Six Complainants (represented by the Equality Authority) v A Public House, Dublin (represented by Mason Hayes Curran, Solicitors
1. Key words
1.1 Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Disability, section
3(2)(g) - Discrimination by association Section 3(1)(b) - Supply of goods and services,
section 5(1) - Refusal of admittance to public house - Prima facie case, - Reasonable accommodation, Section 4(1) - Nominal cost, Section 4(2) .
2. Dispute
2.1 This dispute concerns a complaint by Mr. BMcM that he was discriminated against
on the disability ground in terms of sections 3(1)(a) and 3(2)(g) of the Equal Status Act
2000, and five further complaints by persons in his company on the date in question that they were discriminated against, by association, on the disability ground, in terms of Section 3(1)(b) and 3(2)(g) of the Equal Status Act 2000 in being afforded less favourable treatment by the respondent, in the provision of a service which is generally available to the public, contrary to Section 5(1) of the Act.
2.2 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 delegated these complaints to me, Dolores Kavanagh, 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.
3 Complainant's Case
3.1 Summary Written submissions
One of the complainant's, Mr. BMcM, went to the respondent premises with his family on 27 January, 2002 to celebrate his mother's 50th birthday. Mr. BMcM. has a disability which
affects his balance, coordination and facial expressions ( medical certificate to this effect
submitted). Mr. BMcM had been refused admission to the respondent premises on two
previous occasions while in the company of friends with similar disabilities. As Mr. BMcM
was unsure whether his casual attire had been the basis for the two earlier refusals to admit him, on this particular occasion he had taken care to dress well in trousers, a shirt and jacket and had borrowed a pair of his father's shoes for the occasion. Mr. BMcM's cousin and her partner had, by coincidence, arrived by taxi at the respondent premises at the same time as Mr. BMcM and his family. The two groups had greeted each other warmly in the car park. Mr. BMcM walked ahead of the others to the entrance where
he waited for the rest of the party. When the party went to enter the premises the doorman stopped them and said that he "did not recognise this man" indicating Mr. BMcM and told the party that they would not be admitted to the premises. Other members of the complainant group had never been to the premises previously, and Mr. BMcM's father, who regularly attends at the premises stated that Mr. BMcM was his son. The group questioned the stated reason for the refusal. When the doorman refused to give his name the group asked to speak to the manager. The person who was called to the door to speak with them said he supported the doorman's decision. He gave them a name and phone number so that they could make a complaint later if they so wished. The complainants left the respondent premises and went to another establishment nearby
where they were admitted without any difficulty whatsoever. However, Mr. BMcM was
extremely upset as he felt that he was responsible for spoiling what should have been a happy occasion for his family. His family were also shocked and upset on his behalf at the
embarrassment caused to him and the serious damage to his self confidence which the
incident caused.
The complainants had not been drinking prior to attending at the respondent premises and
had not been behaving in a boisterous manner. The respondent's repeated references in
written submission to Mr. BMcM's appearance and suitability for the premises indicates a
prejudice against Mr. BMcM which was manifested in the discriminatory refusal of access to him and his party. It was submitted on behalf of the complainants that intention to discriminate is not required under the terms of the Equal Status Act 2000 (reference ES-DEC-S2001-015, para 5.12) It is further submitted that the doormen were obliged under Section 4 of the Equal Status Act 2000 to give consideration to the reasons why they deemed Mr. BMcM "unsuitable for the premises". It is suggested that Mr. BMcM was intoxicated. This is rejected . There was no indication from the complainants that they were intoxicated or posed any threat to the management of the pub in observing its obligations under the Licensing Acts. No attempt was made to address Mr. BMcM or engage him in conversation . The assumption that he was intoxicated could not have been made in good faith as there were no actual indications that he had drink taken i.e no smell of drink, no slurring of speech. It is unjust and unreasonable to assume that every person who is in any way uncoordinated in movement or appearance is in fact intoxicated.
3.2 Summary of Oral Evidence Provided at Hearing
Mr. BMcM's learning disability causes him at times to display some characteristics of having drink taken but a short conversation with Mr. BMcM would quickly dispel any such notion. On the night in question Mr. BMcM's disability was not mentioned to the doormen or
manager of the respondent premises because nobody wanted to upset Mr. BMcM publicly by referring to it. Furthermore the doorman simply stated that he did not recognise Mr. BMcM and confirmed to one of the party (Mr. D) that Mr. BMcM's appearance was not in question, that it was simply the fact that he was not known to the doorman that was the cause of the refusal to admit the party Mr. D had spoken with the manager on the night in question and the manager had simplystated that he would not overrule the doorman's decision to refuse the group entry.
4 Respondent's Case.
4.1 Summary written submissions
In written submissions the respondent stated that the senior doorman of the respondent
premises, Mr. O'H witnessed the arrival of the complainant's party and observed that they
were in high spirits and behaving in an exuberant and boisterous manner. He concluded that a number of the party had a considerable amount of drink taken . He stated that they were not heavily intoxicated but it was obvious from their demeanor that they had consumed a considerable quantity of alcohol. The group were, by and large, well dressed. He was of the view however that one member of the group, who he estimated to be in his mid-twenties, was unsuitable for the premises because this person appeared more intoxicated than the other members of the party and because of his general appearance and attire. He engaged the complainant's party in a brief conversation in order to get a feel for the type of people he was dealing with. Exercising his discretion as a doorman he concluded that the individual referred to above was unsuitable for the premises. He didn't wish to single out any one individual and for reasons of diplomacy, indicated that he would not be admitting the group to the premises on that occasion. The doorman made his decision in order to maintain the profile of the premises and in order to comply with the respondent's duties under the Licensing Acts to ensure the peaceable and orderly operation of its premises. The doorman found the group argumentative on the night
in question after they were refused entry and they refused to leave the premises without being offered an explanation for the refusal. The respondent vehemently denies that discrimination occurred. The respondent operates a very progressive disability friendly premises. On any given night there would be a considerable number of persons with disabilities availing of the services provided in the respondent premises. The respondent's premises are serviced with wheelchair accessible ramps and toilets and disability would never constitute a ground on which the respondent would refuse to admit any person to his premises.
4.2 Summary of Oral Evidence Provided at Hearing
The owner of the respondent premises stated that he was at the door of the premises as the group of complainants arrived in the car park on the night in question. Although they were some distance from him across the car park he heard them greet each other and decided that they had enough drink taken. His decision was based on the fact that they were far too merry for that hour of the evening. He told the doorman to keep an eye on the group as they had drink taken. The owner then went inside. The doorman stated that he watched the group approach the door of the premises and decided that they had "been at it all day" i.e eating and drinking because they appeared intoxicated. One member of the group in particular seemed the worse for drink. Ordinarily the doorman would engage people in conversation to determine whether his initial impressions were correct. On this occasion he did not engage in conversation with any member of the group as he had already decided that they were intoxicated and that was that. The manager of the respondent premises was called to the door to speak with a member of the complainant's party. This individual refused to accept that he was the manager and gave his name and occupation to the manager. The latter regarded this as an attempt to intimidate him. He listened to the reasons why the group was refused admission, i.e. too much drink taken, and upheld the doorman's decision in the matter. The respondent now fully accepts that no member of the group of complainants had any drink taken on the night in question and also accepts that Mr. BMcM suffers from the stated disability. However, the respondent states that Sections 15(1) and 15(2) of the Equal Status Act applies to the refusal of entry in these cases and Section 4 cannot therefore be invoked by the complainants as discrimination had not occurred under Section 15(1) or (2).
5 Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has
been established by the complainants. In short, have the complainants established the
primary facts from which it can be inferred that discrimination has occurred. Once these are established, the burden of proof shifts, meaning that less favourable treatment of the complainant 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.
5.2 Having considered all the evidence before me, I am satisfied that a prima facie case
has been established. Mr. BMcM., complainant, has a learning disability. He was refused
entry and he was told that it was because he was unknown to the doorman that entry was
being refused the entire group. Other members of the complainant group had never been to the premises and could not therefore be known to the doorman. No reference was made to them by the doorman. In written submissions the respondent called into question Mr. BMcM's attire and "suitability" for the premises. Again other members of the group were not referred to in these terms. Mr. BMcM had not been drinking and was well dressed. He had not caused any problems and the respondent has failed to show how there were any indications that he might do so. In the circumstances, I am satisfied that the burden of proof has shifted to the respondents to show that the complainants were not discriminated against on the grounds of Mr. BMcM's disability on the night of 27 January 2002.
6 Respondent's Rebuttal
6.1 The owner of the respondent pub, based on what he heard from a distance, made a
decision that the group was under the influence of alcohol and signalled this to the doorman. The doorman in question states that he watched the group approach the door and decided that they had been eating and drinking all day because of their demeanour i.e they were far too merry for that hour of the evening. He refused them entry to the pub on this basis but did not state this to the group. Instead he stated at the time that he did not recognise Mr. BMcM. The respondent accepts that the wrong reason for refusing the group entry was provided to them on the night in question but states that Section 15(1) and/or 15(2) of the Equal Status Act 2000 is/are applicable in this case.
7 Conclusions of the Equality Officer
7.1 Based on all of the evidence presented in this matter I am satisfied that the doorman
who refused the group entry to the pub did not, in good faith, make an independent, reasoned decision to refuse the group solely for the purpose of ensuring compliance with the Licensing Acts. I am satisfied that he was predisposed to refusing them entry because the owner of the premises had indicated that the group may have drink taken. The doorman was not about to overrule his employer. The owner's comments in relaton to the group being too merry for that hour of the evening and that they must therefore have drink taken were not based on any credible evidence. A group of people who were happy to see each other greeted each other warmly. They were at a distance from the owner of the respondent premises at the time. He could not see them across the dark car park and he did not take any measures to verify his assumptions in relation to the group. No member of the complainant group had any drink taken. The doorman took no measures to determine for himself whether any member of the group in fact had any drink taken, prior to his refusing them admittance. Furthermore, in written submissions the respondent stated that Mr. BMcM was unsuitably attired and was, in general "not suitable" for the premises. The respondent does not operate a formal dress code and was unable to say precisely what constitutes suitability for the purposes of gaining entry to his premises. As the latter reasons were proferred for refusing the group entry and as the doorman was acting on an unfounded comment from the owner I am satisfied that Section 15 (2) of the Equal Status Act does not apply in these cases. In short the refusal was not for the sole purpose of complying with the Licensing Acts.
7.2 No evidence was presented to show how any member of the complainant group had
behaved in a manner such that the provision of a service to them would produce a
substantial, or indeed any, risk of criminal or disorderly conduct or behaviour or damage to
property at or in the vicinity of the respondent premises. While it was submitted by the
respondent that the complainants became "argumentative" after the refusal to admit them this is not relevant to the actual refusal. In any event, based on the evidence presented I am
satisfied that any reasonable individual or group, who feel that they have been treated
unfairly and are given an unsatisfactory explanation for such treatment, will attempt to put
their side or seek a more acceptable explanation. Any such reasonable attempt is open to
being perceived or described as "argumentative". In the circumstances I am satisfied that
Section 15 (1) of the Equal Status Act 2000 does not apply in these cases.
7.3 It is quite clear from the evidence provided that the five members of the complainant
group, other than Mr. BMcM were not giving any indication that they had any drink taken,
and all six complainants were well presented. However, it is also clear that something
indefinable about Mr. BMcM drew the attention of the doorman to him specifically, and the
doorman singled out Mr. BMcM as the reason for refusing the entire group entry. This is
further borne out in the emphasis placed on Mr. BMcM's demeanour and appearance by the respondent in written submissions. Given that Mr. BMcM's disability outwardly affects his facial expressions and at times causes him to stagger, I am satisfied that the visible attributes of his disability are precisely what drew attention to him. These attributes are identical to those which would give the appearance of drunkenness to any person charged with making a snap decision in the matter. The doorman stated that it is his standard practice to speak to potential clients for a short time in circumstances where he suspects hat they have drink taken, in order to determine whether his suspicions are well founded. In the instant cases he made no attempt to engage any member of the group in such a conversation.
8 Reasonable Accommodation
Section 4 of the Equal Status Act states, 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
8.1 In the cases at hand it is clear from the evidence provided that the complainant group
were refused admission to the respondent premises without the provision of even the normal accommodation which is routinely afforded patrons of the premises i.e the doorman stated that it was his normal, standard practice to engage all persons who approach the door of the premises in conversation in order to ascertain whether they are intoxicated. He did not make any attempt to do so in relation to any the complainants.
8.2 I accept the submission from the complainant's representative that the doorman who
refused to admit the complainants on the night in question was obliged under Section 4 to
give consideration to his reasons for deeming Mr. BMcM. "unsuitable for the premises" . He failed to do so. There were no clear indications that Mr. BMcM was drunk and it is unjust and unreasonable to assume that every person who is in any way uncoordinated in movement or appearance is in fact intoxicated. Such assumptions give rise to a situation whereby Mr. BMcM and persons with disabilities who present with similar outward symptoms could never avail of the services provided by the respondent.
8.3 However, precisely what would constitute reasonable accommodation in this case is
difficult to define. The requirement for the provision of reasonable accommodation under the Act seems to assume knowledge of the disability in question on the part of those providing the special facilities. In the case at hand the respondent and his staff were unaware of Mr. BMcM's disability and were never informed about it by any member of the complainant group. Is it reasonable then, in the circumstances to place upon the respondent the burden of being aware of every possible type of disability and providing reasonable accommodation for every possible contingency. I am satisfied that it is not reasonable to expect that.
8.4 I am satisfied however, that it is reasonable, given that the Equal Status Act has now
been in operation for over three years to expect that responsible service providers,
particularly those who provide regular service to large numbers of patrons, and who deal with refusals of various kinds in often sensitive or volatile circumstances, would, at the very least, be aware of the possibility for reasons other than drunkenness affecting a persons demeanour and would
8.5 I am satisfied that the consistent application of the stated policy in the respondent
premises, i.e to engage would be patrons in a short conversation to assess their suitability for admission to the premises, when applied in a fair and even handed manner, combined with an awareness that factors other than drink might account for the outward appearance of drunkenness would constitute reasonable accommodation in the instant , and similar,
Cases. The respondent failed to provide such reasonable accommodation.
9 Nominal Cost
Section 4(2) of the Equal Status Act provides:
A refusal or failure to provide the special treatment or facilities to which subsection
(1) refers shall not be deemed reasonable unless such provision would give rise to a
cost, other than a nominal cost, to the provider of the service in question"
9.1 I am satisfied that the cost to this specific respondent, in terms of relevant awareness
training for himself and his staff, would not give rise to a cost other than a nominal cost.
10 Decision
10.1 The complainant, Mr. BMcM was discriminated against by the respondent on the
disability ground in terms of Sections 3(1) (a) and 3(2)(g) , 5(1) and 4(1) of the Equal Status Act 2000. The remaining five complainants were discriminated against, by association, on the disability ground in terms of Section 3(1)(b) and 3(2)(g), 5(1) and 4(1) of the Equal Status Act 2000.
11 Redress
11.1 I hereby order, in accordance with Section 27 of the Equal Status Act 2000, that the
respondent (i) pay the sum of €600 to Mr. BMcM , complainant (ii) pay the sum of €500 to
Ms. BMcM, (Mr. BMcM's mother) (iii) pay the sum of €100 to each of the four remaining
complainants for the effects of the discrimination.
11.2 I further order that each of the complainants be admitted to the respondent premises if and when they attend at the premises unless there are clear, non-discriminatory reasons for refusing them admission. In awarding compensation I have taken into consideration (i) the considerable distress caused to Mr. BMcM by his being repeatedly singled out by the respondent as being the individual who caused the group to be refused admission, (ii) the particular upset and distress caused to MsBMcM who was prevented from celebrating a particular and unique occasion in the premises of her choice where she had in the past celebrated many landmark occasions with her family, the memories of which she cherishes, (iii) the distress and frustration caused to the remaining complainants by the discrimination and (iv) as a mitigating factor, the complete lack of knowledge on the part of the respondent in relation to Mr. BMcM's disability combined with the fact that the physical attributes of Mr. BMcM's disability coincide with those indicators of drunkenness in relation to which licensees are required to be vigilant.
__________________________
Dolores Kavanagh
Equality Officer
27 January, 2004