Mr. Richard O'Brien and Mr. Patrick Quilligan (represented by Mr. Michael Purtill B.L. instructed by Michael B O'Donnell Solicitor) V The Royal George Hotel (Limerick) (represented by Leahy & Partners Solicitors)
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act, 2000 on 20 February 2002. 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 me, 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 Mr. Richard O'Brien and Mr. Patrick Quilligan that they were discriminated against by the Royal George Hotel on the grounds that they are members of the Traveller Community. The complainants alleges that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000, contrary to Section 5(1) of that Act.
2. Summary of the Complainant's Case
2.1 The complainants allege that they was discriminated against by the respondent contrary to the Equal Status Act, 2000 when they were refused entry to a function in the respondent's bar on the 31 December, 2001. The complainants contend this occurred because they are members of the Traveller community. They submitted that they purchased the tickets for a function in the respondent's hotel on 31 December, 2001 and when they arrived at the hotel at about 7:30 that evening (New Year's Eve) they were refused entry. After querying the reason for the refusal, the complainants stated that they were told that regulars only or residents of the hotel would be admitted and management reserved the right to refuse admission. The complainants called the Gardaí but they did not turn up at the hotel. While they were waiting for the Gardaí to arrive other customers were admitted without any difficulty. In response to the respondent's case the complainants denied that they had any drink consumed.
3. Summary of the Respondent's Case
3.1 The respondent's case is that the complainants had drink consumed and it was for this
reason entry to the function was refused. The security man. Mr. James Morrissey submitted that it was a very busy night and he had only a short time frame to make a decision on the condition of the complainants. He engaged the complainants in conversation by asking them for ID and he concluded they had drink consumed. The complainants showed him the tickets they had purchased for the function, but he told them that tickets were no guarantee of gaining entry and management reserved the right to refuse entry. After the complainants were refused one of them became aggressive and the secruity man said that he was then satisfied that he had made the right decision to refuse entry. Mr. Morrissey agreed that he recognised the complainants as Travellers while he had them engaged in conversation.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3(1)(a) and 3(2)(i) 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 Traveller community ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not."
4.2 A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. I have identified the following the key conditions to be satisfied to establish a prima facie case:
(i) are the complainants covered by the discriminatory ground? ( in this case are they members of the Traveller community?)
(ii) were the complainants refused service by the respondent on 31 December, 2001?
(iii) is there evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by the discriminatory ground, 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 complainants 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.
4.3 I am satisfied that the complainants are Travellers and that they were refused service by the respondent on 13 June 2001. Therefore conditions (i) and (ii) have been satisfied. In considering condition (iii) above I have examined the evidence to see if the complainants produced sufficiently hard evidence which in the absence of any convincing contradictory evidence by the respondent would lead a reasonable person to conclude that they were treated less favourably than a non-Traveller customer in similar circumstances.
4.4 The complainants stated that they had no drink consumed and both the complainants said it was not their practice to consume much alcohol, one of them has a medical condition which prevents him from consuming alcohol regularly. The complainants were asked for ID and were told that regulars only would be admitted. The complainants submitted that the reason entry was refused was due to the fact the security man, Mr. Morrissey, saw them approaching the door and identified them as Travellers. They also submitted that they observed other customers being admitted without any difficulty. The respondent's case is that the complainants had consumed too much to drink and were aggressive. Mr. Morrissey agreed that not all customers were stopped on the night. He said that he usually has a reason for stopping customers and engaging them in conversation, but could not remember the reason he stopped the complainants.
4.5 There was a conflict of evidence in relation to what happened on the night but having considered the totality of the evidence, I found the evidence of the complainants to be more compelling than the evidence presented by the respondent. It is accepted that the complainants called the Gardaí to the respondent's premises but that the Gardaí did not respond. I believe if the complainants had consumed too much alcohol or had acted in an aggressive manner it is less likely that they would have sought the assistance of the Gardaí to gain admission to the function. I note that the respondent failed to respond to the notification of the complaint sent by the complainants under the Act. While I do recognise that there was some difficulty on the part of the respondent in putting in a response to the complaint due to a change in the General Manager of the hotel, nevertheless the respondent put in a response to the complaint to the Equality Officer shortly before the hearing and stated that the complainants had consumed a substantial amount of alcohol. This response was composed with the assistance of Mr. Morrissey. During the course of the hearing Mr. Morrissey changed his version of events and said that only Mr. O'Brien had alcohol consumed and that he would have admitted Mr. Quilligan. In the letter of response there was no mention of the aggressive behaviour and it was only submitted as a reason for refusing entry to the complainants at the hearing. It was submitted that it is the normal practice of security personnel to report incidents, yet no report was made on this occasion. Despite the complainants notifying the respondent of the complaint shortly after the incident occurred the security video was not retained. I am not satisfied that Mr. Morrissey had a clear recollection of the events. For these reasons I found the complainants' evidence more compelling. The complainants were stopped and asked for ID on the night and refused entry, it was accepted that not all customers were asked or engaged in such a conversation. I am satisfied therefore that the complainants were treated less favourably than non Travellers were treated in a similar situation. I find that the complainants have succeeded in establishing a prima facie case of discriminatory treatment.
4.6 I am now going to consider Section 15(1) of the Equal Status Act, 2000, to see if the respondent was entitled to invoke this Section. Section 15(1) provides that: "nothing in this Act prohibiting discrimination shall be construed as requiring a person to provide services in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than the discriminatory grounds, that the provision of the 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." To invoke this Section the respondent must show that there was a substantial risk of criminal or disorderly conduct or behaviour if the complainant were to be served. This defence does not, in my view, does not apply in the circumstances of this case, as the respondent has not shown that the complainants acted aggressively prior to having been refused entry. It appears that the complainants protested after they were refused service. This was understandable under circumstances where they had purchased tickets for the function to which they were refused entry. Furthermore if there was a substantial risk of criminal or disorderly conduct it is expected that a report of the incident would have been made and the security tape would have been retained. This did not happen.
4.7 The question of whether the action taken by the respondent on 31 December, 2001
was taken in good faith will now have to be examined. The licensing laws require
publicans to keep an orderly house and Section 15 (2) of the Equal Status Act, 2000
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." As already stated, I am satisfied that neither of the complainants had a substantial amount of alcohol consumed, as claimed by the respondent. I have stated above that, I found the evidence of the complainants to be more compelling and I have based this belief on the contradictory nature of the evidence presented by the respondent. Likewise I am not satisfied that the decision of Mr. Morrissey to refuse entry to the function to these complainants was without a discriminatory motivation and therefore taken in good faith. Overall the evidence has convinced me that the complainants were recognised as Travellers and this was the reason for refusing them entry. I find therefore, that the respondent has failed to rebut the prima facie case raised by the complainants.
5. Decision
5.1 On the basis of the foregoing, I find that the complainants were discriminated against by the respondent on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and in terms of Section 5(1) of that Act.
5.2 I order the respondent, the Royal George Hotel to pay the complainants, Mr. Richard
O'Brien and Mr. Patrick Quilligan the sum of €500 each, for the distress and inconvenience caused to them by the discriminatory treatment.
__________________
Marian Duffy
Equality Officer
9 January, 2004