McDonagh v Fiddler's Creek Bar
ODEI - the equality tribunal
EQUALITY OFFICER’S DECISION NO: DEC-S2002-119
File No. ES/2001/551
Equal Status Act 2000
Employment law - Equality status - Discrimination - Travelling community - Licensed premises - refusal of service - equal Status Act, 2000
The complainant, a member of the Travelling Community, claimed she was refused service on the respondents' licensed premises. The respondents denied this and claimed that there was confusion in because the complainant was seated in a section of the bar that was reserved for groups who lunch on the premises and that was the reason the complainant did not get served.
Held by the Equality Officer that the complainant had established a prima facie case of discrimination on Travelling Community grounds. The onus of proof shifted to the respondents who failed to rebut it.
The complainant referred a claim 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 then delegated the case to me, Dolores Kavanagh, 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.
1.1 This dispute concerns a claim by Ms. Annie McDonagh that she was discriminated against by the respondent contrary to the Equal Status Act, 2000, on the grounds of membership of the Traveller community in that, on 20 July, 2001, she was refused service in the respondent’s premises. The respondent denies that discrimination occurred.
2 Summary of Complainant’s Case.
2.1 The complainant states that she and a number of companions went to Fiddler’s Creek Bar on 20 July, 2001 to get some lunch. The group were in the premises for approximately forty minutes without having been served. The complainant spoke to a member of staff and asked for service and was told that the manager had refused permission to serve the group. The complainant states that the reason service was refused was because of her membership of the Traveller community.
3.1 The respondent states that he has a policy of reserving a number of tables in his premises on a number
of days for groups of workers from nearby offices who take lunch in the premises regularly. The policy has been ongoing for a number of years. The complainant and her companions were seated in a reserved area and the bar person with whom the complainant had spoken had indicated to her that she would not be served while seated in that area.
Ms. McDonagh, complainant, stated that:
-On 20 July, 2001 she and a number of companions were travelling to visit a relative. They stopped in Sligo between 12.30 p.m. and 1.00 p.m. as the group were hungry and cold and they decided to get a hot meal.
-The group went to a number of establishments but, as these only served cold meals (sandwiches etc.) they made enquiries as to where they might get a hot meal and were directed to the Fiddler’s Creek pub/restaurant.
-On arriving at the entrance to Fiddler’s Creek they spoke to a man who was standing outside and who was wearing a red T-shirt with the pub’s logo on it. They asked him if the bar served hot lunches and he told them that it did.
-The complainant and her companions entered the pub and seated themselves on some high stools opposite the bar. They sat there for some 20 minutes, but despite the fact that staff passed them by a number of times to serve other customers they were not offered service. As the high seats proved to be uncomfortable the group moved to some other seats in a section marked “non smoking”.
-After waiting approximately 20 minutes in the second area the group still had not been served. An elderly couple seated next to the group were eating a hot meal and engaged in conversation with the group. The couple said that they were visiting the area, but did not say where they were from.
-The complainant went to the bar seeking service and spoke to a man whom she considered was a senior member of staff because he was dressed in a shirt and tie. She asked him to send somebody to take the group’s order as they had been waiting for some time.
-The man replied that he would have to check with the boss to see if he could serve them. The complainant thanked him and returned to her seat.
-Approximately five minutes later a member of staff approached the group and stated that he was “not allowed to serve them as the boss would not allow it”.
-The complainant’s sister Ms. Bridget Sweeney was so embarrassed that she ran out the door of the pub. The rest of the group followed.
The group went to another premises close by and were served immediately. They were treated very well in the second premises.
After the meal the group decided to go to the Garda station and formally report what had happened in Fiddler’s Creek as they were still upset. They spoke with the Garda on duty and explained what had happened. The Garda rang Fiddler’s Creek and spoke with a member of staff there. He asked if the member of staff recalled what had happened. They replied that they did recall same. The Garda asked for a reason for the refusal and the member of staff stated that they were not aware of any reason for refusing the group.
The complainant has travelled to many places in Ireland and has never been treated in the manner in which she was treated in the Fiddlers Creek premises. She has been settled for a very long time and has a Galway accent. She has not therefore been recognised as being a Traveller previously.
The complainant recalled that three members of staff in Fiddlers Creek had gathered together at one point and were staring at the complainant and her companions and chatting among themselves, but she could not hear what they were saying.
Neither the complainant nor any of her companions was asked to move from where they were seated at any time. There was no signage indicating that any of the seating they occupied was reserved
Ms. Sweeney confirmed that the evidence as presented by the complainant was correct and that the experience was extremely humiliating and distressing.
The complainant’s representative summarised on behalf of her client by saying that:
-The complainant and her party were never approached by any of the respondent’s staff at any time and the complainant found it necessary to request service. If the seating area in which the group was located was reserved for regular customers, why had the respondent’s staff had not brought this to the attention of the group at any time.
-When the complainant had eventually gone to seek service she was told that it would be necessary to get permission to serve her, not that she or her companions could not be served because of where they were seated.
-The complainant and her companions had been waiting for approximately 40 minutes for service and were the only people who were not served while they were in the respondent’s premises. Given the stated popularity of the premises for lunch, this was an extraordinary length of time for any customer to be left unattended, particularly if the seating was reserved in which case it would be reasonable to expect that somebody would have informed the complainant and her party that that was the case.
-Any preference given to “regulars” through rules and policies adopted amounts to indirect discrimination against Travellers as it is a prerequisite which would be disproportionately difficult for them to fulfil.
Mr. Enda Scanlon, respondent, stated that:
-He is the owner of the Fiddlers Creek Bar/Restaurant and has been in business for 7 years approximately.
-He was not present on the day in question but it is standard practice to reserve seating in the restaurant, particularly at lunch hour, for groups of workers from nearby offices/businesses.
-Office workers regularly ring into the premises before lunch to check the menu for the day and often request that seating be held for them.
-It is standard practice to place “reserved” signs on the tables to indicate that the seating is not available. Such signage would have been placed on the tables on the day of the alleged discrimination.
-He has never operated a policy of refusing or limiting service to Travellers or any other group, and he has never instructed any member of staff to do so.
-He cannot state the precise number of places reserved on a daily basis as it varies according to demand from local office workers.
-He is unable to account for the delay in his staff approaching the group and can only assume it was because the restaurant was very busy on the day.
He does not recognise the person that the complainant says she approached for service from the description given by the complainant as none of his staff, including the manager, has ever worn a shirt and tie....
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