DEC-S2003-109-110 Full Case Report

Grainne Travers & Timothy Maunsell (represented by the Equality Authority ) V The Ball Alley House (represented by Mason Hayes & Curran, Solicitors)

1. Dispute
This dispute concerns a complaint by Grainne Travers & Timothy Maunsell that they were discriminated against, contrary to the Equal Status Act 2000, by The Ball Alley House, Lucan. The complainants maintain that they were discriminated against on the family status ground in terms of sections 3(1)(a) and 3(2)(c) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.

2. Summary of the Complainant's Case
2.1 The complainants state that they were asked to leave the Ball Alley House pub at 7.00 pm on 11 May 2001 because they had a nine-month old baby with them on the premises..

3. Summary of Respondent's Case
3.1 The respondents totally reject that they discriminated against the complainants and state that the couple were asked to leave as the pub as they were in breach of the pub's policy on children.

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.

5.1 Evidence of Complainants

• The complainants were regulars in the Ball Alley for 5 years prior to 11 May 2001.
• They had previously been served in the Ball Alley on a number of afternoons when they had their children with them
• On such occasions they always made sure their children were well behaved
• Mr Maunsell regularly used to visit the Ball Alley on a Friday evening for a drink on his way home from work. On some occasions Ms Travers would join him
• On 11 May 2001, Timothy Maunsell arrived in the Ball Alley around 6 pm to have a drink with some colleagues
• Mr Maunsell's partner, Grainne Travers joined him in the pub at 6.30pm approximately. She had her nine-month old baby with her, asleep in her arms.
• A glass of Guinness was ordered for Ms Travers
• Shortly afterwards, on seeing the sleeping child, a barman told Ms Travers that she would have to leave the premises as the pub had a new rule that children were not to be admitted after 6 pm
• Ms Travers made the point that the baby was asleep and not troublesome but to no avail
• When Mr Maunsell sought to buy a second round, he was refused service.
• Ms Travers states that they were dealt with in a very abrupt manner on the night by the barman
• There were only about 10/15 people on the premises at the time
• The complainants left the pub with their child around 7 pm

5.2 Evidence of Respondents

• The respondents do not dispute the facts of the case
• Mr Gerry Teague, Manager, stated that the Ball Alley consisted of a bar and 2 small lounges.
• A decision was taken in early 2001 to introduce a policy restricting access by children to the Ball Alley pub.
• This decision was taken as a result of previous problems encountered with children on the premises and the increasing number of customer and employee complaints about unruly or unsupervised children on the premises and its effect on the good order, running and management of the premises.
• Over the years, Mr Teague had found it hard to supervise children on the premises. He said that many children were left unsupervised on the premises resulting in children running around unchecked and drinks being knocked over.
• Many complaints had been made to Mr Teague by other customers over the years regarding the non-supervision of children, particularly when parents had drink taken.
• There also was concern about the potential exposure of the Respondent to public liability claims and its likely effect on liability insurance costs where children are involved in, or the cause of accidents on the premises.
• To overcome these problems, a decision was taken in early 2001 not to allow children under 12 on the premises at any time and only to permit children over 12 to remain until 6pm. A sign to this effect was displayed for customers at the time.

Evidence of Adrian Harper, Barman

• He was on duty on 11 May 2001
• Mr Harper said that previously the pub had a more flexible attitude towards children on the premises. However, this had resulted in problems for staff resulting in a change of policy shortly before the incident on 11 May 2001
• The new policy required that no under-12s be admitted at any time while over-12s would be admitted until 6 pm.
• He recalls Ms Travers entering the pub on 11 May 2001 but did not notice that she had a baby with her until he was outside the counter collecting glasses
• On seeing the baby, he informed her that the pub had introduced a new policy barring children after 6 pm and she would have to leave
• When she objected, he explained that he was only following orders and that he could do nothing about the situation
• Note: At the Hearing, the respondents explained that subsequent to the Glimmer Man decision (see later references) in December 2001, the pub had reverted to its original policy of permitting children of all age groups on its premises until 6pm, until such time as the whole issue was clarified.

5.3 Respondents Witness Mr Frank Fell, Licensed Vintners Association

• Mr Fell appeared at the Hearing, at the respondents request, to provide an overview of recent developments in relation to the question of children to pubs
• Mr Fell explained that, traditionally, no children were allowed on licensed premises but that this situation has altered in recent decades with the changing nature of pubs.
• The increase in the number of pubs serving food in recent years has created a more family oriented environment in pubs with parents more inclined to bring their children with them for meals, particularly during the daytime.
• It is Mr Fell's experience that parental supervision of children decreases the longer families are on the premises. Mr Fell attributes this to the fact that parents who are drinking gradually become less aware of the childrens' actions and also to the fact that children get increasingly more restless the longer they are in the one place. As a result, publicans themselves often end up having to supervise the children
• Situations where children are unsupervised create major difficulties for publicans. Children often cannot be seen from behind the bar and are, therefore, a risk factor.
• Older patrons often object to unsupervised children running around a pub and this can lead to a loss of business to a publican.
• The configuration of modern pubs, with separate bars, lounges and doors, create extra difficulties as children cannot be contained and often run outside into the street or carpark to get from one room to another.
• Several publicans have had major public liability claims brought against as a result of injuries to children who were on their premises. Incidents of this nature have resulted in higher insurance premiums for some publicans.
• To counteract this situation, some publicans have introduced their own house rules in recent years and have set times after which children are not permitted on the premises.
• Some publicans, who provide adult entertainment at night, would have particular difficulty with children being on their premises during these hours.
• Mr Fell also gave evidence in relation to the lack of progress in relation to concluding a code of practice under the Equal Status Act for this sector.

6 Matters for Consideration
6.1 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)(c) of the Act specifies the family status ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is 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 family status ground, contrary to Sections 3(1), 3(2)(c) and 5(1) of the Equal Status Act, 2000 in being asked to leave the Ball Alley pub on 11 May 2001.

6.3 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 his case, must show that his actions were driven by factors which were non-discriminatory.

6.4 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)

6.5 In this case, several written submissions were made by the parties involved. As a number of major issues and arguments have been raised by both parties, I have decided to separate the issues and to deal with each individually in the course of my conclusions.

7 Conclusions of the Equality Officer
7.1 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 Family Status 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.

7.2 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. 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.

7.3 To me, the core issue in this case is whether the Equal Status Act 2000 allows a pub to refuse service in a situation where there is no apparent risk of disorder or risk to health and safety (in this case the facts are uncontested - the baby was asleep in its mothers arms, the mother had only ordered a glass of Guinness, the second parent was present, no issues of noise or disruption were raised, the pub was not crowded) on foot of a general policy targeted to deal with problem situations (unsupervised children allowed to run wild, drunk parents neglecting their supervisory role, risk of accidents caused by smallchildren in crowded pubs).

7.4 At the Hearing, Mr Frank Fell provided a general outline of the type of difficulties experienced by publicans over the years from parents not properly supervising children on their premises. In considering this decision, I have taken account of the overall picture provided by Mr Fell as general background, although I have obviously also had regard to the probative value of such general evidence, and to the fact that he was not in a position to give evidence about what happened in this specific case. Principal Issues and Arguments

7.5 Section 5 (2) (1) of the Equal Status Act 2000
The respondents argue that the general prohibition on discrimination in the Equal Status Act 2000 is qualified under Section 5(2)(l) which permits: '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 service, which can reasonably be regarded as goods or a service suitable only to the needs of certain persons' The respondent submits that the service provided by the Ball Alley, by reason of the limited facilities and range of refreshments offered thereon, is a service which is suitable only for the needs of adult persons, over the age of 18 years, whose principal need or requirement is the consumption of alcoholic beverages and that it is inappropriate for children to be permitted on its premises. The complainants argue that the exemption under Section 5(2)(l) must be strictly construed and submit that the purpose of the Section is to cater solely for services such as ante-natal or post-natal services and should not be interpreted as allowing an "opt-out" for pubs and other service providers.

7.6 In considering the above points, it seems that essentially what the respondents are arguing is that, unlike many other pubs, the Ball Alley is not a "family friendly" pub and that its trade is geared towards adults only. In support of this, they state that their preferred policy would be to ban all children under 12 at all times and only permit children over 12 until 6 pm. They also point to the fact that no prepared food is served on the premises nor does it have a garden or games room where children can play. The respondents, therefore, are claiming that, as they only provide goods and services which are suitable to the needs of certain persons (adults), that Section 5(2)(1) of the Act permits them to specifically cater for the needs of adults and that they are not discriminating in refusing children access to their premises. The complainants reject this and argue that pubs are centrally important social venues in Ireland and not just places that serve alcohol. The key issue here is whether the Ball Alley provides "goods or a service suitable only to the needs of certain persons". In considering the respondents' argument, I find that I have a difficulty in accepting it. In their evidence, the respondents have admitted that, prior to their new policy being introduced in early 2001, they regularly permitted adults and children on the premises before 6 pm. This is borne out by the complainants' evidence that they and their children have attended christenings in the pub and have also been present on occasions like St Patrick's Day when large numbers of children were on the premises. I also consider that the fact that the respondent doesn't provide facilities exclusively targeted to children does not mean that some of the services it does provide are not ones suited to children. I also note that, on foot of the Glimmer Man decision, the respondents state that they have now gone back to their original policy of allowing children of all ages on the premises up until 6pm. I accept, however, that this decision was probably taken on account of the uncertainty generated by the Glimmer Man decision and the fact that a similar complaint on the family status ground had been lodged against the pub itself. The evidence before me, however, indicates that the Ball Alley is happy to permit children on its premises prior to its "watershed" of 6pm which clearly shows that the pub does not cater solely for the needs of adults. Accordingly, I cannot accept that the pub's situation is one that is covered by Section 5(2)(1) of the Equal Status Act 2000 in that it services 'can reasonably be regarded as goods or a service suitable only to the needs of certain persons' .

7.7 Despite the above finding, I do accept the respondents point that, as the evening progresses, the emphasis gradually shifts more towards the provision of alcoholic drink to adults, with many pubs ceasing to serve hot food from that point. I also consider that, in such a situation, there is a strong case for introducing an evening "watershed" to curtail the annoyance and risks that can arise from the presence of unsupervised children on the premises. I also accept the points made by the respondents with regard to the presence of children on premises where "adult" entertainment is provided and I totally concur with the view that it would be entirely inappropriate for children to be present in such an environment. Without wishing to predecide the matter, it would seem that such a situation may well fall within the provisions of section 5(2)(l).

7.8 Section 14 of the Equal Status Act 2000 - Action required by an Enactment - Occupiers' Liability Act and the Intoxicating Liquor Act, 1988 The respondents argue that , pursuant to Section 3 of the Occupiers Liability Act 1995, the respondent, as occupier of a premises, owes a duty of care to visitors, to take such care as is reasonable in all the circumstances, to ensure that visitors to the premises do not suffer injury or damage by reason of any danger existing thereon. The respondents state that, on weekend evenings, in particular, the respondent's premises becomes busy and crowded and, as in any licensed premises, as the night wears on, a number of people become intoxicated with the possibility of persons breaking glass or spilling hot or cold drinks, thereby increasing the risk of injury to patrons. The respondents state that children in particular are at risk of sustaining injury or harm in such circumstances, and that small children are more likely to contribute to an accident, given their size, and the potential for adults, who have consumed alcohol, to fail to see them. For this reason, they state that it is not unreasonable for the respondent to impose a ban on admitting children to the premises in order to comply with his "duty of care" obligations under section 3 of the Occupiers' Liability Act . With regard to the Intoxicating Liquor Act 1988, the respondent submits that the fact that it is not unlawful (by reason of Section 34 of the Intoxicating Liquor Act, 1988) for a publican to allow a child on his premises, is 'legally neither here nor there" for the purpose of the Equal Status Act 2000. The respondent argues, therefore, that there is no legal obligation on a publican to admit a child to his premises.

7.9 The complainants reject the argument that Section 14 of the Equal Status Act applies in this case, on the basis that there is nothing in either the Occupiers Liability Act, 1995 or in the Safety Health and Welfare at Work Act, 1984 which requires a ban on children. On the contrary, they maintain that strict compliance with their obligations under these Acts should render a publican's premises safe for all employees and visitors, regardless of age or disability. With regard to the Licensing Acts, the complainants have referred to the respondents statements that "inevitably, a certain number of patrons become intoxicated" and claim that this is an extraordinary admission given that it is a criminal offence for a licence holder to permit drunkenness on his or her premises or to sell any intoxicating liquor to a drunken person. The complainants maintain that, if the provisions of the licensing laws were strictly adhered to, pubs would be perfectly safe for all kinds of people including children.

7.10 As mentioned above, Section 14 of the Equal Status Act 2000 provides, inter alia, as follows: 'Nothing in this Act shall be construed as prohibiting...the taking of any action that is required by or under...any enactment...' Having considered the points raised by the parties on the Occupiers Liability Act, I accept that the Act does place a responsibility on an occupier to take reasonable care to ensure that the safety of staff and customers is not compromised. What I cannot accept is that the Occupiers Liability Act permits the publican to introduce a blanket ban on serving parents with children, especially when the children are under the total control of their parents. In this particular case, the refusal occurred early in the evening when there were only a fewcustomers on the premises and the child was asleep in its mother's arms. In the circumstances, I cannot accept that a risk of injury existed for anyone on the premises and, therefore, I cannot accept that the respondent was acting in accordance with the provisions of the Occupiers Liability Act in asking the parents to leave.

7.11 In referring to the Intoxicating Liquor Acts, the respondent is utilising the provisions of Section 15(2) of the Equal Status Act 2000, which provides that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the provisions of the Licensing Acts, 1833 to 1999, shall not constitute discrimination". A comprehensive evaluation of the Licensing Acts was conducted by the Equality Officer in the Glimmer Man case, who found that there was nothing in the Acts that prohibited children from being in a licensed premises with their parents. The Equality Officer did state, however, that Section 15 should not be seen as interfering with a publican's rights to remove an individual from their premises when the publican is acting in good faith for the sole purpose of ensuring compliance with the Licensing Acts. In this regard, the Equality Officer gave some examples of situations where he considered a publican would be acting legitimately, including a situation where a child under 18 was consuming alcohol, where the parent was drunk or where the parent or child were disorderly. Having deliberated on the Glimmer Man decision and from my own evaluation of the situation as a whole, I find that I am in agreement with the finding that a publican is entitled under Section 15(2), to ask a parent and child to leave his premises, where he honestly believes that the circumstances require him to intervene to ensure compliance with the Licensing Acts. What I have been asked to decide in this case, however, is whether Section 15(2) allows a respondent to impose a blanket ban on serving parents with children and I consider that it does not.

7.12 In their submission, the respondents state that that the publican " is not suggesting that the complainants are not good parents. However, his policy of excluding children from the premises in the evening time is necessary to legislate for the bad parent. ..It is entirely impracticable and unworkable in a packed public house ... to supervise adequately or effectively the behaviour of adults and their children."In this regard, I note that the respondents have stated that, in introducing their new policy in 2001, their intention was to place a blanket ban on children under 12 at all times, with the result that the complainants would not have been allowed bring the baby into the pub at any time of day. Discrimination law cannot be interpreted to condone blanket measures which affect an unnecessarily broad group of people, unless a specific exception to the Act so provides. The whole concept of equality legislation is that practices which impact negatively on discriminated groups need a much higher standard of scrutiny and must be tailored to individuals not to generalisations.

7.13 The evidence before me in this case indicates that the incident occurred early on a Friday evening at a time when only a few customers were on the premises. I also note that the publican has not contended that there was an honest belief that a risk of disorder existed. I cannot, therefore, accept that Section 15(2) applies in this case, as I can see no reason how a publican could imply that 9 month old baby, asleep in its mother's arms, posed a threat of disorder or injury to staff, customers or itself on that occasion.

7.14 Indirect Discrimination and the 'Comparator' Issue
In their submission, the respondents claim that the treatment afforded the complainants wasnot "direct" but " indirect discrimination" . The respondents base their argument on the fact that it was the baby who was not welcome on the premises and that the issue of the complainants' family status was of no concern to the publican. They say that the parents were only indirectly affected by the decision and that they were not directly discriminated against. Accordingly, they submit that the discrimination was 'indirect' in nature and therefore only unlawful if 'it cannot be justified as being reasonable in all the circumstances'. The complainants, for their part, reject this argument stating that they were directly discriminated against and refer to a previous case, Maughan v The Glimmerman (Decision No. DEC-S2001/020) where the Equality Officer found that "having a blanket ban on under 18 year olds being in pubs with their parents is a discriminatory policy against parents of under 18 year olds on the family status ground under the Equal Status Act, 2000. I am satisfied that the complainant was treated less favourably by the respondent and that the respondent directly discriminated against him on the basis of his family status."

7.15 Direct discrimination is defined in Section 3 (1) of the Equal Status Act 2000 which states that discrimination shall be taken to occur where (a) .... on any of the grounds specified ... a person is treated less favourably than another person is, has been or would be treated. Indirect discrimination is described in Section 3(1)(c) of the Equal Status Act 2000 which states that discrimination shall be taken to occur where
(i) a person is in a category of persons who share a common characteristic by reason of which discrimination may occur
(ii) a person is obliged by the provider of a service to comply with a condition but is unable to do so
(iii) substantially more people outside of the category than within it are able to comply with the condition
(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case In arguing that indirect discrimination occurred, the respondents would appear to be claiming that the "category" in this case is persons who have the family status of being responsible for persons under 18, while the "condition" is not being accompanied by a child.

7.16 In considering whether the alleged discrimination was direct or indirect, I note that the aim of the Equal Status Act 2000 is to prohibit discrimination against persons based on nine different forms of status (gender, marital status, family status, sexual orientation, religious, age, disability , race or membership of the Traveller community) and I believe that it is fair to say that most of these statuses are immutable, or changeable only with considerable difficulty. The family status ground would, however, appear to be the main exception to this rule in so far as I consider that a person's family status could be deemed to be different depending on the circumstances in which they find themselves at a particular time. Section 2(1) of the Equal Status Act 2000 defines "family status" 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 14 (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. Section 3 (2)(c) of the Equal Status Act 2000 identifies "family status" as one of the discriminatory grounds and describes it as follows: "that one has family status and the other has not or that one has a different family status from the other"

7.17 In considering the definition of "family status" contained in the Act, I believe that it is worthwhile to also examine, at the same time, the "comparator" argument put forward by the respondents. In their submission, the respondents ask that the Equality Officer consider who the appropriate 'comparator' is in a given "family status" case and they refer to Section 3 (1) (a) which provides that 'discrimination is taken to occur where...on any of the grounds stated...a person is treated less favourably than another person is, has been or would be treated'. The respondents concede that the 'comparator' can be a hypothetical individual, but contend that the hypothetical comparator must be identified nonetheless, before the Equality Officer can effectively determine whether the complainants would have been treated less favourably than another person would have been treated in the same or similar circumstances. In their submission, the respondents have drawn a comparison between a child-accompanied customer and a customer (who has children) but who arrives without his/her child. In such a case the respondents submit that the real difference is not 'family status'; rather it is the respective exercise by the two parents of their parental responsibilities .

7.18 In referring to the comparator issue, the respondents make reference to the previous Decision, Maughan v The Glimmer Man (DEC-S2001-020), where the parent was refused service because they brought a child with them into the pub, claiming that the comparator issue was not properly addressed in that decision. In the Glimmer Man Decision, the Equality Officer noted that the publican's policy was not to differentiate between parents of children under 18 years and people who have no children under that age but, rather, his policy was to refuse parents service when their children under 18 years were with them on the premises at the same time. In that case, the Equality Officer found that the publican's actions constituted direct discrimination on the "family status" ground under the Equal Status Act 2000. The comparison made in the Glimmer Man case was, therefore, between a person whose family status was obvious from the fact that they had a child with them, and a person without family status (i.e. someone who sought service when they were unaccompanied by a child). In the case before me, I consider that a similar hypothetical comparison exists, between two people with family status who are accompanied by a child, and two people without family status who are unaccompanied by a child. There are, therefore, striking similarities between the Glimmer Man case and the one before me and I consider that, in both cases, the child's presence is so intimately connected to the family status that it cannot realistically be separated from it. Having deliberated on the above, I consider that the hypothetical comparators identified in this case would not have been refused service in similar circumstances, and that, therefore, the refusal of service in the Ball Alley House constituted direct discrimination against the parents on the "family status" ground.

7.19 I also note that the question of direct or indirect discrimination on the "family status" ground was raised in another recent decision, Shanahan v One Pico Restaurant (DEC-S2003-056), and that, in that decision, the Equality Officer found that the removal of a mother from a restaurant, because she had her baby with her, constituted direct discrimination under the Equal Status Act 2000.

7.20 As I stated earlier, I consider that the "family status" ground is different to other grounds in so far as a persons family status can change, for the purposes of the Equal Status Act 2000, depending on the circumstances in which they find themselves at a particular time. Section 2(1) of the Equal Status Act 2000 defines "family status" as "having responsibility ...... as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years". Having considered the above definition, it appears clear to me that the term "family status", as defined in the Equal Status Act 2000, relates specifically to having responsibility for children under 18 or for a person with a disability. Therefore, for a person to claim that they were discriminated against on the "family status" ground, I consider that it must be shown that the treatment afforded them was directly attributable to the fact that that person "had responsibility" for a child under the age of 18 or for a person with a disability. I am satisfied, therefore, that the complainants, in having their baby in their company in the Ball Alley House on 11 May 2001, "had responsibility" for their child at that time and thus come within the definition of "family status" contained in Section 2(1).

7.21 Accordingly, I consider that the complainants "family status" was the reason service was refused, rather than the respondent's assertion that the ground for refusal was the parents' unwillingness to exercise their parental responsibilities. I also consider that this action on the respondents part constituted direct rather than indirect discrimination against the parents on the family status ground. I find that the complainants were directly discriminated against on the family status ground contrary to the provisions of the Equal Status Act 2000 in being refused service in the Ball Alley House pub on 11 May 2001.

8 Decision
8.1 I find that the complainants have established a prima facie case of discrimination on the family status ground in terms of sections 3(1), 3(2)(c) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act. I also find that the respondents have failed to rebut the allegation.

8.2 In this case, the respondents argue that the provisions of Section 15(2) of the Equal Status Act 2000 have seriously restricted their powers under the licensing acts, particularly on the issue of children in pubs. I do not agree with this assessment of the situation and I would point to the fact that Section 15(2) of the Equal Status Act 2000 was designed to protect publicans who were "acting in good faith", for the sole purpose of complying with the licensing acts, from allegations of discrimination. In some situations, however, publicans have run into difficulties in cases where ill-judged or over-broad measures have gone further than required by the licensing acts and did not take account of the parallel obligations imposed by the Equal Status Act. In this regard, I note that new legislation is now in place (the Intoxicating Liquor Act 2003) which introduces a specific exception to the Equal Status Act 2000 whereby the exercise of a licensee's discretion not to permit a person under 15 accompanied by parent or guardian to be in a bar at any time shall not of itself constitute discrimination, and I hope that this new legislation will provide publicans with sufficient latitude to address the contentious issue of children in pubs.

8.3 The case before me, however, deals with an incident which occurred prior to the new legislation being enacted and, therefore, my decision must have regard to the laws that were in force at the time of the incident. I, therefore, find that, on 11 May 2001, the respondents acted in breach of the Equal Status Act 2000 in refusing service to the complainants and that their actions constituted discrimination on the family status ground.

8.4 Redress
On the basis of the evidence before me, I consider that the complainants, who were regular visitors to the Ball Alley, were treated in an unacceptable manner by staff on the night of 11 May 2001 in being asked to leave the premises, solely because Ms Travers was noticed holding a sleeping 9-month old baby in her arms and I consider that the treatment afforded them constituted direct discrimination on the family status ground. As a result of this incident, the complainants have not returned to the pub, which had been their local for 5 years prior to that date. It is for this reason, more than any other, that I consider that redress is warranted and I order that the respondents pay each complainant the sum of €750 for the embarrassment, humiliation and loss of amenity suffered on and since 11 May 2001 .

Brian O'Byrne
Equality Officer
12 September 2003