John Carroll -v- Geaney's Bar, Cork
File No. ES/2002/411
Date of Issue 8 November 2005
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Discrimination on the Traveller community ground, section 3(2)(i) - Supply of goods and services, section 5(1) - Refusal of service in a pub - Vicarious Liability, section 42(1)
This dispute concerns a complaint by John Carroll that he was discriminated against, contrary to Sections 3(1), 3(2)(a) and 3(2)(i) of the Equal Status Act 2000, by Mr Tony McCarthy, of Geaney's Bar, Blackpool, Cork on the grounds of his membership of the Traveller community. The complainant states that when he visited Geaney's Bar on Christmas Eve 2001, he was refused service and ushered off the premises by a barman. He believes that this occurred because the barman recognised him as a member of the Traveller community.
The respondent rejects that the incident happened as described. He says that he himself would have been the only barman on duty that night and that he had no recollection of the incident whatsoever.
The Equality Officer said that, having listened to Mr Carroll and his witness at the Hearing, he found them to be very credible witnesses and that he was satisfied, on the balance of probabilities, that the refusal did take place as described. However, on account of Mr Carroll's uncertainty as to the identity of the person who refused him, he said that there was still a doubt in his mind as to whether the barman in question was Mr McCarthy himself or his employee.
Nevertheless, he said that he was satisfied that John Carroll had been refused service in Geaney's Bar on 24 December 2001 and that Mr McCarthy was vicariously liable for the refusal under the Act. He ordered that the respondent pay Mr Carroll the sum of €300. He also ordered that, should Mr Carroll ever decide to visit Geaney's Bar again, that he be afforded the same treatment as a non-Traveller would normally receive in similar circumstances.
Complaint under the Equal Status Act 2000
John Carroll -v- Geaney's Bar, Cork
1.1 This dispute concerns a complaint by John Carroll that he was discriminated against, contrary to Sections 3(1), 3(2)(a) and 3(2)(i) of the Equal Status Act 2000, by Mr Tony McCarthy, of Geaney's Bar, Blackpool, Cork on the grounds of his membership of the Traveller community. The complainant maintains that he was discriminated against 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 complainant states that when he visited Geaney's Bar on Christmas Eve 2001, he was refused service and ushered off the premises by a barman. He believes that this occurred because the barman recognised him as a member of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondent rejects that the incident could have happened as described. He says that he himself would have been the only barman on duty that night and that he had no recollection of the incident whatsoever.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint 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 this complaint 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.
Mr Carroll has lived as a settled Traveller in Cork for 46 years.
He only socialises at weekends or around Christmas time.
He was a regular in Geaney's Bar for many years prior to December 2001. He used to frequent that pub once or twice each week where he would meet friends from the settled community.
He was not aware of any other Travellers who drank regularly in Geaney's bar.
He had no problem getting served in the weeks immediately prior to the refusal of service on 24 December 2001.
At 7.30 pm on Christmas Eve 2001, he left the house to go out for a drink. As he was passing another pub, he met a non-Traveller friend of his, Mr Frank Rolstone, and they decided to go into that other pub for a drink.
They had 3 or 4 drinks in that pub and at 9.30 pm decided to visit Geaney's as they liked the atmosphere there.
Mr Carroll entered Geaney's Bar ahead of Mr Rolstone. As soon as he entered, a barman came out from behind the bar and ushered him back out the door saying "Your people caused me big problems here last night".
When asked at the Hearing whether the owner, Mr McCarthy, was the barman in question, Mr Carroll said that he did not think so as his recollection was that the barman was taller and had black hair unlike Mr McCarthy.
He and Mr Rolstone then went to a pub next door where they had no trouble getting served.
Shortly after 24 December, Mr Carroll heard from other customers of Geaney's that there had been "a feud between Traveller families" in Geaney's Bar on 23 December 2001.
As he felt that he had been refused because of his Traveller identity, Mr Carroll sent a notification form to Geaney's Pub in January 2002 indicating that he was considering taking an equality complaint against the pub unless he received an apology for what had happened.
In the notification to the pub owner he also made it clear that he was not seeking any money from him for what had happened, all he wanted was an apology.
He received no response whatsoever and subsequently lodged his complaint with the Equality Tribunal.
Mr Carroll has not returned to Geaney's Bar since.
Evidence of Complainant's Witness, Mr Frank Rolstone
Mr Rolstone is a non-Traveller and is a friend of Mr Carroll's for many years.
He was a regular visitor to Geaney's Bar over the years but did not frequent it between 1 December 2001 (when Mr McCarthy took over) and the date of the refusal on 24 December 2001.
He met Mr Carroll at 7.30 on Christmas Eve and they had a few drinks in another pub. They decided to visit Geaney's Bar around 9.30 pm.
Mr Rolstone was behind Mr Carroll when they entered Geaneys Bar and heard the barman making the comment "Your people caused big problems for me last night".
On hearing this, Mr Rolstone said that he knew that they were not being served and he immediately turned and left the pub. He only got a glimpse of the barman that night and would not be able to recognise him know.
Mr Carroll followed him out and they went next door for a drink.
As Mr Rolstone believed that Mr Carroll had suffered discrimination, he said that he made his mind up then not to visit Geaney's Bar again and he has not been back since .
Mr McCarthy said that he took over the lease of Geaney's Bar on 1 December 2001.
Mr McCarthy runs the bar himself in the evenings with the help of his daughter.
During the day another barman is employed until 6 pm.
All customers started with a "clean slate" from 1 December 2001 .
During the first few weeks that the pub was open, an incident occurred which resulted in him asking a small group to leave. Mr McCarthy said that he was not sure of the date but that it could have been on 23 December 2001.
He recalled that 3 men and a woman were in the bar one evening when a heated argument started resulting in the woman and a man going outside.
Shortly afterwards, a customer came in and asked "What's going on outside?". At that point Mr Mc went outside himself and found that the couple had become very loud and abusive to each other in the street.
He asked them what the problem was and pointed to the fact that there were residents living upstairs in the pub who were being disturbed. At that point, the other two men emerged form the pub. He told the group that they would have to leave and they eventually moved on.
He did not form any impression at the time as to whether or not the group were from a Traveller background.
At the Hearing on 14 September 2005, Mr McCarthy said that he had no recollection of ever having seen Mr Carroll in his bar before. He also said that he has no recollection whatsoever of having asked Mr Carroll to leave his bar on 24 December 2004.
Mr McCarthy said at the Hearing that he does keep an incident report book but that he believes that there were no entries recorded in it for December 2001.
Conclusions of the Equality Officer
Having listened to Mr Carroll and Mr Rolstone at the Hearing, I found them to be very credible witnesses and I am satisfied, on the balance of probabilities, that the refusal did take place as described. However, on account of Mr Carroll's uncertainty as to the identity of the person who refused him, there is a doubt in my mind as to whether the barman in question was Mr McCarthy himself or his employee.
Another reason which I find persuasive in thinking that the refusal must have taken place as described is the fact that Mr Carroll went to the trouble subsequently of sending an ODEI 5 notification form to Geaneys Bar describing the incident and stating "I do not want any money from you. All I want is an apology in writing from you for what you did to me". If the incident had never occurred, as claimed by the respondent, I can see no reason why Mr Carroll would have fabricated the incident considering that he was not looking for money from the respondent.
I am satisfied, therefore, that John Carroll was refused service in Geaney's Bar on 24 December 2001 by either Mr McCarthy or his employee. However, irrespective of who actually refused Mr Carroll on the night, I consider that Mr McCarthy is vicariously liable for the refusal under the provisions of Section 42 (1) of the Equal Status Act which states that "Anything done by a person in the course of his or her employment shall, in any proceedings 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".
I, therefore, find that a prima facie case of discrimination has been established on the Traveller community ground.
8.1 I find that a prima facie case of discrimination has been established by the complainant on the Traveller community ground and that the respondent has failed to rebut the allegation.
While I note that Mr Carroll indicated in the form ODEI 5 that he was not seeking money from the respondent, I consider that compensation is appropriate in this case considering that an apology was never received and I order that the respondent pay Mr Carroll the sum of €300.
I also order that, should Mr Carroll ever decide to visit Geaney's Bar again, that he be afforded the same treatment as a non-Traveller would normally receive in similar circumstances.
8 November 2005