations where cars have been damaged or are blocking access
- The Attendants have no function in deciding who should or should not be admitted to the premises. This is the function of the doorstaff
Evidence of Mr Seamus Clarke, Head of Security
- He was on duty on the main entrance to the Red Cow Inn at lunch time on Sunday 17February 2002.
- He had a good view of the car park but does not recall seeing the complainants drive in or getting out of their vehicles
- He first noticed the complainant's group as they walked from the car park, about 20/25 feet away. He did not recognise the group as members of the Traveller community.
- He cannot remember if the men were carrying children at the time
- He immediately got the impression that one of the men was "very well on"
- He does not specifically recall receiving a radio call from a Car Park Attendant in relation to the group
- He then told the group that they could not go in as they had drink taken
- The complainants then decided to call the Gardai. When the Gardai arrived he told them that the refusal was because they had "too much drink"
- He gave the Gardai his name and, having spoken to the complainants, both the Gardai and the group left
- On being asked at the Hearing whether it would be normal to refuse admittance to a
group accompanied by children who appeared boisterous, Mr Clarke indicated that they would not be refused admission but that the parents would be warned to keep their children under control while on the premises.
Evidence of John Muldowney, Manager
- He was working in the Conservatory, laying tables, when he noticed the group walking through the car park.
- He said that he was struck by two factors. Firstly, he saw one of the males stumbling and, secondly, he got the impression that two of the children were "out of control" and he was concerned about their safety.
- Because of his concern, he decided to alert the doorman. However, when he reached the front door, he found that Mr Clarke had already refused them admittance.
- He said that he had no liaison with the Car Park Attendants at the time in relation to the incident.
Evidence of Gardai Crowley and Duke
- They received an instruction to go to the Red Cow Inn, Naas Road to deal with a "complaint" shortly after 2 pm on 17 February 2002
- As they arrived at the entrance in their patrol car around 2.30 pm, they were approached by 3 adults. On seeing the complainants both Gardai said that they identified them as members of the Traveller community
- While the group were very annoyed, no one was falling around or wavering and neither Garda can recall anyone appearing to be under the influence of alcohol
- When the Gardai asked the doorstaff what had happened, they were told that they had been refused because they had drink taken. When they relayed this information to the complainants, Garda Crowley said that he recalls one of them offering to undertake a breathalyzer test. As this was not appropriate to the situation, the Gardai said that they could not facilitate the request
- Garda Crowley then advised the group that, as it was a civil matter, that they should see their solicitor.
- The group then departed peacefully
6 Matters for Consideration
6.1 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 being refused service in the Red Cow Inn on 17 February 2002.
6.2 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.
7 Conclusions of the Equality Officer
7.1 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 complainants 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.
7.2 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
7.3 With regard to (a) above, the complainants have satisfied me that they are members of
the Traveller community. In relation to (b), the respondents accept that the complainants was refused admission on 17 February 2002. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 17 February 2002 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
Key Points and Factors
7.4 In deliberating on the case be before me, I consider the following pieces of evidence
to be the most important and persuasive:
- The complainants and their baby were regular visitors to the Red Cow Inn prior to 17February 2002. However, 17 February was the first time that they had visited the Red
Cow Inn as part of a larger group of Travellers.
- While the security staff have stated that they did not recognise the group as Travellers, the Garda witnesses have said that , on first sight of the complainants, they both identified them as members of the Traveller community.
- While the doorman has said that one male was "very well on" and the manager has said that he saw a man "stumbling", the Garda witnesses say that they can recall no evidence of anyone being under the influence of alcohol.
- In their original responce to the allegation of discrimination, the respondents identified the Car Park Attendant as playing a pivotal role in the refusal of admission. At the Hearing, the Head of Security, Mr Clarke, said that it was himself who first noticed the complainants and that he did not recall the Car Park Attendant making any contact with him regarding the complainants. The respondents also acknowledged at the Hearing that the functions of a Car Park Attendant did not include the "screening" of prospective customers.
- In their original responce to the allegation of discrimination, there was no reference to the complainants having drink taken. Instead the reason expressed for the refusal was that the children were "extremely unruly and boisterous" and not properly supervised. At the Hearing, however, the respondents accepted that it was not their general policy to refuse admission because of "unruly children" in the car park and stated that, in such cases, parents would usually be warned to keep their children under control as they were entering the premises.
7.5 In considering the above points, the evidence suggests that the Red Cow Inn were
happy to admit the two complainants and their baby for a number of months. It appears,
however, that the attitude towards the complainants changed when they arrived as part of a
larger group. That the doorman and manager did not recognise the group as Travellers I find hard to accept, particularly as the Gardai, who had no fore-knowledge of what the complaint was about, both say that they immediately recognised the group as Travellers on arrival.
7.6 Having deliberated on the totality of the evidence before me, I find that I have a
difficulty in accepting the respondents' evidence that the complainants' group were refused
for having "drink taken". Instead, I consider, on the balance of probabilities, that the group
were identified as members of the Traveller community on their arrival and that this was the
main reason that they were refused admission to the Red Cow Inn at lunch time on Sunday 17 February 2002. While I totally agree that a publican is entitled to refuse admission to a party where someone is drunk or where children are disorderly, the reason I consider that discrimination occurred in this case is because of the many inconsistencies in the respondent's evidence, particularly the reliance on the assertion that one of the party was drunk, an allegation that is not supported by the independent evidence given by the Gardai.
I, therefore, find that the complainants have established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainants were discriminated against on 17 February 2002 contrary to the provisions of the Equal Status Act 2000.
8.1 I find that the complainants have established a prima facie case of discrimination on
the Traveller community ground in terms of sections 3(1), and 3(2)(i) of the Equal Status
Act 2000 and that the respondents have failed to rebut the allegation.
8.2 In considering the level of redress to award, I am cognisant of the fact that the
complainants were served previously on a regular basis in the Red Cow Inn prior to the
incident under consideration. I, therefore, consider that redress of €750 for each complainant is appropriate for the hurt, humiliation and loss of amenity suffered on 17 February 2002. I also order that, should the complainants ever decide to frequent the Red Cow again, that the respondents ensure that they are welcomed on the same basis as non-Travellers would be welcomed in similar relevant circumstances,
10 September 2004