Complaint under the Equal Status Act 2000
DEC - S2007 - 020
Michael & Margaret McCarthy
(Represented by Noonan Linehan Carroll Coffey Solicitors)
Bedford Taverns T/A Hally's Bar, Cork
(Represented by Michael Powell Solicitors)
Michael and Margaret McCarthy each referred a claim on the Traveller ground to the Director of Equality Investigations under the Equal Status Act 2000 in respect of an incident that took place on 30th December 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, on 16th November 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainant's case
At 10.25pm on Saturday 30th December 2000 the complainants entered Hally's Bar. The bar was quiet that night and Ms. McCarthy found a seat to the right just inside the door while Mr. McCarthy went to the bar to order. He was told that he would not be served as he had caused hassle on St. Stephen's night. The complainants left the bar. They had been in a number of bars that night before entering Hally's but had only managed to get about two drinks and they were not intoxicated. They had never been in Hally's before even though they pass it every week on their way to the church close to it.
Summary of the Respondent's Case
Mr. O'Halloran stated that the bar was very busy that night and as stated in his response to the complainants dated 5th March 2001, about 15 people in addition to the complainants were refused because of capacity issues. The bar was being monitored at the time in relation to compliance with its official capacity. This reason relating to capacity was forwarded to both complainants although the McCarthys state that they did not receive it. In addition to this reason, however, the letter sent to Mr. McCarthy stated that he was also refused because of his reputation. Mr. O'Halloran explained at the hearing that it is normal policy that people are not given the reason for their refusal although this is departed from on occasion. This normal policy was included in his letters to the complainants and repeated at the hearing. On that night he was working on the floor and his son, behind the bar, refused the complainants. Had his son not refused then he would have since he had already indicated to staff that the pub was full. This involved some refusals of regulars subsequent to his instruction to staff causing irritation among the refused customers and some flack being taken by staff. Mr. McCarthy had been in the bar on previous occasions and was refused on those occasions as he was over the limit. Mr. O'Halloran was aware of Mr. McCarthy's alleged reputation to cause trouble as he had witnessed it himself in other premises and his own.
Conclusions of the Equality Officer
It was accepted and I am satisfied that the complainants are members of the Traveller community. It was also agreed that there had been a refusal of service on 30th December 2000. What is in dispute is the reason for the refusal. The complainants allege that it was simply because of their membership of the Traveller community as there could be no other reason. The respondent alleges that it was because the pub had reached its maximum safe capacity level, in addition to the respondent's knowledge of Mr. McCarthy and his alleged capacity to cause difficulties. Previous unspecified claims under the Act made by the complainants were mentioned at the hearing.
The following 'facts' remain in dispute:
- Whether either of the complainants had ever been in the pub before
- Whether or not a reason was given for the refusal
- Whether the pub was quiet or busy and had reached it capacity
- Whether or not the respondent was aware of Mr. McCarthy's alleged reputation
Two reasons were given by the respondent for the refusal of the complainants. One relates to all customers, the pub being full, while the other relates specifically to Mr. McCarthy and his reputation. The McCarthys stated that the pub was quiet. The respondent was asked if the pub was so full how did Ms. McCarthy get a seat. Since capacity is an issue related to numbers on the premises rather than numbers being served why was there not someone at the door restricting access? Why was Mr. McCarthy allowed to enter and make his way to the bar if the issue was one of capacity? In response the respondent described a fluid situation where large numbers of people would be standing rather than sitting and that if some people left others would be allowed in. I find that there are some inconsistencies in the evidence presented in this regard.
The complainants stated that they had never been in the pub before. But as they pass close by this pub on a very regular basis I find this unconvincing. Once the respondent had knowledge based on which it is reasonable to conclude that the service of the complainants could lead to a substantial risk of disorderly conduct their refusal could be justified in accordance with Section 15 of the Act. The respondent stated that he was aware of the potential for this from his own direct observation. I find the respondent's evidence in this regard more compelling.
It seems unlikely that the complainants could have known about the allegation of difficulties on St. Stephen's night included in their notification if they had not been told.
All in all based on the evidence presented to me including its many discrepancies I am not satisfied that the complainants have established on the balance of probabilities that they were refused for no reason other than their membership of the Traveller community. I find that they have failed to establish a prima facie case of discrimination on the Traveller ground.
Since the complainants have failed to establish a prima facie case of discrimination on the Traveller ground it is my decision that the respondent did not discriminate against them by refusing them service on 30th December 2000.
5th March 2007