Derek Kelly (Represented by the Equality Authority) V Kelly's Lounge
Keywords
Equal Status Act, 2000 - Disability Ground Section 3 (2) (g) -Reasonable Accommodation Section 4-Provision of goods and services Section 5 (1)- Establishment of a Prima Facie case -Remarks passed
Delegation under the Equal Status Act, 2000
The complainant referred a complaint of discrimination on the Disability 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 the investigation, 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 me Mary O'Callaghan an Equality Officer. The hearing of the complaint was held on Thursday 13th November 2003.
Dispute
The complainant says that he was in Kelly's Lounge with some friends on 25th May 2002 and was seated at the counter talking to another customer when the barman approached him, took his drink from him and told him to go and sit with his mother or he would have to leave. The defendant who was of full age at the time of this incident is disabled due to Down's Syndrome. He became upset as a result of the actions of the barman and he believes that the barman's behaviour towards him was discriminatory contrary to Sections 3 and 4 of the Equal Status Act, 2000.
The respondent accepts that his barman did take the complainant's drink from him and did make the remarks attributed to him by the complainant. He maintains the barman did so because he considered the complainant to be behaving in a "hyper" manner and that the complaint may have been disturbing customers. The respondent says that the complainant and his family were respected customers and that there was no intention to discriminate against the complainant. Evidence was provided at the hearing by the complainant, his mother and two witnesses to a third party statement submitted to the tribunal by the complainant as well as by a former foster child of the complainant's mother; the respondent and the barman who dealt with the complainant on the date of the incident complained of.
Summary of the Complainants Case
The complainant and his family used to frequent Kelly's lounge regularly prior to the incident complained of. They had held parties in the pub and had even had a wedding party there. The complainant's case is that he went to Kelly's Lounge with his mother and some friends on the evening of 25th May 2002. Initially he sat with his mother and some friends and then he went to the counter to purchase two pints of black currant, one for himself and the other for one of his friends. On returning with the two glasses he asked his mother if he could go back to the counter area to chat with a man he knew from the area. He then returned to the bar counter area with his drink and sat with the man and they were talking. After a while the barman approached him, seized his drink, and told him to go sit with his mother or he would put him out.The complainant's mother said this incident was not the only time her son had had difficulties with the barman and she said that the barman maintained that the complainant was too young to be in the pub. On one occasion she recalled him saying he would not serve her until "the kids were gone". She understood him to be referring to the complainant and some of his friends from the day centre he attended. She said that when her son came from the bar area he was upset and crying. She asked him where his drink was and what he had done. He told her he had done nothing. The complainant's mother said that shortly after that the respondent bar man moved into the function room of the pub and she went to the counter area and retrieved the complainants drink from another barman.
She said that the barman's attitude toward her had changed suddenly, a while before this incident, after he discovered they were related through marriage. With reference to the way the barman treated her son, she alleged the barman disliked the complainant because of his disability and that this dislike was the reason for his behaviour toward the complainant during the incident complained of. The following morning she phoned the pub to complain and to and speak with the pub owner but the barman told her he was not available. She said she felt he would contact her but when he did not, she believed that the complaint should be pursued all the way and she wrote to Mr. Kelly seeking an explanation and notifying him of her son's intention to refer the complaint further if he didn't provide an adequate explanation. Other evidence in the complainant's case was provided by witnesses to a statement made by the customer with whom the complainant was talking when the bar manager told the complainant to sit with his mother or leave. These witnesses verified that the witness had made the statement submitted to the tribunal that stated that the complainant had not behaved in any manner that would have caused the bar manager to act as he did. The writer of the statement did not feel able to attend the hearing. Evidence concerning an incident at the pub which occurred in 1999 prior to the enactment of the Equal Status Act 2000 in which it was alleged that the bar manager referred to the complainant in an inappropriate manner was provided by a former foster child of the complainant's mother. This evidence regarding the statement can only be given limited weight as the statement writer was not in attendance. The other evidence referred to an incident which was not in my opinion connected with the incident complained of.
Summary of the Respondent's Case
The respondent said that he had been the licensee of the pub since 1985. It is a local community pub with a predominantly local business. He said that the pub had access for disabled people and that although it did not have special toilet facilities for the disabled, arrangements were made for disabled customers to use the ground floor toilet. He was not there on the day of this incident as he is semi-retired and does not work in the pub full time. He said that the pub is staffed by a mature bar staff. The respondent said that the complainant and his family were good and valued customers of the pub and that there was a reasonably good friendship between him and the family. They were always very welcome in the pub and that a brother of the complainant still comes to the pub. He said he was very aware of the complainant's disability and that the complainant was always treated as very special. He said that the complainant had over the years, been accommodated in relation to how he couldbehave in the pub, due to his disability and due the high esteem in which the respondent held the complainant's family. He said that the complainant had always been allowed to participate in activities in the pub such as singing along with the band, whereas other customers would not get this facility. On the night of this incident Pat Murphy, the staff member involved in this incident, was the manager on duty in the pub. The respondent (licensee) says that on the night in question the pub was very busy and that there was a function underway in the upstairs function room. He said he understood that in the busy environment of the pub the manager became irritated and annoyed by the complainant repeatedly shouting his name and that this led to the manager saying to the complainant that he was to sit down with his mother or he would have to leave. He said that the behaviour would not be tolerated from any customer and that other customers behaving this way would have been put out.
The respondent said that he didn't query other customers about what had happened because he wouldn't like to involve other customers in any incidents occurring at the pub. He said he regarded what the manager had told him as a minor incident. He said he hadn't contacted the complainant's mother in response to her letter because he was upset by the letter. He felt there was a good relationship between the complainant's family and himself and he felt that they should have come to him directly. He said he felt threatened by the tone of the letter and that she may be taking legal proceedings. He said he thought at the time "if that is what she wants to do let her". He said he didn't believe things should have come to this (The hearing of the complaint). The manager of the pub, Pat Murphy (the bar man involved in the incident complained of) said that he had been working in the pub for seven years and that he knew the complainant and his family during that time. He said that he was aware of the complainant's disability. The manager said that the pub's practice was to serve everyone and they had no restrictions on when certain groups of people could use the pub.
On the night of the incident he was working in the pub which was very busy and that when the complainant came to the counter area he was under quite a bit of pressure. He said that while the complainant was at the counter he was continually calling "Pat Pat Pat". He said he found this annoying and after a while he approached the complainant and told him to sit with his mother or he would have to leave the pub. When asked if this is what he would say to all 18 year olds he was having a problem with in the pub. He said he that not all 18 year old customers would have their mother with them but he thought he wouldn't. He said he would probably ask the customer to stop and if they didn't he would ask him to leave. He said the most common reason for intervening with a patron would be where a customer was dancing or singing and generally if they didn't stop they would be put out of the pub. The manager said that he would not treat a disabled person differently from another customer and would try to do what was best for everyone. He said that although he had thought that the complainant was a bit hyper he had not thought of going to his mother in the first instance, to bring it to her attention.
Conclusions of the Equality Officer
In considering this complaint I must in the first instance consider whether the complainant has established a prima facie case of discrimination. In order to establish a prima facie case of discrimination three criteria must be met. These are:
(1) That he is covered by the relevant discriminatory ground, in this case the disability ground.
(2) That he has been subjected to specific treatment by the respondent.
(3) That he has been treated less favourably than someone who was not disabled, or had a different disability would have been treated in similar circumstances.
I am satisfied that the complainant has shown that he does have a disability and this has not been disputed by the respondent. This fact satisfies the first of the criteria set out above. Both parties have agreed that the treatment by the respondent (bar manager) directed at the complainant and outlined by the complainant did occur and therefore the second criterion outlined above has been met.
Regarding the third criterion it is necessary for the complainant to show that what happened on the occasion complained of was less favourable treatment than that which would be afforded to another person who was not disabled or had a disability which was different from that of the complainant if the circumstances were similar. There was no evidence of any substance that indicated that the complainant's behaviour would have led anyone to believe that he posed a substantial risk of disorderly behaviour.1 The evidence in this case including the evidence of the respondent (bar manager) that he would not have told another 18 year old customer to go sit with his mother when he became annoyed with him supports the contention that the complainant was subjected to less favourable treatment and overall from the evidence provided by both parties to this complaint I am satisfied that the treatment of the complainant was less favourable than would have been accorded another customer in such circumstances.
At the conclusion of their evidence the respondent (licensee) and his bar manager accepted that the actions taken toward the complainant should not have happened and that what had occurred was wrong, although they stated that they did not mean to discriminate by what was done.
I am satisfied, therefore, on the basis of the facts set out above that the complainant has established a prima facie case of discrimination on the disability ground. In circumstances where the complainant has succeeded in establishing a prima facie case of discrimination, the burden of proof shifts to the respondent and there is an assumption of discriminatory treatment on the part of the respondent, unless he successfully rebuts the case of the complainant.
During the hearing of this case the respondent accepted that what had happened to the complainant during the incident complained of was wrong and that it should not have happened. He said that at no time were the complainant and his family unwelcome customers at his premises and that he wanted to assure them that they would be very welcome if they chose to return to the premises. He said that they would be welcomed at all times. The respondent expressed his sorrow that the situation had come to this and that he felt it was not fair to any of the parties particularly the complainant and his mother that the situation should have deteriorated to this point. The respondent accepted that it would have been wiser if he had responded to the complainant or his mother at an earlier stage subsequent to the incident complained of and that he should have done so. The bar manager also agreed that he should not have treated the complainant in the way that he did.
1 See Section 15(1) Equal Status Act, 2000
Decision and Redress
On the basis of the evidence presented, I find that the complainant suffered discriminatory treatment contrary to Section 3 of the Equal Status Act. 2000 and therefore my decision is for the complainant in this case. I order the following redress be made to the complainant: that the respondent issue a written invitation to the complainant with his mother and four other companions of the complainant's choice to Kelly's lounge for a complimentary visit to include the provision of two free drinks of their choice each. This visit is to be on a date of the complainant's choosing within six months of the date of this decision. In addition, I order that respondent pay to the complainant Derek Kelly the sum of €250 (two hundred and fifty Euros). In reaching this decision I took the following into account.
- That the complainant is disabled and that the specific treatment he received from the bar manager on the 25th May 2002 was attributable to the complainant's disability.
- Section 42(1) of the Equal Status Act, 2000 states that "Anything done by a person in the course of his 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 employers knowledge or approval."
- The acceptance by all of the parties that the incident complained of occurred and that the treatment of the complainant at Kelly's Lounge on the 25th May 2002 was wrong.
- That the respondent bar owner and the bar manager each apologised directly to the complainant and to his mother for what had occurred on the 25th May 2002, during the hearing of this case.
- That the respondent indicated that the complainant and his family are very welcome at the pub at any time and that the complainant's mother indicated that the family had frequented the respondent's pub regularly in the past to enjoy the entertainment provided there and to celebrate special occasions.
- That there was undisputed evidence that the respondent treated the complainant favourably when he was in the pub in the past. Furthermore that the respondent's pub does accommodate disabled people and has provided some special facilities including disabled access at the premises.
Mary O'Callaghan
Equality Officer
19th December 2003