Fiona Bridgeman & Ors-v-The Licensee, Beaumont House, Dublin
Headnotes
Equal Status Act, 2000 - Direct discrimination, section 3(1)(a) – Age ground, Section 3(2)(f) - Disposal of goods and supply of services, Section 5(1) - Refusal of entry to a pub – Prima facie case.
1. Delegations
1.1 The complainants each referred a claim 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 then delegated the case 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.
2 Summary of Complainant’s Case.
2.1 The complainants state that they went to the respondent premises on the evening of 11 September, 2002 and they were asked to produce identification by the owner. Three of the complainants produced passports and one produced a driver’s licence. The complainants were refused service on the basis that it was policy not to accept any form of proof of age other than the national identity card provided by the Gardai.
3. Summary of Respondent’s Case
3.1 The respondent operates a very strict policy in relation to underage drinking and when a doubt arises about the age of a patron then only the national identity card issued by the Gardaí is accepted as proof of age. This is in accordance with the Licensing Acts, specifically Section 14 of the Intoxicating Liquor Act 2000.
4. Background
4.1 Complainant
The complainants state that they had attended at the respondent premises over a number of years on a regular basis. Three of the complainants had held a farewell party in the premises one year earlier and had then travelled abroad for one year. The fourth complainant, who did not travel abroad, had also attended at, and been served in, the premises on a regular basis in the course of that year.
Three of the complainants had lunch drinks in the respondent premises on the day of the refusal of service. Two of them had been served alcoholic drinks and the question of their age had not been raised and had never previously been raised.
All four complainants state that there were no signs in evidence on the premises regarding policy on identification requirements. When they were refused service they left the premises and checked for relevant signage outside and found none.
4.2 Respondent
The respondent denies that discrimination occurred and states that he had regularly attended meetings with the local Gardaí and was made aware of the need to be vigilant for forged identification, specifically student i.d.s and driving licenses. The licensee introduced a strict policy with regard to the service of underage persons and he personally checks patrons entering the premises for e.g. age, drunkenness etc. The premises is substantial and can hold up to 700 patrons at any one time. The pub has two entrances and an off-license with a separate entrance. The licensee personally polices all three entrances.
It is the licensee’s experience that underage drinking does not take place early in the day and he does not therefore seek identification at earlier times such as lunchtime.
5 Prima Facie Case
5.1 I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A(1) of the Equal Status Act 2000 (as amended by the Equality Act 2004) states that
“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the contrary”.1
Section 38A(2) states that
“This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person”.
6 Prima Facie Case - Complainants
6.1 The relevant evidence before me is:
§ The complainants provided evidence of their age on the date in question which clearly shows that they were over eighteen at the time of the alleged discrimination (ages ranged from 21-22 years at the time of the refusal).
§ Three of the complainants had been served on the premises earlier (lunch time) that same day and two of them had been served alcohol which they consumed on the premises. The three had remained on the premises until some time between 4.30-5.30p.m
§ All four complainants had been drinking on an ongoing, regular basis in the respondent premises for a number of years (three had not done so in the preceding year as they were travelling abroad but had done so on an ongoing basis in the two-three years prior to traveling, when each of them was over eighteen years of age)
§ The respondent personally polices all entrances to the premises. The complainants gained admittance to the premises and were followed onto the premises by the respondent who had not stopped them from entering.
§ A witness for the complainants, who has been in the bar trade as a manager for over thirty years (not in the respondent premises), gave evidence to the effect that he regularly attends at the respondent premises as it is his “local” and he has never witnessed any patron being asked for age identification by the respondent. He also states that he had never seen signage on the premises regarding any policy in relation to underage drinking or age identification requirements until the week after the complainants had been refused service.
§ The respondent states that the attire of the complainants brought them to his attention – specifically that “they were wearing short skirts and were all done up for going out”. All four complainants state that on the night in question they were wearing jeans, boots and casual tops.
§ The respondent does not seek age identification from patrons early in the day as it is his experience that underage drinking does not occur at that time.
§ The respondent states that if the complainants had attended at the premises with their parents he would have accepted their passports as proof of age.
§ While the policy of the respondent with regard to the requirement to produce age identification is very strict and is strictly applied, it is not a formal policy and is “ongoing” i.e it is not written in stone.
6.2 Having carefully considered all of the evidence in this matter I find the complainant’s account of the circumstances of the refusal of service more compelling. The respondent had never previously sought any form of age identification from them and had permitted three of them to be served at lunch time that same day. Given that they were served in the premises from the age of eighteen, when they would have appeared younger than at the time of the refusal of service, I am satisfied that something other than their perceived age on the part of the respondent prompted the request for age identification. I am satisfied, on balance, that the complainants have established facts from which it can be presumed that prohibited conduct has occurred in relation to them and that it is for the respondent to prove the contrary.
7 Respondent’s Rebuttal
The respondent states that he introduced a strict policy with regard to requesting proof of age to prevent underage drinking of foot of advice received initially from the Gardaí and subsequently (following the refusal of service to the complainants) from the Department of Justice. Both sources confirmed to the respondent that where a doubt existed as to the age of a patron on a licensed premises, that a licensee could request production of a Garda identity card.
The respondent further stated that :
§ The Garda National Age Card is the only acceptable proof of age identity.
§ The respondent had posted signs throughout the premises clearly setting out the policy regarding proof of age requirements
§ The respondent is not in a position to dispute the assertion that the complainants were earlier/previously served alcohol on the premises but contends that it would be impracticable to seek I.D. from all persons present on the premises at lunch hours as the premises are very busy at during this period.
§ It is the respondent’s experience following forty years running a public house that underage drinking does not occur in public houses at lunchtimes.
§ The respondent should be allowed to exercise discretion as to when he requires the production of identification. The provisions of the Equal Status Act cannot be construed in the present case so as to impose an obligation on the respondent always to seek production of i.d. as proof of age. Rather, once the discretion is exercised by the respondent it should be applied uniformly and without discrimination.
§ The respondent was aware that the results of the Junior Certificate examination were released on the day in question and took it upon himself to ensure that any person who appeared to him to be young was asked for identification.
§ Section 14 of the Equal Status Act applies in respect of Section 14 of the Intoxicating Liquor Act (ILA) 2000.
§ Further or in the alternative Section 15 (2) of the Equal Status Act 2000 applies to the refusal of service
8 Conclusions of the Equality Officer
8.1 The complainants were all aged 21 or over at the time of the refusal of service. They are of youthful, but not particularly young appearance. They are very mature and articulate. They had been served not just at lunchtime (three complainants served at lunchtime) on the day in question but all had been served a year previously at the farewell party held on the premises for three of the complainants. All of the complainants had attended at the premises on a regular basis before the farewell party was held there, from the age of eighteen, as it was their “local”. The complainants would have looked younger in the course of their ongoing earlier attendance at the premises as they did at the time of the refusal, yet their age was never once queried.
8.2 I am satisfied that the respondent premises is not one that would of necessity attract a large number of junior cert students as, according to the complainants, the premises is a “local”pub frequented by parents and would not be particularly attractive to young Junior Cert students for this reason. Equally I am not satisfied that the complainants would have looked like junior cert students (aged approximately 15 years of age) at the time of the refusal.
8.3 It is indeed required by licensing legislation that licensees not serve alcohol to persons under the age of eighteen and Section 14 of the Intoxicating Liquor Act 2000 allows that the requirement of the production by a licensee of an age card will provide a defence in proceedings arising under the ILA for the sale of intoxicating liquor to persons under the age of eighteen. In relation to the age requirement licensees generally require production of an age card from patrons in circumstances where they have reason to believe that the patron/s is/are under eighteen. I am not satisfied on balance, based on the evidence provided in this matter, that the age of the complainants was the primary factor underlying the respondent’s request for proof of age.
8.4 The respondent in the instant case has personally assumed the responsibility for screening all patrons entering the premises through three separate entrances. I am not satisfied that any single individual can effectively control or monitor the arrival of all patrons at multiple entrances. This was demonstrated by the fact that the respondent did not stop the complainants at the entrance as he was either covering another entrance or was distracted by events in the off-licence according to the complainant’s and respondent’s respective versions of events, , but rather, followed them into the premises and then sought to query their ages.
8.5 The complainants were not under eighteen at the time of the refusal, they were 21 and 22 years old. Three of them produced valid passports which indicated their ages and the fourth produced a driver’s licence. While I accept that the Gardaí had cautioned licensees in the area about the possibility of use by Junior Cert students of forged student I.D.s and even driver’s licenses, there is no evidence to hand, other than the licensee’s oral evidence, to the effect that the Gardaí had serious concerns about such students forging passports. While I am satisfied that young persons can be very adept and resourceful at obtaining or creating false age identification, I am not satisfied that it is probable that three persons would attempt to use false passport identification at the one time. I am satisfied that the ages of the complainants were clearly shown on their passports/driving license and would have clearly shown to the respondent that the issue of serving underage persons was not at issue. However, of most serious concern to me is the statement by the respondent in the course of giving evidence that “if the complainants had attended at the premises with their parents, then he would have accepted their passports as proof of age”. This is entirely inconsistent with the stated strict policy in operation and the presence of the complainant’s parents does not negate the respondent’s obligations in terms of service to what he says he regarded as under age persons.
8.6 The respondent stated that what brought the complainants to his attention on the evening in question was the manner in which they were dressed which was “short skirts and dressy tops” and that they were “all done up for going out”. The complainants emphatically denied this and stated that each of them was dressed in jeans, jumpers and boots. Three of them had just arrived home from travels abroad for a year and went for a drink to “chill out” and celebrate their return in the same premises where they had held their farewell party the previous year. I find the evidence of the complainants more compelling in this regard, but even if that were not the case, the form of attire worn by the complainants has not been shown by the respondent to be relevant, e.g. to the issue of age or underage drinking, other than to indicate that it was in fact the attire of the complainants and not their age that drew the respondent’s attention.
8.7 The respondent states that it is his experience that underage drinking does not occur at lunch time and he does not therefore seek age identification at that time. It is clear that the respondent has the same obligations under the relevant Licensing Acts and Intoxicating Liquor Acts to ensure that underage drinking does not occur at any time of the day. The potential penalties for permitting underage drinking are the same for licensees at an early time of the day as they are in the late evening. In the instant cases two of the complainants were served alcohol on the premises on the same day as the refusal of service in the evening and I see no reason why the respondent would not have concerns about their age at lunchtime, if he had genuine concerns in that regard that same evening.
8.8 It is clear that with regard to the service provided to the complainants alone over a three/four year period when each had turned eighteen, the respondent acted with a lack of consistency in applying his policy of seeking identification for age. The Licensing legislation had changed little in the meantime and the obligations which the legislation imposes on licensees had not changed at all with regard to the prevention of underage drinking and the consequences for licensees who failed to prevent it
8.9 I am satisfied on balance that the complainants have established a prima facie case of discrimination on the age ground which the respondent has failed to rebut. I would also point out that even if I was satisfied that the respondent genuinely has a strict policy with regard to underage drinking I am satisfied that the policy is not consistently applied in practice, and thus no defence (O’Donoghue’s Bar v Helen & Henry Kiely, CC Tralee, July 2003)
9 Decision
9.1 I find that the complainants were discriminated against by the respondent on the age ground contrary to Section 3(1) and 3(2)(f) of the Equal Status Act and in terms of Section 5(1) of that Act.
10 Redress
10.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that:
“the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.”
10.2 In light of the specific circumstances of the instant cases, which includes the loss of amenity to the complainants not just on the occasion of the refusal of service but on a continuing basis from that date, I hereby order that €1000 be paid to each of the complainants by the respondent for the effects of the discrimination.
__________________________
Dolores Kavanagh
Equality Officer
25 October, 2005
1See also Igen Ltd. V Kay Wong and Chamberlin Soliictors v Ms. I Emokpae and Brunal University v Ms. Gurdish Webster (Equal Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission – interveners), ref EWCA Civ 142 [2005] Cases No: A2/2004/1141, A2/2004/1397, A2/2004/2758.