A Complainant (represented by Philip Wm. Bass & C0., Solicitors) V Café Kylemore
The complainant referred a claim to the Director of Equality Investigations on 3 September, 2001 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 then delegated the case to Marian Duffy, 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.
1. Dispute
1.1 The dispute concerns a claim by the above named that he was discriminated against by The Kylemore Restaurant on the disability ground in terms of Sections 3(1)(a), and 3(2) (g) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act in that he was refused access to a service which is generally available to the public in the respondent's premises.
2 Background
2.1 The complainant alleges that he was discriminated against by the respondent contrary to the Equal Status Act, 2000 when he was refused access to a service in the respondent's restaurant on the 29th May, 2001. The complainant submitted that he was asked to leave the respondent's premises by the manager and shown a sign stating that the management has a right to refuse entry. He contends that the manager told him she didn't want alcoholics in the restaurant. The complainant stated that he was discriminated against on the disability ground. The respondent submitted that the complainant was with a group who caused a disturbance in the restaurant the previous day. The complainant visited the restaurant the following day and was advised that he would not be served. The respondent denied that the complainant was discriminated against on the disability ground contrary to the provisions of the Equal Status Act, 2000.
3 Summary of the Complainant's Case
3.1 The complainant submitted the following:
- that he is a recovering alcoholic and that he attends Alcoholics Anonymous. For the past year and a half he regularly frequented the respondent's restaurant to have either breakfast lunch or coffee and snacks. He would regularly meet friends there either before or after attending a meeting of A.A. in a nearby premises.
- On Tuesday 29 May, 2001, he was in the restaurant with a friend and left there at about 12:30 to go to an A.A. meeting. He returned to the restaurant in the afternoon at about 2:30 p.m.. He was at the counter with a tray and was about to purchase some food when the manager called him aside.
- The Manager Ms. Catherine Bullman brought him to the door of the restaurant and showed him a sign regarding the manager's right to refuse entry and then said to him
"we don't want any alcoholics in here any more - leave". - The complainant said that he left the restaurant and as a result of the way he was treated he suffered three panic attacks on the street.
- In response to the respondent's case, the complainant denied that he was part of a group which caused a disturbance in the restaurant the previous day. The complainant said that he had heard about the disturbance, but he did not know the person involved. He said that if he had been involved in the trouble he would not have gone back to the restaurant.
- The complainant submits that the reason he was asked to leave the restaurant was due to the fact he is an alcoholic in recovery. He states that the staff knew that he and his friends are members of A.A.
- A friend of the complainant Mr. A gave supportive evidence on his behalf. However, he was not present in the café at the relevant time leading up to the incident. He said that he is also a recovering alcoholic and attends A.A. with the complainant. He stated that the trouble in the Cafe Kylemore was caused by a person who was drunk. He believes that the complainant was not in the restaurant at the time the trouble occurred.
- Mr. A stated that he was in the restaurant on 29 May, 2001 at about 2:20 p.m. waiting for the complainant. He then noticed the manager leading the complainant to the door of the restaurant. He was surprised that the complainant was asked to leave the restaurant.
- The complainant's representative submitted that the complainant was wrongly associated with a group causing trouble in the restaurant and he was so associated because the respondent knew he was a recovering alcoholic. The only reason the complainant was given for the refusal of service was a discriminatory reason, that is the respondent did not want alcoholics in the restaurant.
4 Summary of the Respondent's Case
4.1 The respondent denied that the complainant was discriminated against on the disability ground in relation to access to a service in the restaurant and submitted the following:
- The complainant was in a group of five people in the restaurant, they were having teas and coffees. Ms. Bullman, the manager, said that she recognised three of the group including the complainant. The other two men in the group were not known to her.
- Ms. Bullman submitted that they became very loud and aggressive and she asked them to calm down. It was about 12.45 and the restaurant was very busy. At about 13.20 it was necessary to call security as one person in the group (not the complainant) became abusive and caused a disturbance. A security woman arrived and she was pushed aside by the man. He then picked up a chair and knocked items of glass and cutlery off the tables. All the customers fled from the restaurant.
- Following the arrival of back up security, the man was physically removed from the restaurant.
- Ms. Bullman was not sure if the complainant was present throughout the violent disturbance, but she was sure he was in the group earlier when she had occasion to speak to them about their loud and abusive behaviour. This was before the physical violence occurred.
- Ms. Bullman decided that, in future, none of the group including the complainant would be served in the restaurant. She said that she decided on this course of action in order to protect her staff and customers.
- Two of the group came into the restaurant later that day and she refused to serve them. The complainant came into the restaurant the following day, 30 May, 2001. Ms. Bullman asked him to step aside and she then explained to him that she was not serving him. She didn't tell the complainant the reason she was not serving him. She denies she said anything about being an alcoholic. She didn't know the complainant was an alcoholic and only became aware of this when he submitted the notification of his complaint to her.
- She said that she knew the complainant to see for over a year as he was a regular customer as were two of the other people in the group who caused the disturbance. She often saw the complainant in their company.
- Ms. Bullman said that she was Manager of the restaurant for 13 years and she never experienced such a violent disturbance before. She has total control in managing the restaurant. Infrequently customers cause problems and are not served for various reasons. However she keeps no list of those who are barred from the restaurant. She refuses service to people who cause disturbance in the restaurant, or for hassling staff or customers. She operates a strict policy in order to protect her staff and customers.
- Ms. Bullman said a record of the incident was made in a diary on 29 May, 2001 and that she also made a separate statement for management. Subsequent to the hearing the respondent sent me a copy of a diary entry for 29 May, 2001 and a copy of Ms. Bullman's statement.
- The diary entry was made by the assistant manager, Ms. Lorraine Coughlan and counter signed by the manager, Ms. Bullman. The entry stated: "On Tuesday lunch approx 12:45 two men were shouting at each other loudly. They were asked to leave which one did after spitting on the ground and turned his cup upside down. The other however remained and was very aggressive - He pushed a female security guard and picked up a chair with which to hurl at Catherine. He continued the rant & rave banging trays on the table, sending a bowl smashing on the floor. Eventually four security men arrived & escorted him out."
- Ms. Bullman's made a further statement to management which was not signed or dated. It was submitted that the statement was made shortly after the incident on 29 May. In the statement Ms. Bullman said that that the complainant was with a group of men in the restaurant at about 12:40 pm. One man in the group was shouting and roaring and they were asked to leave. One man left after spitting on the ground. Another man went berserk and started throwing chairs and banging tables. The statement went on to say that two men from the group visited the premises later in the day of 29 May and Ms. Bullman advised them that they would not be served. The complainant came into the premises the following day, 30 May 2001 and Ms. Bullman informed him that he would not be served. In her statement Ms. Bullman said that the complainant became very cross and said that he would call the Gardaí.
- The respondent submitted that the complainant was not discriminated against on the disability ground as Ms. Bullman was not aware he was an alcoholic or that he was in the company of alcoholics. It was also submitted that alcoholism is not a disability within the meaning of the Act and that the complainant is not therefore covered by the Equal Status Act.
5 Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(g) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the gender ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds ... are...that one is a person with a disability and the other either is not or is a person with a different disability (the "disability ground")," Section 5(1) provides inter alia that:
"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."
5.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Prima facie evidence has been described by an Equality Officer as:
"Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred."1
5.3 I have identified the three key elements which need to be established to show that a prima facie case exists as follows:
- is the complainant covered by the ground?
-in what circumstances was the complainant refused service by the respondent on 29 May, 2001.
-evidence that the treatment received by the complainant was less favourable than a person not covered by the disability ground, or a person with a different disability, would have received in similar circumstances. If and when those elements are established, the burden of proof shifts to the respondent, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases it is not necessary for the complainant to prove that there is a link between the difference in treatment and the membership of the ground, instead the respondent has to prove that there is not. If the complainant succeeds in establishing prima facie evidence, the burden of proof then shifts to therespondent to rebut the inference of discrimination. I am now going to examine the issues I have identified above and consider whether the complainants have established a prima facie case.
5.4 The respondents submitted that the complainant is not covered by the disability ground under the Equal Status Act, 2000 as it is their understanding that alcoholism does not fit within the definition of disability. The complainants representative submitted that alcoholism is an illness and is covered under the definition of disability in the Act. It was submitted that there are medical consequences associated with the abuse of
1 Dublin Corporation v. Gibney
alcohol. The complainant's witness Mr. A submitted that an A.A. definition of the abuse of alcohol is "physical, mental and spiritual".
Section 2 (1) of the Equal Status Act, inter alia, provides:
"Disability" means
"(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgements or which results in disturbed behaviour."
In Black's Medical Dictionary 39th edition it states inter alia that:
"Alcohol depresses the central nervous system and disturbs both mental and physical functioning...... Persistent alcohol misuse leads to physical, mental, social, and occupational problems, as well as the risk of dependence ..... Alcohol dependence - is the most serious , and can severely disrupt health and social stability.....many researchers consider alcohol dependence to be an illness....." In relation to addiction the Dictionary states that: "it was not until the mid 18th century that excessive drinking, or 'inebriety' as it was then known, came to be regarded as some sort of disease. Alcohol dependency is also described in the Dictionary as a "Drug Addiction or dependence is the compulsion to take a drug repeatedly. The definition of alcoholism by the National Council on Alcoholism and Drug Dependence, Inc, New York, is "Alcoholism is a primary, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. It is characterised bycontinuous or periodic: impaired control over drinking, preoccupation with the drug alcohol, use of alcohol despite adverse consequences, and distortions in thinking, most notable denial".2 The Court of Appeal in Northern Ireland in an case concerning the entitlement of a person to a war widow's pension, under the relevant legislation, where the cause of death was certified as alcoholism the Judge stated: "It was not in dispute that
2 This definition was prepared by the Joint Committee to Study the Definition and Criteria for the Diagnosis of Alcoholism of the National Council on Alcoholism and Drug Dependence and the American Society of Addiction Medicine. Approved by the Boards of Directors of the National Council on Alcoholism and Drug Dependence, Inc. (February 3, 1990) and the American Society of Addiction Medicine (February 25, 1990)
alcoholism is a disease and hence would fall within the definition of an injury contained in the amended Schedule 4 to the 1983 Order." 3 The definition of alcoholism in Collins English Dictionary and Thesaurus 21st century edition "alcoholism is a condition in which dependence on alcohol harms a person's health, family life etc." It appears to me from the above definitions that alcoholism is an addictive disease andthe consequence of that addiction leads to health problems both mental and physical. I am satisfied that the condition of alcoholism comes within the definition of disability in the Equal Status Act, " a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgements or which results in disturbed behaviour." and this definition concurs with the accepted medical definition of the disease alcoholism in the various dictionaries. I find therefore that the complainant is covered by the discriminatory ground.
5.5 It was agreed that the complainant was refused a service in the respondent's the premises and therefore the second key element mentioned above at (b) has been satisfied. I am now going to examine the third key element of the test, to establish if the complainant was treated less favourably by the respondent, than a person without a disability or a person with a different disability would have been treated in similar circumstances.
5.6 The complainant's case is that he was refused service because he is a recovering alcoholic. He believes that the respondent knew he that he and his friends regularly met in the restaurant for snacks prior to attending A.A. meetings. The complainant said that he was not present when the disturbance took place. He usually left the restaurant at 12:30 to go to the A.A. meeting. On 29 May, 2001 he was in the restaurant with a male friend and they both left at about 12:30 to go to an A.A. meeting. He heard about the disturbance after an A.A. meeting from two friends who
3 The Secretary of State for Social Security and Sandra McLean Court of Appeal NI Citation(2000)2148 Ref: CARC3272 Delivered 17/11/00
were in the restaurant. These friends told the complainant that they had been refused service because of the disturbance. The complainant denied that he knew the individuals involved in the disturbance. He also denies that that he was in the company of four other male customers in the restaurant on 29 May or that Ms. Bullman approached him at any time and asked him to desist from being loud or aggressive.
5.7 The respondent's case is that the complainant was in the company of individuals who misbehaved in the restaurant and it was for this reason they were entitled to refuse service to the complainant when he next visited the restaurant. Ms. Bullman submitted that the complainant was in the group when she requested them to desist from their loud and aggressive behaviour.
5.8 There was a conflict of evidence in relation to the date the violent incident occurred and the date service was refused to the complainant. The complainant submitted that he was refused service on 29 May, 2001 and the respondent submitted that the refusal of service took place on 30 May, the day after the violent incident occurred. I note from the complainant's evidence that he was in the restaurant on a Tuesday and from the diary entry produced in evidence by the respondent that the violent incident occurred on Tuesday 29 May, 2001. I also note that the complainant learned about the disturbance at the restaurant from two of his friends after an A.A. meeting and prior to the complainant being refused service. They also told him that they had been refused service because of the disturbance. The respondent's evidence was that these two men were refused service in the afternoon of 29 May, 2001. I am satisfied therefore from the evidence that the complainant learned, from his friends after an A.A. Meeting on 30 May, about the violent incident and his friends refusal of service in the restaurant. I find on the evidence that the violent incident occurred on 29 May, 2001, that the complainant was in the restaurant prior to lunch on the 29 May and that service was refused to the complainant on 30 May.
5.9 The next issue for decision is whether the complainant was present in the restaurant on 29 May when the violent incident occurred or if he had already left for his A.A. meeting. The complainant's evidence was that he was in the company of one friend in the restaurant on 29 May and he left at 12:30 p.m. to go to an A.A. meeting. Ms. Bullman's evidence was that the complainant was in a group of five men, and sometime prior to the violent incident she had to ask them to desist from being loud and using abusive language. In a diary record of the violent incident dated 29 May, 2001 and signed by the manager Ms. Bullman and the assistant manager Ms. Coughlan it mentions two men shouting at each other. The record also states that the two men were asked to leave, one left but the other man became very aggressive and violent and was eventually taken from the restaurant by security.
5.10 As stated above, I am satisfied that the complainant was in the restaurant on 29 May, but I am also satisfied from the respondent's evidence that the complainant was not present in the restaurant at the time the violent incident occurred. The complainant was a regular customer of the restaurant and he was in the restaurant on that day up to 12:30 when it was his usual practice to leave and go to an A.A. meeting.
5.11 The next matter for decision is whether the complainant was ever in the company of four other men on the day in question and if he was present when Ms. Bullman asked these men to desist from being loud and using abusive language. Ms. Bulman's evidence was that she knew the complainant well and she was certain he was in a group of five men to whom she spoke about being loud and using abusive language. The complainant denied that he knew these people or that he was in their company at any time on 29 May, 2001. However he provided no corroborative evidence to substantiate his claim that he was not in the company of the people who were loud and used abusive language, or was in the company of the person who caused the disturbance at any time on the 29 May and prior to him leaving for his A.A. meeting. I note from the complainant's evidence that he said he was with a friend on the day in question but this friend was not called to give evidence. Another friend of the complainant Mr. A gave hearsay evidence in relation to the incident in the restaurant which I cannot take into account in considering the complainant's case as Mr. A was not present in the restaurant. From the evidence it seems to me that the complainant was a regular and welcome customer of the respondent restaurant up until 29 May, 2001 and that his status as a recovering alcoholic did not create any difficulty for him in getting service. Something happened on the day to lead Ms. Busman to take the decision to refuse service. It seems to me that Ms. Bullman believed that the complainant was friendly with and present in the restaurant in a group of five people who were loud and aggressive and that Ms. Bullman decided for these reasons not to serve any of these customers when they next visited the premises. I am satisfied that the complainant's behaviour in the restaurant on 29 May would not have warranted a refusal of service. I am also satisfied that the refusal of service was connected to the perception by Ms. Bullman that the complainant associated with people who caused a disturbance in the restaurant. In considering this case I have asked myself would Ms. Bullman have refused service to a person without a disability or a different disability in similar circumstances and I believe she would have taken the same decision. Ms. Bullman's evidence was that she has to protect her staff and customers from any hassle or violence. I am satisfied that the complainant was not barred from the premises because of his disability or because he associated with persons who have a disability, but he was refused service and barred because the respondent believed he associated with a person who caused a violent disturbance on the premises. Although Ms. Bullman never experienced such violent behaviour in the restaurant I find that if a non-alcoholic associated with a group of people who behaved violently that subsequent service would be refused to the whole group. I find that the complainant was not treated less favourably than a person without a disability or with a different disability would have been treated in similar circumstances.
5.12 The complainant submitted that when Ms. Bullman refused service to him she said that she did not want alcoholics in the restaurant, a remark Ms. Bullman denies making. I find no evidence to support the complainant's contention that Ms. Bullman made a discriminatory remark to him when she asked him to leave the premises.
Reasonable Accommodation
5.13 Section 4 of the Equal Status Act provides that, inter alia: "(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. I find that, in the circumstances of this case, that the question of reasonable accommodation does not arise.
5.14 I am also satisfied that Ms. Bullman did not know that the complainant was an alcoholic and that he and his friends met in the respondent's premises prior to attending A.A. meetings. I note that the complainant in evidence stated that a member of staff of the restaurant knew he was a recovering alcoholic, but no corroborative evidence was provided by him at the hearing. I find that Ms. Bullman did not associate the complainant with a group of violent alcoholics or alcoholics at all, as it was not within her knowledge that anyone in the group were alcoholics or recovering alcoholics. I find on the balance of probabilities that the complainant has not established a prima facie case of discrimination.
6. Decision
6.1 I find for the foregoing reasons, that the Kylemore Restaurant did not unlawfully discriminate against the complainant on 29 May, 2001 in terms of Sections 3(1)(a), and 3(2)(g) and contrary to Section 5(1) of the Equal Status Act.
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Marian Duffy
Equality Officer
2 May, 2003