Equal Status Acts 2000-2004
Equality Officer Decision
(Represented by Tallaght Travellers CDP)
The Cuckoo's Nest Off Licence
(Represented by Mason Hayes and Curran 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- reasons for refusal-Suggestion of involvement in previous disorderly incident-Establishment of prima facie case
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 on Tuesday 13th March 2007.
1.1 The complainant alleges that he was subjected to discriminatory treatment when he went to the Cuckoo's Nest Off-Licence on 7th February 2003 and was refused service. He maintained in his complaint 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 he was refused access to goods and services because of his membership of the Traveller community.
2. Summary of the Complainant's Case
2.1 The complainant who said that he is a member of the Traveller community said that he went to the Cuckoo's Nest off-licence on Friday 7th February 2003 with his 4 year old daughter. He said that he selected a few cans of beer and his daughter chose some snack food and a drink and he then approached the counter to pay and to get change for the cigarette machine, as the off-licence did not sell cigarettes over the counter. He said there were three or four people in the off-licence apart from himself and that at least one of them was behind him in the queue to pay. When he got to the counter the woman serving, asked him to stand aside while she made enquiries of the manager and he did so. In the meantime the person behind him in the queue was served. He said a manager appeared and moved the items Mr. Hanrahan was purchasing aside and took the child's purchases from her hands. Mr. Hanrahan sought an explanation and said he was told that he had been involved in a disorderly incident in the Cuckoo's Nest pub the previous Monday when a glass was broken, ashtrays banged on the table and a window had been broken. The participants in this incident had been ejected from the premises at the time and were now barred.
2.2 Mr. Hanrahan said that he had not been in the Cuckoo's Nest Pub on the evening of this incident and that he generally only went there on a Saturday evening together with his wife. His wife still goes to the Cuckoo's Nest but he has not been there since the incident complained of herein. He said he was told by the person he was dealing with that that he was the part time manager and if he wanted to pursue the matter further he would have to speak with the general manager of the pub, who was called Mark and who was not on duty at the time. Mr. Hanrahan said that the manager went with him to the door and into the open space in front of the premises and before Mr. Hanrahan left, he asked for an appointment to come back to see the manager. He said he was told to come back at about 4 o clock on the following day. He went away.
2.3 On the following day Mr. Hanrahan returned to the off-licence at the appointed time and the same woman was behind the counter serving when he went in. He approached the counter and asked to see the manager and the woman went away to get someone. She returned with the same person he had spoken to on the previous day. He asked for Mark and was told by the part time manager that Mark was not there and that the matter had already been dealt with by himself the previous day and Mr. Hanrahan would not be served. Mr. Hanrahan said he was upset because he had been told to come to the premises at that time in order to meet the manager. He said he asked the man he was dealing with for his name and he replied "I am the Cuckoo's Nest" and then laughed and walked away. Mr Hanrahan said he was upset by this as he did not know why he was being refused as he had not been involved in any incident on the pub premises and had not even been in the premises on the previous Monday evening when the alleged disorderly incident occurred. He said he went away, still wanting and explanation as to why he was being refused and has not gone to the Cuckoo's Nest since. He said he had been a regular customer in other the pub and the off-licence before that, as he lived in Traveller accommodation beside the pub premises. He had never had any difficulty being served there before that, either in the pub or in the off- licence. He said the duty manager knew he was a member of the Traveller community.
2.4 On being asked what he thought the reason was for the refusal was, Mr. Hanrahan said he did not know at the time why he was being refused. When pressed further he could think of no valid reason why he should be refused.
3. Summary of the Respondent's case
3.1 Ms Geraldine Lynch one of the family which owns the Cuckoo's Nest attended the hearing as respondent together with the manger of the off-licence who was serving on both evenings Mr. Hanrahan came in.
3.2 Ms Lynch said that the Cuckoo's Nest had been run by her family since 1962 and it was currently operated by her mother her brother and herself. The business has a largely local clientele although it would attract others during lunch time trading. She is responsible for the staffing and administration aspects of the business. She said that she employed a number of managerial staff including a general manager, who was not on duty when Mr. Hanrahan went to the premises. The general practice was to have a duty manager on the premises along with a number of other assistant managers at all times. The duty manager would deal with any incidents arising during his/her time rostered as duty manager. The duty manager who dealt with Mr. Hanrahan no longer works for her and she understands he is now running a pub in Ayia Napa. She said that staff would have internal access to and between the various parts of the premises, i.e., the bar, the lounge, a music venue, and the off licence. She said that she was not on the premises on the day that Mr. Hanrahan came to the Cuckoo's Nest.
3.3 Ms Lynch said that while she did not know Mr. Hanrahan or that he was a Traveller she accepted that he was a Traveller and said that the business had a number of Traveller customers as it was located beside an area of Traveller accommodation. She said that the Cuckoo's Nest treated their Traveller customers the same as they would any other customer of the pub.
3.4 On the evening of the incident complained of, the off-licence where Mr. Hanrahan attended was being managed by Ms Kris Kohls, who was serving at the counter when Mr. Hanrahan entered the premises. Ms Kohls said that there were a number of people in the off-licence at the time and she was busy serving as Mr. Hanrahan queued to pay for his goods. When Mr. Hanrahan got to the counter she said that she thought she recognised him from earlier in the same week when she believed she had seen him among a group of people who were put out of the pub for engaging in disorderly behaviour. She said she was not sure if she should serve Mr. Hanrahan so she refused him service while she called for the manager on duty, who came down to the off-licence from the pub premises and took Mr. Hanrahan aside. She said the duty manager told Mr. Hanrahan he would not be served because of the incident earlier in the week. She said she heard Mr. Hanrahan dispute this and seek a reason and that he was told to see Mark who was the general manager and who would be there the following day. She said that Mr. Hanrahan then left the premises. She said she did not hear what was said after that and does not recall Mr. Hanrahan being given any time at which the general manager would be available. She said that if something was said to Mr. Hanrahan outside the door, she would not have heard it.
3.5 Ms Kohls was asked to describe what she knew of the incident which prompted her to seek the duty manager's input as to whether Mr Hanrahan should be served. She said that she was in the off licence behind the counter at about 5:45p.m. on the Monday evening before this incident, when she heard over her head set that there was a problem in the pub. A few minutes later, from her view point within the off- licence, she saw a group leaving the pub. One of these people she believed was Mr. Hanrahan, the complainant. Ms Kohls said that she did not witness any of the actual disorder which is said to have occurred, as she was at all times in the off-licence while it was going on. Her only knowledge of it would have been what she heard over the head set, which she like all the other staff wears while on duty. She said she came on duty at 6 p.m. most week nights. Ms Kohls was asked to describe her view from the off licence to the door of the bar where she would have seen the patrons exiting. She described how she could see through the door across a courtyard to the door of the bar and as she was curious about the incident she was looking in that direction when the group she understood to be involved in the event left the bar.
3.6 On the day following the incident complained of herein, she recalled Mr. Hanrahan returning to the off-licence at about 3:30 to 4pm. and asking to speak to the manager. She went and got the manager. This was the same person who had dealt with Mr. Hanrahan the previous evening and again Mr. Hanrahan was told he would not be served and he had been dealt with already. She said it would not be surprising that the manager would have given his name as "The Cuckoo's Nest" as staff members generally would not provide their own name to a customer. She understood that Mark, the general manager, was not on duty at the time Mr. Hanrahan came to the off-licence that day but would have been there later. When asked, Ms. Kohls said that Mr. Hanrahan left as instructed without any indication of trouble on the two occasions she saw him in the off-licence. She said she would have been aware of Mr. Hanrahan's Traveller status from him residing in the nearby Traveller housing development.
4. Conclusions of the Equality Officer
4.1 Initially the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, Martin Hanrahan, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) 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. (2)It must also be established that the actions complained of actually occurred and finally (3) 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. It is not disputed between the parties that Martin Hanrahan is a member of the Traveller community, nor is it disputed that he was refused service in the Cuckoo's Nest off-licence on the evening of the 7th February 2003.Accordinly the first and second of the three criteria outlined above have been satisfied. The third criterion of less favourable treatment requires further consideration.
4.2 The complainant's position is that he went to the off-licence accompanied by his child on the date in question to make a small number of purchases and to get money for the cigarette machine. He had not been in the premises on the previous Monday night when a disorderly incident is said to have occurred. In the course of his evidence he queried whether such a serious incident as described to him did occur as he felt that such an incident would have warranted the intervention of An Garda Síochána, who would have been in a position to identify the participants in the disorder and could eliminate him as a participant. The evidence from the respondent was that they did not consider it necessary to involve the Gardaí. The complainant also referred to the possible existence of CCTV images of the disorder which by the time he notified the respondent of his complaint some weeks after the refusal, had, according to the respondent, been taped over. He expressed concern that information on such a serious incident as had been related to him should have been destroyed.
4.3 He said that these two facts supported his contention that he had no part in the disorderly conduct and that the reason for his refusal did not rest on him being involved in the event. He maintained that at the time he could not think of a valid reason for his refusal. The only explanation given to him was that he should have known that he would not be served because of his involvement in the incident the previous Monday. He was vehement in his denial of any involvement in this incident and said that any previous visits to the Cuckoo's Nest Public House were generally at the weekends with his wife. He said that the other people in the off-licence, while he was there, were served while he was not and he did not recognise any of them as Travellers and it would appear from the evidence that the staff member did not do so either. It seems to be common case that the complainant was asked to return the following day to meet with the General Manager although while Mr. Hanrahan says he was given a time to call back, the off-licence manager did not hear Mr. Hanrahan being given a time. It would appear, however, that some of the interaction between Mr. Hanrahan and the duty manager occurred outside of her hearing. The resulting encounter when Mr. Hanrahan arrived the next day was that it was again the same duty manager that he encountered and who gave him no further information regarding the refusal. In Mr. Hanrahan's view he was dismissive of him. By the time he had come to notify the respondent, Mr. Hanrahan did indicate that he considered discrimination on the ground of his membership of the Traveller community as the reason for the treatment he received. He further stated this in his form of complaint to the Equality Tribunal
4.4 On the basis of the foregoing I conclude that the complainant has on the balance of probabilities 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 of the complainant if the complainant's case is to be defeated.
5.1 The respondent's case is that Mr Hanrahan was refused service in the Cuckoo's Nest Off-Licence because he was identified by the off-licence manager and supported by her duty manager colleague as being one of the participants in a disorderly event in the pub premises a few days before coming into the off-licence. As a consequence of his participation in this incident he was barred. A refusal for this reason is not necessarily discriminatory in the light of the provisions of Section 15 of the Equal Status Act 2000-2004. The respondent further asserts that even if Mr Hanrahan was not among the participants in the disorderly conduct and was mistakenly identified by the manager as one of those involved, so long as this happened in good faith, previous decisions of the Tribunal would support the proposition that the actions taken were not discriminatory (1).
5.2 I note that in that the particular earlier case cited, there was video evidence available showing the complainant in the pub and an acknowledgement from that complainant that he was in close proximity to a disorderly incident although not involved in it. This is in contrast with the present case where the complainant denies having been present on the evening of the incident which is said to underpin his refusal. The evidence of the off- licence manager is that she based her recognition of Mr. Hanrahan on a sighting of him though the doors of the off-licence from her vantage point behind the counter of the off-licence. She says she saw him among people exiting the pub at approximately 6 p.m. on an evening in early February and identifying him as a person involved in an incident which she herself did not witness but only heard about over her head set. The off-licence, although in the same building, was located in such proximity to the pub that one would have to look through the doors of the off-licence in order to see what was occurring at the doors of the bar. Given the season and the probability of reduced lighting at that time of day I find it difficult to understand how the off-licence manager came to conclude, on the basis of this sighting, that Mr Hanrahan was the same individual standing in front of her in the off-licence some days later or that he was a person connected with the earlier disorder.
5.3 The duty manager who dealt with Mr Hanrahan was not available to attend the hearing and is currently residing outside of the jurisdiction. In terms of my investigation the only account from this gentleman of his involvement with Mr Hanrahan is in the form of photocopies of an incident sheet mentioning an incident on the Monday. It is notable that this does not identify any of the persons involved in the incident either by name or description. Other photocopied sheets outlining his interaction with a customer of the off-licence, (possibly the complainant, although here again no identification is provided) on the Friday and Saturday are also submitted. For these reasons it is difficult to place any great probative weight on this evidence in terms of the involvement of Mr. Hanrahan in a disorderly incident. I have had no direct evidence from this individual and have not been able to question him on any of the matters in evidence. The standard of proof applying in cases such as this is proof on the balance of probabilities. Having considered the evidence which has led me to conclude on the balance of probabilities that that a prima facie case of discrimination has been established by the complainant and having further considered the rebuttal evidence offered by the respondent I find that this rebuttal is not sufficient to overturn the prima facie case of the complainant Martin Hanrahan.
6. Decision and Redress
6.1 The complainant having established a prima facie case of discrimination based on his complaint lodged with the Equality Tribunal (ES/2003/0353) and which has not been rebutted by the respondent must succeed in his complaint. I therefore, find for the complainant and in accordance with Section 27 of the Equal Status Act 2000, order the respondent to pay the complainant Martin Hanrahan €400 (four hundred euro) as redress for the effects of the discriminatory treatment. DEC -S2007-048.
26th April 2007
(1) See for example,
DEC-S2003-134 O'Reilly v Fowler's Pub