Equal Status Acts 2000-2004
Equality Officer Decision
Stephen McCarthy, Nora Coffey and Teresa McCarthy
(Represented by Maurice O'Sullivan, Solicitor)
Lartigue Enterprises Ltd. t/a Ballybunion Golf Hotel
(Represented by Lees 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.
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 the complaints 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 Tralee on Thursday 3rd August, 2006.
1.1 The complainants allege that they were subjected to discriminatory treatment when they were refused admission without tickets to events at the Ballybunion Golf Hotel on dates in May and June 2002. They maintain 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 their membership of the Traveller community.
2. Summary of the Complainant's Case
2.1 The complainants, two of whom were resident in the Listowel area and the other from Castleisland lodged complaints relating to the refusal of access to musical events at the Ballybunion Golf Hotel in 2002. Mr. and Mrs. McCarthy complained about admission to an event on 30th May 2002 while all three complainants lodged complaints about the circumstances surrounding their attendance at another event at the same venue some two weeks later on 13th June 2002.
2.2 The evidence concerning the first occasion is that the complainants Mr. and Mrs McCarthy sought to attend a concert at the venue on 30th May 2002 and were turned away as they were told that they had to have tickets and the venue was full. They believed their Traveller status was an issue in the refusal. They subsequently met some people who had tickets and asked them to sell the tickets to them which they did and the complainants were admitted to the event. They later discovered that the people who sold them the tickets were also admitted to the event when they returned later without their tickets. These people were known to the management of the venue.
2.3 The couple who sold the tickets to the complainants on that occasion confirmed at the hearing that they had sold on the complimentary tickets they had received for the event on 30th of May, a Declan Nerney concert. They also confirmed that they gained access subsequently after discussions with the management as a relative of theirs was connected with the organiser of the event.
2.4 The concert on 13th June 2002 was also a ticket only event and the complainants booked tickets at a music shop in Listowel owned by one of the owners of the hotel venue. Mr. McCarthy said that he went to the shop and booked two tickets for himself and his wife. He said he paid over the money and said his name was put in a book and he was told to show up at the hotel venue that night where they would have the names of those who were booked to attend. Mrs. McCarthy went to the shop separately that day and booked four tickets. She had invited some relatives along to the concert as it was her husband's birthday. In this case also the names were put in a book and she was told to attend at the venue where the door staff would have a list of attendees. In both instances the complainants said that they paid over the cost of the tickets to the shop assistant. The third complainant, Mrs. Coffey said that she did not deal directly with the shop as Mrs. McCarthy had made the booking for Mrs. Coffey herself and Mrs Coffey's now deceased husband.
2.5 Later that night the McCarthy's and their four companions, including Mrs. Coffey the third complainant, went to Ballybunion where they all met up in a local bar for a drink before going on to the concert at about 10:00 p.m. When they got to the venue, Mr. McCarthy approached the desk and he met Mr. Michael Carr the event organiser who told him that the concert was booked out and that his money had been returned to Mr. McCarthy's niece who worked in a chip shop in Listowel called Jumbo's. The complainants said that they persisted in pleading their case to gain admittance and remained on the premises for a period approaching an hour. Ultimately, Mr Carr took them aside and made them an offer of tickets for another event in Killarney which he was organising, Mr. McCarthy said this was not what they wanted and they left. Mr. McCarthy said that people who knew him and the other complainants saw them walking out and this embarrassed them.
2.6 They did receive their money back through Mr. McCarthy's niece to whom it had been refunded. The following morning Mr. McCarthy returned to the shop where he had made his booking and sought an explanation for his money being returned and for his tickets being unavailable when he turned up at the venue with his party the previous night. He said that he saw the book where his and the other members of the party's names had been entered and the six names were crossed off. He said that the six names were listed one after the other in sequence and that neither the names of those entered above the six nor those entered below were deleted in this manner.
2.7 On being asked, both Mr. and Mrs McCarthy said that they got no receipt for their money when they booked the tickets nor were they provided with any other evidence of their purchase.
2.8 Each of the three complainants said that they believed they were treated in the way they were because they were members of the Traveller community and they could see no other reason why they were refused entry.
3. Summary of the Respondent's Case.
3.1 The respondent Mr. Michael Carr and his wife Mrs. Martina Carr said that they had taken over the Ballybunion Golf Hotel a short time before the incidents complained of and that they were launching a number of music events at the venue as a new dimension to the business. Mr. Carr said that he was experienced as an entertainment promoter. The Carrs said that they were also involved in the running of the music shop in Listowel where the complainants said they purchased their tickets. The first of the events they had organised was the Declan Nerney concert on 30th May and Mr. Carr said that they sold more tickets than the venue could hold on the assumption that not everyone would turn up. It was ticket only event as was the latter event on 13th June. Mr. Carr said that when Mr. and Mrs. McCarthy turned up the venue was already very full so he said he informed the McCarthys that it was ticket only. He said that the McCarthys were subsequently spotted on the venue's security camera system talking with the person who sold on his tickets to them. However, when they did return to the venue with the tickets, he said he had to let them in. Mr. Carr said that following the problems that arose with crowding at the venue that night, he was informed by the authorities that he must limit numbers attending events in the future. From then on he restricted the number of tickets available through a limited number of outlets and only those with tickets would be admitted. He said that a specified number of tickets for the June 13th event, a Paddy O'Brien concert, were distributed to the music shop in Listowel on the understanding that once these were sold no other money should be taken for the event.
3.2 Mr Carr said that the shop assistant told him that she was given the money for the tickets by Mr. McCarthy and Mrs. McCarthy and was asked to note their names in case there was a cancellation. Mrs. Carr said that the only book used in the shop for anything like this was a book which was used for keeping the names of people who had ordered records that were not in stock and she presumed the names may have been put in this. It was considered strange, however, that the names would have been written in sequence if the McCarthys had come in several hours apart to book the tickets. Mr. McCarthy had said that the shop assistant told them that any cancelled tickets would only be available at the door of the venue on the night. Mr. Carr said that when he came to close up the shop that evening, the assistant showed him the money and he told her she should not have taken money for tickets she did not possess to sell and she was to return it to the McCarthys before they left for Ballybunion for the concert. It was then it was given to Mr. McCarthy's niece in the chip shop, whom he understood returned it to the McCarthys the next day.
3.3 He said that when the McCarthys and the others in their party arrived at the venue they were told that they required tickets for entry and that as they had not got any tickets or proof of purchase of same they would not be admitted. He confirmed to the complainants that the money they had left with the shop assistant had been returned via Mr. McCarthy's niece. Mr. Carr said that the group refused to leave for some time and Mr. McCarthy, in particular, remained by the counter area. After a while when it became apparent that some of those who had purchased tickets had not turned up, three tickets became available and he offered them to Mr. McCarthy who refused indicating that either all of the party should get in or none. Mr. Carr said that since he was aware that some of the group had travelled from Castleisland he then offered tickets to another event he had organised in Killarney but this offer was also refused. He said that eventually the group left.
3.4 Mr. Carr said that he stopped organising events such as those on 30th May and 13th June soon afterwards, as the numbers of patrons he was permitted to admit prevented the events being economically viable.
3.5 Mr. Carr said that he was involved in a number of businesses in the locality including a licensed premises where the McCarthys had often been served and he denied that there was any discrimination in his refusal to allow the complainants into the concert on 13th June or in relation to the incident involving the McCarthys on the 30th May.
4. Conclusions of the Equality Officer
4.1 At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainants in this case have established prima facie cases of discrimination. In order to do so the complainants must satisfy three criteria. It must be established that they are covered by the relevant discriminatory ground i.e. in this case that they are members 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 complainants 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. They must establish all of these facts if a prima facie case of discrimination is to be established.
4.2 In this case it has not been disputed that the complainants are members of the Traveller community. It has not been contested that they were refused entry to the Ballybunion Golf Hotel on the occasions complained of. Therefore, two of the three criteria outlined above have been satisfied by the complainants in this matter. The third criterion i.e., less favourable treatment must also be considered.
4.3 Firstly in relation to the alleged incident on 30th May, I have considered the evidence of both parties and this indicates that the two complainants concerned arrived at that event and were told that they needed tickets to gain entry and also that, when they did procure tickets by whatever means, they were allowed to attend the concert at the Ballybunion Golf Hotel. I do note that those who sold the tickets to Mr. and Mrs. McCarthy on that evening were admitted subsequently without tickets. I also note, however, that the evidence of these people was that they had a particular relationship with Mr. Carr through a relative and were well known to him and that it was through that relationship that they had been given complimentary tickets (which they subsequently sold on to the McCarthys). I consider that it was not unusual that this particular couple were able to attend that concert without tickets and I consider that their particular circumstances were not similar to the McCarthys that night irrespective of whether they were members of the Traveller community. The third criterion has not been met. I am of the view, therefore, that a prima facie case of discrimination has not been established by the complainants in respect to their complaints regarding the incident on 30th May 2002.
4.4 I now come to the second incident complained of i.e. that relating to Mr. and Mrs. McCarthy's and Mrs. Coffey's alleged booking for the Paddy O'Brien concert on the evening of 13th June 2002. Throughout the hearing I heard a great deal of evidence from all parties regarding this booking. The procedures surrounding the making of the alleged booking and the return of Mr. and Mrs McCarthy's payments raise questions as to whether some form of contract existed between the parties for the provision of tickets for the concert. However, the views presented by each party regarding what, if any, agreement existed for the provision of tickets, vary considerably, with the complainants alleging that they had in fact purchased tickets, while the respondent suggests that money was mistakenly taken by the shop assistant at the insistence of both Mr. and Mrs. McCarthy in contemplation of tickets being returned for sale later on in the evening at the concert venue. The shop assistant from the music shop in Listowel was not available to provide evidence on the day of the hearing. I had been provided with a name and address for this person in advance of the hearing. I was told that the lady had gone away following leaving her job in the music shop but had returned to the locality. I wrote to the name and address provided, requesting her attendance at the hearing of the case. Shortly before the hearing I was informed that the name provided to me was incorrect and another name was provided. By this time it was too late to reissue my letter to attend but the complainants' solicitor said he would attempt to contact her to enquire if she would attend the hearing on the day set. She did not attend and I have considered requiring her attendance to provide evidence in relation to this case. I understand, however, that she has not worked in the shop for some time and has currently embarked on a totally different career path. I am not convinced that I would adduce information from her at this point, nor am I confident that she would be in a position to attend to give evidence at this stage. On this basis I have taken the decision not to pursue the attendance of this witness.
4.5 I am relying on the evidence provided to me in advance of and at the hearing to enable me to reach a conclusion as to whether on the balance of probabilities what occurred amounts to discrimination on the Traveller community ground. It has been stated by Mr. and Mrs. McCarthy that they went to purchase tickets separately and some hours apart, Mrs. McCarthy purchasing Mrs Coffey's ticket. It is Mr. McCarthy's stated position that when he returned to the shop the next day all of the names for whom they had allegedly bought tickets were written in, one following the other, together in the book and crossed out. This book was not submitted in evidence but the fact that names may have been inserted in a note book is not disputed. What is questioned is how all of the names would have been entered together when payments were made several hours apart. I note also that the names each of the proposed attendees for whom Mrs. McCarthy was purchasing tickets were, according to Mr. McCarthy, written in as a sequential list of individuals rather than under the name of the buyers and the number of tickets each required. No receipt was provided for production at the venue door for the collection of tickets. It would appear according to Mr. McCarthy's evidence that each individual would have to announce themselves in order to collect their ticket and no evidence of purchase was to be provided. I find this a somewhat strange way of organising an event of a type where there would be a potential for crowd problems. I therefore, consider that this version of events is not compelling and I consider that on the balance of probabilities tickets had not been purchased for the complainants but rather they attended the Ballybunion Golf Hotel that night in the hope of tickets being available at a late stage.
4.6 I find the return of the moneys paid over by Mr. and Mrs. McCarthy to a third party, i.e. the lady in Jumbo's chip shop, to be highly unusual and it is hard to believe that Mr. Carr would have expected that it would be returned to the McCarthys in advance of they travelling to Ballybunion that evening. This action is likely to have given rise to the suspicion on the complainants part that there were not wanted at the event. I would also point out that the respondent company made no response to the complainants when they initially notified them of their complaint. This failure to reply allows me to draw such inferences as seem appropriate under Section 26 of the Equal Status Act. I conclude, on balance, that what occurred is that the complainants had not in fact purchased tickets for a ticket only event but had left money on deposit in the expectation of getting tickets at the venue. I consider that in the light of their experience on 30th May, the McCarthy's thought they would improve their chances of gaining admittance to the event if they had handed over money in advance of arriving at the Ballybunion Golf Hotel on the evening of 13th June without tickets. However, it was the presentation of tickets that would have secured their entry as had occurred on the earlier occasion. I consider that on balance, Mr Carr, on becoming aware of the complainant's intention to attend the concert that night decided that rather than refuse them at the door decided to pre-empt a confrontation and sought to do so by returning their money through the unorthodox route of a third party. I consider if there was a genuine non-discriminatory reason for returning the money he would have arranged to return it directly to the McCarthys, who he knew from the locality, and provided them with an explanation as to why it was being returned. I consider that handing the money over to another person was less favourable treatment and I consider that on balance the complainants' known Traveller status was what triggered this action and that another customer in similar circumstances would not have been refused in this way. I do note that a small number of tickets did become available that night and on being faced with the complainants at the venue, he did offer them to Mr. McCarthy.
4.7 I should note, however, that I find the evidence from the complainants that there was a group of names crossed out of the note book to be less than compelling and I cannot see any reason why such an action would have been taken. I accept that a written reference to their presentation of money existed most likely in such a book but the account of the subsequent observation of the book with the names crossed out is not particularly credible evidence and I consider this additional information regarding the crossed out names may have been submitted to put a particular gloss on the story. As the initial burden of proof rests with the complainants, I consider that on the balance of probabilities they have met this burden, even in the absence of the six names being crossed out of the book. I, therefore, conclude that Stephen and Teresa McCarthy and Nora Coffey have established prima facie cases of discrimination with regard to the incident complained of, which occurred on 13th June 2002. The respondent has not provided sufficient rebuttal other than to say that no tickets were available for sale.
5. Decision and redress
5.1 I have found that no prima facie case was established in relation to the incident on 30th May 2002. However, in circumstances where a complainant has established a prima facie case of discrimination, his/her complaint is upheld unless a satisfactory rebuttal is provided by the Respondent. I therefore, find that the complaints of Stephen McCarthy (ES/2002/0606), Nora Coffey (ES/2002/0661) and Teresa McCarthy (ES/2002/0662) regarding the incident on 13th June 2002 are upheld and I order the respondent Lartigue Enterprises to pay the sum of €500 each as redress for the effects if the discrimination to Stephen McCarthy and Teresa McCarthy and the sum of €300 to Nora Coffey (DEC-S2006-075).
1st November 2006