Derek Madden -v- The Licensee, Dodbridge Limited, t/a Quinlan’s Public 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. Dispute
1.1 This dispute concerns a claim by Derek Madden that he was discriminated against by the respondent, contrary to the Equal Status Act, 2000, on the age ground in that on 21 July 2001 he was refused entry to the respondent premises.
The complainant 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 complainant states that he went to the respondent premises circa 8.15 p.m on 21 July, 2001 with two friends and they were asked to produce identification by the doorman on duty. The complainant was refused entry to the premises on the basis that it was policy not to admit eighteen year olds. The complainant’s companions who were each nineteen years old at that time were told that they would be admitted. The complainant then spoke with the manager of the premises who restated that it was policy not to admit eighteen year olds because of previous bad experience with persons of that age.
3. Summary of Respondent’s Case
3.1 The respondent failed to respond to correspondence from the complainant or the Tribunal and failed to attend at the Hearing of this complaint. No evidence was therefore presented by or on behalf of the respondent.
4. Background
4.1 Complainant
The complainant states that he went to the respondent premises on the evening in question to meet up with work colleagues for a social evening as prearranged. When he and his two companions (named by the complainant) approached the door of the premises they were stopped by the doorman and asked to produce identification/proof of age. All three produced their passports for inspection by the doorman who then stated that the complainant would not be admitted as it was policy in the premises to refuse admission to eighteen year olds. The complainant’s companions, who were each nineteen years old at that time, were told that they would be admitted.
The doorman told the complainant that he could, if he so wished, speak to the manager. The complainant requested to do so. A few minutes later a man, who was identified to the complainant as the manager, arrived at the entrance to the premises and restated to the complainant that it was policy not to admit eighteen year olds.
In the course of the discussion the manager explained to the complainant that previous experience of eighteen year olds, who had behaved badly, had had too much to drink and who had caused problems had led to the introduction of the policy. The complainant explained that he was there to meet with work colleagues and that he would not behave in such a manner. He asked the manager to be reasonable and not to assume that all eighteen year olds would behave in an unacceptable manner. The manager declined to reconsider his position.
The complainant states that the doorman and the manager of the premises were friendly and cordial throughout but would not admit him to the premises. On leaving the grounds of the respondent premises, one of the complainant’s companions offered to, and did, contact his father to check whether it was legal to refuse entry on the basis of age. The companion was told by his father that it was illegal to the best of his knowledge to refuse entry on the basis of age.
The following day the complainant contacted the Equality Authority and was advised how to proceed. He immediately took notes of what had occurred and subsequently notified the respondent in accordance with the requirements of the Equal Status Act 2000 of the basis of his complaint. In the absence of a response from the respondent to the complainant the Equality Authority wrote to the respondent on two further occasions. The respondent did not reply.
4.2 Respondent
The respondent failed to respond to correspondence from the complainant or the Equality Authority and the Tribunal and failed to attend at the Hearing of these complaints.
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 complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a ) Applicability of a discriminatory ground (e.g. the Age ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have received in the same, or similar circumstances.
5.2 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 complainant 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case - Complainant
6.1 The complainant provided evidence of his age and that of his companions on the date in question which clearly shows that he was eighteen at the time of the alleged discrimination, while his companions were nineteen. This fulfils (a) at 5.1 above. The complainant provided written and oral evidence to the effect that he was refused entry to the respondent premises. The respondent has provided no evidence whatsoever to the contrary. This fulfils (b) at 5.1 above. In relation to key element (c) above, the complainant and a witness on his behalf have provided evidence to show that the complainant’s companions on the evening in question, both of whom were nineteen years old at that time, were not refused entry to the respondent premises. The complainant was therefore treated less favourably than his companions because he was eighteen years old and they were nineteen years old.
6.2 On balance, I am satisfied that the complainant has established a prima facie case of discrimination on the age ground.
7 Respondent’s Rebuttal
The respondent failed to respond to any correspondence in this matter from the complainant, the Equality Authority or the Tribunal, and also failed to attend at the scheduled Hearing of these complaints.
8 Conclusions of the Equality Officer
8.1 I am satisfied that the respondent was properly notified of this complaint and of the details of the scheduled Hearing of the complaint. This was confirmed by documentation, provided at the Hearing by the complainant’s representative, which indicates the registered details of the respondent company at the address to which correspondence was directed by the complainant, the Equality Authority and the Tribunal.
8.2 The failure on the part of the respondent to reply to correspondence has compounded the effects of the discrimination against the complainant in that it has added to the cost to the complainant in terms of time and effort expended in seeking to elicit a response to his queries.
The respondent has failed to provide any evidence whatsoever to rebut the complainant’s prima facie case of discrimination.
9. Vicarious Liability
While the action which constituted discrimination is directly attributable to the doorman and the manager (named) who refused entry to the complainant, section 42(1) of the Equal Status Act, 2000 provides that:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”
As the doorman and the manager were clearly acting within the scope of their employment in the course of the refusal of entry I find that their employer, Dodbridge Limited, Licensee, Quinlan’s Bar, is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Act.
10 Decision
I find that the complainant was 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.
9 Redress
9.1 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.”
9.2 I hereby order that €1000 be paid to the complainant by the respondent for the effects of the discrimination.
__________________________
Dolores Kavanagh
Equality Officer
8 August, 2005