Edward O’ Reilly v The Dragon Inn Pub, Tallaght DEC-S2002-017

 The complainant was refused service in a pub and argues it was based on their membership of the Traveller Community.  He submitted a claim to the Equality Tribunal under the Equal Status Act 2000. The respondents argue it was based on his already having enough to drink invoking s.15 of the Act. Equality Officer found that the complainant was not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 15(1) of that Act which permits service providers to refuse service where to not do so may lead to disorder. 

Facts:

Summary of Complainant's Case:

The complainant stated that he went to the Dragon Inn Pub in Tallaght on Saturday 22nd of January 2001. As he was about to be served a drink, a barman approached and told the complainant that he could not be served. When the complainant asked why he could not be served he was told it was because he was not a "regular”. The complainant asked to speak to the manager and was informed that the manager would not be available until the following day. The complainant again asked why he was not being served and the barman replied that he believed the complainant "appeared to have enough drink taken already”. The complainant believed he was not served because he was a Traveller or at the very least that this would have been a factor. He noted that he would have been recognised as a Traveller based on his appearance, accent, and pronunciation. 

Summary of Respondent's Case:

The respondents denied that Mr O’Reilly was refused service based on his membership of the Traveller Community and noted they have always served Travellers in the past. They recounted a previous incident where the complainant had been a customer of the bar in 1999, and after leaving the pub for some hours, returned later on. An incident had followed in which the complainant was involved, and in the course of which the complainant had become aggressive and abusive. It caused the staff and customers to be fearful of the complainant's conduct. On a date in January 2001 the respondent was approached by one of his barmen who pointed out the complainant to him and stated that he was not serving him as, in his opinion, he appeared to have enough drink taken. The respondent told the barman that this was in order and also stated that the complainant had caused trouble in the pub previously. (The barman had approached the proprietor as the manager was not on duty at the time). 

Complainant's Evidence: 

In relation to his previous visit to the Dragon Inn in 1999, he went there following a funeral in Co. Meath as some friends at the funeral had asked him to go for a drink. He drank there for several hours (three to four) with his son, daughter-in-law, and his wife, then left for a short while (about twenty minutes) to say goodbye to his son outside, as his son was travelling abroad that evening.  When he tried to go back into the Dragon Inn he was stopped at the door and refused service. He could not recall the names of any of his son's friends but stated that his son-in-law was among them. He had not returned to the Dragon Inn since 1999 because he did not feel that he would be welcome there. Subsequently, he had returned to the Dragon Inn in January 2001 because he forgot that he was not welcome there. He noted he has never caused trouble in any pub nor has he ever been barred from any pub. 

Respondent’s Evidence:

Four witnesses gave testimony on behalf of the Respondents. 

1) Mr Murphy, Proprietor of the Dragon Inn: 

Mr Murphy recounted that at the time of the previous 1999 incident, he had been called down from the office by the barman on duty. who informed him that "there was going to be trouble" as one of the customers was causing problems. He rushed down to the bar and saw Mr. O'Reilly at the bar. Mr. O'Reilly was clearly drunk and unsteady on his feet and was very loud and was speaking in an aggressive tone of voice. He was told by the barman that Mr. O'Reilly had been refused service as he was very drunk and that Mr. O'Reilly had responded aggressively (verbally) and the bar around him had cleared of customers and the barman had stepped back away from the bar. He spoke with Mr. O'Reilly for approximately thirty minutes during which Mr. O'Reilly threatened to smash up the bar if he wasn't served. Mr. O'Reilly had eventually calmed down, taken Mr. Murphy's name and left. He explained that he had not told Mr. O'Reilly that he was barred on the night in question because he felt this would only make matters worse and his aim was to "talk him out the door without any trouble". When Mr. O'Reilly entered the Dragon Inn in January 2001 "Philip" the barman approached Mr Murphy and told him that he was refusing service to Mr. O'Reilly because he appeared to have enough drink taken already. This was standard practice. Mr. Murphy looked around the bar and when he saw Mr. O'Reilly he told the barman to carry on as he intended, and that the man in question had caused trouble before on the premises. The Dragon Inn does not have a policy of refusing service to Travellers, and Mr. O'Reilly would not be recognised as a Traveller by the staff as he does not "stand out" in any way from other patrons.  He stated the only reason for refusing him service was because the barman, Philip, who had no prior knowledge of Mr. O'Reilly, and had not been employed in the pub in 1999, had believed that Mr. O'Reilly already had enough drink taken. He noted that Travellers had been served on the premises before and since the incident in 1999. 

2) Mr McGorty and 3) Mr McGrath, Barmen during 1999 incident:

The two barmen that were on duty during the 1999 incident, confirmed the complainant had been drunk, and become aggressive and verbally abusive to them both. They confirmed that Mr. O'Reilly had been in earlier that day and had been drinking for several hours. He had left the pub and returned sometime later. He appeared to be very drunk and was therefore refused service. They noted Mr. Murphy had spoken with Mr. O'Reilly and after about half an hour Mr. O'Reilly left the pub. Mr. McGrath had felt threatened and intimidated by Mr. O'Reilly and was not in control of the situation. 

4) Mr Philip Doyle, Barman in 2002:

Doyle explained that he was not employed in the Dragon Inn at the time of the first incident in 1999. In January of 2001 he was collecting glasses out on the floor in the pub when Mr. O'Reilly entered. He noticed that Mr. O'Reilly was unsteady on his feet as he went to the bar. He went behind the bar and told Mr. O'Reilly that he couldn't be served as he appeared to have had enough drink. When Mr. O'Reilly asked for the manager, Mr. Doyle went to the owner, as the manager wasn't on duty. He told Mr. Murphy that he was refusing service as Mr. O'Reilly appeared to have had enough drink taken already. Mr. Murphy told him that that was in order. He did not recall Mr. Murphy saying anything else to him. He did not say at any time that Mr. O'Reilly was being refused because it was "regulars only.”  He had served Travellers in the past but could not say how he had identified them as Travellers.

Matters for Consideration: 

Whether or not the complainant was directly discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act. In this particular case the complainant claims that he was discriminated against because he is a member of the Traveller community while the respondent maintains that his staff acted in accordance with Section 15 (1) and (2) of the Equal Status Act 2000 which permits service providers to refuse service where to not do so may lead to disorder. 

It was necessary for the Equality Officer to determine whether a prima facie case of discrimination had been established. The three key elements of which are (a) Membership of a discriminatory ground (e.g. the Traveller Community ground) (b) Evidence of specific treatment of the complainant by the respondent (c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances. If these elements are established the burden of proof shifts to the respondent to prove otherwise.  

Conclusions of Equality Officer: 

The Equality Officer found that key elements (a) and (b) had been established. However, in relation to key element (c) at 5.6 above it is clear from the complainant's own written and oral evidence that he did already have drink taken when he went to the respondent's premises on the date in question. The only remaining question she found was whether it was reasonable for the barman to refuse service to the complainant on this basis. The complainant states that he had only two drinks taken while the respondent states that it appeared to the barman that the complainant had “enough drink taken”. She found that in such circumstances, the only person in a position to make a judgement on this issue at the time when it arose was the barman in question. Given the difficulties which can arise in situations where patrons are served alcohol when a judgement is made to the effect that they already have sufficient drink taken she was satisfied that the actions of the barman in refusing the complainant service was reasonable and that similar judgements are made by publicans and their staff in relation to Travellers and non-Travellers alike. Thus, she found that the barman’s actions in refusing service to the complainant were not therefore discriminatory. 

She also cited the complainant's claims that this occurred on Saturday, 22 January. The 22 January 2001 was not a Saturday. While accepting that wrong dates of themselves cannot be regarded as particularly significant for several reasons, she that the notification to the respondent, quoting the wrong date was filled in just over a week later, and that the inaccuracy, combined with the other factors set out above and below, cast doubt on the accuracy, and therefore credibility, of the complainant’s evidence. She also noted it ‘highly implausible’ that the complainant simply forgot something (his being not welcome in the Dragon Inn), despite being keenly aware of it for over a year. 

The Equality Officer made reference to the strong evidence given on behalf of the Respondent, which had multiple witnesses supporting it. 

Decision: 

The Equality Officer found that the complainant was not discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.