Mary Barbara O’Driscoll & Teresa McCarthy V The Snug Bar, Cork
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a bar - Prima facie case.
1.1 This dispute concerns claims by Mary Barbara O’Driscoll & Teresa McCarthy that on 15 July, 2002, they were denied service in the respondent premises on the grounds that they are members of the Traveller community. The respondent denies that discrimination occurred. 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 then delegated the case 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 Complainants’ Case
2.1 The complainants state that they were refused service because of their Traveller status by the respondent on 15 July, 2002.
3. Summary of Respondent’s Case
3.1 The respondent states that the complainants were not refused service as they had not sought service from her. A third party who ordered drinks for the complainants was refused service by the respondent on the basis that she had enough alcohol consumed.
4 Prima Facie Case
4.1. 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 of the complainant 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 the same, or similar circumstances.
4.2 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 The complainants are Travellers and this is not disputed by the respondent. This fulfils (a) at 4.1 above. The complainants state that a third party, a non-Traveller, who ordered soft drinks on their behalf told them that the respondent stated that if the drinks were for them then they would not be served. The respondent states that the third party who was ordering drinks was refused service on the basis that she already had sufficient alcohol consumed. The complainants did not query or seek to clarify the refusal of service. The respondent made no effort to approach the complainants and/or clarify to them that she had no difficulty in serving them. While both parties disagree about the circumstances of the refusal of service, it is common case that service was denied to a third party. As the third party was ordering drinks on behalf of the complainants, and the respondent accepts that she was aware that this was the case, service was also, therefore, denied to the complainants. This fulfils (b) at 4.1 above.
In relation to key element (c)above it is necessary to examine all of the evidence.
5.2 The complainants, who live in the town where the respondent premises are located state that they had never been there before. They attended there on this occasion on foot of an invitation to a 40th birthday party.
When they arrived at the premises they went to the bar counter and attempted to get the respondent’s attention. They state that the respondent ignored them and walked up and down behind the bar a number of times without serving them. While waiting to be served the complainants engaged in conversation with three people with whom they are acquainted and who were seated at the bar, having arrived earlier. One of the acquaintances, Ms. Ann Kavanagh, offered to order a round of drinks and caught the respondent’s attention. The complainants state that, after a brief discussion with the respondent, Ms. Kavanagh turned to them and stated that the respondent had stated that, if the soft drinks which she was ordering were for the complainants, that she would not serve the complainants.
The complainants were embarrassed and upset and after a brief discussion with Ms. Kavanagh it was decided that the three would leave the premises together to prevent the complainants having to leave on their own. It was Ms. Kavanagh’s intention to return to the respondent premises at a later time. The three went to a bar nearby and were served with no difficulty. The lady who was celebrating her birthday later joined them for a drink and apologised for what had happened.
5.3 The respondent states that she witnessed the fact that Ms. Kavanagh had been drinking in another premises earlier in the day and had entered the respondent premises circa lunchtime in a drunken state. The respondent had arranged for another customer to walk Ms. Kavanagh home. Later that evening when the respondent took up duty she observed Ms. Kavanagh at the bar and quickly formed the opinion that Ms. Kavanagh had sufficient drink taken. When Ms. Kavanagh ordered drinks a short while later the respondent took the opportunity to ask Ms. Kavanagh to leave the premises. The respondent states that Ms. Kavanagh and the complainants left the premises within seconds and the respondent did not have the opportunity to speak with the complainants.
Having considered all of the evidence presented, and in the absence of evidence from any independent witnesses, I am satisfied that an inference of discrimination arises on the Traveller ground. The respondent did not produce any evidence or witnesses to corroborate her version of events on the date in question. The complainants were both quite clear in their recollection of what was stated to them by Ms. Kavanagh on the evening in question and that was that the respondent was not going to serve them, the complainants, as opposed to Ms. Kavanagh. This is supported by the fact that the complainants had difficulty in attracting service directly from the respondent when they first went to the counter area.
On balance I am satisfied that the complainants were treated in a manner which was less favourable than the manner in which non-Travellers attending at the birthday party in question were treated. The complainants have therefore satisfied (c) at 4.1 above.
6. Respondent’s Rebuttal
The respondent, as outlined above, states that she did not refuse service to the complainants. On attending at the premises on the evening in question she noticed Ms. Kavanagh was seated at the bar and was concerned that Ms. Kavanagh had had too much to drink, particularly in circumstances where the respondent had witnessed Ms. Kavanagh in an inebriated state earlier in the day. It was for this reason that she refused service to Ms. Kavanagh.
7. Conclusions of the Equality Officer
The respondent and Ms. Kavanagh are the only two people who are aware of exactly what was said in the course of their conversation, in the course of which service was refused, on the night in question. Both Ms. Kavanagh and the respondent sought to rely on other matters which at best were vague and/or imprecise and uncorroborated. Having considered all of the evidence presented by the parties I am satisfied that this matter turns on two key matters. The first is the fact that both complainants have clear and unambiguous recollection of the statement made to them on the night in question by Ms.Kavanagh, who stated to them that the respondent had said that she would not serve them, the complainants. This statement was made by Ms. Kavanagh to the complainants immediately following her conversation with the respondent, and while she was in close proximity to the respondent.
The second is that Ms. Kavanagh and the complainants went to another licensed establishment nearby and were served with no difficulty. It is likely that the owner/staff of the second premises are just as vigilant as the respondent in determining whether a patron has sufficient alcohol consumed, or not, as the case might be. On foot of the description provided by the respondent of the alleged drunken state of Ms. Kavanagh I am satisfied that service would have been instantly withheld in the second premises were it the case that Ms. Kavanagh was as clearly and obviously drunk as is alleged by the respondent.
I am satisfied, on balance, that the complainant’s were discriminated against by the respondent on the Traveller community ground.
Having considered all of the evidence provided in this matter I am satisfied, on balance, that the complainants have established a prima facie case of discrimination on the Traveller community ground contrary to Section 3(1)(a), and 3(2)(i) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act. The refusal of service was made in circumstances where the complainants were attending at a function to celebrate the birthday of one of their friends, a neighbour. As a consequence the complainants were humiliated and embarrassed in front of a number of close acquaintances and friends and were denied access to a one off function/celebration that will not be repeated. Furthermore, as the respondent has ceased to be the licensee of the respondent premises there is no opportunity for the complainants to attend at the premises and receive service from the respondent.
9.1 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.”
9.2 Under Section 27 (1) (a) and in the circumstances described at paragraph 8 above I hereby order that €1000 be paid to each of the complainants by the respondent for the effects of the discrimination.
16 June, 2005