Rosemary Stokes & Bernadette Comiskey (represented by the Equality Authority) V The Pulse Nightclub, Ballina (represented by Michael G Bohan & Co, Solicitors)
1.1 This dispute concerns a complaint by Rosemary Stokes & Bernadette Comiskey that they were discriminated against, contrary to the Equal Status Act 2000, by the management of the Pulse Nightclub, Ballina. The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1), 3(2)(b) 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 Complainants' Case
2.1 The complainants state that they were both refused admission to the Pulse Nightclub at 12.10 am on Easter Monday 16 April 2001 by doorstaff. The complainants, who said that they had no drink taken and had never been in the Pulse Nightclub before, claim that the refusal constituted discrimination on the grounds of their membership of the Traveller
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against anyone. They state that their doorstaff have no recollection of the incident and deny that the complainants would have been refused admission solely because they were members of the Traveller community.
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 Evidence of Complainants
- Neither woman had ever been in the Pulse Nightclub before
- Bernadette Comiskey said that she has lived and worked in Ballina for many years
- For the past seven years, she has been involved in community development work and is widely known for her role in promoting Travellers' rights
- Rosemary Stokes, who had lived in England for 13 years at the time, had returned to
Ballina before Easter 2001 to stay with her sister Bernadette Comiskey for a few weeks while her child was receiving treatment in a local hospital.
- Having spent a week in the hospital, the child was discharged on Easter Sunday, 15 April 2001. As the child's hospitalisation had placed a great strain on Rosemary Stokes, the women decided that they should go out with their husbands for a relaxing evening on Easter Sunday night.
- The ladies initially went to a local pub at 9 pm but say that they were refused service
there. They believe that this was because they were recognised as Travellers.
- They then went to a local cafe and had a cup of coffee. At 10.30 pm they returned home to check on the children.
- At 11 pm they came back to town and visited a Chinese Takeaway, located near the Pulse Nightclub, where the group got something to eat. While there, they noticed a lot of people entering the Pulse Nightclub and decided that they too should go in.
- Because of the earlier refusal in the pub, the ladies decided that they would approach the Nightclub first and, if they got in, the husbands could follow them
- When the arrived at the door, at 12.10 am on Easter Monday 16 April 2001, a doorman summoned Bernadette Comiskey to one side and said to her "This is a members only club". Ms Comiskey said that she was mortified and highly embarrassed as other non-Travellers were being admitted which lead her to believe that the refusal was because she had been recognised as a Traveller
- The women did not enter into any further conversation with the doorman but instead
returned to the Chinese Takeaway
- Ms Comiskey said that she knew the doorman to see for a long time but did not know his name at the time. When she returned to the Chinese Takeway, she described the doorman to an employee in the Takeaway who had no hesitation in identifying him as Liam Smith.
- The employee also told her that the Pulse Nightclub did not operate a membership
scheme at that time
- At the Hearing of the complaint on 21 July 2004, Ms Comiskey clearly identified Liam Smith as the doorman who had refused her admission at 12.10 am on Easter Monday 16 April 2001.
Evidence of Respondents
- The Pulse Nightclub was opened in 1995 in Ballina and held discos every weekend and some Wednesday nights.
- The premises was owned by Mrs Molly Maguire and the club was run by her daughter
and her husband, Gillian and Jason Neary.
- The Nightclub held up to 200 customers and had many Traveller customers according to the respondents
- The Pulse Nightclub never experienced any serious incidents where the Gardai had to be called
- No policy of discrimination was in operation at any time. Customers were only refused admission if they could not produce valid ID, were inappropriately dressed or were under the influence of alcohol.
- Where people had been barred for whatever reason, their situation would normally be reviewed after a few weeks and they would be readmitted at that stage
- The Nightclub had no membership scheme in operation in 2001 but did set one up in June 2002.
- The Pulse Nightclub closed in December 2002
- At the Hearing, Mrs Neary stated that she knew Bernadette Comiskey from years before but said that she did not know she was a member of the Traveller community
- Mr Liam Smith indicated that he would have been on duty on the night in question but
said that he had no recollection of having refused the two women admission. Mr Smith also stated, on seeing the women at the Hearing, that he had no recollection of having ever seen either of the women before.
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 membership of the Traveller community as one of the grounds. Under Section 5(1) of the Act it are 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 manner in which they were refused admission to the Pulse Nightclub on 16 April 2001.
6.2 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 discrimination could be inferred. 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.
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 complainants. 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 With regard to (a) above, the complainants have satisfied me that they are members of
the Traveller community. In relation to (b), the respondents state that their staff have no recollection of the alleged incident. To determine whether a prima facie case exists, I must, therefore, decide firstly whether I am satisfied, on the balance of probabilities, that the alleged refusal occurred on 16 April 2001 as claimed and then whether the alleged treatment was less favourable than the treatment non-Travellers would have received, in similar circumstances.
7.3 When providing their evidence at the Hearing, both complainants came across as very
sincere and genuine individuals and, from their description of the events of 15 and 16 April
2001, I am prepared to accept their evidence that the refusal took place as they describe and that they were refused admission to the nightclub at a time when non-Travellers were being admitted.
7.4 Having accepted that the refusal did take place as claimed, I must now decide whether
I consider that the treatment they received constituted discrimination under the Equal Status Act 2000. In this case, the complainants state that they were refused while non-Travellers were being admitted and argue that there was no valid reason why they should have been refused. The respondents, for their part, while saying that they have no recollection of the incident, have not provided me with any convincing explanation as to why the complainants might have been refused in the circumstances described. In the absence of any satisfactory explanation from the respondents, I consider that it is reasonable to infer, on the balance of probabilities, that the reason for the refusal on 16 April 2001 was that the complainants were recognised as members of the Traveller community on their arrival at the nightclub. I, therefore, find that a prima facie case of discrimination on the Traveller community ground has been established and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainants were discriminated against by the respondents on 16 April 2001.
8.1 I find that a prima facie case of discrimination has 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 and that the respondents have failed to rebut the allegation.
I order that each complainant be paid the sum of €500 for the hurt, humiliation and loss of
amenity suffered on 16 April 2001.
10 September 2004