DEC-S2005/005 - 011 Full Case Report - Workplace Relations Commission

(Represented by Mr. Michael O'Donnell, Solicitor) V Davitts Nite Club (Dungarvan) (represented by David Burke & Co., Solicitors

Delegation under Equal Status Act, 2000

The complainants referred a claim to the Director of Equality Investigations on 15th October, 2001 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, 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.

Dispute
1. The dispute concerns a claim by the above named complainants that they were discriminated against by Davitts Nite Club, Dungarvan on the Traveller Community ground, in that they were refused access to a service which is generally available to the public. The complainants allege 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.
Background
1. The complainants’ case is that they queued outside the respondent’s bar and night club on the 6th August, 2001 to gain access to a concert. When they reached the top of the queue they were asked to stand aside and not allowed to enter. They stated that other members of the public had no difficulty in gaining entry. They submitted that the reason they were refused entry was due to the fact that they are members of the Traveller community.
2. The respondent submitted that the complainants were not discriminated against on the Traveller community ground. They were refused entry because they were part of a large group of Travellers who arrived in Dungarvan that weekend and some of whom had caused trouble at a concert on the previous night. There were a number of teenagers without age identification known to the complainants trying to gain access to the concert and some of the complainants queried in an aggressive manner the reason these teenagers were not admitted. For these reasons the complainants were not admitted.
Summary of the Complainants’ Case
1. The complainants stated that they are members of the Traveller community and they had travelled from Rathkeale in Co. Limerick to Dungarvan for the bank holiday week-end. On 6th of August, 2001, which was the Bank Holiday Monday, Mr. Denis Sheridan purchased 4 tickets for a Wolfe Tones concert which was taking place in Davitts. He and his wife and Mr. & Mrs. McCarthy, two other complainants, joined a queue outside Davitts at about 8:15 pm that night. They said that there were about 100 people in front of them and these people were admitted to the concert without any difficulty. When they reached the top of the queue Mr. Sheridan was admitted through the security staff that was standing in a human chain. Mr. Pat McCarthy said that he was stopped by security and asked for photo ID and he showed his driver’s license. He was then refused entry and the security staff refused to give him a reason. Mr. McCarthy then informed the security staff that he was with Mr. Sheridan, who had already passed through the security, but at that stage he had not yet entered the premises. Mr. Sheridan then mentioned that his wife was also outside the security and he was then escorted back to the group and they were all refused entry to the concert. They stated that they were pushed to one side and that they were not given a reason for the refusal.
2. Mr. & Mrs. O' Brien and Ms. Siobhan Quilligan were further back in the queue, but not together. Mr. O’Brien said that he had purchased two tickets for the concert for himself and his wife earlier in the day at Davitts. When he arrived at the security cordon with his wife they were refused entry and they too were asked to stand aside. Mr. O’Brien submitted that there were other Travellers in the queue who were also singled out and as they arrived at the top of the queue and were also refused entry. He submitted however that some Travellers in front of him were admitted. Ms. Siobhan Quilligan was said that she was on her own in the queue, but she met some friends. She had no ticket but was in the queue to purchase one. When she arrived at the top of the queue she was also refused entry.
3. The complainants said that they waited for up to three hours at the door in the hope that they would be admitted. They then decided to ring the Gardaí and two Gardaí arrived. One of them entered the premises and spoke to the manager of the premises, Mr. Hodman. The Garda said to the complainants on her return that there was nothing she could do. The Gardaí took their names and left.
4. The complainants agreed that a large contingent of Travellers travelled from Rathkeale to Dungarvan and they had parked in the one area on the Youghal Road. They agreed that there could have been up to sixty caravans in the area. In response to questions at the hearing Mr. McCarthy agreed that a number of the Travellers in the group were known as the “Rathkeale Rovers”.
5. In answer to the respondent’s case they denied that there had been trouble at a Joe Dolan concert in Lawler’s Hotel the previous night, 5th August, 2001. The respondent owns both premises. They denied that they were in the company of teenagers who were trying to get into the Wolfe Tones concert without ID. The complainants, Mr. Pat McCarthy, Mr. Denis Sheridan and Mr. Joseph O’Brien denied that any of them were abusive to the security staff or to Mr. Hodman.
Summary of the Respondent’s Case
1. The respondent submitted that the complainants were not discriminated against on the Traveller community ground. It was submitted that the Act did not apply to the complainants as they are not members of the Traveller community as some of them travelled and worked in England. The respondent’s representative also submitted that he was entitled to invoke Sections15(1) and 15(2) of the Equal Status Act, 2000.
2. Mr. Michael Dwyer, Head Doorman said that he was on duty at Davitts Nite Club on 6th August 2001. The Wolfe Tones were playing and over nine hundred people attended the concert. He said that there were a large number of people queuing to enter the concert. It was important to vet people entering and he stopped a number of young people who did not have the proper age card supplied by the Gardaí. These people were asked to stand to one side. He did not remember refusing the complainants. A lot of people in the queue seemed to know each other and also to know the young people who were refused. He said that a number of people, as they approached the head of the queue, saw the young people standing to one side and started querying in an aggressive tone the reason these young people were not being admitted. He explained that they had not got proper ID. This caused some people in the group to become boisterous and two males threatened the security staff that if the group was not let in nobody else would be allowed to enter. Any person who was abusive was asked to stand aside and was refused entry.
  
  Some people, as they approached the top of the queue, asked why they were not being let in even though they had not been refused. Mr. McCarthy was not refused by Mr. Dwyer. He showed his ticket and he then asked to speak to the manager. Mr. Dwyer said that he did not know that Mr. McCarthy, or the group he was with, were members of the Traveller community, but he was aware that there were a lot of strangers in the town.
3. Mr. Dick Nugent said that he was a trained security person and that he was on door duty outside the Wolfe Tones concert. He stopped lots of young people from entering the concert as they had not got the proper ID. Other people were stopped because they were intoxicated. Some members of the Traveller community were stopped from entering because they had not got ID. He said that people who had been refused entry stayed around the top of the queue and there could have been up to 30 to 40 people there. Some of these were Travellers. He said that some other people in the queue including Travellers abused the security when they refused entry to young people who had not got the proper ID. There was no policy to refuse Travellers entry to the concert. He said that there were a lot of Travellers allowed into the concert, but anybody including Travellers who caused any trouble in the queue was refused. He said that people who had been refused became very abusive and they were looking for the reason for the refusal.
4. Mr. Anthony Doyle said that he was working on security in Davitts for over 4 years. He is a trained security person. He was called to assist with security duty at the Joe Dolan concert the previous night. Together with 5 other people from Davitts they went to Lawler’s Hotel at about 10:30 pm. He found people standing on chairs waving their hands other people were spilling drinks on the people in front of them. They refused to obey requests to sit down. Eventually the Joe Dolan management requested them to provide security for the entertainer as he left the stage. He said that some people at the concert were very badly behaved and for this reason was the Mr. Dolan decided to finish the concert early as he feared for his security.
5. Mr. Doyle said that he came on duty at the Wolfe Tones concert the next day at about 10:30pm and there was a large group of people outside the door who had been refused entry. People were being refused entry for a number of reasons. Young people were refused entry because they did not have the Garda age ID. People in the queue became abusive when the young people were refused. He did not refuse any of the complainants. He recognised only one of the complainants because he saw him at the Joe Dolan concert. He said that there was no policy to refuse Travellers to the Wolfe Tones concert. People were refused because they were either intoxicated abusive or had no age ID card.
6. Mr. Declan Hodman, General Manager of Davitts, in his evidence supported other witness’s account of the Joe Dolan concert. He said that there was extra security put in place for the Wolfe Tones concert because of the incident in Lawler’s Hotel where the Joe Dolan concert was held the previous night. He said that tension was high in the town because a large number of Travellers known as the Rathkeale Rovers had arrived in Dungarvan. He said that a number of incidents happened over the weekend. There were large groups of people traversing the town and all the public houses had to employ extra security. It was also alleged that Travellers were driving vans around the town in an aggressive manner and that this caused people in the town to fear for their safety.
7. Because of the trouble at the Joe Dolan concert on the 5th of August and because of the heightened tension in the town Mr. Hodman sought advice from the Gardaí about security for the Wolfe Tones concert. He then had a meeting with his security staff. It was decided that any person who behaved in a threatening, abusive or violent manner or any person associated with such a person would be refused entry. People would also be refused entry if they were intoxicated or if they were underage or did not have a Garda age ID card.
8. Mr. Hodman said that a large number of Travellers queued in groups for the concert. There were also a large group of Traveller children on the street and that there was general mayhem caused by people who had been refused outside the concert. Travellers became abusive when younger Travellers without ID were refused entry and this resulted in these Travellers being refused because of their behaviour. He said that very serious threats were made against him, for example that he would be taken away and would never be seen again. The Gardaí were called to the premises and Mr. Hodman informed them about the abuse and the threats made against him.
9. Mr. William Buckley said that he is the manager of Lawler’s Hotel and on 5th August, 2001 a Joe Dolan concert took place there. Both Lawler’s Hotel and Davitts are under the one ownership. About four hundred and fifty people attended the Joe Dolan concert the night before the incident complained of and about one hundred and fifty of these were Travellers. During the course of the night the staff had problems in getting Travellers to pay for their drinks. This problem was brought to his attention by the bar staff. He said that one of the complainants, Mr. O’Brien refused to pay for drinks and he approached him. Mr. O’Brien told him that someone else had ordered the drinks. He said that there was a lot of commotion going on in the hall. The Travellers were in groups of between 20 to 30 people and they were noisy and boisterous. Some of the younger Travellers were standing on chairs and swaying in groups with glasses and bottles in their hands. Some glasses were dropped and this was a danger to other customers. Other customers were annoyed because the people standing on chairs blocked their view of the concert.
10. Mr. O’Brien said that he went on stage on numerous occasions and requested the people who were engaged in the unacceptable conduct to sit down. Initially they sat down but a short time later they were up on the chairs again. Because of the behaviour he discussed the possibility of stopping the concert with the Joe Dolan management team. He also decided he would call in extra security from Davitts. Eventually the situation became so serious that Mr. Dolan decided to finish the concert early. Mr. Dolan requested a security escort from the stage. He said that Mr. Dolan had played at the venue a number of times but he refused to do a concert there the following year because of fears for his safety.
11. Mr. Joe Leahy, Head of Security for Davitts Nite Club, stated that he was on duty outside the club on the night of the Wolfe Tones concert, observing the crowd. He wad been contacted by the respondent and made aware of the trouble at the Joe Dolan concert in Lawler’s Hotel. He was informed that there had been an influx of travelling traders into Dungarvan and it was these people who had caused the trouble. He said that there were about 70 to 80 caravans parked in a field on the outskirts of the town and the whole place was in a dreadful condition. Mr. Leahy said that he sat on a wall outside Davitts and he saw the security staff on duty refuse people for various reasons, including the young people who had not got age ID. Large groups of Travellers arrived for the concert. Some were refused and others were let in. Some of the Travellers who were refused made calls on their mobiles and more Travellers arrived in vans outside the concert. Traveller children were also outside the concert venue on bicycles. The people who were refused entry became very abusive.
Evidence of An Gardaí
1. Garda Paul O’Sullivan stated in evidence that he attended outside Davitts on the night of the Wolfe Tones concert. He was called by one of the complainants, Ms. Siobhan Quilligan, because she had been refused entry to the concert. The complainants showed him their tickets and they were upset about being refused access. He said that none of the complainants were drunk or threatening to him. He said that there were a lot of young teenagers and some younger children outside the pub and he described the situation as very messy.
2. Garda O’Sullivan said that a large influx of Travellers came into Dungarvan shortly before the weekend which was a Bank Holiday weekend. He said that he was aware that there had been trouble in the town caused mainly by the Travellers who had come into the town. He was also aware that Travellers had caused hassle at the Joe Dolan concert in Davitts. He said that there were ongoing problems with Travellers in Dungarvan that Summer as about 40 families had moved into a site on the Youghal Road. He said that he could not link the complainants to any trouble but they belonged to a large group of Travellers some known as the Rathkeale Rovers who had come into the town.
Conclusions of the Equality Officer
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”.
2. A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discriminatory treatment. Once the complainants have established a prima facie case of discrimination, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
3. I have identified the key issues to establish a prima facie case as follows:
  1. Are the complainants covered by the discriminatory ground? (in this case are they members of the Traveller community?)
  2. Were the complainants subjected to specific treatment?
  3. Was 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?
    I am now going to examine issues I have identified above and consider whether the complainant has established a prima facie case.
4. Issue of Traveller Identity
  In the Equal Status Act, 2000 the Traveller community ground is defined as follows:
  “means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”.
  The respondent contends that the complainants are not members of the Traveller community as he believed that some of them worked and lived in England and for this reason they did not have a nomadic life on the island of Ireland. Some of the respondent’s witnesses described the complainants as travelling traders and submitted that they would not identify them as Travellers. The complainants identified themselves as Travellers and in their evidence some of the respondents’ witnesses identified the complainants as Travellers and also Garda O’Sullivan identified the complainants as Travellers. Some of the complaints said that they do some business in England but that they live in Rathkeale. The definition of Traveller under the Act does not require the complainants to have a nomadic way of life so long as historically they or their ancestors had a nomadic way of life and that they are identified as Travellers by both themselves and others. I am satisfied that the complainants satisfy these criteria and that they are members of the Traveller community as defined by the Act.
5. I am also satisfied from the evidence that the complainants were refused entry to the concert so the second element of the test has been established.
6. I am now going to examine the third element of the test. The complainants’ case is that they were refused entry to the Wolfe Tones concert because the respondent had taken a decision not to allow Travellers into the concert. The respondent’s case is that a decision was taken to exclude any person who in the opinion of the security might cause trouble at the concert and to also exclude any person who was associated with such persons. People were excluded for a number of reasons including intoxication, under age, young people without the Garda ID age card. The security staff who gave evidence could not recollect refusing the complainants. They submitted that there were young Travellers excluded from the concert because they
  did not have the proper ID and other Travellers as they reached the top of the queue queried the reason for the refusal and made threats and abused the security staff and these people were then refused entry.
7. I am satisfied from the evidence that the large influx of Travellers with caravans and vans into the town of Dungarvan caused a great deal of distress and anxiety to the people of the town and to the owners of businesses. Newspaper reports and evidence of the respondent’s witnesses confirmed that some of the Travellers in this group caused trouble and as one newspaper report put it, the town was in “a state of siege”. I am also satisfied that the trouble caused at the Joe Dolan concert was in the main caused by this visiting group of Travellers, some of whom are known as the Rathkeale Rovers. As a result, the respondent endeavored to pre-empt any disturbance at the Wolfe Tones concert by putting in place a series of security measures to prevent any trouble makers or potential trouble makers from entering the concert. I am satisfied that these measures included the exclusion in so far as possible of this particular group of Travellers (the Rathkeale Rovers) from the concert and this policy resulted in the exclusion of the complainants from the concert. I believe that the measures put in place only applied to the visiting Travellers. I am therefore satisfied that the complainants have established that they were treated less favourably than non-Travellers were treated in similar circumstances. The complainants have therefore established a prima facie case of discrimination.
8. In coming to this conclusion, I would like to clarify that it is not prima facie discriminatory for a respondent to take appropriate and proportionate measures to prevent further trouble, however the fact that some members of any group caused a disturbance would not justify taking restrictive measures against all members of that group. There will be members of that group who have done nothing wrong and who are entitled to be treated equally with everyone else. In the circumstances of this case it was prima facie discriminatory to exclude the complainants who were ticket holders from the concert merely because they are identified as Travellers. For these reasons I have found prima facie discrimination which the respondent must rebut.
9. Rebuttal by the Respondent.
  The next question I have to decide is whether the respondent rebutted the prima facie case. The respondent’s representative submitted that because of the threatening and abusive behaviour experienced that night the respondent had a right under Section 15 of the Equal Status Act to refuse the complainants access to the concert in order to comply with the Licensing Acts. 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 complainants were to be given access to the concert. I am satisfied from the evidence that the respondent has established that the complainants belonged to a group of Travellers, some of whom are known as the Rathkeale Rovers, and some of whom had caused trouble and destruction in the town and instilled fear in the non-Traveller community. The respondent had also experienced trouble from a number of this visiting group of Travellers at the Joe Dolan concert the previous night. The complainant denied that they had caused any trouble or that any trouble had been caused at this concert by any of the Travellers known to them. They also denied that they saw any trouble at the concert.
10. However, Mr. Hodman who had experienced the trouble at the Joe Dolan concert gave evidence that he was threatened and abused by Travellers outside Davitts on the night of the Wolfe Tone concert. While there was no direct evidence that the complainants had been involved in this behaviour, they nevertheless belonged to and were identified and associated with a group who had caused trouble. I am satisfied from the evidence that some Travellers were allowed into the concert, but in the main it was the intention of the respondent to exclude Travellers, namely the Rathkeale Rovers, visiting the town that weekend. I believe it was reasonable for the respondent to impose stricter conditions of entry to the concert in circumstances where it was known to him that there were potential trouble makers amongst the Travellers visiting Dungarvan that weekend. I am satisfied that the respondent having the knowledge and experience of this group of visiting Travellers was justified in coming to the conclusion that if they were admitted to the concert there was a substantial risk of disorderly conduct. I find therefore that the respondent was entitled to invoke Section 15(1) of the Act and to exclude in so far as possible members of this group of Travellers including the complainants.
  
  It should be noted my reasoning here in making this decision should not be taken as a precedent for respondents being allowed to discriminate against Travellers who are part of a larger group of Travellers, some of whom may have been engaging in disorderly behaviour. My decision here arises solely in the context of the exceptional circumstances that would arise on a Bank Holiday weekend in a town like Dungarvan where a number of high profile entertainment events were taking place. Because of this I have concluded on the balance of probabilities that the respondent in this particular case was covered by the Section 15(1) defence.
11. I am also going to examine if the action taken by the respondent on 1 August, 2001 was taken in good faith.
  
  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.”
  I have to consider whether the action taken by the respondent was taken in good faith. There is an onus on the respondent under the licensing laws to ensure he runs an orderly house. I am satisfied having considered all the evidence presented to me and having regard to my conclusions above that the decision taken by the respondent was taken in good faith and was taken for the sole purpose of ensuring compliance with the Licensing Acts. I find therefore that the respondent has rebutted the prima facie case raised by the complainants.
Issues concerning the Investigation.
1. A number of issues arose during the investigation of this case by the Equality Officer which greatly hampered the investigation and slowed down the process. The issues included: firstly the failure of the respondent or his representative to reply to the notifications of the complaints which the complainants served on him in accordance with Section 21 of the Act. I wrote to the respondent’s representative on a number of occasions and eventually a response was received. I accept that the respondent had difficulty in identifying this particular group of complainants, but the respondent would not cooperate in setting a preliminary hearing to overcome this difficulty. I believe that the respondent’s representative could have been more cooperative in his responses and this would have assisted in progressing the investigation.
2. Secondly the respondent’s representative did not wish to cooperate in any meaningful way in setting a date for hearing of the case. He made an unprecedented number of applications for adjournments of the hearing date set. The Equality Officer then had to take the unusual step of setting a hearing for a Saturday as the representative would not agree on suitable dates during the normal working week. Others issues also arose during the course of the hearing, which took place over 4 separate days, such as failure to cooperate in progressing the hearing and to comply with professional etiquette. I am of the view that the strategy used by the representative was intended to deliberately obstruct the investigation of these complaints. This is unparalleled in my experience as an Equality Officer.
3. It should be noted that it is a statutory offence under Section 37 of the Equal Status Act 2000 not to comply with a requirement of an Equality Officer or to obstruct her in the exercise quasi-judicial powers. The penalties provided by the Act are as follows:
  Ÿ on summary conviction, a fine of up to €1,904.61 (£1,500) or imprisonment for up to one year or both,
  Ÿ on conviction on indictment, a fine up to €31,743.45 (£25,000) or imprisonment for up to 2 years or both
  Where the offence continues after conviction the Act provides that, a further fine of up to €317.43 (£250) per day on summary conviction and up to €1,904.61 (£1,500) per day on conviction on indictment.
4. In the light of the foregoing I am drawing the party’s attention to Section 44 of the Equal Status Act, 2000 which provides that:
  “Summary proceedings for an offence under any provision of this Act may be instituted by the Minister or the Authority.”
  It should be noted that the “Minister” or the “Authority” refers to the Minister for Justice Equality and Law Reform or the Equality Authority.
Decision
1. On the basis of my deliberations set out above I find that the complainants were not discriminated against 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.
2. The complainants Ms. Jane McCarthy, Mr. Pat McCarthy, Ms. Margaret Sheridan, Mr. Denis Sheridan, Mr. Joseph O’Brien and Ms. Mary O’Brien were not refunded the price of the tickets for the concert which I understand cost around €19.05 (£15) each. Ms. Siobhan Quilligan had not purchased a ticket. I would recommend that the respondent provide a refund to those complainants who had purchased tickets.