Liam Thornton V The Turner's Cross Tavern (represented by the Vintners Federation
of Ireland)
1. Dispute
1.1 This dispute concerns a complaint by Mr Liam Thornton that he was discriminated against, contrary to the Equal Status Act 2000, by the Turner's Cross Tavern, Cork. The complainant maintains that he was discriminated against on the Age ground in terms of sections 3(1) and 3(2)(f) 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 complainant states that when he sought service in the Turner's Cross Tavern on Sunday 7 April 2002, he was asked for ID by the barman. When he produced his UCC Student ID Card showing that he was over 18, the barman refused to accept it and pointed to a sign on the wall stating that only Garda Age Cards were accepted by the pub as proof as age. Mr Thornton claimed that, as he had been served twice previously in the pub, on production of his Student ID Card, that he had a "legitimate expectation" that he would be served on 7 April 2002 and that the refusal constituted discrimination on the grounds of age.
3. Summary of Respondent's Case
3.1 The respondents maintained that in 2002 it was pub policy to only accept Garda Age Cards as proof of age as, at that time, this was the only form of ID that was recognised as acceptable under the Intoxicating Liquor Act 2000.
4 Delegation under the Equal Status Act, 2000
4.1 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 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 Matters for Consideration
5.1 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)(i) of the Act specifies the Age 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 complainant claims that he was discriminated against on the grounds of his age contrary to Sections 3(1), 3(2)(f) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being refused service in the Turner's Cross Tavern on 7 April 2002.
5.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which discrimination could be inferred. 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 Conclusions of the Equality Officer
6.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Existence of a discriminatory ground (e.g. the Age ground)
(b) Establishment of facts to show that specific treatment occurred
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar circumstances.
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. With regard to (a) above, the complainant has satisfied me that he was over 18 years of age on 7 April 2002. In relation to (b), the respondents acknowledge that the complainant was refused service on 7 April 2002. To determine whether a prima facie case exists, I must, therefore, consider whether I believe that the treatment afforded the complainant on 7 April 2002 constituted discrimination under the Equal Status Act 2000.
6.2 The principal pieces of evidence before me are as follows:
- Liam Thornton and his two friends, who all appeared at the Hearing, state that they were admitted and served on two previous occasions in the Turners Cross Tavern. On being asked for ID on those occasions, they say that they produced their Student ID Cards, which were accepted by staff.
- Mr Thornton identified Monday 1 April 2002 (six days before the date of refusal) as the most recent date on which they were served and said at the Hearing that they visited the pub that night to watch a live football match between Southampton and Aston Villa.
- Mr Thornton claims that the same barman who refused him the following Sunday, 7 April 2002, was happy to accept his Student ID on 1 April 2002.
- The respondents state that the Turners Cross Tavern opened for business in 2001, a few months after the Intoxicating Liquor Act 2000 (ITA) came into force. The pub employed a total of around 12 barstaff .
- The respondents say that, as the Garda Age Card was the only acceptable form of ID identified under the Intoxicating Liquor Act 2000, they gave instructions to all staff that no other form of ID was to be accepted in situations where barstaff suspected that a customer may be underage. Staff were regularly reminded of the need to abide by these instructions as both the barstaff and the proprietor were liable for prosecution under the Act, if it was found that an underage person had been served and who was not in possession of a Garda Age Card.
- The respondents believe that the vast majority of barstaff strictly enforced the Age Card requirement but, as it was impossible to monitor staff at all times, they accept that a few may have been more flexible on occasion and may have accepted other forms of ID.
- On hearing the evidence of the complainant and his witnesses, the respondents said that they were prepared to accept that the three friends had been served in the Turners Cross Tavern previously as claimed, without having produced Garda Age Cards. The respondents stated, however, that this should not have happened and put it down to a member of staff not complying with the instructions he or she had been given
- The barman who was on duty on 7 April 2002, Brian O'Neill, said that he recalled refusing service to the 3 gentlemen on 7 April 2002 but that he does not recall having dealt with them previously. On 7 April 2002, he said that he refused service to Mr Thornton because he could not produce a Garda Age Card as proof of age.
6.3 Section 14 of the Equal Status Act 2000 - Action required by an Enactment 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...' Section 14 of the Equal Status Act 2000, therefore, provides that any action required by law cannot be deemed to be discriminatory. The respondents have argued in this case that they were legally obliged at the time of the refusal on 7 April 2002, under the provisions of the Intoxicating Liquor Act 2000, only to accept a Garda Age Card as valid proof of age. Section 14 of the Intoxicating Liquor Act 2000, which deals with the sale of intoxicating liquor to under-age persons, introduced a new requirement into existing licensing legislation which stated that, in any proceedings brought against a publican, " it shall be a defence for the defendant to prove that the person in respect of whom the charge is brought produced to him or her an age card relating to that person or, if the defendant is charged with permitting another person to sell or deliver intoxicating liquor contrary to either of those subsections, to prove that an age card relating to the person to whom the intoxicating liquor was sold or delivered was produced by that person to that other person.". It is, therefore, clear from the above text, that the intention of Section 14 of the Intoxicating Liquor Act 2000 was to introduce a practice whereby publicans would only accept the Garda Age Card (and not passports, driving licences, student cards etc.) as legitimate proof of age and that failure to do so could leave publicans open to prosecution.
6.4 The alleged act of discrimination in this case occurred on 7 April 2002 at a time when the provisions of the Intoxicating Liquor Act 2000 were in force. Therefore, in order to comply with the law as it stood on 7 April 2002, the only lawful defence for a publican was to show that a person suspected of being underage had produced to them a Garda Age Card as proof of age, in accordance with the provisions of the Intoxicating Liquor Act 2000. (I note that the proof of age requirements have since been relaxed somewhat by the Intoxicating Liquor Act 2003 but still do not accept Student ID Cards as valid proof of age).
In refusing to accept Student Cards as ID on 7 April 2002, the respondents were, therefore
acting in accordance with the provisions of the Intoxicating Liquor Act 2000. Accordingly, as the respondents were at the time complying with an action that was required by or under an enactment, I consider that, under Section 14 of the Equal Status Act 2000, their actions cannot be deemed to be discriminatory.
6.5 The complainant, Mr Thornton, has also argued that he had a "legitimate expectation" that he would be served on 7 April 2002, having been served previously in the Turners Cross Tavern on production of his Student ID Card and made reference to the case of Webb v Ireland {1988} ILRM 565 where he says the Supreme Court outlined the doctrine of
"legitimate expectation". In that case, Chief Justice Finlay is quoted as saying that " it would appear that the doctrine of "legitimate expectation", sometimes described as "legitimate expression" has not in those terms been a subject matter of any decision of our courts. However the doctrine connoted by such expressions is but an aspect of the well recognised concept of promissory estoppel (which has been frequently applied by our courts) whereby a promise or representation as to intention may in certain circumstances be held to be binding on the representor or promisor". The Chief Justice then referred to the English courts decision in Amalgamated Investments Ltd v Texas Commerce Int'l Bank [1982} QB 84, at 122 where Lord Denning held " When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case requires."
6.6 On considering the complainant's argument that he had a "legitimate expectation" that he would be served, I consider that the onus is on the complainant to establish the facts on which this expectation is founded. In this particular case, Mr Thornton referred to previous occasions on which he says his Student ID Card was accepted and places particular emphasise on his claim that the same barman who refused him on 7 April 2002 had accepted his Student ID Card six days earlier. On investigating this point, I note that the complainant has given evidence that he believes that he was served by the barman in question, Brian O'Neill, while watching a match between Aston Villa and Southampton on TV on Monday 1 April 2002. In an attempt to validate the accuracy of the complainant's testimony, I asked the respondents at the Hearing to produce their roster for the week in question showing who was on duty in the pub during w/c Monday 1 April 2002. The roster produced by the pub subsequently showed that Mr O'Neill was not on duty on 1 April but was on duty on the date the complainant was refused service, 7 April 2002. I also carried out some internet research subsequent to the Hearing to establish whether the match identified, Aston Villa v Southampton, was televised on 1 April 2002. My enquiries, however, showed that Aston Villa had no match on Monday 1 April and that the league match referred to, Aston Villa v Southampton, actually took place on 27 April 2002, three weeks after the date the refusal occurred. On bringing these points to the attention of the complainant subsequent to the Hearing, Mr Thornton acknowledged that he may have been mistaken about the date and match in question but insisted that he had been served in the Turners Cross Tavern on a second occasion between 17 March 2002 and 7 April 2002.
6.7 On the basis of the above, I find that there still remains some confusion as to when and whether Mr Thornton was served by Mr O'Neill prior to 7 April 2002 and whether Mr O'Neill was, in fact, the person who accepted the complainant's UCC Student Card as ID. For this reason, I consider that the complainant has not put sufficient evidence before me to establish, on the balance of probabilities , that the same barman who had served him previously, refused him on 7 April 2002. This to me undermines Mr Thornton's claim that he had a legitimate expectation that he would be served on 7 April 2002. In relation to the complainant's other alleged visit to the Turners Cross Tavern, to watch Aston Villa v Arsenal, I note that this match was transmitted live on Sunday 17 March 2002 and I am prepared to accept that the complainant and his two friends were admitted and served in the pub on that date.
6.8 Mr Thornton's argument that he had a "legitimate expectation" of service does, however, raise the question as to how far this expectation could legitimately have been allowed to extend, bearing in mind that, if the respondent was to accept that the complainant had a "legitimate expectation" of service, in order to fulfil this expectation the respondent would have had to knowingly break the law, by ignoring the provisions of the Intoxicating Liquor Act 2000 which were in force at the time. On considering this point, I find that I cannot accept, in this instance, that any "legitimate expectation" on thecomplainant's part overruled or superseded the legal obligation on the publican to abide by the terms of the Intoxicating Liquor Act 2000. For this reason, I do not consider that the complainant's case falls into the same category as the precedent cases referred to above.
Therefore, while I am inclined to accept that Mr Thornton may have felt that he had a genuine expectation that he would be served on 7 April 2002, I do not consider that the circumstances of this particular case supported Mr Thornton's contention that he had a "legitimate expectation" of service as he claims.
6.9 Another factor in this case which the complainant expressed frustration over was his claim that he made several attempts to resolve the issue directly with the respondents before the case went to Hearing but the respondents never replied to him. For their part, the respondents say that they did reply to Mr Thornton's initial notification and have produced a copy of a letter dated 11 June 2002 which was purportedly sent to Mr Thornton. Mr Thornton denies, however, that he received it. On this point, I am inclined to empathise with Mr Thornton as I find myself in a similar position in so far as a letter purportedly sent to me by the respondents on 2 February 2004 was not received by me.
6.10 While I can understand the complainant's annoyance and frustration at being refused service in a pub where he had been served before, I consider that the difference in treatment on the occasions identified occurred because of a lapse in vigilance on the part of barstaff rather than the existence of a policy of discrimination on the part of the respondents. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination under the provisions of the Equal Status Act 2000.
7 Decision
7.1 I find that a prima facie case of discrimination has not been established by the complainant on the age ground in terms of sections 3(1) and 3(2)(f) of the Equal Status Act 2000.
Brian O'Byrne
Equality Officer
11 October 2004