Nora and John Stokes -v- The Village Inn, Celbridge (represented by John E. Sweetman BL, instructed by Hamilton Turner Solicitors)
Delegation under the Equal Status Act, 2000
This complaint was 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 this complaint to me Mary O'Callaghan, 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. The hearing of the case took place on 15th June 2004.
1. Dispute
1.1 This dispute concerns a claim by Ms Nora and Mr. John Stokes that they were discriminated on the grounds of their membership of the Traveller Community when they were refused service in the Village Inn Public House, Celbridge on Sunday 10th March 2002. The complainants have alleged that the treatment they received was contrary to Section 3 (2) (i) of the Equal Status Act 2000 and in not being provided with a service which is generally available to the public they were subjected to treatment contrary to Section 5 (1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainants Nora and John Stokes said that Sunday 10th March 2002 (the date of the incident complained of) was the first time they had been in the Village Inn. They had become aware that one of those who accompanied them on the evening of this incident had been in the pub previously and in particular on the previous Sunday, 3rd March 2002 when a disorderly incident occurred, but the complainants were not in attendance on that occasion. On the night of the 10th March they were part of a group of ten people, all relatives, who went to the pub at about 6.30 p.m. to celebrate Mothers Day with Mr. Stokes' mother. They said that the men sat at one table near the bar and the women sat at a different table nearby. They said that each of the men ordered drinks for themselves and their wives and that this first drink was served to everyone in the group.
2.2 A short time later Mr. Stokes' father called for second drinks for himself and his wife and these were brought to his table by a waitress but then another person approached the table, took the drinks and brought them back to the bar. The men spoke among themselves about this and decided that Martin, Mr. Stokes brother should find out what the problem was. Mr. Martin Stokes then approached the manager, followed by some of the other men in the group seeking a reason for the refusal. The complainants said that the reason given was that Mr "A" another member of the group had been in the pub a week previously and had caused a problem and for this reason the group would not be served. Martin Stokes queried why the whole group should be refused if only one of them was a problem? The complainant, Mr. John Stokes asked if Mr. "A" left would the others in the group be served but the manager refused. Mr. Stokes asked for the Gardai to be called but this did not happen. The group then got up to leave and asked the bouncer who had admitted then them to the pub for the name of the manager and they were told his name was Michael.
2.3 Ms. Nora Stokes said that by this time the pub had gone silent and that the people at other tables in the pub were staring at them causing them embarrassment. The complainants said that they didn't go out with that particular group very often but this was a family occasion. They said that they believed that what happened to them was discrimination and that if one from the group was recognised as having been involved in a previous incident in the pub, he should have been excluded while the remainder of the group should have been served.
3. Summary of the Respondents case
3.1 The respondent, Mr. Michael Rossiter, said that the Village Inn had opened on 14th February 2002, having been closed for the previous 9 months for renovations. It had previously been known as Norris's. Mr. Rossiter said he was director of the company and a partner in the business. The pub consists of a public bar, a lounge and a restaurant section and accommodates about 400 people overall. The customers of the pub come from all walks of life and there are customers from the age of eighteen upwards including sports teams. The bar generally gets an older crowd. Mr Rossiter said that there were a small number of Travellers among the regular customers of the Village Inn and he knew of two families in particular who came in themselves regularly and occasionally with friends and family.
3.2 He said he did not know the complainants as customers but he was 100% sure that he had seen one from the group they were with on the night of the incident, previously. He recalled a man, who he now knows to be Mr. "A", being in the pub with others on the 3rd March and drinking for about 3 hours. The respondent said that that group led by Mr. "A" became disorderly. He had asked them to be quiet and on that occasion and the group started throwing food around the atrium area outside the restaurant. He said the reason for the refusal on the 10th of March was that he recognised Mr. "A" in the group. He said that he didn't refuse the women of the group as they were seated up to 30 feet away at another table and he hadn't noticed them. He accepted that there was no sign of disorder from the group (both men and women) at that time.
3.3 Mr Rossiter said that he was walking away from the counter when one of the group followed him and questioned him aggressively asking "Why the hell aren't we being served?" He said he believes this person to be Mr. Martin Stokes. Mr. Rossiter said he then pointed to Mr. "A". By this time other members of the group had approached the counter, including the aforementioned Mr. "A" and he told them they would be served no more drink. He said the older man in the group then caught his arm and Mr. Rossiter indicated that the encounter was being recorded on the pub's security camera. According to Mr. Rossiter, Mr. Martin Stokes told the man to take his hand off Mr. Rossiter. Mr. Rossiter said that he was asked by someone in the group to phone the Gardai. He did not make the call but he pointed out the pay phone in the bar to the group and said they could phone if they wished. Just then the ladies of the group approached the bar, curious as to what was going on and the entire group then left. Mr. Rossiter said that Martin Stokes was the only person he had direct conversation with. He said that the time frame given by the complainant's for the incident was not in accordance with his recollection of the event as he was not on the premises at 6.30 p.m. on 10th March 2002 when the complainants said they arrived, remaining for between 20 and 30 minutes. He said he came on duty just before 7.30 p.m.
3.4 Mr Rossiter said that he did not see the group including the complainants after they left except for Mr. "A" who later that night returned to the pub as it was closing and behaved in what Mr Rossiter considered to be a threatening manner.
3.5 On cross examination by the respondent's representative the complainants said that they could not be totally sure of the time they had said the incident happened. The complainants also accepted that they were now aware that Mr. "A" had been involved in an incident at the pub the week prior to the incident complained of herein. Mr. Rossiter said that the only reason for the refusal of the group was the presence of Mr. "A" among them and that the Village Inn did not operate a policy which discriminated against members of the Traveller Community.
4. Conclusions of the Equality Officer
4.1 In considering this complaint I must in the first instance consider whether the complainants have 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 they are covered by the relevant discriminatory ground, in this case the Traveller Community ground
(2) that they have been subjected to specific treatment by the respondent.
(3) that they have been treated less favourably than someone who was not covered by the particular discriminatory ground would have been treated in similar circumstances.
4.2 I am satisfied and it has not been contested by the parties to this complaint that the complainants are members of the Traveller community and therefore the first of the three criteria outlined above is met.
4.3 With regard to the second criterion, it is agreed by both parties that the complainants were refused service on the night in question and therefore, I am satisfied that that the complainants were subjected to specific treatment by the respondent.
4.4 The final criterion to be satisfied if the complainants are to establish a prima facie case of discrimination is whether the complainants were treated less favourably than someone who was not a member of the Traveller community would have been in similar circumstances.
4.5 In this case the complainants went to the Village Inn as part of a large party (10 people) and were served their first drink without any difficulty. While the respondent says that he did not consider the women present as part of the group I accept that the women and men comprised one group although they were seated separately, as drink was being purchased for both the men and the women of the party by the same people. It is agreed by both parties to the complaint that the group including the complainants were not behaving in a disorderly fashion at the time of the refusal which occurred at the time some of the party were being served a second drink. However, it is also agreed between the parties to the complaint that one from the group (not a complainant in this case) had been in the Village Inn just one week previously and had engaged in disorderly behaviour by throwing food around the premises in the course of a food fight.
4.6 Section 15 of the Equal Status Act 2000 provides for certain defences which
can be raised to allegations of discrimination
Section 15(1) of the Equal Status Act 2000 states that....
nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods of premises, or to provide services or accommodation or services and amenities related to accommodation to another person ("the customer") 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 disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located.
In order for this defence to apply in this case, the respondent must show from his knowledge and experience of those before him that there was a significant risk of criminal or disorderly behaviour. In this case one of the complainant's group had misbehaved in the pub shortly before the occasion of the incident complained of herein. In considering whether Section 15 (1) of the Equal Status Act 2000 applies in this case I must consider whether, recognising one of the group as posing a significant risk of ...disorderly behaviour is sufficient reason to refuse the entire group. This issue has been dealt with by the Tribunal previously, for example, in DEC S2004- 0271 where the Equality Officer in that case stated:
1 DEC S2004-027 John Stokes v Priory Inn. In this case the Equality Officer found that the respondent was acting in accordance with Section 15 (1) of the Equal Status Act, 2000 when he refused a complainant service within a short time of a disorderly incident involving Travellers having occurred on the premises and where the complainant did not have a direct involvement in the incident. However, in that case the Equality Officer did not accept that Section 15 (1) applied when the complainant was again refused when he returned to the premises some months later.
"In considering the refusal ................... I can understand how he (the respondent) may have felt that readmitting Mr (the complainant)..., who was not directly involved in the trouble, may have led to other Travellers seeking readmission leading to a situation with the potential to "produce a substantial risk of criminal or disorderly behaviour". Accordingly, I consider that, on the Tuesday immediately following the Saturday night incident, that Mr (the respondent) had a genuine reason for refusing Mr.. (the complainant) and his wife and that he was acting in accordance with Section 15(1) in not readmitting ..(the complainant) to the pub."2
Similarly in the complaint under consideration here I consider that the respondent, given his experience of the food fight on the previous week, may have felt that by allowing the group to remain on the premises there was a substantial risk of criminal or disorderly behaviour.
4.7 While I accept that on the balance of probabilities the defence allowed to service providers under section 15(1) of the Equal Status Act applies to this case, I also consider it necessary to examine the respondent's behaviour in the light of Section 15(2) of the Equal Status Act, 2000, in addressing the complainants' submission that they should have been served if the member of their group who had been directly involved in the food fight incident had been excluded on the evening in question. Section 15(2) of the Equal Status Act, 2000 states 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 Licensing Acts, 1833 to 1999, shall not constitute discrimination."
The licensing Acts place an obligation on a publican to run an orderly house. I believe, in the light of the evidence presented in this case, that if the respondent had picked out one of the group for attention and refusal on the evening in question this action may have precipitated a situation which could lead to the respondent being in breach of the licensing acts. I conclude, therefore, that in refusing the entire group rather than just one of them he was acting in good faith to ensure his compliance with the relevant legislative requirements.
I consider that the respondent would have behaved in a similar manner towards any group, a member of which was known to have caused difficulties such as that which occurred on the premises just one week previously and that his actions were not connected with the group's membership of the Traveller Community. I consider that the need to maintain order was the main reason underlying the respondent's refusal of the group which included the plaintiffs and that such an action is acceptable under such circumstances.
4.9 I therefore find, that the complainants Nora and John Stokes were not treated less favourably than someone in similar circumstances who was not a member of the Traveller Community and that the third test has not been met. The complainants have not established prima facie cases of discrimination on the Traveller Community ground.
2 (my parentheses)
5. Decision
5.1 I find for the respondent in this case, the complainants having failed in establishing a prima facie case of discrimination.
Mary O'Callaghan
Equality Officer
9th August 2004