Melanie Curtis (Represented by Noonan, Linehan Carroll and Coffey Solicitors on behalf of the Equality Authority) V Lotamore Ltd Trading as the Barn Restaurant
Keywords
Equal Status Act, 2000 - Family Status Ground Section 3 (2) (c) Provision of goods and services Section 5 (1)- Establishment of a Prima Facie case - Presence of children on premises after certain hours - Booking accepted - Refusal of Service- Discretion applying to service provider Section 15 (1)
The complainant referred a complaint of discrimination on the Family Status ground to the Director of Equality Investigations. In accordance with her powers under Section 75 of the Employment Equality Act,1998 the Director has delegated theinvestigation, hearing and decision in this case and the exercise of other relevant functions of the Director under part III of the Equal Status Act, 2000 to Mary O'Callaghan an Equality Officer. The hearing of the complaint was held on Thursday 30th October 2003.
The complainant also referred a complaint of victimisation contrary to Section 3 (2) (j) of the Act but this was withdrawn on the day of the hearing.
1. Dispute
This dispute concerns a complaint made by Ms. Melanie Curtis that she was discriminated against by Lotamore Ltd. when she was forced to leave the Barn Restaurant, on arriving there with her infant daughter on 30th June 2001.The complainant alleges that the reason for her being asked to leave the restaurant was the fact that she was looking after her child at the time.
The respondents deny that Ms. Curtis was forced to leave the restaurant but say she was approached and asked to leave because they have a rule of not admitting children under 10 years of age after 7 p.m. The respondents say that in general they welcome children and families at the restaurant if they arrive before 7 in the evening and at lunch time but that they do not think it is appropriate to admit children to the restaurant after that. Evidence was provided at the hearing by the complainant and her partner at the time of the incident, the respondents and the manager of the restaurant.
2. Summary of the Complainant's Case
The complainant said that on 30th June 2001 she and her partner decided to go out for a meal to celebrate being together 2 years. Although she lived in Cork City at the time, she, her partner and her eight month old daughter were spending the day with her parents in Mallow, 30 miles away. The complainant said that during the afternoon she phoned the Barn Restaurant and reserved a table for two people for 10.15 that night. Later in the day all three drove from Mallow to her home in Cork and she changed and got ready for a celebratory night out. Her partner and herself and the baby then travelled in her partner's car to the Barn Restaurant which is about 15 minutes drive away. The complainant said they arrived at approximately 10.15 p.m. On arrival in the restaurant car park, the complainant realised that she had forgotten the baby's changing bag. Her partner said that she and the baby should go into the restaurant to hold their booking and that he would return to the complainant's flat and collect the bag. The complainant then entered the restaurant where she was shown to a seat by a member of the restaurant staff, who lifted the baby in the baby seat onto a seat beside her. He then left to get her a menu. While she waited she said the respondent (co-owner) approached her and said "sorry no babies allowed you will have to leave." The complainant said that she had noticed a group of people which she understood to be a Christening party leaving the restaurant with a baby and a number of children, just as she was arriving. She raised this point with the respondent who said that they would admit children at a later hour for special occasions. The complainant said that this was also a special occasion for her and that her partner had just gone back to collect the changing bag. She pointed out that they had driven 30 miles to be there. She asked if an exception could be made but the respondent refused and persisted in asking her to leave.
The complainant said she got up to leave and as she exited she spoke to a man (the other co-owner) expressing her disbelief at what had happened. She said that the man looked at the baby and said "isn't she grand." The complainant understood him to mean that her baby wasn't a problem. The woman who had asked her to leave then approached and said to the man "there are no babies allowed." The man agreed with her. The complainant then left the building and went to the car parking area with the baby to wait for her partner's return. She said she described the events to the Christening group who were still in the process of leaving and she said that they agreed that she had been treated unfairly.
3. Summary of the Respondent's Case
The respondents said that the restaurant had been in existence for 24 years and had been a licensed since restaurant licenses became available in the early 1980s. The restaurant serves full five course dinner in the evenings and a full lunch on Sundays only. It is a silver service restaurant which means that customers do not receive plates with food already on them but are served food on to their plates at the table. The respondent said that this type of service requires room to move around the tables and can raise safety issues if people are not seated at tables. This is one of the reasons they do not allow children to come into the restaurant after 7 in the evening. Another reason is that the regular clientele is generally older and they feel they would not appreciate the presence of young children late at night. They consider that it should be a matter for the management to decide when parents with children can be admitted to the restaurant. The rule that they applied was that children under ten years were welcomed in the restaurant if they arrived before 7 p.m. but not later. Children that were already on the premises at 7 p.m. could remain. They said that the Christening group who were at the restaurant on the evening had a booking for 6.30 p.m. but due to an illness of one of the children they didn't arrive until about 7 p.m. They had no problem in allowing young children in this particular circumstance.
The respondents disagreed that the complainant had booked her table that afternoon and maintained that the booking was made about one hour before the complainant arrived at the restaurant. The restaurant is normally open from 6- 9.30 p.m. in the evenings but occasionally when it is very busy they will serve later. They say that on this occasion they were able to accommodate the complainant with a late booking when she phoned at 9.30 p.m. They had not been told that there would be a child with the couple.
The respondents say that the complainant was not actually seated in the dining area when she was asked to leave but was in the reception/conservatory area of the restaurant. They say that she and her daughter could have remained there until they were collected by her partner if she so wished but that she had become angry and stormed out claiming that she was being discriminated against. They say that the man who spoke to the complainant at the door mistook her for one of the Christening group.
4. Conclusions of the Equality Officer
Firstly, I must consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) That the complainant is covered by the discriminatory ground (in this case Family Status)
(b) That there is evidence of specific treatment of the complainant by the respondents
(c) That there is 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 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination. In this case the complainant has established that she has family status being the parent of the eight month old baby who was with her on the night of the incident complained of. She has, therefore, satisfied the criterion at (a) above. The fact that she was asked to leave the restaurant by the respondent satisfies the specific treatment criterion (b).
The third test to be satisfied if a prima facie case is to be established is that the complainant was treated less favourably than another customer with a different family status would have been treated under similar circumstances. Given that it has been accepted by both parties that the reason that she was asked to leave by the respondent was because she had a child with her and that she would have been admitted to the restaurant if that was not the case illustrates that the complainant has satisfied this test also and that she has established a prima facie case of discrimination on the Family Status ground. The burden of proof shifts to the respondents to show that their actions towards the plaintiff on the evening of 30th June 2001 were not discrimination contrary to Section 3 (2) (c) of the Equal Status Act, 2000. The respondents' explanation of their actions on the occasion complained of rests on two lines of reasoning.
The first of these is that the particular type of restaurant service they offer requires a degree of control of the placement of people in the restaurant in order to facilitate the service of food from serving platter to table, without risk to the comfort or safety of patrons. However, the restriction on who can use the restaurant is not applied at all times of the day and it would appear from the evidence of the respondent that people with children can be in the restaurant throughout its regular opening period if they have arrived prior to 7 p.m. I do not find this explanation sufficient to rebut the complainant's Prima facie case.
The second line of reasoning is that the respondents consider that they should have absolute discretion on who they accept as customers at their restaurant. On this occasion however, it was agreed that at some time on 30th June 2001 a booking was made by the complainant and accepted by the restaurant. It was when the complainant arrived at the restaurant with her baby that the decision was taken not to honour the booking. In the recent Equality Officer Decision, Ms. Paola Shanahan v One Pico Restaurant1, the Equality Officer deciding that case addressed the discretion allowed to service providers under the Equal Status Act 2000 where she cites this as the entitlement to refuse to serve someone whom that person considers may pose a risk of disorderly conduct2. The Equality Officer in that case says "this defence only relates to a customer who may have caused difficulties in the past or whose behaviour reasonably suggests that such a risk exists." There has been no evidence in the current case to suggest that at the time the respondent approached the complainant and asked her to leave the restaurant that the complainant was behaving in any way that would convey a risk of disorderly conduct and there has been no evidence to suggest that the respondent is covered by any of the defences to discrimination in the Act. I therefore conclude that the respondent has failed to rebut the complainant's Prima Facie case of Discrimination. In making this determination I am conscious that since the enactment of the Intoxicating Liquor Act, 2003 the situation in relation to the presence of children on licensed premises has changed. Furthermore, since that enactment, complaints under the Equal Status Act concerning licensed premises, occurring after 29th September 2003 are to be referred to the District Court. However, as the incident complained of occurred two years prior to that enactment it cannot play any part in my decision in this case.
5. Decision
I find for the complainant in this case.
6. Redress
Where a complaint under the Equal Status Act 2000 is upheld Sections 25 and 27of the Act require the Equality Officer to provide for redress by either an Order for compensation for the effects of the discrimination or an Order that the person specified in the Order take a specified course of Action. The maximum amount of compensation which I can award is €6,348.69 the same maximum amount that could be awarded by the District Court in civil cases in contract.
In determining the amount of redress appropriate I took account of the following
- The fact that the respondents failed to provide the complainant with information requested by her in the Notification of Complaint although it emerged at the hearing that this information was available to them.
- That the evidence that the complainant made her booking at the restaurant at the time she described has not been compelling and that it appears more likely from the time of the reservation that it was a late booking, although I accept that a booking was made and accepted.
- That the evidence that the complainant was forced to wait in the car park has not been entirely convincing and I believe that she could have waited indoors. In this case I do not think that the maximum award is appropriate and I Order that the respondent invite the complainant together with three people of her choice inclusive of any children to a complimentary Sunday Lunch, to be provided by the respondent at their restaurant, on a Sunday of the complainant's choice within six months of the date on this decision and that €100.00 be paid by the respondent to the complainant to cover any additional expenses she may incur in availing of the invitation.
1 DEC-S2003-056 Ms Paola Shanahan v One Pico Restaurant p.13
2 Equal Status Act, 2000 Section 15 (1)
Mary O'Callaghan
Equality Officer
12th December 2003