Eileen Delaney, Hannah Carthy, Cathleen O'Reilly and Margaret O'Reilly v The Kil

The complainants were refused service in seven different premises on the 19th January 2001 in Kilkenny City on the ground that they are members of the Traveller Community. The publican denies these claims. The Equality Officer found under Section 3 of the Equal Status Act 2000 that a prima facie case of discrimination had occurred in the cases of three out of the four women present.  

Facts:  

In June 2001, 28 complaints of discrimination were submitted to the Office of the Director of Equality Investigations relating to a series of incidents which occurred on the 19th January 2001 in Kilkenny City. These complaints were made by four Traveller women who claimed that they were refused service in seven different pubs that night on the basis that they are members of the Traveller Community. Ms Carmel O’Connor acted as the complainants’ representative in these seven cases. Ms O’Connor was unaware of the extent to which Travellers were apparently discriminated against and so decided to go out with the four women on that night.  

The Complainants had no pre-determined list of pubs which they wished to visit and visited the pubs in question as they came to them. Ms O’Connor let the four complainants enter these pubs ahead of her to witness the events that took place.  

In dealing with the subsequent complaints, separate hearings were held in respect of the pubs. The Complainants visited eight different pubs that night and were only afforded service in Langton’s. Both parties in this particular case agree that the complainants have been served in the Kilford Arms on different occasions and that they have attended Traveller weddings in the Kilford Arms.  

Issues:  

The complaints claim that they had only been served in the Kilford Arms before when they were part of a group of women comprising Travellers and non-Travellers. They entered the Kilford Arms at 8.30pm on the 19th January and were followed shortly by Ms O’Connor. The complainants state that the barman informed them that it was the policy of the owner not to serve members of the Traveller Community. Margaret O’Reilly, one of the complainants, states that she went to the bar to order and was left waiting for several minutes before the bar manager, Mr Don Devlin approached her and informed her that she was not being served because “some of your people had me in court before”, which she took as a reference to Travellers. Ms O’Reilly returned to the table and made the comment, “He won’t serve us”. The complainants promptly left the premises.   

The Respondents in this case claim to have no policy of discrimination against Travellers, even stating that they had a member of the Traveller Community employed in the business at the time. Mr Devlin states that he recognised the complainants when they entered on the 19th January from having been on the premises before. He recognised one of the complainants in particular, Hannah Carthy, as having been barred by the owner Mr Pius Phelan a year before this case.  

Mr Phelan gave evidence of one occasion where Mrs Carthy’s husband had caused trouble on one occasion after being denied entry to the premises, and on another occasion while he was in the premises. Mr Devlin states that this was the reason why he would not serve the complainants.  They were not given the option of being served if Mrs Carthy was to leave the premises. In response to the comment by Ms O’Reilly about the premises “being up in court before”, Mr Devlin states that the Kilford Arms had no previous convictions and had never had a civil action taken against them.  

Reasoning: 

The Equality Officer in this case placed significant importance on the role played by Ms O’Connor in encouraging the complainants to test their rights on the night of the 19th January. Suggestions were made at the Hearings that the events of that night were orchestrated in an attempt to use the Equal Status Act 2000 to extract money from publicans. In looking at the long title of the 2000 Act which states that the Act was passed “to promote equality and prohibit discrimination”, the Equality Officer concluded that any person is entitled to refer a complaint under the act if their rights have not been respected. However, they continue to state that if evidence indicates that the complainants were encouraged to trick the respondents into discrimination or were acting in bad faith, then consideration would have to be very carefully given to this particular aspect of the case.  

The Equality Officer noted that Ms O’Connor had not personal interest in the outcome. They conclude that there is no evidence that Ms O’Connor’s role on that night had any self-motivated interests. She simply acted as an onlooker. In relation to potential trickery on the parts of the complainants, the Equality Officer found that if the complainants were interested in “testing their rights”, then they would have left Langtons much sooner than they did.  

The Equality Officer looked at Section 3(1) of the Equal Status Act 2000 which states that discrimination shall be taken to occur where, on any grounds specified in the Act, a person is treated less favourably than another person is, had or would be treated. Section 3(2)(i) of the Act then specifies the Traveller Community ground as a ground covered by the Act. The burden of proof in this case lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If this is established, then the burden of proof shifts to the respondent who has to show that their actions were driven by non-discriminatory factors. The Equality Officer relied on the case law when examining this shift of the burden of proof.  

 Both the Labour Court and previous Equality Officers have applied the practise of shifting the burden of proof in discrimination cases in cases as far back as 1983 (Bailieborough Community School v Carroll, DEE 4/1983 Labour Court). This was not addressed by the European Court of Justice caselaw until 1989 (Danfoss (Case no C-109/88, 1989). The practise of shifting the burden of proof in discrimination cases was also applied very clearly in the Supreme Court in Nathan v Bailey Gibson 1998 2 IR 162 and by the High Court in Conlon v University of Limerick 1999 2 ILRM 131. While these both dealt with indirect discrimination cases, the Equality Officer here holds that the principle should by logical extension apply to direct discrimination cases if it applies to non-discrimination cases. 

The Equality Officer found three elements which need to be established to show that a prima facie case exists: 

1. Membership of a discriminatory ground (e.g., the Traveller community ground),  
2. Evidence of specific treatment by the respondent, and  
3. 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.  
    

It is only when these elements are established that the burden of proof shifts.  

In relation to point (a) above, the Equality Officer is satisfied that the complainants are members of the Traveller Community. The Equality Officer then had to consider whether the treatment afforded to the complainants was less favourable than the treatment of non-Travellers would have received under point (b). The Equality Officer here focused on the comments made by both sides, the complainants stating that they were told “some of your people had me in court before”, and Mr Devlin’s claim that they were refused service on the basis of Mrs Carthy’s being previously barred. The Equality Officer concludes that Mr Devlin recognised the complainants as Travellers when they entered the premises and instead of focusing his attention on the barred Mrs Carthy, he refused to serve the group as a whole. He also failed to suggest that Mrs Carthy leave, and the rest of the group then be served. In terms of point (c), the Equality Officer had to consider whether or not the treatment afforded to the complainants would have been the same for non-Travellers under similar circumstances. The Equality Officer did not accept that Mr Devlin would have adopted the same attitude with a group of non-Travellers.  

Conclusion: 

The Equality Officer concluded that this case constitutes discrimination under section 3(1)(a) of the Equal Status Act 2000. A prima facie case of discrimination has been made by Margaret O’Reilly, Eileen Delaney and Cathleen O’Reilly and the respondents have failed to rebut this allegation. With regard to Mrs Carthy, the Equality Officer found that her refusal was based on her being previously barred from the premises and so she had not established a prima facie case.  

In determining a level of award, the Equality Officer considered the social/personal impact, the practical impact and the financial impact of the discrimination. He also considered whether there is evidence of a general discriminatory policy, whether the discrimination was acknowledged afterwards, and an apology offered, and whether the respondent had taken genuine measures to try and subsequently comply with the terms of the 2000 Act.  

The Equality Officer here ordered that the respondents pay the complainants the sum of €250 each for the distress, loss of amenity and other effects of the discrimination they received on the night of the 19th January 2001.