Equal Status Act 2000
Equality Officer Decision
Mr. John O'Donoghue
(Represented by J. J. Fitzgerald & Co., Solicitors)
Larry Fogarty's Public House (Thurles)
(Represented by Mr. Liam Sheehan V.F.I.)
Equal Status Act, 2000 - Direct discrimination, section 3(1) - Traveller community,
Section 3(2)(i) - supply of goods and services, Section 5(1) - access to a service in a pub, prima facie case - mistaken identity
Delegation under Equal Status Acts, 2000-2004
The complainant referred a claim to the Director of Equality Investigations on 19th March, 2002 under the Equal Status Acts, 2000. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director delegated the case to me, Marian Duffy, 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 Acts, 2000. The hearing took place in Thurles on 30th March 2006.
1.1 The dispute concerns a claim by Mr. John O'Donoghue that he was discriminated against by Larry Fogarty's Public House on the Traveller Community ground in that he was refused a service which is generally available to the public. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000 contrary to Section 5(1) of that Act.
2 Summary of the Case
2.1 The complainant said that he is a member of the Traveller community and that he entered the respondent's public house on the 3rd November 2001 with a number of friends all non-Travellers. An order was placed for the drinks by one of the friends and they were served. The complainant said that he then went to the counter to order drinks and he was refused by the owner Mr. Larry Fogarty. He was given no reason for the refusal but he believes he was refused because he is a member of the Traveller community as he was the only Traveller in the group. Ms. Anne Kirby who was in the company of the complainant on the night in question said that she was a regular customer and when she enquired why the complainant was not served that she was told by Mr. Fogarty that he was not going to serve "his type" here. As a result she said that she stopped drinking in this pub.
2.2 The respondent, Mr. Fogarty said that the complainant was refused service because of mistaken identity. He said that there was another person barred from the pub who looked like the complainant and he believes this person is related to the complainant. He said that this person was barred by a previous owner of the pub and he continued to bar him when he took over the pub. On the night in question he said that the complainant came into the pub with his partner and came up to the counter to order a drink. He said it was a busy night and while he had seen the complainant in the pub before on this occasion he mistook him for a person who was barred. Mr. Fogarty said that when he took over the pub about a year and a half before the incident and it was a very rough pub and on the advice of the Gardaí he set about cleaning it up.
3 Conclusions of the Equality Officer
3.1 The first matter for consideration is whether the complainant has established a prima facie case of discriminatory treatment. In order to establish a prima facie case of discrimination the complainant must establish that he is covered by one of the discriminatory grounds, that he was subjected to specific treatment and that he was treated less favourably than a non-Traveller would have been in similar circumstances. I am satisfied that the complainant is a member of the Traveller community and it was agreed that he was refused service. The next question for consideration is whether the complainant was treated less favourably than non-Travellers would have been treated in a similar situation. The complainant believes he was refused because he is a Traveller as a non-Traveller in his company had no difficulty in getting service. The respondent states he was refused because of mistaken identity. Mr. Fogarty stated in evidence that he thought the complainant was a man who had been barred. He said that this person came into the pub a number of times and he told him on each occasion he was barred. The respondent also said in evidence that he saw the complainant in the pub previously and had served him. He knew that the person he had barred was a Traveller but he did not know that the complainant was a Traveller until he got notification of the complaint.
3.2 If Mr. Fogarty had genuinely mistaken the complainant for the person he had barred I cannot understand why the respondent did not tell the complainant the reason for the refusal as he said in evidence that he had already told this man he had been barred on a number of occasions in the past. I am not convinced from the evidence it was a question of mistaken identity. Mr. Fogarty said that he knew the person who was barred was a Traveller yet he said that he did not recognise the complainant as a Traveller until he got the notification of the complaint. I note that it was agreed in evidence that both the complainant and the person who was barred were in the pub a number of times prior to the refusal. I have also noted the evidence of Ms. Kirby which supported the evidence of the complainant. For these reasons I have found the evidence of the complainant and his witness to be more compelling than the evidence presented by the respondent. I am therefore satisfied on the balance of probabilities that the complainant has established that he was treated less favourably than a non-Traveller was treated in similar circumstances. Mr. Fogarty's representative submitted that the refusal of service was taken in good faith in accordance with Section 15(2) of the Act. For the above reasons I am not satisfied that Mr. Fogarty decision to refuse the complainant was an action taken in "good faith". I believe that Mr. Fogarty recognised the complainant as a Traveller. It is significant that the complainant was the only Traveller in the group and that another member of the group was served yet the complainant was refused. I find that the complainant has established a prima facie case of discriminatory treatment which the respondent has failed to rebut.
4.1 On the basis of the foregoing I find that the complainant was discriminated against by the respondent on the Traveller community in terms of Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act. I order the respondent Larry Fogarty to pay the complainant the sum of €700 for the effects of the discrimination.
16th June, 2006