Mongan & Ors -v- The Licensee, Downey's Bar,
Headnotes
Equal Status Act, 2000 - Direct discrimination, section 3(1)(a) - Membership of the Traveller community, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Prima facie case - Vicarious liability.
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 delegated the cases 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 and four other female relatives attended at the respondent premises on the evening of 12 January 2002 for birthday celebrations. At circa 9.30 p.m the six complainants left the respondent premises with the intention of returning. Three of the complainants went to get some food in a local fast food restaurant and the other three complainants went to a nearby bar to meet with the husband of one of the complainants. After about a half an hour the six complainants met up and returned to the respondent premises and were stopped by the doorman. They were not allowed to enter and were not given a reason for this. The complainants state that they were refused readmission on the basis of their Traveller status.
3. Summary of Respondent's Case
3.1 The respondent denies discrimination and states that the complainants were refused readmission to the premises because it was immediately clear to the doorman who refused them entry that they had too much drink taken. The doorman made a split second decision in this regard, based on his experience in the licensed trade.
4 Background
4.1 Complainants
The complainants and four other female relatives attended at the respondent
premises on the evening in question to celebrate the birthdays of Ms. Jane O'Donnell,
complainant, who was celebrating her 21st birthday and Ms. Jane Cawley, (mother of Winnie Mongan, complainant, and Helen Cawley, complainant), who was also celebrating her birthday. A family celebration had taken place in the home of Ms. Jane Cawley earlier in the day which consisted of tea, sandwiches, cake and treats (minerals, sweets etc) for the children in attendance.
All ten persons who attended at the respondent premises were seated together at a table across from the bar counter. They entered the premises between 8.00-8.30 p.m. After approximately one hour the complainants left the respondent premises with the intention of returning. Some of the complainants went to another nearby premises to meet briefly with Ms. Winnie Mongan's husband. The remaining complainants went to a fast food outlet.
After approximately half an hour the complainants met up and returned, in two groups of three, to the respondent premises. Helen Cawley, Bernadette O'Leary and Tracey Cawley approached the door and were prevented from entering by the doorman who the complainants state said "no way, ye should not have been let in in the first place" and, when told that some relatives of the complainants were inside said "anyone who is in there should not be in there" and after repeatedly telling them to go away, swore at them.
Winnie Mongan, Helen Cawley and Jane O'Donnell then approached the door of the premises and were also refused entry to the premises. The doorman raised the issue of Jane O'Donnell's age and was informed that she would be 21 the following day. She indicated that her mother who was inside had her passport as proof of her age but she was refused permission to enter to obtain the passport.
Ms. Winnie Mongan asked for an explanation for the refusal to readmit the complainants and the doorman stated that it had nothing to do with him and that it was Mr. Gerry Downey's decision (Mr. Downey and his wife are joint owners of the premises). Ms. Mongan asked to speak to Mr. Downey and was permitted to enter the premises to do so. On entering the premises Ms. Mongan went to the bar to speak with Mr. Downey and she observed that the rest of the party was still seated at the same table and that all of the seats around them were empty. Mr. Downey informed Ms. Mongan that it was entirely a matter for the doorman as to whether they were allowed to enter. When Ms. Mongan repeated this to the doorman she states that he said "now ye have me in bother"
While the complainants were talking to the doorman outside the door they observed a number of people enter and leave the premises and some of those permitted to enter had left the premises and come back again. The complainants subsequently wrote to the respondent and also forwarded statutory notification to the respondent of the basis of their complaint i.e that they had been refused entry to the premises because of their Traveller status. They received no response whatsoever.
4.2 Respondent
The respondent, Ms. Marina Downey, submitted a written statement to the Tribunal to the effect that a large group of circa forty Travellers attended at the premises on the evening in question for a celebration. Drink was being served and there were no difficulties. A "number of the complainants left the premises at approximately 9.30 p.m". They were subsequently observed by Mr. Gerry Downey and the doorman, Mr. Paddy Cox, as they left a public house further down the street. They were very loud and boisterous and there were fears that if they were admitted they would cause trouble. They would not be regarded by either Mr. Downey or Mr. Cox as being Travellers. They were refused entry because of their behaviour. There were a number of Travellers on the premises that evening and a number of Travellers are regulars in the pub.
5 Prima Facie Case
I must first consider whether the existence of a prima facie case has been established by the complainants. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment of the complainant by the respondent
(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, 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 - Complainants
6.1 I am satisfied that all of the complainants are members of the Traveller community in accordance with (a) at 5 above and this is not disputed by the respondent. It is common case that the complainants were refused re-entry to the respondent premises and this fulfils (b) at 5 above.
6.2 In relation to key element (c) at 5 above Ms. Marina Downey submitted a formal written statement to the effect that a group of some 40 Travellers were participating in a family celebration in the respondent premises on the evening in question, and "a number of the complainants" subsequently left. Ms. Downey further states that neither Mr. Gerry Downey nor the doorman would regard the complainants as being Travellers. It is clear from the statement that the complainants were identified as being part of a group of Travellers. Mr. Downey and/or Mr. Cox must have regarded them as such as the information about the evening in question was passed by one or other, or both, of them to Ms. Marina Downey who was not present on the evening in question.
I am satisfied that the Traveller identity of the complainants was clearly significant to the respondent on foot of the many references to it in the course of the written statement submitted and that this may have influenced the approach of the doorman in refusing the complainant's readmission. Such considerations would not apply to non-Travellers and no corresponding significance would be placed on the fact that they are non-Travellers. When taken together with the statement of the complainants that other non-Traveller patrons who had left the premises and returned were allowed enter the premises while the complainants were kept outside I am satisfied that the complainants were treated in a manner such that non-Travellers were treated more favourably in the same or similar circumstances. The complainants have satisfied (c) at 5 above and have therefore established a prima facie case of discrimination on the Traveller community ground.
7 Respondent's Rebuttal
7.1 The Respondent states that the refusal to readmit the complainants to the respondent premises on the evening in question was in accordance with Sections 14, 15(1) and 15(2) of the Equal Status Act 2000.
8 Conclusions of the Equality Officer
8.1 Section 14 Equal Status Act
Section 14 of the Equal Status Act 2000 states that "nothing in this Act shall be construed as prohibiting -
(a) the taking of any action that is required by or under -
(i) any enactment or order of a court
(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation on the State."
The respondent states that Section 14 (a) (i) allows the exclusion of the complainants from the respondent premises on the date in question in that the terms of the Occupiers Liability Act 1995 apply.
8.2 Occupiers Liability Act
With regard to the respondent's reference to the Occupiers Liability Act 1995, the terms of the Act impose a duty of care on occupiers, in relation to their premises, with regard to "dangers existing thereon". The respondent states that to permit the complainants to the premises would pose a risk to the safety of other patrons.
"Dangers" is defined in the Act as relating to the state of the premises and "existing thereon" implies a state of permanence or continuity in relation to the danger posed e.g. fixtures, fittings etc I am satisfied that the complainants are in fact "entrants" within the terms of the Act. The occupier's duty of care extends to them while on his/her premises. No evidence was provided to demonstrate how the physical state of the respondent premises is relevant in this matter.
8.3 Section 15(1) - Equal Status Act 2000
8.3.1 Section 15(1) of the Equal Status Act 2000 provides that ....nothing in this Act prohibiting discrimination, shall be construed as requiring a person.... to provide services .... to another person ("the customer") .... in circumstances which would lead a reasonable individual, having the responsibility, knowledge and experience of the person, to the belief, on grounds other than discriminatory grounds, that ..... the provision of 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.
8.3.2 In the instant case the respondent states that the doorman observed the complainants leave a nearby licensed premises and head in the direction of the respondent premises. The doorman states that the complainants were "having the craic" and were loud and boisterous. He further states that he had made up his mind by the time they arrived at the respondent premises that they had had too much to drink. However, when asked what he based this conclusion on he states that he could smell alcohol from some of the complainants when they were in close proximity to him. He questioned one of the complainants (who did not appear to have alcohol taken) about her age but refused her permission to fetch her passport from her mother who was seated inside the premises.
The doorman was aware that some of the complainants were Travellers as he had gone to school with them. When Ms. Mongan, complainant, asked to be let in to speak with the owner, the doorman allowed her to enter, notwithstanding the fact that he identified her as one of the individuals whom he deemed to have taken too much alcohol and described her as being particularly drunk.
8.3.3 The respondent's statement to the effect that the complainant's were "loud" and "boisterous" is one which could apply to a continuum of circumstances ranging from mild exuberance to extreme behaviour. The statement of itself is therefore unhelpful in determining which point of the continuum is in question. The statement to the effect that there was a smell of alcohol from some of the complainants is almost equally unhelpful in that some of the complainants state that they had two or three drinks that evening. Those of the complainants who did visit the nearby licensed premises say that they had one drink while there. It stands to reason therefore that there would be "a smell of alcohol". It does not necessarily follow that excess alcohol had been consumed.
8.3.4 In order for the respondent to avail of the defence provided by Section 15(1) of the Equal Status Act 2000 it is necessary to demonstrate that to provide service to the complainants would produce a substantial risk of criminal or disorderly behaviour. The complainant's companions who had remained in the respondent premises when the complainants left had continued to receive service and had continued drinking. The complainants had been gone for a relatively short time in which it would have been difficult to have more than one or perhaps two drinks. The question arises then as to why the respondent did not regard those who had remained in his premises as posing the same substantial risk of criminal or disorderly conduct. The only relevant exclusive factor in arriving at the decision not to readmit the complainants is that the complainants were "boisterous and loud".
8.3.5 The doorman admitted Winnie Mongan to the premises to speak with the owner. Ms. Mongan had drink taken and spoke directly with the doorman and questioned his decision. The doorman stated in evidence that Ms. Mongan, in particular, was drunk. In the circumstances if the doorman had genuinely apprehended violent or disorderly conduct from some or all of the complainants, or that damage would occur to property at or in the vicinity of Downey's, the question arises as to why he permitted Ms. Mongan to enter the premises to speak with his employer. Furthermore if the ultimate discretion rested with the doorman as to who was refused entry why did he allow access to Mr. Downey? I am satisfied that the doorman allowed Ms. Mongan to enter because he did not in fact anticipate violent or disorderly conduct and did not regard Ms. Mongan as someone who posed a threat of any kind to other patrons or to the property. When ultimately refused entry the complainants did not cause any disturbance and left quietly.
8.3.6 The doorman states that the complainants were shouting at him outside when he refused them entry. The complainants state that they were simply trying to elicit an explanation for the refusal from the doorman. Whatever the case, the fact remains that this situation arose after the refusal.
8.3.7 I am satisfied, having carefully considered all of the evidence provided in this matter that the doorman did not anticipate the type of behaviour from the complainants which is envisaged by Section 15 (1) and therefore Section 15 (1) does not apply as a defence in relation to these complaints.
8.4 Section 15(2) - Equal Status Act 2000
8.4.1 Section 15(2) of the Equal Status Act 2000 states 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 Licensing Acts, 1833 to 1999, shall not constitute discrimination".
8.4.2 This Section contains two tests in relation to action taken by the respondent. The first is a subjective test of good faith which has been defined in earlier Decisions of the Tribunal to mean action which is taken honestly and without any discriminatory motive. The second is the objective test which requires that any action taken is for the sole purpose of compliance with the stated Licensing Acts.
8.4.3 In relation to the first test the respondent states that he acted in good faith based on the behaviour of the complainants and that their Traveller identity was not at issue. This is not borne out by the evidence presented. The Traveller identity of the complainants is repeatedly referred to in the earliest statement submitted by the respondent. The terminology used in the statement conjures an image of a premises that is packed with Travellers ("30-40 Travellers in the premises") when in fact there were a total of ten in the complainant's group (including their companions).
8.4.4 Mr. Downey states that he was sent for by the barman to assist in the pub that evening because the bar was exceptionally busy. Mr. Downey confirmed in his oral evidence that the six seats vacated by the complainants were not filled in their absence. This indicates that the bar was not exceptionally busy or at least was not filled to capacity. The statement says that neither Mr. Downey nor the doorman would regard the complainants as Travellers. The doorman stated in oral evidence that he personally knew some of the complainants and was aware that they were Travellers.
8.4.5 The statement says that both Mr. Gerry Downey and the doorman observed the complainants leave the nearby premises and implies that both men observed the complainants being "loud and boisterous". In oral evidence it was indicated that Mr. Gerry Downey stayed behind the bar all evening and could not therefore have observed anything that happened outside.
8.4.6 Given the number of inconsistencies in the evidence presented by the respondent I am not satisfied on balance that the decision to refuse admission to the complainants was one which was made in good faith or that the Traveller identity of the complainants was not a consideration in that decision. The fact that they are Travellers and were referred to and regarded as such, and not simply as patrons of the establishment, is I am satisfied sufficient to raise an inference of discriminatory motive.
8.4.7 In relation to the second test the complainants were stated to be "lively", "boisterous and loud" and "having the craic" in the opinion of the doorman. On foot of this behaviour he had already made up his mind to refuse them before they arrived at the door of the premises. It is the latter phrase used by the doorman to the effect that the complainants were "having the craic" that is most illuminating here. The phrase means that they, the complainants, were having fun. It is difficult to see how a lively group of young women who were having fun while out celebrating two birthdays constitutes a group that would breach the Licensing Acts. While I accept that the respondent is indeed obliged to refuse service to drunken individuals and to run a peaceful and orderly house, and that broad discretion must be given to licensees to ensure compliance with the Licensing Acts, the respondent has not explained how the complainants would be more likely to place him in the position whereby he would be found in breach of the Licensing Acts than would those patrons who were inside the premises and who had been served and were consuming alcohol continuously all evening, at least some of whom would have arrived in the premises earlier than the complainants. Even if I was satisfied that this was the case, which I am not, the respondent has failed the subjective test of good faith and cannot therefore avail of the defence available under Section 15(2) of the Equal Status Act.
9 Decision
9.1 In light of (i) the level of inconsistency in the respondent's version of events on the evening of 12 January 2002, (ii) the consistency of the evidence provided by the complainants and (iii) the fact that four of the complainants in this matter, along with the four companions who had been inside the premises finishing their drinks, left and went to a nearby premises where they were all served until closing time, I am satisfied that the complainants were discriminated against by the respondent on the Traveller ground.
10 Vicarious Liability
10.1 While the action which constituted discrimination is directly attributable to the doorman who refused entry to the complainants, 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 was clearly acting within the scope of his employment in the course of the refusal I find that the doorman's employer, the licensee of Downey's Bar, is vicariously liable for his actions in accordance with section 42(1) of the Equal Status 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 Under Section 27 (1) (a) I hereby order that €500 be paid to each of the complainants by the respondent for the effects of the discrimination. In awarding this amount I have taken into consideration the fact that the complainants were earlier served in the premises without any difficulty and that they were served in a nearby premises shortly after being refused readmission to the respondent premises.
10.3 Under section 27 (1) (b) of the Equal Status Act 2000 I order that the respondent immediately review all customer service practices and ensure that they are fully compliant with the Equal Status Act 2000.
__________________________
Dolores Kavanagh
Equality Officer
16 September, 2005