Complaint under the Equal Status Act 2000
DEC – S2005-138-148
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) – Refusal of service in a pub
John Coffey, Patrick Coffey, Michael Coffey, Thomas Coffey, Martin O’Brien, John O’Brien, Patrick O’Brien, James O’Brien, Michael O’Brien , Timmy O’Brien, & John O’Brien (Represented by Lees Solicitors, Co. Kerry) V Stephen Smith (Represented by O’Sullivan Cadogan Solicitors, Co. Kerry)
John Coffey, Patrick Coffey, Michael Coffey, Thomas Coffey, Martin O’Brien, John O’Brien, Patrick O’Brien, James O’Brien, Michael O’Brien , Timmy O’Brien, and John O’Brien 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, the Director then delegated the case to me, Bernadette Treanor, 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.
Attendance at Hearing
Ten Complainants, Patrick Coffey, Michael Coffey, Thomas Coffey, Martin O’Brien, John O’Brien, Patrick O’Brien, James O’Brien, Michael O’Brien, Timmy O’Brien, and John O’Brien did not attend the hearing. On that basis they have failed to support their submitted claims of discrimination and have therefore failed to establish prima facie cases of discrimination. The respondent’s representative stated at the hearing that their case was disadvantaged by the non-attendance of these complainants. The remaining complainant Mr. John Coffey attended the hearing and proceeded with his case, without the support of the others involved in the incident.
Summary of the Complainant’s case (John Coffey)
Mr. Coffey entered the respondent’s premises with ten others at around 9pm on Christmas Eve 2001. They had no alcohol taken prior to entering as they were refused in the previous pub. The complainant was first in and ordered a drink for himself and was refused with no reason given. He asked to speak to the manager. He, and the group, were standing around for five to ten minutes until the manager arrived. When asked for a reason for the refusal the manager said “I would close my pub before I’ll serve you”. The complainant left the bar to get to a phone to call the Gardaí. When the Gardaí arrived they told the complainant’s group that there was nothing they could do and to contact their solicitor. The complainant’s group all left together at that point. The complainant denied that there was one of his group brandishing a mobile phone and he stated that Mr. O’Connor, Garda (now retired), was not present during the incident.
Summary of the Respondent’s Case
When the group entered the first person in had a mobile phone in his hand. The respondent recognised John Coffey who was third. The group was loud and all were pushing to get to the bar at the same time. The complainant John Coffey was the first to order and was refused. He had been in previously and while drinking there all evening on this previous occasion, he had asked if he could hold a function there and this was accepted. However, when the complainant wanted to pay in advance for any damage that may be done the respondent refused the function. The respondent stated that 24/12/2001 when the group entered the first and second persons were intoxicated and when he saw the complainant he recalled the request for an advance payment for damage. He decided to refuse to serve the group based on this information. The first of the group with the mobile phone said “We’ll get 50,000 for this” and called the Gardaí. John Coffey said “That’ll wipe the smile off his face”. Four Gardaí arrived within minutes and, after some discussion, left at the same time as the group. The respondent is certain that none of the group left the pub between the refusal and the arrival of the Gardaí, and that the call to the Gardaí was made in front of him. Mr. O’Connor, retired Garda and witness for the respondent, stated that when he and his other Garda colleagues arrived he asked why the call to the station had said there was a row. He was told by one of the group that the Gardaí were needed to witness the incident. In his opinion the group was intoxicated and the respondent would have been vulnerable had he served them. The group left quietly, presumably because they had their witness. He was later called to another bar where the group was involved in a disturbance. Mr. McCoy, witness for the respondent stated that the group was very noisy. The phone call to the Gardaí was made from just behind him and he was certain that nobody left the bar. He overheard the comments about the 50,000 and knocking the snigger off the respondent’s face.
Conclusions of the Equality Officer
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) Applicability of the discriminatory ground (in this case the Traveller 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 another person received, or would have received, in similar circumstances, where that person is not a member of the Traveller community.
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.
I am satisfied that the complainant is a member of the Traveller community and it is agreed that he was refused service by the respondent on 24/12/2001, satisfying both (a) and (b) above.
It is agreed that the complainant entered the respondent premises as part of a large group around 9pm on 24/12/2001. There is disagreement as to whether any alcohol had been taken by any of the group. Mr. O’Connor stated that he was present on the night and that the group was intoxicated, supporting the respondent’s evidence. An allegation was made during the hearing that Mr. O’Connor had traveled to proceedings relating to another case with the respondent publican, that he was still in contact with the local publicans and was tainting evidence. Mr. O’Connor conceded that he traveled with the publican but stated that he had not been speaking on her behalf. Two other Gardaí were directed to attend the hearing of the instant case in accordance with section 34 of the Equal Status Act, 2000. Neither were in a position to attend and both were excused. The unsupported allegations against Mr. O’Connor are insufficient to discredit his evidence, although the ideal situation would have been to hear the evidence of the other Gardaí on the matter. The complainant did not have any of the other members of the group present to support his evidence. Therefore, on this matter I accept Mr. O’Connor’s evidence that he was present and the group was intoxicated.
In this case, the publican asserts that he assessed the first two individuals as intoxicated, he assessed the entire group as loud and boisterous, and he recognised the third member of the group as a person who had previously allegedly offered payment in advance for damage which might occur during a proposed function. I am satisfied that any such large group arriving into a pub at 9pm on Christmas Eve night would draw attention to themselves and that a publican would immediately be on guard until the situation became clear. Indeed some publicans will not serve such a large group that arrives unannounced. I am also satisfied that if the respondent reached the same conclusion (in respect of intoxication and previous suspicions about potential damage to property) about a group of settled people he would refuse them also. On that basis, I am not satisfied that the complainant was less favourably treated than a non-Traveller would have been in the same or similar circumstances in accordance with (c) above. Therefore I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller ground.
Ten Complainants, Patrick Coffey, Michael Coffey, Thomas Coffey, Martin O’Brien, John O’Brien, Patrick O’Brien, James O’Brien, Michael O’Brien , Timmy O’Brien, and John O’Brien have failed to established prima facie cases of discrimination and I find that the respondent did not discriminate against them on the Traveller ground on 24/12/2001.
In respect of the case made by Mr. John Coffey, I have found that his evidence is insufficient to establish a prima facie case of discrimination and therefore I find the respondent did not discriminate against him when he was refused service on 24/12/2001.
4 October 2005