Hugh and Christine Nevin
(represented by N.J. Downes and Co Solicitors)
Equal Status Acts 200-2004- 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, Section 15 - obligations on licensees under the Licensing Acts
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 Mullingar on Wednesday 8th February, 2006.
1.1 The complainants allege that they were subjected to discriminatory treatment when they sought service in Connie's Pub in Castlepollard on the evening of 26th December 2002 and were refused by the owner/barman. They maintain that the treatment they received 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 their membership of the Traveller community The respondent denies that the complainants were refused for discriminatory reasons.
2. Summary of the Complainant's Case
2.1 The complainants said that on 26th December 2002 they had been in the company of their grandchildren for a number of hours and finding the noise and excitement of the children at Christmas a bit tiring they decided to go out for an hour or so from their home in the Mullingar area at about 9.30. They decided to go to Castlepollard some miles away and to Connie's Pub, a premises they had been in some years previously before Mr. Nevin had become a non-drinker. They entered the pub and Mr. Nevin ordered a glass of orange for himself and a glass of Guinness for his wife. They were refused and told there was a private party going on. Mr. Nevin said that he indicated that they were only going to have one drink and would then leave but they were still refused. He said he identified himself to the owner in order to establish his bona fides but they were told to leave. They did so. The Nevins said that they were embarrassed by the scene as they felt that other customers who were drinking in the pub at the time witnessed it from the other side of the pub.
3. Summary of the Respondent's Case
3.1 The respondent said that a private party for regular customers was held on his premises every St. Stephen's night and that arrangements for this were in progress when the Nevins arrived. He said that earlier in the night a group of known troublemakers who were Travellers from the Mullingar area had been in the pub and had been asked to leave. He said that some of these bore the same surname as the complainants and when Mr. Nevin identified himself to the publican, he was of the view that Mr. Nevin was in the company of this troublesome group that night. He said that someone had told him that Mr. Nevin was seen with this group earlier that night. He said he did not want trouble and he decided to refuse the couple when they sought service.
3.2 A staff member gave evidence that the complainants could not be seen or heard by other customers in the pub while they were there as the layout of the bar was such that they would not be seen through the bar areas but she acknowledged that Mr. Nevin would have been able to see other customers. Her husband who was a customer in the pub at the time also provided evidence on behalf of the respondent.
3.3 The respondent's mother gave evidence that the business was not engaged in discrimination and had always been run as an orderly pub which welcomed anyone. She acknowledged that the complainants may have been in the pub some years previously when her late husband was the licensee although she did not think she would have known the complainants.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria in relation to their complaint. They must (1) establish that they are covered by a discriminatory ground (in this case the Traveller community ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants was less favourable than the treatment someone who was not a covered by the discriminatory ground would have received in similar circumstances.
4.2 In this case it is not a fact in dispute that the complainants are members of the Traveller community, thus satisfying the first of the criteria outlined above. Furthermore it is not disputed that the complainants did not get served in the pub on 26th December 2002. In addressing the third of the three criteria, that of less favourable treatment, the evidence has been that other customers were being served drink in the pub at the time while the complainants were refused. There was no indication that the complainants were causing any trouble, only an impression in the mind of the respondent that they were associated with a group of Travellers who had been troublesome previously and which prompted him to react to Mr. Nevin providing his name by getting him to leave. In my view this is similar to the circumstances considered by the Equality officer in the Case of Mongan and Ors. -v- Waterside Hotel, where he wrote as follows:
"From the evidence before me, it is clear that Ms B..'s. decision to ask the group of nine people to leave was brought about by an over-reaction on her part to the presence of nine Travellers on her premises and the fear that others may be on the way. I can also understand that she may have been fearful for her staff and that memories of previous incidents probably played heavily on her mind at the time. The incident on .... did not, however, ..... involve people who had been drinking already. If non-Travellers had been involved on ... and circumstances had been the same, I suspect that service would have been provided and the situation monitored closely as the afternoon progressed. This did not occur in this instance. Instead, on recognising the complainants as Travellers, Ms B.. made an early decision to remove them and, in my opinion, her actions constituted discrimination on the Traveller community ground".
4.3 In the present case also I am satisfied, as was the case in the decision cited, that the respondent does not appear to have any personal bias against Travellers per se but rather against those Travellers whom he suspected were intent on causing disorder on his premises, some of whom happened to have the same surname as the complainants. In this case, on hearing Mr. Nevin's name and recognising it as the name of a Traveller family he took immediate steps to have the complainants leave the premises. I believe that if a Non - Traveller who shared a surname with a potential troublemaker and who on the evidence was also of a different generation, had entered the pub that night he would not have been refused so readily. This constitutes less favourable treatment and satisfies me that a prima facie case of discrimination on the Traveller community ground has been established.
5. Rebuttal Evidence
5.1 With regard to the occurrence of a private party on the night complained of, the evidence has been that the party while in preparation when the complainants entered the premises, was not underway as yet and customers were being served as normal at this time. As Mr. Nevin had indicated his intention to purchase only one round of drinks, i.e. a glass of orange for himself, a non drinker for over ten years, and a glass of Guinness for his wife, I do not consider that serving the complainants would have interfered with the orderly running of the party and that this party is not sufficient to rebut the case of the complainant. Furthermore I do not consider the sharing of a surname is sufficient to invoke Section 15 of the Equal Status Act, 2000.
6. Decision and Redress
6.1 On the basis of the foregoing I find that the complainants have established that they were discriminated on the Traveller community ground and therefore, the complaints (ES/2002/139 and ES/2002/140) are upheld - DEC-S2006-019. In determining the appropriate amount of redress, I am conscious that the discrimination in this case was at the lesser end of the spectrum of discrimination but nevertheless I am satisfied the effects of the refusal did cause some embarrassment and distress to Mr. and Mrs. Nevin. In finding for the complainants I must make an appropriate award for the effects of the discriminatory treatment and in this case I order the respondent to pay the complainants Hugh and Christine Nevin the sum of €350 each and that he issue a written invitation them with 42 days of this decision, to return to his premises at a time of their convenience to enjoy a complimentary drink each and also indicating that they are welcome as customers in his pub.
28th March 2006