Ms Paola Shanahan V One Pico Restaurant
Ms Shanahan referred a claim 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, the Director then delegated the case to me, Bernadette Treanor, 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.
2. Dispute
This dispute concerns a claim by Ms Shanahan that she was discriminated against by the respondent, contrary to the Equal Status Act 2000, on the grounds of her family status in that at lunchtime on 15/1/02 she was denied service in the respondent's premises. The respondent does not deny that service was not provided, but states that it was on the basis of a restaurant policy not to serve persons accompanied by children under four years of age.
3. Summary of the Complainant's case
To mark her mother's first visit to Ireland, Ms Shanahan, a qualified chef herself, decided to take her mother for a lunchtime meal with others to allow her to sample 'fine' Irish cuisine. Her father-in-law made a reservation but on arrival the group was refused because Ms Shanahan had her five month old child with her.
4. Summary of the Respondent's Case
The Respondent agrees that the party was refused because they had a baby with them. Their policy is not to allow children under four years of age into their premises during the day and at night the age limit is 10. This policy is based on a previous incident involving a child of two years of age after which other (business) customers complained and said they would not return. The respondent submitted that Section 5 (2)(h) might be relevant to this case.
5. Evidence of the Parties
Complainant - Ms Paola Shanahan
- Ms Shanahan is an Italian who had been in Ireland for 10 years. She trained as a chef in Ireland. Shortly after the birth of Ms Shanahan's baby, her mother came to Ireland for the first time.
- To mark the occasion, and because of her chosen profession, Ms Shanahan decided to take her mother to a nice restaurant to allow her to sample Irish cuisine and fine food.
- Ms Shanahan's husband knew staff at One Pico restaurant having been involved in taking pictures of the restaurant for the Bailey's book.
- Ms Shanahan's father-in-law made the booking for lunch on 15/1/2002, which was a Tuesday.
- Ms Shanahan's baby was five months old at the time and she carried the baby in her arms as she entered the restaurant with the group for lunch
- The Manager informed them politely that they could not have lunch. Ms Shanahan's perception of the manager's approach was that he was cold and nonnegotiable.
- Although her baby is a very content and quiet one, she had made arrangements to use her father-in-law's office near the restaurant, should the baby become unsettled for any reason.
- She was very embarrassed and disappointed at the reception. Her group had been kept in the hall. She was particularly embarrassed since her Mother did not speak any English which meant that what was going on had to be explained to her.
- Neither Ms Shanahan nor her Mother could understand the restaurant's approach since this would not happen in Italy.
- The group left and went to another (named) restaurant in the area and were received without difficulty.
- Ms Shanahan said that in her opinion the purpose of a restaurant was to have somewhere to go with others to enjoy fine food. She could not understand why this should be restricted to a particular section of society.
- After the incident Ms Shanahan contacted 15 restaurants by phone, including some fine food restaurants, and was informed by all of them that the presence of a baby would not present a problem.
- After her first complaint to One Pico Restaurant Ms Shanahan received an invitation to dine at the restaurant at some later date. Ms Shanahan pointed out that there had been four adults in her group for lunch but the invitation was for two people only and made no reference to her baby.
- One Pico Restaurant's card makes no mention of the restaurant having a strictly business purpose; it simply states the quality of the food served. Ms Shanahan pointed out that it is not useful to have the policy relating to children under 4 years of age noted on menus since if you cannot get in you cannot see the menu.
- Ms Shanahan pointed out that her baby did not need anything from the restaurant, he could not even sit in a high chair at that time. Ms A Shanahan, complainant's Mother-in-Law Ms Shanahan had nothing further to add to her daughter-in-law's version of events except to repeat the embarrassment felt by the entire group at having to leave and the embarrassment at having to explain this approach to an Italian lady being welcomed to Ireland for the first time. Mr. Eamonn O'Reilly, Respondent
- Mr O'Reilly did not contest the date or the format of the notification sent by Ms Shanahan.
- One Pico Restaurant had originally been in Camden Street, where there had been an incident with a young child of about two years of age. The child appears to have disturbed other customers by moving around the restaurant. There were a number of complaints from corporate customers on the day stating that because of that incident they would not be back.
- Mr. O'Reilly stated that the staff did approach the parents or those in charge of the child. He was unclear as to whether the reaction of the parents was adequate. The child's group had not been asked to leave. On foot of that incident One Pico Restaurant decided not to allow young children in again. It is not appropriate for a baby to be present during corporate lunchs. The actual age-limit of four evolved after that incident. They rely on parents of children over four to be responsible. At night the age limit is over 10 years of age.
- When planning the move to the new premises all of these issues were considered.
- Mr. O'Reilly stated that he had approached the Restaurant Association of Ireland in relation to this complaint who declined to become directly involved.
- One Pico Restaurant has a wine-license.
- The principle target customer base is corporate and there are neither babychanging facilities nor high chairs in the Molesworth Place premises.
- They have always presumed that similar restaurants operated the same policy. This policy is noted at the base of the menu.
- Mr. O'Reilly said that if people call for a reservation and ask for a high chair, they will be told that the restaurant has no such facilities.
- Mr. O'Reilly is in business with Mr. L. Crowe and they have another restaurant called Pacific in Sycamore Street. This restaurant caters for families. Another similar restaurant will open soon in Dawson Street.
- When asked if the restaurant was still pursuing the policy, Mr. O'Reilly replied that they did not know what was the correct thing to do and asked for directions.
Mr. Larry Crowe, joint owner of One Pico Restaurant
- Health and safety is an issue to be considered in these circumstances. They have a duty of care in relation to spillages.
6. Matters for consideration
The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3 (1)(a) and 3 (2)(c) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ...
(c) that one has family status and the other has not or that one has a different family status from the other..."
Family status is defined in Section 2 of the Act as follows: ''family status'' means being pregnant or having responsibility --
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;
Section 5 (1) and 5(2)(h) are as follows:
"5. -- (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
(2) Subsection (1) does not apply in respect of --
(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests,
(l) differences, not otherwise specifically provided for in this section, in the treatment of persons in respect of the disposal of goods, or the provision of a service, which can reasonably be regarded as foods or a service suitable only to the needs of certain persons."
Section 15(1) of the Equal Status Act 2000 provides that : "... nothing in the Act prohibiting discrimination, shall be construed as requiring a person to provide services to another person in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that the provision of services to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the services are sought." At the outset, I must first 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) Applicability of a discriminatory ground (in this case the family status ground)
(b) Whether or not there was specific treatment of the complainant by the respondent
(c) Whether or not the treatment received by the complainant was less favourable than the treatment someone that does not have family status or that has a different family status received, or 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
7. Conclusions of the Equality Officer
7.1. Prima facie case
Ms Shanahan is a mother whose baby was 5 months old and in her charge on the date of the incident. I am satisfied therefore that the family status ground is applicable to her in relation to this incident.
Ms Shanahan claims she was refused access to the restaurant on 15/1/2002. This was not disputed by the respondent, who subsequently responded to her in writing explaining their policy of no children under 4 years of age. This satisfies the requirement at (b) above.
In relation to (c) above, I will now consider if the treatment of the complainant was less favourable than someone who does not have family status or has a different family status would have been treated. The policy operated by the respondent is one of nonadmittanceof children under four years of age and consequently of non-admittance of those in the company of children less than four years of age. If the complainant is compared with a person who, on presenting themselves for service at One Pico Restaurant, does not have family status, (that is a person who does not have responsibility as a parent or primary carer), or with a person who has a different family status, (for example a lady who is pregnant or a person who is a primary carer of a person of over 18 with a disability), it is clear that this policy would not have been applicable and service would not have been refused on that basis. Therefore Ms Shanahan has been treated less favourably than both a person who does not have family status and a person who has a different family status.
It is interesting to note that this case is based on the family status ground, even though Ms Shanahan's refusal was based not on the fact that she was a parent, but on the fact that she had a child under four years of age with her. While other adults admitted may also have been parents, and therefore have a general responsibility as a parent, they were not accompanied by their children and therefore would have been admitted. However, in Ms Shanahan's case, the child she had with her distinguished her as a parent or person in loco parentis and it is clear that she had responsibility as a parent in the context of the incident.
I am satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7.2. Respondent's rebuttal
The respondent did not contest that the incident happened and that the statutory notification procedures had been complied with in accordance with the Equal Status Act, 2000. The respondent relied on the following arguments:
An earlier unsupported report of an incident involving a child of about two years of age
Duty of care under Health and Safety legislation
They have other restaurants that are for family use
Lack of facilities for young children
The target customer base and Section 5 (2)(h) of the Equal Status Act, 2000
Earlier Incident
The respondent submitted that the bulk of their business, or perhaps that business which they wished to nurture, was corporate. They felt that the presence of a baby was not conducive to business being carried on at lunch time. This opinion was based on an incident that occurred while the restaurant was based in Camden Street. On that occasion a child was running around and the parents were approached and informed that the child's behaviour was not appropriate. The respondent did not give any indication that the parents' response was not adequate, but pointed out that the business customers on that day had indicated that they were unhappy and that they would not return. It is not clear if these customers were unhappy with the child's presence or with the level of control exercised by both the manager of the restaurant and/or the parents. The child's party was not asked to leave. On the basis of this incident it was decided to avoid the issue by not allowing children under four into the restaurant. When considering their options in relation to the new premises, the respondent decided to continue to exclude all children under the age of four years of age. It appears that the respondent decided, on the basis of one incident, to refuse those who brought children under four. This defence is somewhat similar to that contained in Section 15(1) of the Equal Status Act, 2000 (quoted above) which suggests that where the service provider, having the appropriate experience and responsibility is entitled to refuse to serve someone whom that person considers may pose a risk of disorderly conduct. However 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.
It is useful to ask at this stage who is the customer. In this case the baby required no service from the restaurant, other than being allowed to be present on the premises. Ms Shanahan was the customer, and there was no suggestion that to serve Ms Shanahan would have led a reasonable person with the relevant experience to the conclusion that she would behave in a disorderly manner. However, Ms Shanahan was refused because of her association with a baby. Could serving Ms Shanahan have led to a risk of disorderly behaviour by the baby?
A five month old baby is not comparable with older children who can run around, and after all the policy was based on an incident where a child was moving around. Most people would accept that babies, in general, cry at some point and that some cry more than others. There is often no reason to expect a baby's behaviour to be anything other than unpredictable. Could the crying of a child be seen as disorderly conduct? In the wording of section 15(1) 'disorderly conduct or behaviour' is sandwiched between (1) 'criminal conduct or behaviour' and (2) 'damage to property'. Both of these are serious forms of behaviour and suggest an overall context for the sentence. I am not satisfied that a child's crying is in the same order of magnitude or that it constitutes the implied form of behaviour. However, even if one accepts that it is, the section suggests that the person must have reasonably believed that the provision of the service would produce a substantial risk of the disorderly conduct. In general it is not the service received, or not, from the service provider that makes a young baby cry. To refuse all those who present themselves with a child under four on the basis of one incident is not reasonable, since it does not afford the parent(s) or those in loco parentis the opportunity to attend to any difficulties arising. This is exacerbated by the fact that those with children over four years of age are afforded this opportunity. Indeed the setting of the age limit at four years of age seems arbitrary.
In the instant case Ms Shanahan said that her baby was very quiet and content. She also said that arrangements had been made to have somewhere to take the child should he have become fractious or upset for any reason. A blanket refusal such as this does not sit well with section 15(1) for all of the reasons mentioned above, but particularly because it does not provide for the assessment of the customer in each instance. I am satisfied that Section 15(1) does not provide a defence in this case.
Health & Safety
The respondent raised the issue of health and safety but in response to a request they did not point to any particular provision to rely upon. The respondent has another restaurant where families are welcome and a second is at an advanced stage of preparation. Since health and safety considerations in relation to children under 4 appear to be an issue only with their One Pico restaurant and not the other restaurant, this argument cannot be sustained without evidence of some form to justify the difference. None was presented. The size of the restaurant was mentioned but not from a Health and Safety perspective. Size in fact may well be irrelevant, since even a large premises may present Health and Safety difficulties if overcrowded. Other restaurants that are for family use The respondent explained that they had another restaurant and a third at an advanced stage of preparation. Families are and will be welcome in these restaurants. However, in this case it was the 'fine dining' that One Pico offered that was required for the occasion given the complainant's work background and the first visit of her mother to this country. Lack of facilities for young children
The lack of facilities, including changing facilities and high chairs, was presented as a reason for not serving those with children under four. However, this lack of facilities appears to be a direct consequence of the respondent's decision to implement the policy, since once the decision to implement the policy was arrived at there was no apparent need to provide such facilities, even when planning the new premises. In other words the lack of facilities results from the policy and not vice versa, therefore this cannot be relied upon as a justification of the policy in this case. The target customer base and Section 5 (h) of the Equal Status Act, 2000 Section 5 (2)(h) (quoted above) states that treating persons who belong to a particular category differently is acceptable where one is promoting the special interests of those in that category. This promotion must be for a bona fide purpose and undertaken in a bona fide manner. It is unclear who the relevant category of person(s) is intended to be. In my view it cannot be used to justify treating Ms Shanahan differently since One Pico Restaurant was clearly not promoting her special interests. The section talks about the differences of treatment and since it does not indicate whether this treatment should be more favourable or less favourable, it appears that it might apply to both. On the basis that the treatment must flow from the promotion of the special interests of persons in the category, it is my opinion that this sub-section of the Equal Status Act, 2000 will normally, if not always, relate to the justification of more favourable treatment of a particular category of persons.
Perhaps the respondent meant this to refer to his corporate clients as he stated that these were his target customers, suggesting therefore that it is acceptable to treat them differently. This raises several difficulties.
Is the service provided for the principal purpose of promoting corporate special interests?
Is this promotion for a bona fide purpose?
Is it undertaken in a bona fide manner?
Is the difference in treatment reasonably necessary?
However, a more fundamental difficulty relates to the identification of the appropriate category of persons because, in fact, the respondent welcomes all those without children under the age of four. While it may have been the respondent's intention to prevent children from disturbing his business clients, the group treated more favourably is much larger. Parents, and those in loco parentis, of children under four who wish to eat in the company of these children, for whatever reason, are precluded from eating in One PicoRestaurant, in addition to the children under four themselves1. Therefore, the people who are being treated more favourably than the complainant are all of those who are not in the company of children under four when requesting a meal, not only corporate customers.
Since neither arguments nor evidence were brought before me
as to what the special interests of such an diverse group might be,
that the services are provided for the principal purpose of promoting those special interests, and
that the promotion was for a bona fide purpose and undertaken in a bona fide manner,
I am satisfied that this section cannot be relied upon to justify the less favourable treatment of the complainant in this case. Section 5(2)(l) of the Equal Status Act, 2000 For the sake of a thorough consideration of this issue I have considered Section 5(2)(l) also. This section (quoted above) appears to suggest that where the goods or service being provided are suitable to the needs of certain persons only, then different treatment of persons not in that category is acceptable. Is fine food only suitable to the needs of certain persons? In my view it is suitable for any person who can enjoy the food. The section does not define what constitutes "the needs" of a person. While all people require or need food on an ongoing basis, it is a moot point whether fine cuisine addresses a need for any person. It is perhaps more of a luxury than a need. However, even if one accepts that the provision of fine cuisine is a service which satisfies the section, it is necessary to 1 On the basis of section 3(3) it is not illegal to treat those under 18 less favourably on the grounds of their age. look at the category of persons whose needs it addresses. The provision of fine dining is not a service which is suitable to the needs of only corporate customers. Fine dining is suitable to all of those who wish to enjoy fine food and it seems logical that the provision of fine food is not suitable to the needs of a child of five months. However, as established above, it was not the baby who was the customer in this case and there is no provision in the Equal Status Act, 2000, which provides that, where family status is applicable to a person, such a person should be seen as an indistinguishable part of a parent-child group. Ms Shanahan was the customer, and she had deliberately sought a restaurant serving fine cuisine both because of her work background and her mother's visit. The provision of fine food was exactly what had been identified by Ms Shanahan as suitable for her needs in that instance.
Were I to suggest that a parent and child make up an unbreakable unit in terms of the Act, this would in my opinion undermine the protection offered by the family status ground in the Equal Status Act, 2000. To suggest that could be used to reduce the rights of a person accompanied by a child to the level of protection offered by the Act for a person under 18 on the age ground, i.e. zero. The Equal Status Act, 2000 specifically provides for the rights of parents and those in loco parentis in Section 3(2)(c) by making this a discriminatory ground. This is the only ground that is directly by association with another person, i.e. the child. While discrimination on all of the other grounds may be claimed 'by association' in accordance with section 3(1)(b)(i), this is tempered by Section 3(1)(b)(ii) which suggests that where the treatment of the person being associated with is not discriminatory, then it cannot constitute discrimination by association for someone else. There is no such mitigating subsection in relation to the "family status" ground. Therefore, to suggest that the rights of a person accompanied by a child should be reduced to zero would be to entirely undermine the intention of the Legislature in creating the family status ground.
I am satisfied that section 5(2)(l) cannot be relied upon to justify the less favourable treatment of the complainant in this case.
I find that the respondent has failed to rebut the prima facie case of discrimination as established, and that Ms Shanahan was discriminated against by the respondent on the family status ground in this case. This finding is based on the circumstances surrounding the incident and particular services involved in this case only.
8. Decision DEC-S2003-056
I find that the complainant was discriminated against on the family status ground contrary to section 3(1), and section 3(2)(c) of the Equal Status Act, 2000, and in terms of section 5(1) of that Act.
8.1. Redress
Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
8.2. Order
I hereby order:
8.2.1. That €400 be paid to the complainant by the respondent for the effects of the discrimination. In making this award I have taken into consideration:
- The embarrassment created by the refusal of service.
- The annoyance caused by the undoing of plans made for the occasion.
- The fact that Ms Shanahan was inconvenienced for a short time only, since she found an alternative restaurant in which to dine after the incident.
8.3. Recommendation
Given the amount of confusion that appears to exist in the Restaurant business in relation to the Equal Status Act, 2000 it may be useful, in the interests of giving clarity, for the appropriate representative body to develop a code of practice for service providers in the restaurant business, perhaps in conjunction with the Equality Authority.
Bernadette Treanor
Equality Officer
30 June 2003