Egan's Bar (Represented by C.E. Callan & Co. Solicitors)
Equal Status Acts 2000-2004- Direct discrimination, Section 3(1)(a)- Traveller Community Ground, Section 3(2)(i)- Disposal of Goods and Services, Section 5(1)- Refusal of service- Prima facie case
Delegation under the Equal Status Act 2000
This complaint was referred to the Director of the 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 Sligo on Thursday 2nd February, 2006.
1.1 The complainant alleges that he was subjected to discriminatory treatment when he sought service in Egan's Bar, Boyle in the evening of 29th December 2001 and was refused by the owner/barman. He maintains that the treatment he received was discriminatory in terms of Section 3 (2) (i) of the Equal Status Act 2000 contrary to Section 5(1) of the Act i.e. that he was refused access to goods and services because of his membership of the Traveller community.
1.2 The respondent maintains that the complainant was not served because of his participation in an incident in the pub previously where glasses were broken and drinks were spilled on customers during a disturbance. He denies the complainant's Traveller status played any part in his decision to refuse him service.
2. Summary of the Complainant's Case
2.1 The complainant Mr O' Donnell went to Egan's bar at about 9:30 on the evening of Saturday 29th December 2001. He had been in another local pub with some friends and when he left there, he went on to Egan's. Mr. O'Donnell said that he had never been in Egan's before. He said he went into the bar approached the counter and ordered a pint of Guinness. Mr. O' Donnell said that Mr. Tommy Egan the bar owner took a glass placed it under the tap but did not fill it and then approached the complainant saying that he would not serve him. When Mr. O'Donnell asked why he was being refused, he said that Mr. Egan told him to get his solicitor. Mr. O'Donnell said that he asked for the Gardai to be called and that Mr. Egan called the Gardai at his request. When the two Gardai arrived he asked them to record his report of what had happened. Mr. O'Donnell said that at that point he left the pub and returned to a pub he had been in earlier and was served. He said that the incident in Egan's bar lasted no longer than 5 minutes. Mr O' Donnell said that there were a number of other people in the pub who were being served at the time. He said that none of these people were Travellers. Mr. O'Donnell said that the only explanation he had got for the refusal was in a written response to his notification of complaint where he was informed that the refusal was because of Mr. O' Donnell's involvement in a previous incident in the premises on St Stephen's Day 1998. Mr. O' Donnell maintained that he was not in Boyle at that time and resided in England.
3. Summary of the Respondents Case
3.1 Mr Tommy Egan said that he was the person who dealt with the complainant on the 29th December 2001 and that he refused him because he was barred since the end of 1998 when he came into the pub with his brothers and a dispute erupted. The complainant and at least one of his brothers spilled drinks and caused a mess on the premises. The complainant was asked to leave but only left after another brother of his arrived and got the group, including the complainant, who were involved in the melee to leave and go elsewhere. He said that the complainant would have been aware that he was barred from the premises from that time as the incident had been reported to the Gardai, who spoke to the complainant about the incident later, once it had been reported. Once this had been done, the respondent said he declined to make a formal statement to the Gardai on the matter as it was Christmas time.
4. Garda Evidence
4.1 Sergeant Michael Carty of Boyle Garda station gave evidence of attending Egan's bar on the evening of December 26th 1998 with another Garda following a call being received from Mr. Egan about an incident at the pub. On arrival he said he was told that there had been a disruptive incident involving the complainant, Mr. O'Donnell. Sergeant Carty said he found the premises to be in the process of being tidied up following the incident. He said that Mr. Egan asked him to speak with Mr. O'Donnell about the incident. He said that he and his colleague found Mr. O' Donnell with his brothers in another pub in the town and he spoke to Mr. O' Donnell who confirmed that he had been in Egan's and that the incident was because of a misunderstanding. On examination Sergeant Carty said that he had no doubt and was 100% certain that it was the complainant, Mr. O' Donnell, that he spoke to in Boyle that night. Sergeant Carty advised Mr. O'Donnell to keep the peace and left him believing the matter had been dealt with. A written note on the incident, sent by Sergeant Carty to the respondent's solicitor, as well as a note from the other Garda who attended the incident in December 1998, were also submitted in evidence.
5. Conclusions of the Equality Officer
5.1 I must first consider whether the complainant in this case, Tommy O'Donnell, 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. Regarding the first and second of these criteria it is not contested that the complainant is a Traveller or that he was refused service on 29th December 2001 and accordingly these two elements of the test are established. There is, however a divergence of opinion between the parties on the circumstances surrounding the treatment he received, the complainant asserting that it was less favourable treatment due to his Traveller status, as he had not been in Egan's pub before and there was no other reason he could think of for the refusal. He said he was living in England at the time of the earlier incident in 1998. The respondent submits that the complainant was in his premises on that earlier occasion and because of his actions at that time he had been barred and consequently refused service on 29th December 2001. This latter account of events is supported by the evidence of Garda Sergeant Carty who recalls attending the earlier incident in 1998 and speaking with the complainant on that night.
5.2 I must decide from the evidence, what on the balance of probabilities explains why Mr O'Donnell was refused o the evening of 29th December 2001 and whether the refusal was discriminatory. On the basis of the evidence provided I conclude that in this case the evidence of the respondent, which is supported by that of the Garda Sergeant, is more compelling than that of the complainant, Mr. O'Donnell. I therefore, conclude that on the balance of probabilities the refusal of the complainant was not less favourable treatment, as anyone who had been barred due to previous behaviour in the pub premises, would not have been served on the evening complained of. The complainant has not, therefore established a prima facie case of discrimination on the Traveller community ground.
6.1 The complainant Tommy O'Donnell, having failed to establish a prima facie case of discrimination does not succeed in his complaint of discriminatory treatment (ES/2002/0210) lodged with the Equality Tribunal and the complaint is not upheld DEC-S2006-018.
28th March 2006