Equal Status Acts 2000-2004
Equality Officer Decision
Bridget and Michael O'Donoghue
(represented by James J. Kelly & Son Solicitors)
Kevin Daly, Dunnes Pub
Equal Status Acts 2000-2004- Direct discrimination, Section 3(1)(a)- Traveller community ground Ground, Section 3(2)(i) Section 5(1)- Discrimination in relation to service provision - 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 2000-2004. 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 Portlaoise on 26th January 2007.
1.1 The complainants allege that they were subjected to discriminatory treatment when they were refused service Dunne's public house Roscrea on 12th September 2002. They maintain that this treatment is in breach of the Equal Status Act 2000-2004 in terms of Sections 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 have lived in the Roscrea area for approximately 30 years. For part of that time they camped at the side of the road but for the past number of years they have been settled in a house in an estate in the town. They said they would be known in the area. They are members of the Traveller community. The day of the incident complained of was their 26th wedding anniversary. Mr. O'Donoghue was outside his house clearing the path when the respondent licensee Mr Kevin Daly passed by. As Mr. Daly passed, Mr. O'Donoghue said he asked him if Mr. Daly was the man who had the pub in the town and that he would be down there for a drink later. He said that Mr Daly replied "fine, no bother". He said he understood this to mean that he would be served when he went there with his wife later that evening. While Mrs. O'Donghue had never been in Dunne's pub before, Mr. O'Donoghue said that he had been a customer there several years previously when it was managed by the Dunne family
2.2 That evening at about 8 o clock the O'Donoghues went from their home to Dunne's public house in Roscrea and while Mrs. O'Donoghue took a seat inside the door, Mr. O'Donoghue approached the bar counter to order their drinks, a pint for himself and a mineral for his wife. They had not had any drink before leaving home that evening. He said that when he asked the barman for the drinks, the barman went away and when he returned, told Mr. O'Donoghue he could not serve him. He asked for a reason and the barman said that he was not allowed to serve him. Mr. O'Donoghue then approached a woman who was behind the bar and asked why they wouldn't be served and she refused also. Mr. and Mrs. O' Donoghue then left the premises. They both said that no one else was refused while they were in the pub and that they did not recognise any of the other customers as Travellers. Mr. O'Donoghue said he was not involved in incidents in other pubs mentioned by the respondent
2.3 The only reason both complainants could think of for the refusal was the fact that they were members of the Traveller community. They were unable to think of any other reason why they would be refused. Mr. O'Donoghue said that when he had met Mr. Daly earlier there seemed to be no problem with him coming to the bar for a drink. A letter from the local Gardai was submitted by the complainants indicating that there were no matters outstanding against the O'Donoghues.
3. Summary of the Respondent's Case
3.1 The respondent Mr. Kevin Daly said that he was the nominated licensee of the company which owned Dunnes public house at the time of this incident. He said that the pub has recently closed down, and therefore, he no longer works there. He said that he recalled the circumstances leading up to the incident complained of by Mr. and Mrs. O'Donoghue. He said he had been walking through the estate where Mr. O'Donoghue lives and when he passed by the complainant, he said Mr. O'Donoghue came up to him and said "you're Kevin Daly you have the pub, I'll be down there later for a drink." Mr. Daly said "no problem" as he didn't want to get into a confrontation. He said that the found the manner of Mr. O'Donoghue's approach intimidating and that when he got back to the pub premises he phoned some other publicans in the area who identified Mr. O'Donoghue as someone who had been involved in troublesome incidents in other pubs in the region. Mr. Daly said that he acted on this information in the interest of the health and safety of his customers and he instructed the barman to refuse service to Mr. O'Donoghue if he came in that evening. He acknowledged that at the time he took the decision to refuse service he was aware that the O'Donoghues were members of the Traveller community.
3.2 On hearing from Mr. O'Donoghue at the hearing that he had a relative of the same name who was connected with one of the incidents mentioned, and that another relative of his who was of a similar likeness lived in the nearby town where an incident may have occurred, Mr. Daly said that perhaps the whole incident could have been one of mistaken identity. Perhaps Mr. O'Donoghue was not the person involved in those incidents but on the basis of his enquiries he took the decision to refuse. He mentioned other decisions of the Equality Tribunal where there had been mistaken identity on the part of a respondent to reinforce this suggestion on his part.
3.3 Ms. Marie Morgan who is Mr. Daly's partner said that she was the woman in the pub that Mr. O'Donoghue approached after his initial refusal on the evening complained of. She was not actually working that evening as she had just returned from a funeral in England and she was waiting on Mr Daly to come to take her home. She said that when Mr. O'Donoghue approached her she enquired of the bar man what the problem was and she was told that Kevin had told him not to serve Mr. O'Donoghue and she was happy to believe there was a genuine reason for the refusal. She said that she told Mr. O'Donoghue that he could wait until Mr. Daly arrived, and talk to him but the O'Donoghues just left.
4. Conclusions of the Equality Officer
4.1 At this point in my considerations the burden of proof rests with the complainants. I must first consider whether the complainants in this case Bridget and Michael O'Donoghue have established a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria. It must be established that each of them is covered by the relevant discriminatory ground i.e. in this case that he or she 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 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. If they fail to establish any of these three facts, then they do not establish prima-facie cases of discrimination under the Equal Status Act 2000 and their complaints of discrimination fail. If they do establish prima facie cases the burden of proof shifts to the respondent who must then rebut the case of the complainants if the complaint is to fail.
4.2 It is not a matter of dispute that the complainants are members of the Traveller community and therefore, they have satisfied the first of the three criteria set out above. Both parties accept that Mr. O'Donoghue was refused service when he ordered drinks for himself and his wife in Dunnes pub on the evening in question. I am satisfied that this refusal constituted a refusal of both Mr. and Mrs. O'Donoghue. The second criterion is satisfied. If the third criterion, that of less favourable treatment, is satisfied then a prima-facie case of discrimination on the ground of the complainant's membership of the Traveller community will have been established. The evidence has been that the complainants were the only people refused in the pub that night and that none of the other customers were Travellers. The case of the respondent has been the refusal arose from enquiries he made about the complainant after an encounter he had with him in the locality earlier in the day, where he felt intimidated. The complainant's account of this encounter is that Mr. O'Donoghue was checking if there would be a problem with him getting service in the pub, as his experience was that Travellers had difficulty getting served in pubs locally. He said that there was nothing intimidating in his approach to Mr. Daly as he was only making an enquiry. It would appear from the evidence, particularly that of the respondent, that this encounter was what triggered the refusal of the complainants when they went to the respondent's premises that night. I must consider whether this was less favourable treatment. I find it surprising that an encounter such as that between the complainant, Mr. O'Donoghue and the respondent, Mr. Daly, should have prompted the level of enquiry made by the respondent about the complainant. If his concern was such I am surprised that he delegated the refusal to a member of staff, particularly when his partner was likely to be on the premises when the perceived threat to safety would arise. Mr. Daly said that he did not contact the local Gardai about the matter but chose instead to confine his enquiries to other publicans. It was through these enquiries that he said he found out, amongst other information, that the O'Donoghues are Travellers. I conclude that it was this piece of information rather than any other that he received that prompted the decision taken by the respondent to refuse the complainants that night and that this was treatment that was less favourable than that which would have been provided to another customer in similar circumstances who was not a member of the Traveller community. I am of the view that the earlier encounter with Mr. O' Donoghue raised a suspicion on the part of the respondent that the potential customer may be a Member of the Traveller community and that this suspicion formed the basis of any enquiries that may have been made. Accordingly I conclude that the third criterion is satisfied and that the complainants have established prima facie cases of discrimination on the Traveller community ground.
5.1 The rebuttal offered by the respondent in this case rests on is assertion that he was informed by fellow publicans that Mr. O'Donoghue was involved in incidents in other premises. This information was only made known to him when he made active enquiries about Mr. O'Donoghue. In considering this evidence, I am conscious of section 15(1) of the Equal Status Act 2000 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."
However, I am also conscious that the respondent's evidence is that he did not know Mr. O'Donoghue before the day of this incident and I believe that the information he received was in the realm of hearsay regarding his involvement in other incidents. I further note that the letter from An Garda Siochana does not support a contention that Mr. O'Donoghue would produce a substantial risk of criminal or disorderly behaviour or damage to property if he were to be served. I, therefore, conclude that the respondent's evidence is not sufficient to rebut the prima facie cases of the complainants.
6. Decision and Redress
6.1 The complainants having established a prima facie case of discrimination on the ground of their membership of the Traveller community which has not been rebutted by the respondent must succeed in the complaints of discrimination (ES/2002/0902-0903). I, therefore find for the complainants Bridget and Michael O'Donoghue. I consider the appropriate redress in this case to be €400 for each of the complainants and order the respondent pay Bridget O'Donoghue and Michael O' Donoghue €400 (four hundred euro) each as redress for the effects of the discriminatory act (DEC-S2007-011).
15 February 2007