O’Sullivan v Connor and The Beer Garden Bar, Cork
ODEI - the equality tribunal
OFFICE OF THE DIRECTOR OF EQUALITY INVESTIGATIONS
EQUALITY OFFICER’S DECISION NO:DEC-S2002-103-104
File No. ES/2001/193 & 202
Equal Status Act 2000
Employment law - Equality – Direct discrimination – Burden of proof – Refusal of service – Membership of the Traveller community – Action taken in good faith – Whether complainants discriminated against – Equal Status Act, 2000.
Equal Status Act, 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub.
Each of the complainants 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 cases 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 claims by Kathleen and Jerry O’Sullivan that they were discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the grounds that they are members of the Traveller community in that on 2 December, 2000, they were refused service in the respondent’s premises. The respondent denies that discrimination occurred.
2 Summary of Complainant’s Case.
2.1 The complainants had attended at the respondent’s premises on a regular basis prior to 2 December, 2000. On 2 December, 2000 Mr. O’Sullivan went to the bar to order a drink for himself and his wife. The barman refused service on the basis that he and his wife had caused trouble the previous week on the premises. The complainants state that they had not caused any trouble on the premises at any time. The complainants believe that they were refused service because some of their relatives had begun to socialise at the respondent’s premises and the respondent wished to restrict the number of Travellers socialising on his premises.
3.1 The respondent submits that the complainants were refused service on 2 December 2000 because they had been involved in a potentially violent incident the previous week .
Ms. O’Sullivan stated that:
- She and her husband had been socialising in the Beer Garden Bar on a regular basis for a period of 6-7 months up to 2 December, 2000.
- On 2 December 2000 they went, as usual, to the premises. Her husband went to the bar to order a drink and came back a short while later and told her that he was not being served as the barman had said that they caused trouble in the bar the previous week. Her husband was extremely ashamed and embarrassed because of the refusal and left the premises immediately.
- A week before the alleged trouble was supposed to have occurred i.e two weeks before the complainants were refused service, Ms. O’Sullivan’s daughter, Ms. Noreen O’Brien, her brother and two companions had gone to the bar in the Beer Garden to order a drink. Ms. O’Brien and her brother were told by the barman on that occasion that if they and their companions did not leave the premises that their parents, Mr. and Mrs. O’Sullivan would be barred from the premises.
- Ms. O’Sullivan recalled that a group of approximately three people, two women and one man, had been very drunk and had been carrying on a bit on a night a week before her husband had been refused service. These people were not in their company and neither she nor her husband had been involved in any trouble.
On 19 December, 2000 Ms. O’Sullivan wrote to the owner/manager of the Beer Garden Bar outlining the way in which her husband had been refused service and stating that they intended to return to the premises on 26 December, 2000. In doing so, they were offering the owner/manager the opportunity to provide service to them on the same basis as service was provided to other patrons. The letter also stated that it was Ms. O’Sullivan’s belief that the only reason that service had been refused was because she and her husband are Travellers.
- Ms. O’Sullivan and her husband returned to the premises on 26 December, 2000. Ms. O’Sullivan ordered a bottle of minerals from the barwoman. Another member of staff tipped the barwoman and said “sorry, that lady is barred by the manager”. Service was again refused.
- Ms. O’Sullivan and her husband have been attending the premises regularly on Saturday nights since Summer 2001 as the bar is under new ownership since March, 2001. They have also attended a number of parties, in the same period, on the premises.
- Neither she nor her husband had ever been refused service before 2 December and they had been happy with the service provided in the Beer Garden Bar until two weeks before the refusal, when their son and daughter had been told to leave the premises or they, and their parents, would be refused service.
- Ms. O’Sullivan believes that the presence of her son and daughter on the premises two weeks before her husband was refused service was the cause of the refusal, as the number of Travellers drinking on the premises increased with their presence and the owner of the pub wanted to restrict the number of Travellers on his premises.
Mr. O’Sullivan stated that:
- On the evening of Saturday, 2 December, 2000 he and his wife went to the Beer Garden Bar, as was their custom.
- He went to the bar to order drinks while his wife went and sat down.
- The barman told him that he could not serve him as he (Mr. O’Sullivan) had caused trouble in the bar the week before.
- He had told the barman that this was not true, but the barman insisted that it was true and that he would not serve him.
Mr. O’Sullivan could recall that there had been an incident of sorts the previous week whereby a group of people, comprising mainly non-Travellers and most of whom were not known to Mr. O’Sullivan, had been loud and noisy, but to the best of his knowledge none of those involved had been barred.
Ms. O’Brien stated that:
- She is the daughter of the complainants, Mr. and Ms. O’Sullivan.
- Two weeks before her father was refused service she went to the Beer Garden Bar with her parents, her brother and his wife. Her brother went to the bar to order drinks. He returned to the group and said that the barman had stated that he would not serve them as two blonde girls had caused trouble in the bar the previous week and that Ms. O’Brien’s brother was with the girls in question at the time.
- Ms. O’Brien and her brother, in turn, went to speak to the barman and pointed out that Ms. O’Brien’s brother couldn’t have been involved in any such incident as he had never been to the bar before.
- In the course of conversation with the barman the latter pointed to Mr. and Ms. O’Sullivan and stated that if Ms. O’Brien or her brother approached him again he would bar “the old couple” i.e. their parents. Eventually, the barman accepted that he might be mistaken and served the entire group for the evening.
- On the evening when her father was refused service Ms. O’Brien was sitting in the bar, at another table, with her sister. Her mother told them that the barman had refused service and they left the premises shortly after their parents left.
- They met their parents the following morning and were told what the barman had said.
- Neither Ms. O’Brien nor any of her companions who were in the bar the previous week had seen or heard any noise or witnessed any incident. They had been sitting near to the area where music was playing, with their backs turned to Mr. and Ms O’Sullivan.
Ms. O’Brien stated that:
- The evidence given by her sister in relation to the night on which Mr. O’Sullivan was refused service was correct.
- She had not been there the previous week, i.e. on the evening when her father was accused of having caused trouble, and could not therefore give any evidence about that evening.
Mr. David McCarthy, representative for the complainants.
Mr. McCarthy summarised on behalf of the complainants stating that:
- The complainants had not been involved in any trouble as alleged.
- The complainants believed that the refusal was a direct result of family members joining them on the respondent’s premises and the respondent did not want more Travellers on his premises.
- The refusal of service was out of proportion to all information available and the grounds for refusal were unacceptable
- The respondent had failed to respond to the complainants or the Equality Officer in the matter
- The refusal of service had caused a great deal of humiliation to the complainants
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