Bridget Coffey & Ors -v- Mary Lane, Licensee, D.P. Lyons Bar, Kerry
Equal Status Act, 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Prima Facie case - Vicarious Liability.
The complainants each referred a claim 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 delegated the cases to me, Dolores Kavanagh, 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.
2 Summary of Complainant's Case.
2.1 The complainants state that they attended at the respondent premises on the evening of 26 December 2001. Bridget Coffey went to the bar and ordered a drink for herself. Tina Coffey also went to the bar and was standing behind Bridget Coffey at the bar but did not order a drink. The remaining complainants sat at a nearby table. The barwoman refused to serve Bridget Coffey on the basis that she already had drink taken. The complainants, including Bridget Coffey, deny having any drink taken prior to attending at the respondent premises.
2.2 Following the refusal of service Bridget Coffey asked to speak to the manager of the premises and was informed by the barwoman that the manager was not on the premises. Bridget Coffey saw the owner of the premises and approached her and asked for an explanation for the refusal of service. The owner of the premises stated that she was also satisfied that Bridget Coffey had drink taken and was upholding the barwoman's decision not to serve Ms. Coffey.
2.3 Bridget Coffey, complainant, then rang the local Gardai and requested that they come to the premises. When a Garda arrived Bridget Coffey explained to him that she had been refused service on the basis that she had drink taken and requested that the Garda in attendance breathalyse her to prove that she had no drink taken whatsoever.
2.4 The Garda said that there was no need to do this and that the complainants knew what to do - specifically that there was nothing they could do there and then but that they should pursue the matter through their solicitors the following day. He then requested that they leave the premises, which they duly did.
3. Summary of Respondent's Case
3.1 The respondent states that Bridget Coffey was refused service because it was immediately clear to the barwoman who refused her that she had drink taken. The barwoman made a split second decision in this regard, based on her experience in the licensed trade. The remaining complainants had not sought service at any time on the night in question and could not therefore have been refused service.
4 Prima Facie Case
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 of the complainant by the respondent
(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 circumstances.
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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5. Prima Facie Case - Complainants
5.1 I am satisfied that all of the complainants are members of the Traveller community in accordance with (a) at 4 above and this is not disputed by the respondent. Bridget Coffey, complainant, has provided written and oral evidence of refusal of service by a member of the respondent's staff, which has been confirmed by the respondent, and this fulfils (b) at 4 above in relation to Ms. Bridget Coffey. The remaining complainants state that they did not seek service on the night in question and this is confirmed by the respondent. If the remaining complainants did not seek service from the respondent they could not therefore
have been refused service. The remaining complainants have not therefore, satisfied (b) at 4 above and have not therefore established a prima facie case of discrimination in relation to the provision of a service by the respondent.
5.2 In relation to key element (c) at 4 above the refusal of service to Ms. Bridget Coffey must be shown to be such that a non-Traveller in the same circumstances would be treated more favourably. In the instant case it has been stated that Ms. Bridget Coffey was refused service on the basis that she had drink taken. The barwoman who refused service to Ms. Coffey stated that she came to this conclusion in a matter of split seconds, while Ms. Coffey asked for a drink. The barwoman in question was unable to state what precisely led her to conclude that Ms. Coffey had drink taken, other than to state that Ms. Coffey's companions were "giggling", and stated that she had not concluded that Ms. Coffey was drunk. The barwoman took no further measures to determine whether her instant reaction was well founded e.g such as engaging Ms Coffey in further discussion
to ascertain whether she had in fact any drink taken. She stated that Ms. Coffey was not disorderly in any way prior to the refusal of service.
5.3 Having considered all of the evidence provided, including the fact that Ms. Coffey requested the Garda presence and also requested that a breathalyser test be carried out on her by the attending Garda, to determine whether she had, in fact, any drink taken, I am satisfied on the balance of probabilities that Ms. Bridget Coffey was not behaving in a manner which would attract such a summary refusal of service. She displayed no signs of drunkenness and had conducted herself in an appropriate and acceptable manner prior to the refusal of service. In the circumstances I am satisfied that an inference of discrimination
arises and that Ms. Bridget Coffey, has therefore, established a prima facie case of discrimination.
6 Respondent's Rebuttal
The Respondent states that Bridget Coffey was refused service as she had drink taken and the Respondent is required to refuse service in such circumstances in accordance with the Licensing Acts.
7 Conclusions of the Equality Officer
7.1 The barwoman who refused service to Bridget Coffey did so purely on the basis that she was satisfied that Ms. Coffey had drink taken. The Respondent stated that she was also satisfied that Bridget Coffey had drink taken when she was approached by Ms. Coffey. Neither the barwoman nor the Respondent was able to give any indication as to the basis for their conclusions in this regard. They also stated that Bridget Coffey became extremely abusive following the refusal of service at which point the respondent indicated that she wanted Ms. Coffey and her companions to leave her premises.
7.2 The Respondent did not draw the conclusion that Bridget Coffey was drunk, but simply that she had drink taken. While abusive behaviour of any nature cannot be condoned, it is clear that Ms. Coffey is not accused of any such behaviour prior to the refusal of service on the night in question, and denies strongly that she indulged in any such behaviour following the refusal of service to her. Section 15(2) of the Equal Status Act 2000 provides that action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination.
In the instant case the respondent has adduced no credible evidence to show that the decision to refuse service to Ms. Bridget Coffey was required by the Licensing Acts or that the refusal was for the sole purpose of compliance with the Acts. While a great deal of latitude is generally afforded to licensees and their staff regarding when it is necessary to refuse service to persons who appear to have had sufficient or excess alcohol consumed, the only consideration of the bar person refusing service on this occasion was that Ms. Bridget Coffey "had drink taken", but the latter did not present as having "sufficient" or "excess" alcohol consumed, but rather simply "some" drink taken. If the logic applied by the bar person in refusing Ms. Coffey service were to be extended to all patrons then would every patron be refused service once they had consumed one drink or even less? This is clearly not the practice in the vast majority of licensed premises and the respondent has adduced no evidence to show that it is the established practice in her establishment. Evidence was adduced by the respondent to show that she had served two
Traveller ladies on a regular but infrequent basis prior to 2001 and that she had served some other Travellers, who were subsequently barred from the premises for misconduct, post 2001. Effectively this means that all patrons of the respondent premises at the time of the refusal of service to Ms. Bridget Coffey were non-Travellers. Therefore, Ms. Bridget Coffey was treated in a manner that was less favourable than the manner in which other, non-Traveller patrons were treated at that time.
7.3 The Garda attending at the premises on the night in question also stated that he was satisfied that Bridget Coffey had drink taken, but was also unable to give the basis for his conclusion. He did not conclude that Bridget Coffey was drunk. He did not hear or witness any foul or abusive language from Bridget Coffey, some of which the Respondent had indicated was said by Ms. Coffey directly to the Garda.
7.4 In the absence of any credible contradictory evidence I am satisfied on the balance of probabilities that Bridget Coffey was refused service on the basis of her Traveller status which is, and was at the time of the refusal of service, known to the Respondent and her staff.
8.1 I find that Christina O'Brien, Valentine O'Brien, Helen O'Brien, Anne Coffey, Helen Coffey, Mary O'Brien, Kathleen O'Brien, and Tina Coffey did not establish a prima facie case of discrimination on the Traveller community ground and in relation to their complaints I find in favour of the Respondent.
8.2 I find that Bridget Coffey, complainant, was discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
9. Vicarious Liability
While the action which constituted discrimination is directly attributable to the barwoman who refused service to Bridget Coffey, the complainant, section 42(1) of the Equal Status Act, 2000 provides that: "Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the
employer's knowledge or approval" As the barwoman was clearly acting within the scope of her employment in the course of the refusal of service to Bridget Coffey I find that the barwoman's employer, Ms. Mary Lane, Licensee, D.P. Lyon's Bar, is vicariously liable for
her actions in accordance with section 42(1) of the Equal Status Act.
10.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that: "the types of redress for which a decision of the Director under section 25
may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action which is so specified."
10.2 Under Section 27 (1) (a) I hereby order that €1000 be paid to Bridget Coffey, complainant, by the respondent for the effects of the discrimination.
10.3 Under section 27 (1) (b) of the Equal Status Act 2000 I order that the respondent immediately review all customer service practices and ensure that they are fully compliant with the Equal Status Act 2000.
23 September, 2004