Vincent Redmond, The Cellar Public House
(Represented by Connellan Solicitors)
Equal Status Acts, 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, Establishment of Prima facie case -Vicarious liability -Section 42
Delegation under the Equal Status Act 2000
This complaint was 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 the complaint to me Mary O'Callaghan, 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 -2004. The hearing of the case took place in Athlone on Friday 7th July, 2006.
1.1 The complainant alleges he was subjected to discriminatory treatment when he went the Cellar Public House in Longford on 1st February 2003 and was refused service. He maintains that that this treatment is in breach of the Equal Status Act 2000 in terms of Section 3 (2) (i) and contrary to Section 5 (1) of the Act, i.e. that they were refused access to goods and services because of his membership of the Traveller community.
2. Summary of the Complainants Case
2.1 Mr. Michael Stokes, who said he is a Member of the Traveller community, said that he went to the Cellar Public House in Longford with a friend, Mr. Joseph Doyle, a local taxi driver, on the evening of 1st February 2003. When he went in and approached the counter to order a mineral for himself and a pint for his friend, he was followed by the doorman of the pub. When he placed his order he was refused service by the person attending at the bar who he said was a female bar tender. He sought a reason and he was not given an explanation and he then asked to speak to the manager or owner of the pub. He said that the barperson went away for a while and a few minutes later the owner of the pub Mr. Vincent Redmond arrived and confirmed that he wouldn't be served. When asked about remarks made to him by the respondent he said that Mr. Redmond told him that he did "not want any more Stokes in here". He said he did not know whether many or any of the other customers in the pub were Travellers but from his recall other people were served while he was not. He confirmed that his daughter was there with her husband who is not a Traveller and that she was a regular customer of the Cellar Public House at the time when she went there with her friends at weekends.
2.2 Mr. Stokes said that there was no reason for refusing him service as he was a non drinker after suffering a heart attack and was not drunk. He said that he had never been in trouble in the pub previously and was not a regular customer although he had been served in the pub under the management of a previous owner more than two years previously. Mr. Stokes said that he had lived in the locality for about 40 years and would be known as a member of the Traveller community and for his work in soccer coaching. In his oral evidence at the hearing Mr. Stokes said that he had gone to the pub with Mr. Doyle from his home at about 9 p.m. and had not been in any other licensed premises before going there. Mr. Stokes said that he believed the refusal of service to him was because of his Traveller status and that he considered Longford to be one of the worst towns for discriminating against Travellers. He said that this incident had prompted him to take a stand against the discrimination and he had never taken such an action before. He said he could provide the names of numerous Travellers who were relatives of his who were refused. When this incident occurred he'd had enough and felt he should do something. He had never gone back to the Cellar since that night. Mr. Stokes denied ever having been involved in a sing song in the pub.
2.3 Mr. Stokes said that while he would have known the doorman through football he had never had any problems with him previously. Mr. Stokes also provided a written account of the incident with his original complaint to the Tribunal and the contents of this will be dealt with in my conclusions
2.4 Evidence of Joseph Doyle (witness)
Mr. Doyle said he was with the complainant when he went to the Cellar Public House that night. He said that Mr. Stokes had not been well and he had called to take him out after nine o clock. He said that when they went in Mr. Stokes ordered a 7-Up and a pint and the girl behind the counter said that they would not be served. He said that the bouncer then approached them and said they would have to go. He believed there were 2-3 bouncers there that night and felt he would be familiar with the set up from his work as a taxi driver locally. He said when they spoke to Mr. Redmond the publican, who had arrived on the premises through the front door entrance, and sought an explanation they were told he did not have to give an explanation. They just walked out at that point and went to a different pub in the town. He thought he may have heard someone, possibly a bouncer, saying that no Stokes would be served there. He said he noticed a few Travellers (named) in the pub.
2.5 Evidence of William Mears (witness)
Mr. Mears said that he is Mr. Stokes son-in-law and he was in the Cellar Public House having a drink with his wife on the night of 1st February when Mr. Stokes came in with Mr. Doyle. He noticed the bouncer following them in about 30 seconds after they entered. He said that the pub was busy and he didn't actually hear what was being said as he was some feet away from the counter, but that after a few minutes Mr. Redmond came along and there was a discussion going on at the counter. He said his wife who is Mr. Stokes' daughter approached them to enquire what was going on and after Mr. Stokes and Mr. Doyle left they met up in another pub. He did not know if there were other Travellers served in the pub that night apart from his wife, who he said he believed Mr. Redmond did not know at that time, was a Traveller. He said that the pub was not his local and that he did not think he would have been known there at that time. On being questioned by the respondent's representative he said he was 100% sure that the person behind the counter who took Mr. Stokes' order was a man.
2.6 Evidence of Mary Mears (witness)
Mrs. Mears said that she is the complainant's daughter and was sitting in the pub in a corner area just inside the door when her father and his friend Mr. Doyle came in She said that she believed it was some time between 8:30 and 9 p.m. as she had been there since about 7:35. She said that shortly after she noticed something going on and Vince (Mr. Redmond) was shaking his head. She did not know how long Mr. Redmond had been there. She said she approached and her father told her he was being refused. She did not recall seeing any other Travellers there that night but acknowledged that she was served.
3. Summary of the Respondent's Case
3.1 The respondent Mr. Vincent Redmond said that he had been in business in the Longford area for about 22 years and had owned the Cellar Public House since 1999. The pub is located in the centre of the town and accommodates about 200 patrons at its busiest time at the weekends. The customers are mainly locals with a small number of passers through. He said that he had quite a few members of the Traveller community as customers of his pub. He said that he did not know the complainant Mr. Stokes before the night of the incident complained of although he said he would have seen him around the town.
3.2 In relation to the incident complained of, Mr. Redmond said that he was not in the pub when the complainant and his companion arrived but was at his home a short distance away. He said that sometime between 9:30 and 10 p.m. he received a call from either a bar man or the doorman indicating that there was an incident developing and he went to the bar. As he walked in Mr. Stokes was waiting by the bar counter and when he approached him he said that Mr. Stokes was "in his face" asking "why won't you serve me?" Mr. Redmond said that he found Mr. Stokes attitude to be aggressive and he decided at that point that, while the situation may have been resolved initially, Mr. Stokes' attitude prompted him to decide that he would not be served in the pub on that occasion. Mr. Redmond said he was not aware of anyone else being refused that night.
3.3 In relation to the initial refusal of Mr. Stokes Mr. Redmond said that he would not have been involved as he was not there and the practice in the pub was that there would be communication between the doormen and the head bar man Mr. H. (Mr. H was not in attendance at the hearing.) He said that the reasons someone would be refused service would be previous bad behaviour, aggression or drunken behaviour. He said that there was no policy in place against serving Travellers.
3.4 Mr. Redmond was asked about a matter raised in his response to Mr. Stokes initial notification of complaint where he said that the reason for refusing Mr. Stokes was his involvement in a sing song with two other men about a year previously when they refused to stop singing and leave when requested to do so as closing time approached. He said that he was not there and did not witness the incident but that he was aware of it and that his barman had told him about it and he understood that Mr. Stokes had been there on that occasion. He said he had not seen Mr. Stokes in the pub at any time before the night of the incident complained of but that would not be unusual as he generally was only in the pub to set up for opening and late at night.
4. Conclusions of the Equality Officer
4.1 At this point in my considerations the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant in this case, Michael Stokes, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that he is covered by the relevant discriminatory ground i.e., in this case, that he is a member of the Traveller community. It must also be established that the actions complained of actually occurred and finally it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not a Member of the Traveller community. If he fails to establish any of these three facts, then he does not establish a prima-facie case and his complaint of discrimination falls. If he does establish a prima facie case the burden of proof shifts to the respondent who must then rebut the case of the complainant if the complaint is to fail.
4.2 In relation to the first point to be established, it is not contested that the complainant is a member of the Traveller Community. The second point, that the action complained of actually occurred is also uncontested in that all parties agree that the complainant was refused in the respondent's premises on 1st February 2003.
4.3 In relation to the third point to be established in order for a prima facie case to be established that of less favourable treatment I have considered the evidence, both that submitted in advance of the hearing and that presented at the hearing. In his written submission the complainant, Mr. Michael Stokes stated that contrary to the assertion in the respondent's response to his notification, he had never been in the pub in the company of two men and that he did not commence a sing song. I am satisfied that on the balance of probabilities he was not involved in this sing song and that it did not play a part in the refusal of service to him that night. It is the complainant's alleged involvement in this alleged incident which has been said to underpin the initial refusal of Mr Stokes on the evening complained of. The evidence of the respondent, Mr. Redmond, regarding Mr. Stokes involvement in the sing song is inconsistent in that it is alleged in the response to the notification of complaint that Mr. Stokes commenced the sing song yet at the hearing of this case he said that Mr Stokes' role in this was subsidiary and he did not lead it. No witnesses appeared at the hearing to give direct evidence of what happened on the night of the alleged sing song. Mr. Redmond also said that he did not know Mr. Stokes apart from seeing him around the town yet he maintained that he knew of his involvement in the sing song.
4.4 The evidence has been that Mr. Stokes was in the company of someone who was not a member of the Traveller community when he went to the pub that night. There has been no evidence that either of the two men had drink taken on arrival in the pub and in fact Mr. Stokes stated that his intention on the night was to have a non alcoholic beverage because of his medical condition. I am satisfied that if there was less favourable treatment it occurred at the point of the initial refusal and not when Mr. Redmond appeared on the scene when Mr. Stokes was in an irate state as a result of this initial refusal. Nevertheless, if a discriminatory refusal occurred, the principles of vicarious liability as set out in Section 42 of the Equal Status Act would apply.
4.4 However, I must also consider that in determining facts surrounding that initial refusal I am without the benefit of evidence from the person who actually refused the complainant and I am faced with conflicting evidence as to who that person was, the complainant and Mr Doyle in their oral evidence alleging it was a female member of staff and Mr. and Mrs. Mears indicating it was a man. The respondent has also submitted the staff member was male. I further note that in Mr Stokes written submission he indicated that it was not the barman who refused him and that the barman who he named in that submission actually indicated that there would be no problem serving him. It was the doorman who was the instigator of the refusal. I note, however, that in his oral evidence at the hearing, he also said that he had not been in the pub during its time under Mr. Redmond's management before the evening complained of. The evidence of the respondent and which was not challenged is that he had been running the pub since 1999. This statement contrasts with that made in Mr. Stokes' written submission that he had been served in the pub without difficulty in the year leading up to the incident being dealt with herein. This was denied at the hearing and Mr. Stokes said that the written submission was prepared for him by a daughter of his.
4.5 There has been evidence from both sides to this complaint that no one other than Mr. Stokes and his associate were refused by the barman that night.
4.6 In the light of the evidence above anddespite the inconsistencies in the evidence of both parties. I consider that the complainant has provided me with sufficient evidence to establish on the balance of probabilities that he received less favourable treatment than someone in similar circumstances who was not a member of the Traveller community would have received. I conclude, therefore, he has established a prima facie case of discrimination. The rebuttal of the respondent rests primarily on the complainant's involvement in the alleged sing song which I have not been convinced he was involved in. Therefore, the rebuttal offered is insufficient.
5.1 The complainant Michael Stokes established a prima facie case of discrimination which was not rebutted and therefore succeeds in his complaint ES/2003/0164. I do not believe that Mr. Stokes did anything on the evening complained of to prompt the initial refusal, whoever made it. In this case I order that the respondent pay the complainant the sum of €300 (three hundred euro) as redress. I also order that the respondent issue an invitation in writing to Mr. Stokes to return as a customer to his pub indicating that he will be welcomed under the same conditions as any other customer (DEC-S2006-059).
31st July 2006