(Represented by Sinead Lucey Solicitor)
The Gallery Bar
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
This complaint was 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 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 Portlaoise on 29th August, 2006.
1.1 The complainant alleges that she was subjected to discriminatory treatment when she went to the Gallery Bar in Mountmellick on 14th March 2002 and was refused service. She maintains 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 she was refused access to goods and services because of her membership of the Traveller community.
2. Summary of the Complainant's Case
2.1 The complainant, Ms Cawley said that she went to the Gallery bar on Mountmellick on the evening of 14th March 2002 together with her cousin. She said that both of them are members of the Traveller community. When the approached the bar she said the woman serving told her "I am not serving you". This was the first time she had been in the Gallery Bar. She had gone there at about 9:30 p.m. from home. She said that while there were a number of people in the pub it was not over busy. She did not notice any other people going in as she was entering the premises. She said that she did not know any of the other customers personally but she would have known who some of them were, through their business dealings with her husband, who sold carpets in the locality. She said that the person who refused her would have been a customer of her husband. Ms Cawley said she is a member of the Traveller community. She said when the bar person refused her she didn't receive any explanation. The woman just walked away from her. Ms Cawley went to phone the Gardai and she was told it was a civil matter. She sought the name of the bar person and was given her name.
2.2 Ms Cawley said that the only reason she could think of for the refusal was her membership of the Traveller community. She said that she would have been known in Mountmellick as she had lived there since her marriage, with her husband and children. She said she would have been known as "James's wife". She said that although there were other Travellers living in the town, she did not know them as she was from another county and her husband would be regarded as a " 1/2 Traveller" as he was regarded as neither Traveller nor settled. She said no one else was refused while she was there apart from her cousin who was with her that evening. As far as she could recall, Ms Cawley said, that the whole incident lasted for no more than ten minutes.
3. Summary of the Respondent's Case
3.1 The respondent, Vincent Reidy, said that the bar had been open under his management for seven years and the clientele was mainly an "elderly crowd". While the custom was mainly local, at times there were passers through and the business also included an off-licence. He said a handful of his customers would be Travellers. He said he did not know Ms Cawley and at the time of the incident complained of and he would not have known her to be a member of the Traveller community, although he does know her to be so now. He said that he arrived on the scene at the end of the incident and Ms Cawley and her cousin were still at the counter as was the bar person. There were a number of people in the bar. He said he spoke to Ms Cawley and her companion together and that they were talking loudly or shouting towards the bar person, He said he asked them to calm down and Ms Cawley responded that the bar person would not serve her. He said he asked them to leave and Ms Cawley asked him to call the Gardai. He said he pointed to the phone at other end of the bar and they made a call and then left. He said he was of the view that the incident lasted about ten minutes.
3.2 Mr. Reidy said that the reason a person would be refused in his pub would be if he/she were unruly or if they had previously been barred for other reasons. He said the bar person who refused the complainant was unable to attend the hearing but had told him that she knew of the family and knew of the girls, i.e. the complainant and her cousin, and that she knew of the involvement of the family in another incident in another pub. He said that the bar person told him that she felt unsafe on her own and he accepted her explanation. He said he was happy she refused if she felt unsafe. He said he would not serve them if they came to the premises again as the bar person would feel unsafe. Mr. Reidy said the only reason he asked Ms Cawley and her companion to leave was because at the time he arrived on the scene they appeared to be shouting. He knew nothing of either woman before that occasion. Mr. Reidy said he was aware of the provisions of the Equal Status Acts and he added that he employed multi racial staff.
3.3 Mr. Reidy was questioned further about the previous incident that he said had prompted the bar person to refuse the complainant and her companion. He said that it occurred some time previously, following a funeral. It was put to him that this earlier incident occurred in 1997 when the complainant was not living in County Laois and prior to her marriage, when she had a different surname. It was put to him that the complainant's husband Mr. Cawley was served in the pub without difficulty and he responded that neither Mr. Cawley nor his brother who was served with him had been recognised by the bar person as "Cawleys". The complainant challenged the assertion of the respondent that it was he who told her to leave and he was asked if he noticed anything in particular about either of the two women. At first he said no but when it was pointed out to him that the complainants' companion that night was noticeably pregnant, he responded that he "thought she was a bit heavy".
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 complainant in this case, Bernadette Cawley has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. It must be established that the relevant discriminatory ground applies to her, i.e. in this case that she is 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. She must establish all of these facts if a prima facie case of discrimination is to be established. In relation to the first point I accept that the Traveller community ground applies to Ms Cawley and this fact is not disputed between the parties. Neither is it disputed between the parties that she was refused service in the Gallery Bar that night thus, satisfying the second criterion.
4.2 The final test to be satisfied if Ms Cawley is to establish a prima facie case of discrimination is whether she received less favourable treatment than someone in similar circumstances who is not a member of the Traveller community. In this case, the evidence of the complainant is that she had never been in the Gallery bar before. She also stated that she was not one of the group who had been involved in an incident some five years before the incident complained of and following a funeral. She did not dispute the fact that this incident had taken place and acknowledged that some members of her husband's family may have been there when the incident occurred, but said she was not involved as it would have been prior to her marriage and when she was resident in another county. It is this previous incident which the respondent puts forward as being the cause of the underlying fear which prompted the bar person to refuse to serve the complainant and her companion on the night in question.
4.3 It is accepted that the complainant's husband and his brother were served in the Gallery Bar around the time of the incident complained of herein. This, according to the respondent, was because they were not recognised by the bar person as Cawleys and, therefore, were not associated with the previous incident. The complainant's evidence is that her husband would have been known to the bar person and this was not contested. However, it is possible that he was not known to her as a member of the Traveller community. I conclude therefore on the balance of probabilities that the refusal did not arise from the complainant's name being Cawley but rather for another reason, that being her membership of the Traveller community. There is no evidence of any other Travellers being in the pub on the evening complained of, nor has any evidence been provided of anyone else being refused there that night. I conclude therefore, on the balance of probabilities that the complainant has established a prima facie case of discrimination on the Traveller community ground. In such circumstances, the burden of proof shifts to the respondent who must rebut the prima facie case if a finding of discrimination is not to be made
5.1 The rebuttal of the respondent in this case relates to the bar person associating the complainant with a disorderly incident in a local pub involving the complainant's husband's family. However, it would appear that she did not associate the complainant's husband, who was a customer of the Gallery Bar, with this incident. The respondent also says that he asked the complainant and her companion to leave when he found them to be talking loudly or shouting in the direction of the bar person following the refusal of service. The evidence from the respondent's description of the complainant's response to his approach to the two women (see para. 3.1 above) suggests that the raised voices were a response to the refusal of service by the bar person, the alleged discriminatory incident. I am satisfied that the respondent did happen upon the end of the encounter between the bar person and the complainant but that he was not there at the outset. I am satisfied that he is relying on the account from the bar person of the fear engendered by the incident five years before this particular incident as the cause of the refusal on this particular occasion. He has provided no direct evidence of himself being aware of this incident or its consequences. In considering this element of the rebuttal I have considered in particular Section 15 (1) of the Equal Status Act 2000-2004 which states as follows:
" For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person ("the customer") in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located."
In this case I do not consider that the incident some five years previously, which it has not been alleged involved this particular complainant or her companion on the night of the incident under investigation herein, would give rise to such a belief. In the context of a situation where the complainant's husband and brother-in-law frequented the premises and were served, the refusal of the complainant and her companion for the reason described, i.e. being a member of the Cawley family seems somewhat strange. If such a sensitivity to the fears engendered by membership of this family existed, I am of the view that the bar person would have known the complainant's husband to be one of that family. I therefore, conclude that the rebuttal provided is not sufficient to overturn the prima facie case of the complainant.
6. Decision and Redress
6.1 The complainant, having established a prima facie case of discrimination on the Traveller community ground, which has not been rebutted by the respondent, must succeed in her complaint (ES/2002/0659) and I therefore, find for the complainant. In circumstances where the discriminatory act was carried out by an employee of the respondent in the course of her duties, Section 42 of the Equal Status Act regarding vicarious liability applies and I order that the respondent pay the complainant the sum of €450 (four hundred and fifty euro) as redress for the effects of the discriminatory act (DEC-S2006-086).
30th November 2006