Nora Quilligan and Sharon O’Brien (represented by the Equality Authority) V Dick Darbys Nightclub, Newcastle West (represented by Patrick P. Geaney, Solicitor)
1. Dispute
1.1 This dispute concerns a complaint by Nora Quilligan and Sharon O’Brien that they were discriminated against, contrary to the Equal Status Act 2000, by the management of Dick Darbys Nightclub, Newcastle West, Limerick.
The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1), 3(2)(b) and 3(2)(i) 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 Complainants' Case
2.1 The complainants state that they and two other female relatives were refused admission to Dick Darbys Nightclub on Saturday 22 September 2001 by doorstaff. The complainants claim that the refusal constituted discrimination on the grounds of their membership of the Traveller community.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They state that the nightclub had only recently reopened after refurbishment and new security staff had taken over. On the night in question, the respondents state that the doorstaff refused admission to the four women because they were not regulars.
4 Delegation under the Equal Status Act, 2000
4.1 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 has delegated these complaints 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 Evidence of Complainants
- Both complainants turned 18 years of age in the months preceding September 2001.
- Both had attended teenage discos in Dick Darbys regularly before it shut down for renovations in 2001.
- When the nightclub reopened after Easter 2001, the complainants say that they heard from friends that the nightclub had gotten very strict on ID. As they were not yet 18, the complainants decided that they would not attempt to gain admission to Dick Darbys until they had turned 18 and had obtained Garda ID.
- It was only when they obtained their Garda ID in September 2001 that they decided to visit Dick Darbys again.
- On Saturday 22 September 2001, the complainants, a sister and a female cousin decided to go to Dick Darbys Nightclub. They did not go anywhere else that night, had no drink taken and only left their house after 11 pm.
- The sister and cousin were both still underage at the time and the complainants say that the group had agreed that, if the younger two were refused admission, that the two complainants, who had their Garda ID, would go into the nightclub without them.
- The complainants say that they did not recognise any of the doorman when they arrived. When they sought admission, one doorman said “No - we’ve been told who to let in” and indicated that they had got instructions by radio from the owner, Mr Stack, who was watching the door on camera. When they asked to see Mr Stack, they were told that he was not available.
- Nora Quilligan stated that she then showed her Garda ID to a doorman but he still would not admit her. She later was allowed in to the kiosk by herself to talk to Mrs Stack. When she offered her ticket money, she was told “No - get out”
- The complainants then went to the local Garda station who suggested that they “try again”. The Gardai did not take any statements. At that point, the complainants phoned their two mothers and they accompanied them back to the nightclub.
- Mrs Linda O’Brien, one of the complainant’s mothers, said that she asked a doorman why the complainants were not being admitted and he replied that he had been told by Mr Stack not to let them in. When she asked to see Mr Stack, Mrs O’Brien was told that he was not available.
- Mrs O’Brien said that she eventually was let in and spoke to Mrs Stack in the ticket kiosk but to no avail
- During the night many others were let in. No one was stopped. Only some were asked for ID and many non-locals were admitted having arrived in town for a carnival that was taking place
- On referring at the Hearing to the appearance of a man with a video camera, Mrs O’Brien accepted that she had called her brother in law later that night to record events on video. The video footage was designed to show that underage people had been admitted to the nightclub on 22 September 2001. Mrs O’Brien said that the video footage was no longer available at the time of the Hearing.
- The complainants’ group remained outside the nightclub until after 2 am
Evidence of Respondents
- Mr Seamus Stack has been running Dick Darbys Nightclub for over 8 years. He previously held teenage discos there and knew the complainants from when they used to attend the discos.
- The nightclub closed for refurbishment in early 2001 and reopened after Easter 2001. Mr Stack decided to be more strict with regard to ID, dress code and drunkenness and employed a new security firm for this purpose
- The nightclub had a camera system installed and there was a monitor in the box office from which the front door could be seen. Security staff had earpieces through which they communicated with each other.
- Mr Stack said that he first became aware of an incident at the door around 12. 30 am when the Head of Security, Dave Begley approached him and told him that “there were 4 girls at the door who were not regulars” . Mr Stack said that he checked the monitor and recognised the 2 complainants but not the other two women. He told Mr Begley that he could let in the two complainants.
- He said that Mr Begley later told him that the two complainants refused to come in because “their friends were not getting in”
- Mr Stack said that he was later approached by a man who identified himself as the complainants’ father and who argued with him about the women not being admitted. Mr Stack said that he told the man that the 2 complainants could be admitted but not the other two as he did not know them.
- At the Hearing, the complainants denied that either of their fathers had visited the nightclub that night and said that there had been no men their “on their behalf”
- Mr Stack said that a man with a video arrived later on and started recording footage of the doorstaff and the group outside.
- Mr Stack said that he looked out from the kitchen window and saw a man with a video encouraging another man to fake an accident outside the nightclub. At that point, he instructed Mr Begley to close the front doors.
Evidence of Doorman, Dave Begley
- He and the other doorstaff had been employed at the nightclub since it reopened after Easter 2001. They were all staff of a security company. They had been instructed to be very strict on who was being admitted
- On the night of 22 September 2001, he was called to the door around 12.15 am by a doorman who told him he had refused four ladies because they were not “regulars”
- When the ladies insisted on admission, he went to Mr Stack inside and, having looked at the monitor, Mr Stack told him that he recognised two of the women and that they could be admitted but not the other two. When he told the ladies this, they refused to go in without the others.
- When he reported the man with the video to Mr Stack at 1.10 am, he instructed him to close the doors.
- That night he made a report of the incident to his employers Advance Securities
5.2 Additional Evidence
This Hearing was originally scheduled for early 2004 but was postponed at the request of the respondents who wished to make arrangements to show security camera video footage of the night in question. As the appropriate facilities were not available for the original Hearing, it was agreed that the respondents would make arrangements for a copy of the video tape to be forwarded to the complainants’ solicitor and the Equality Officer. These copies were not supplied prior to the rearranged Hearing on 21 October 2004.
At the Hearing, the respondents explained that they had viewed the footage again themselves in the interim and had decided that the video footage was of little relevance to the case. In view of the fact that the original Hearing had been deferred because of the non-availability of the video footage, the Equality Officer indicated at the Hearing that he would still like to view the footage. The respondents undertook to submit a copy of the tape after the Hearing.
Also at the Hearing, the respondents produced an incident report book in which they had recorded a report of the events of 22 September 2001. The complainants’ solicitor was shown the book at the Hearing and was afforded the opportunity of questioning the respondents about its contents. The Equality Officer indicated at the Hearing that he would like some time to examine the incident report book and the respondents agreed that he could retain it for the purpose of his deliberations.
The respondents also referred at the hearing to the fact that Mr Begley had submitted his own report of developments that night to his own employers and that an effort would be made to obtain a copy of this report from the security firm .
Subsequent to the Hearing, the respondents submitted a copy of the video tape to the Equality Officer for consideration. They also provided confirmation that the nightclub had closed for renovations on 12 May 2001 and had reopened for business on 9 June 2001. The report from the security company was not supplied
5.3 Video Tape footage
Having viewed the video tape subsequent to the Hearing, I made the following notes as to what I could see from the footage from the camera overlooking the entrance to Dick Darby’s between 11.45 pm and 12.30 am:
- 11. 45pm The four women arrive at the nightclub door. A doorman comes out to meet them. They talk for 30 seconds but no documentation appears to be sought or offered. Mr Begley appears from inside at that point and talks to the women for 3 minutes during which time it would appear that he was offered and shown some documentation by at least one of the four women.
- 11.48pm The four women disappear from camera view and Mr Begley re-enters the premises.
- 12.02am The four women reappear in view and Mr Begley also comes back out to the entrance. They have further on-and-off discussions over the next 15 minutes while other customers are allowed into the club.
- 12.15am An older woman (the mother of one of the complainants ?) arrives and joins in the discussions. Shortly afterwards a few more individuals arrive and congregate outside the nightclub. It is unclear whether they are all part of the same group
With regard to the above account which I passed to both parties for consideration, the respondents have indicated that, while the complainants may not have been in camera view from 11.48 pm, they believe that they did not actually leave the vicinity of the entrance until some time later.
5.3 Examination of Incident Report Book
The following is an extract from the book for the night of 22 September 2001:
“At least 20 refused as underage 11.45 pm.
Toilets cleaned by Mary 12.15 pm.
4 refused admission as underage 12.15 pm
5 girls refused admission - not regulars 12.20 pm
Father of one of the girls gained admission and proceed to shout abuse at Seamus 1.05pm.
Girls and mothers outside door continued to shout abuse at incoming customers and security man 1.15 pm”
From the above, it would appear to me that the complainants are the ones to whom the 12.20 pm entry refers, as the subsequent sentences appear to link the “5 girls” to the “father “ who gained admission and to the “mothers” who were outside, which would be in keeping with the evidence before me. The other fact that makes me think that this is the correct link is the evidence from both Mr Stack and Mr Begley that the women were refused because they were not regulars - there is no other reference in the incident book indicating that anyone else was refused that night because they were not regulars.
6 Matters for Consideration
6.1 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 membership of the Traveller community as one of the grounds. Under Section 5(1) of the Act it are unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the manner in which they were refused admission to Dick Darbys Nightclub on 22 September 2001.
6.2 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. On establishment of these facts, 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.
7 Conclusions of the Equality Officer
7.1 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 Traveller community 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.
7.2 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents acknowledge that the complainants were refused admission on the night of 22 September 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 22 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances.
7.3 In this case, the complainants maintain that they were refused admission because they were recognised as Travellers. The respondents maintain that they were refused admission because they were not regulars.
Examination of the video evidence indicates to me that the doorman decided to refuse the four women immediately on seeing them. No effort appears to have been made by him to check ID at that point and it is only when Mr Begley arrives that documentation appears to be presented. For this reason, I am inclined to accept that the doorman did, as claimed, indicate to the women that they were being refused because they were not “regulars” rather than the fact that he may have considered them to be underage.
7.4 At the Hearing, the respondents submitted in evidence their incident report book which was maintained for the nightclub for the period June 2001 to August 2002 and the complainants were afforded sight of the book at the Hearing.
In this book, the entry for 22 September 2001 states that the complainants were refused because they were not “regulars” and both Mr Stack and Mr Begley have confirmed that this was the reason on the night. The “not regulars” reason was also quoted by the respondents in their response to the original complaint notification.
In an effort to try and establish whetherthe treatment afforded the complainants on 22 September 2001 was less favourable than the treatment a non-Traveller would have received, in similar circumstances, I decided, subsequent to the Hearing, to examine the entries in the incident report book for the period prior to 22 September 2001 to establish whether there was evidence that the nightclub had a policy of refusing people who were “not regulars”. However, despite the fact that there were many entries recording refusals for “underage”, “no ID”, “dress code”, “drink taken” and “drugs”, I could find no reference to anyone having previously being refused for not being a “regular” since the club reopened in June 2001.
What my examination did show up, however, are two other entries in the book which, in my opinion, have a bearing on the case under investigation as they make reference to members of the Traveller community. As these references are contained in the incident book which was submitted in evidence, I consider that I am entitled to take these entries into consideration as part of my deliberations.
The first of these entries on 30 June 2001 reads “6 Tinkers Refused” while the second on 4 August 2001 also reads “6 Tinkers Refused”. David Begley is down in the book as being on duty on both these occasions and in neither case is any specific reason given for the refusals.
7.5 On the basis of the above two points - that there is no evidence of a “regulars only” policy prior to 22 September 2001 and the references to “Tinkers refused” in the incident report book - I find that I cannot accept the respondents’ claim that the sole reason the complainants were refused admission was because they were not “regulars”. Instead, I consider that the complainants were recognised as Travellers on their arrival by the doorman and that this was the principal reason for the refusal and not the fact that they were not “regulars”.
I, therefore, find, on the balance of probabilities, thatthe reason for the refusal on 22 September 2001 was that the complainants were recognised as members of the Traveller community on their arrival at the nightclub. Accordingly, I find that a prima facie case of discrimination on the Traveller community ground has been established and that the respondents have failed to rebut the allegation.
8 Decision
8.1 I find that a prima facie case of discrimination has been established by the complainants on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation.
8.2 In considering the most appropriate level of redress to award in this case, I am prepared to accept that Mr Stack himself, on hearing of the refusal and on recognising the complainants, was prepared to overturn the doorman’s original decision. Unfortunately, however, from the complainants’ perspective, the matter had gone too far by that stage of the evening.
I have also borne in mind that the complainants did not leave the vicinity after the refusal but instead that they and their extended families appear to have remained outside the nightclub and “made a scene” which eventually led to the club having to close its doors. This type of behaviour cannot be condoned, in my opinion, regardless of how aggrieved someone might feel.
Accordingly, I consider that redress of €100 for each complainant is appropriate in this case. I also order that the respondents ensure that, should the complainants decide to frequent his premises again, that they be treated in the same manner as a non-Traveller would be treated in similar circumstances.
Brian O'Byrne
Equality Officer
8 July 2005