James O’BrienVThe Licensee, The Old Forge Public House
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) – Traveller Ground, Section 3(2)(i) – Disposal of goods and supply of services, Section 5(1) - Prima facie case.
1.1 This dispute concerns a claim by James O’Brien that on 26 January 2002, he was treated in a discriminatory manner by a member of the respondent’s staff. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with his 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 this and other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of Complainants’ Case
2.1 The complainant states in his written complaint that he was treated in a discriminatory manner by a member of the respondent’s staff on 26 January 2002 when he attended at the respondent premises with his brother and ordered a drink. The barman refused to serve the complainant stating that he was acting on the manager’s instructions and that he could not serve “your kind of people”. The complainant states that the refusal was made in the presence (on the premises) of a number of people with whom he was acquainted and that he was embarrassed by the manner of the refusal.
In the absence of any further explanation for the refusal the complainant feels that he was refused because of his membership of the Traveller community which was known to the bar staff.
3. Summary of Respondent’s Case
3.1 The respondent denies that discrimination occurred and states that the complainant was refused service because he had previously been barred from the premises because he was associated with a group who had behaved in an unacceptable manner on the premises.
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 complainant. 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 – Complainant
5.1 The complainant is a member of the Traveller community and this is not disputed by the respondent. This satisfies (a) at 4.1 above. It is common case that the complainant was refused service in the respondent premises on 26 January 2002 and this satisfies (b) at 4.1 above.
5.2 In relation to key element (c) at 4.1 above I regard the following as the relevant facts in determining whether the complainant was treated in a manner which was less favourable than non-Travellers were, or would have been treated, in the same or similar circumstances:
§ Both parties gave evidence that Travellers regularly attend at the respondent premises.
§ Both parties referred to the attendance at the premises on an ongoing, but irregular, basis of the complainant, prior to the refusal of service.
§ The respondent gave evidence of incidents arising on a particular night in 1999 in the course of a Christening celebration on the premises which was attended primarily by members of the Traveller community, including the complainant. The complainant was asked by the then bar manager to intercede with some members of the Christening party who were behaving in an unacceptable manner. The complainant verified this and stated that he tried to get the people who were misbehaving to calm down, but to no avail.
§ The bar manager made the decision to bar all members of the Christening party from that date because of their behaviour and when the complainant attended at the premises the following day he was informed of this decision and that he personally was barred.
§ The complainant, in oral evidence stated that the barman who refused him service did not use the phrase “I cannot serve your kind of people” but said “I cannot serve you”.
5.3 In light of the above and having carefully considered all of the evidence presented in this matter I am satisfied that the complainant was refused service on the basis that he had been barred at an earlier date. The barring was a result of his being associated by the respondent’s bar manager with the previous incident of unacceptable behaviour. The complainant was not refused because he is a Traveller or because he was being associated with Travellers but because he was being associated with the unacceptable behaviour of the members of the Christening party. I am satisfied that non-Travellers would be refused service in the same or similar circumstances.
5.4 I would emphasise in the strongest possible terms that the complainant is not personally accused of participating in the unacceptable behaviour and in fact, the respondent bar manager could not say that the complainant had personally misbehaved in any way. However, the bar manager felt that the only way to enforce the house rules of the bar was to take a strict approach and bar all persons associated with the group who had misbehaved at the Christening party. This seems to be a particularly harsh decision in relation to the complainant in circumstances where the bar manager asked the complainant to intercede because he was known to the bar manager as a good customer, and where the complainant tried to assist the bar manager. It also seems particularly harsh that the barring continued for so long up to the date of refusal of service which is the subject of this complaint, and continues today.
5.5 The complainant has failed to satisfy key element (c) at 4.1 above and has therefore failed to establish a prima facie case of discrimination.
6.1 I find that the complainant was not 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.
17 October, 2005