Suzanne & Margaret Crawford (represented by Gary Keogh & Co, Solicitors) V The Bootlegger Bar (represented by McMahon O'Brien Downes, Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Suzanne Crawford and Margaret Crawford that they were discriminated against, contrary to the Equal Status Act 2000, by the management of the Bootlegger Bar, Limerick. The complainants maintain that they were discriminated against on the age ground in terms of sections 3(1), 3(2)(b) and 3(2)(f) of the Equal Status Act 2000 in not being provided with a service which are generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainants' Case
2.1 The complainants state that they were both refused admission to the Bootlegger Bar on Thursday 3 May 2001 by the doorstaff who informed them that they were "too old" and that the management wanted "younger women and older men" as customers. They were 29 and 36 years old at the time. The complainants claim that the refusal constituted discrimination on the grounds of their age.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against anyone. They state that the premises is primarily a restaurant and that it would not be in their interests to refuse customers on the grounds of their age. They maintain that the alleged incident was investigated by management when the complaint was made but that staff had no recollection of such an incident occurring.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred 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 has delegated these complaints to myself, Brian O'Byrne, 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, 2000.
5 Matters for Consideration
5.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(f) of the Act specifies age as one of the grounds. Under Section 5(1) of the Act it are unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the manner in which they were refused admission to the Bootlegger Bar on 3 May 2001.
5.2 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend their case, must show that their actions were driven by factors which were non-discriminatory.
5.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100)
6 Conclusions of the Equality Officer
6.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the age ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
6.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
6.3 With regard to (a) above, the complainants have satisfied me that they were 29 and 36 years of age respectively on 3 May 2001. In relation to (b), the respondents state that their staff have no recollection of the alleged incident. To determine whether a prima facie case exists, I must, therefore, decide first whether the complainants have satisfied me, on the balance of probabilities, that the alleged incident occurred on 3 May 2001 and, if so, whether the alleged treatment was less favourable than the treatment persons of a different age would have received, in similar circumstances.
6.4 The principal pieces of evidence before me are as follows
- The complainants were regular customers in the Bootlegger Bar up until 3 May 2001. The previous Sunday they had celebrated their mother's birthday in the pub.
- The complainants said that, on 3 May 2001, one of the doormen, who was a regular on the door, informed them that the management had brought in a new "younger women / older men" policy and that they could not be admitted.
- Having pleaded with the other doorman, who they knew by name (who I shall refer to as Mr A), one of the complainants was allowed inside to inform her friends that she was not being admitted. While inside, she says that she informed the barman of the doorman's comments but that he just "laughed at her" and told her that he could not over-rule the doorman's decision
- The complainants state that they found the incident so upsetting that Suzanne cancelled a Communion booking for the Bootlegger scheduled for the following weekend. Because of the incident, neither of the ladies have visited the pub since.
- The respondents state that the bar is primarily a restaurant and that it is frequented by all age groups. It would not be in the manager's interest to restrict people on the grounds of their age.
- The bar engages a security firm to supply doorstaff. The firm is responsible for the training of staff on equality issues and Mr Enright, the owner, said at the Hearing that he believed that the doorstaff would have received all necessary training relating to the Equal Status Act 2000 from the company itself or from the head doorman.
- When the Act came into force, weekly meetings were held with doorstaff who were told to ensure that customers were clearly told the reason for their refusal in order to avoid allegations of discrimination.
- At the Hearing, Mr Enright, stated that it is normal practice for him to investigate all complaints when received. He believes that he would have investigated the incident on 3 May 2001, on receiving the solicitors letter three weeks after the alleged incident. However, Mr Enright cannot recall specifically talking to the doorstaff himself about the incident.
- The Bootlegger Bar has a video surveillance system in operation which would have recorded the events at the door on 3 May 2001. Mr Enright believes that the videotape of 3 May 2001 would have been viewed as part of his investigation as tapes are normally retained for 6 months. Mr Enright cannot explain, however, why this videotape was not retained as evidence.
6.5 In deliberating on the case before me, I can find no reason why the complainants would have fabricated the incident on 3 May 2001. On their own admission, the complainants were regulars in the pub and were happy to use the premises for birthday celebrations and communions. In addition, neither party has referred to any form of trouble between them in the past which would appear to rule out any suspicion that the complainants may have had a grievance against the pub's owner. The respondents, for their part, say that they investigated the complaint at the time but could find no evidence of the incident nor could they provide an explanation for what apparently happened on 3 May 2001. Mr Enright states that he also believes that the relevant videotapes were examined at the time but showed nothing. Of interest here is that Mr Enright has stated that, while it would be his normal practice to investigate such complaints, that he cannot say for certain that the doorstaff were interviewed or the videotapes examined in this instance. I also note that neither of the doorstaff on the night were brought to the Hearing to give evidence. Mr Enright said that he was unable to trace them as it seems that they no longer work for the security firm. The complainants, however, questioned this, saying that they knew where Mr A lived and that they often still see him around the area.
6.6 Section 42 of the Equal Status Act 2000 , which deals with the issue of vicarious liability, states that:
"(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee --
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description."
6.7 On the basis of the evidence before me, I have formed the opinion, on the balance of probabilities, that Suzanne and Margaret Crawford were refused entry to the Bootlegger Bar on 3 May 2001 and that the explanation given to them was that they were "too old". This to me calls into question the respondents assertion that proper training on the grounds covered by the Equal Status Act 2000 was actually provided to all staff. If it had been, I consider that the doorstaff would have known, from such training, that any refusal based solely on a person's age could be deemed to constitute discrimination under the Equal Status Act 2000. I am also persuaded towards the view that proper training was not provided to staff by the complainant's evidence that the barman, on being told about the age comment by the complainant, did not appear to appreciate the seriousness of the situation nor did he attempt to intervene. In the absence of any evidence from any of the staff who were involved, I find that I am not prepared to accept that the respondent had taken reasonable steps to prevent the discrimination, by providing sufficient training to staff on the provisions of the Equal Status Act 2000. Accordingly, I find that the respondent was vicariously liable for the actions of the doorman on 3 May 2001, under Section 42 of the Act.
6.8 Overall, I cannot see any legitimate reason as to why the complainants were told that they were "too old" and I can only presume that the comment was made in a jocular fashion. However, I am satisfied, on the balance of probabilities, that the remark was made, that it was a discriminatory remark and that it caused hurt and humiliation to the complainants. I also find that the respondents have not provided sufficient evidence to rebut the allegation nor to convince me that they should not be held vicariously liable for the actions of the doorstaff on the night in question. I, therefore, find that a prima facie case of discrimination on the age ground has been established and that the respondents have failed to rebut the allegation.
6.9 In deliberating on the case before me, I am conscious of the fact that the alleged comment by the doorman regarding " younger women and older men" could also have been interpreted as discrimination on the gender ground. However, as the gender ground was not raised with the respondent at the hearing, I consider that it would not be in the interests of natural justice for me to make a finding as to whether discrimination on the gender ground occurred in this instance.
Decision
7.1 I find that a prima facie case of discrimination has been established by the complainants on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
In considering the level of redress to award, I am cognisant of the fact that, as a restaurateur, it would not be in the respondent's interests, to discriminate against people on the grounds of their age. I also note that the respondents replied promptly to the notification of the complaint in 2001, stating that they were unaware of the circumstances under which the refusal was made and extending a "warm invitation" to the complainants to visit the premises again. For these reasons, I am prepared to accept that this was an isolated incident and that the Bootlegger Bar does not actively engage in discriminatory practices.
I have, however, found that discrimination did occur on the night of 3 May 2001 and that the complainants suffered hurt and humiliation as a result. Accordingly, I order that the respondents pay Suzanne and Margaret Crawford the sum of €300 each for the hurt, humiliation and loss of amenity suffered.
Brian O'Byrne
Equality Officer
15 December 2003