Equal Status Act 2000
Patricia O'Brien & Bridget Griffen (represented by Augustus Cullen & Son, Solicitors) -v- Kathleen O'Leary & Joseph Whelan, The Hitching Post, Ballycogley, Wexford
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
Delegation under the Equal Status Act, 2000
These complaints 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 these complaints 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.
This dispute concerns a complaint by Patricia O'Brien and Bridget Griffen that they were discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, by the staff of the Hitching Post, Ballycogley, Wexford on the grounds of their membership of the Traveller community. The complainants maintain that they were discriminated against in not being provided with a service which is generally available to the public, contrary to Section 5(1) of the Act.
Summary of the Complainants' Case
The complainants state that when they entered the Hitching Post on Sunday 4 August 2002 at 8.30 pm they were ignored by the barman when they sought service at the bar. They state that the barman was not busy at the time and was cleaning glasses behind the bar when they approached the counter. At most, there were only 3 or 4 customers in the bar at the time. When they eventually did get his attention after about ten minutes, the barman refused to serve them and told them to "ask the boss". A lady then appeared and told them they were not being served. She refused to give them a reason. The complainants state that they were sober, well-dressed, well-behaved and polite on the night.
The complainants believe that, on their arrival, the barman recognized them as Travellers from hearing them speak and that he refused them service on the grounds of their membership of the Traveller community.
Summary of Respondent's Case
The respondents state that they bought the Hitching Post in mid 2002 and sold it in late 2003. They say that they had only opened the pub for business a few days before the incident on 4 August 2002. They claim that they were very busy that evening as they had many customers and had underestimated the number of barstaff that would be required that night.
Ms Kathleen O'Leary said that she herself was on duty in the bar while a male barman, who they had just recruited, was on duty in the lounge. As the pub had just been opened, the opportunity had not yet arisen to provide the barman with equality training.
Ms O'Leary said that she first learned of the ladies presence when the barman came to her in the bar to tell her that some ladies wanted to see her. He explained to her that he had been busy serving other customers in the lounge and had indicated to the ladies that he would serve them in a few minutes. He told her that the ladies then started to shout at him and became abusive. At that point, he decided that he would not serve them.
When Ms O'Leary went into the lounge, she says that the ladies began shouting at her for a drink and started pushing their way in behind the bar. At that point she decided that she would stand over the barman's decision and she told them that she would not serve them. She did not give them a reason on the night.
At the Hearing on 26 April 2006, two customers who were in the Hitching Post on 4 August 2002 gave evidence. Both Mr Gary Somers and Mr Shay Furlong stated that they had arrived around 6pm and that there were 15/20 customers in the lounge when the ladies arrived around 9pm. They say that the barman was busy at the time and they recall that he told the ladies a few times that he would be with them shortly. They say that the ladies soon began to get loud and demanding service. Ms O'Leary then came into the lounge and spoke to the barman after which she told the ladies that she was not serving them.
When asked how they were contacted about the Hearing, considering that the pub had closed in 2003, they said that they still had regular contact with the then licensee, Mr Joe Whelan, through his Barber shop in Wexford Town, and that he had informed them of the Hearing.
Conclusions of the Equality Officer
In the case before me, I am faced with totally conflicting evidence as to whether the Hitching Post was busy or not when the complainants arrived on 4 August 2002. On the one hand, the complainants maintain that the pub was practically empty and the barman had nothing to do while two customers and the respondent, Ms O'Leary, state that the bar was very busy and that the barman was unable to serve the ladies when they arrived.
Clearly the most important person involved in this case is the barman who was on duty on the night. It was the barman who initially delayed serving the women and eventually made the decision not to serve them at all. Accordingly, in order to decide whether discrimination occurred, I must decide, on the balance of probability, whether or not the evidence supports the view that the barman ignored the complainants request for service on their arrival and, if he did, whether he did so for discriminatory reasons.
Therefore, in order for me to make an informed decision as to whether discrimination occurred, it is the evidence of the barman that needs to be heard. Unfortunately, however, the respondents say that they were unable to locate him in advance of the Hearing.
In the absence of the barman's own testimony at the Hearing, I find that I must rely on the evidence of those who were present when the complainants were initially refused by the barman. On the one hand, there is the evidence of the two complainants while on the other there is the contrasting evidence of the two customers. (I am discounting Ms O'Leary's evidence at this point as she was not involved in the initial refusal of service).
In considering which evidence is likely to be the more accurate, I am drawn to the fact that the complainants state that they were sober at the time while the two customers admit that they had been on the premises for a few hours and had had a few drinks.
On the basis of the above, I am prepared to accept, on the balance of probability that the complainants' recollection of events is more accurate. Accordingly, I am prepared to accept the complainants' claim that the barman did have the time and opportunity to serve them but chose not to do so because he recognized the women as members of the Traveller community. Accordingly, I find, on the balance of probability, that discrimination was a factor in the barman's refusal to serve the complainants and that his action was contrary to the provisions of the Equal Status Acts.
In considering, Ms O'Leary's role in the matter, it is obvious that she herself was not involved in the original decision and relied entirely on the barman's account of what had occurred, in deciding to support the barman's decision to refuse service.
It also must be borne in mind that Ms O'Leary did not know the barman prior to that weekend and admits herself that the opportunity had not yet arisen to provide the barman with equality training. Accordingly, I consider that, if the barman had a discriminatory motive for not serving the complainants, this would not have been obvious to Ms O'Leary on the night. As a result, I am satisfied that Ms O'Leary herself was not personally involved in any discriminatory action towards the complainants on the night in question.
It is important to note, however, that, under Section 42 of the Equal Status Acts, respondents are vicariously liable for the actions of their staff unless they can show in their defence that "they took such steps as were reasonably practicable to prevent the employee ... from doing that act". In my opinion, it has not been shown that such steps were taken in this instance as the respondents themselves admit that no equality training was provided to the barman prior to 4 August 2002.
I, therefore, consider that, while the respondent, Ms O'Leary, was not personally involved in discrimination against the complainants, that the complainants were subjected to discriminatory treatment on the night by the barman in the Hitching Post pub and that the respondents are vicariously liable for his actions.
Accordingly, I consider that the complainants have established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed to rebut the allegation.
I find that a prima facie case of discrimination has been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation.
I order that the respondents pay each of the complainants the sum of €500 for the upset and humiliation suffered on the night of 4 August 2002.
16 June 2006