Martin Quilligan
(represented by Ms. Lisa Quilligan, Kerry Travellers
Development Project)
-v-
Horans Hotel
(represented by Ms. Katie McCarthy, Solicitor,
Pierse McCarthy Lucey Solicitors)
1. Dispute
This dispute concerns a claim by the complainant, Mr. Martin Quilligan that he was discriminated against by the respondent on the grounds of his membership of the Traveller community in terms of Sections 3(1)(a) 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 Equal Status Act, 2000.
Summary of the Complainant's Case
On Friday, 18th July, 2003, the complainant and his friend Mr. Jimmy O'Brien, both of whom are members of the Traveller Community, went to Horans Hotel at around 8:30 p.m. The complainant had arranged to meet with a number of his friends for a drink at the respondent's premises. This was the first occasion that the complainant had been to the respondent's premises, however, Mr. O'Brien had been there on one or two occasions in the past. When the complainant and his friend approached the door they were requested to produce identification by the doormen. Both men produced their passports, however, the doormen stated that it was Garda identification only. When the complainant and Mr. O'Brien showed their Garda identification to the doormen they were refused admission and were informed by the doormen that the manager had instructed them not to allow any Travellers onto the premises. The complainant stated that a number of other people, whom he did not recognise as members of the Traveller community, were permitted entry to the premises while he was there on this occasion and he stated that these people were not requested to produce identification by the doormen.
The complainant asked to speak to the manager and the doorman told him to wait outside while he went into the bar to call the manager. When the doorman returned he told the complainant that the manager was very busy and could not come to the door and he informed the complainant and his friend that if they called back the following morning (i.e. Saturday, 19th July, 2003) they could meet with the manager. The complainant and Mr. O'Brien then left the premises. Both men returned to the respondent's premises the following day and were accompanied by Ms. Lisa Quilligan, Kerry Travellers Development Project. When they sought to speak with the manager they were informed by a lady behind the bar that the manager was not present and would not be on the premises until 4 p.m. that afternoon. They returned to the respondent's premises at 4 p.m. in order to meet the manager but on this occasion were informed by a different barmaid that the manager was not on the premises and would not be present until 9 p.m. that evening. The complainant realised at this stage that he was being given the run around by the respondent's staff and decided to go home.
Summary of the Respondent's Case
Mr. Donal Horan, Director and Ms. Joanne Ellard, Bar Manager, attended the hearing on behalf of the respondent. The hotel that was operated by the respondent ceased to trade about ten years ago and it now operates a bar and a nightclub from the premises which has the capacity to hold approx. 2,000 patrons. Mr. Horan outlined that the respondent's clientele consists of a large number of regular customers and he confirmed that a number of these regular customers are members of the Traveller community. There were a number of serious incidents on the respondent's premises between 12th and 15th July, 2003 which involved vicious and violent assaults on staff members and at least one customer. The nature of these assaults included biting and a number of people required hospital treatment in the aftermath of these incidents. Following these incidents there was a high degree of tension and fear among the respondent's staff and as a result of the serious nature of the incidents it was decided by management to implement a strict "regulars only" policy regarding the admission of patrons to the premises. The respondent stated that members of the Traveller community had been involved in these incidents, however, it was not subsequently decided by management to refuse entry to all members of the Traveller community. Mr. Horan stated that a number of Travellers who were regular customers were allowed onto the premises following the introduction of the new "regulars only" policy. The respondent's security was increased following these incidents and the doormen were instructed by management that only regular customers were to be permitted admission to the premises. The implementation of this strict "regulars only" policy levelled off after about three months.
The respondent accepts that the complainant was not involved in the incidents that occurred on its premises between 12th and 15th July, 2003. When the complainant sought admission to the premises on 18th July, 2003 he was refused by the doormen purely on the basis that he was not a regular customer of the respondent and this refusal was in keeping with the "regulars only" policy that was being implemented at that time. The respondent emphatically denied that the complainant was refused admission to the premises on the grounds of his membership of the Traveller Community.
Conclusions of the Equality Officer
At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainant, Mr. Martin Quilligan, has established a prima facie case of discrimination. In order to do so the complainant must establish three criteria. It must be established that the relevant discriminatory ground applies to him, i.e. in this case that he is a member of the Traveller community. It must also be established that the actions complained of actually occurred and finally, it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not a member of the Traveller community. He must establish all of these facts if a prima facie case of discrimination is to be established. In relation to the first point to be established, it is not in dispute that the complainant is a member of the Traveller community. It is not disputed between the parties that the complainant was refused admission to the respondent's premises on 18th July, 2003, thus satisfying the second criterion. The third criterion, i.e. whether the treatment received by the complainant was less favourable than that which would have been afforded to someone in similar circumstances who was not a member of the Traveller community, requires further consideration.
The respondent contends that when the complainant was refused admission to its premises on 18th July, 2003 it was implementing a strict "regulars only" policy as a result of the serious incidents of a violent nature that occurred on the premises between 12th and 15th July, 2003. It claims that the only reason the complainant was refused admission on this occasion was because he was not a regular customer. I note that the complainant claims that he had never been to the respondent's premises prior to this incident, and therefore, it is not disputed by either party that he was not a regular customer of the respondent. The "regulars only" statement is often used for refusing service or admission to customers and the validity of its use has been called into question on many occasions in the past. In some cases, the phrase is validly used by the service provider to avoid confrontation in situations where a genuine reason exists (for example, a previous violent incident, doubt about age etc.) and reference to it at the time of refusal could lead to an altercation. However, in many other cases, the phrase "regulars only" is widely used in situations where instantaneous decisions are made to refuse individuals whose presence is not desired on the premises. In my opinion, if a service provider is to validly use the statement "regulars only" in order to refuse service, it must be prepared, if challenged, to prove that its actions were totally free from any discriminatory motive.
In the present case, I have noted the respondent's contention that members of the Traveller community were involved in the violent incidents that occurred on its premises between 12th and 15th July, 2003. I am satisfied from the evidence adduced on behalf of the respondent that these incidents did in fact occur and that they were of a sufficiently serious nature for the respondent to be extra vigilant thereafter regarding the admission of patrons to its premises. The respondent has stated that security was increased in the aftermath of these incidents and that the number of doormen on duty was increased to three persons. The respondent also claims that as a result of the these violent incidents its doormen were instructed by management to implement a strict "regulars only" policy and they were given instructions that under no circumstances were any new customers to be permitted entry to the premises.
I note the respondent accepts that the complainant was not on its premises between 12th and 15th July, 2003 and I am therefore satisfied that he was not involved in any way in the violent incidents that occurred on these occasions. The complainant and his friend, Mr. Jimmy O'Brien, claim that when they approached the door and produced their passports and Garda identification they were informed by the doormen that Travellers were not being permitted entry to the premises on the instructions of management. In this case the respondent has admitted that the doormen were best placed to make a judgement as to whether or not a person was a regular customer and I am, therefore, satisfied that they had the authority to decide who would be afforded admission to the respondent's premises. However, I note that the doormen, who refused admission to the complainant and his friend on 18th July, 2003 were not present at the hearing to give evidence regarding the circumstances surrounding this refusal. As a result, I have not had the opportunity to question the doormen regarding the precise reason that they gave to the complainant for this refusal and the circumstances surrounding the incident on this occasion. There is a clear conflict of evidence between the parties regarding the reason that was given to the complainant by the doormen for the refusal. On the one hand, the complainant claims that the doormen informed him that they had been instructed not to allow any Travellers onto the premises while on the other the respondent has denied that the doormen made any reference to the complainant's Traveller identity when refusing him admission to the premises and it contends that the refusal was based purely on the fact that he was not a regular patron. I have noted that neither Mr. Horan nor Ms. Ellard was on the premises at the time of the refusal, and therefore, that they did not witness the incident on the night in question. I must decide, therefore, whose evidence I found to be more persuasive and based on the evidence before me, I consider, on the balance of probabilities, that the complainant's account is more compelling than that of the respondent.
In coming to this conclusion, I am of the view that the doormen on duty on 18th July, 2003, having spoken to the complainant and his friend, Mr. Jimmy O'Brien and having had sight of their passports and Garda identification, would have recognised them as being members of the Traveller community. I have noted the evidence of Ms. Joanne Ellard, Manager, that there was a certain amount of anxiety and tension among the respondent's staff in the aftermath of the violent incidents that had occurred on the respondent's premises between 12th and 15th July, 2003. I am of the view, on the balance of probabilities, that the doormen on duty on 18th July, 2003 may have been reluctant to permit admission to other members of the Traveller community in an environment where there had been trouble with a different group of Travellers only a matter of days prior to the present incident.
I have also noted that at the hearing, the respondent submitted a copy of an entry from its Incident Report Book for the 18th July, 2003 which contains two separate accounts of incidents regarding attempts by two gentlemen to gain admission to the premises at 1:00 a.m. In the accounts of these incidents the gentlemen seeking admission became aggressive when requested to produce identification by the doormen. When questioned about these entries at the hearing, Ms. Joanne Ellard, Bar Manager, admitted that she could not say with any degree of certainty that these entries related to the attempt by the complainant and his friend to gain admission to the respondent's premises. On balance, I am satisfied that these entries do not relate to the complainant and his friend, and furthermore, I am of the view that it is significant that neither of these entries in the Incident Report Book make any reference to the existence of a "regulars only" policy on that night. I also note that there is an entry in the respondent's Incident Report Book from 19th July, 2003 which outlines an account of a visit by two men and a woman to the respondent's bar at 3:50 p.m. on this date who were seeking to speak with management. This entry would appear to corroborate the complainant's evidence that he returned to the respondent's premises on 19th July, 2003 in order to speak to the manager about the incident the previous evening. I have found the evidence of the complainant to be credible and I am of the opinion this entry in the respondent's Incident Report Book lends further credibility to his evidence regarding the incident.
On the basis of the foregoing, I therefore consider, on the balance of probabilities, that the decision by the doormen to refuse admission to the complainant on 18th July, 2003 was influenced by the fact that they recognised him as a member of the Traveller community and that he was treated less favourably than a non-Traveller would have been in similar circumstances. Having regard to the totality of the evidence presented, I find that the respondent has failed to establish that the "regulars only" policy which it claims was being implemented in the aftermath of the violent incidents that occurred on its premises was not invoked as a means of preventing access to all other members of the Traveller Community i.e. those that did not have any involvement or association with the aforementioned violent incidents. Accordingly, I find that a prima facie case of discrimination on the Traveller community ground has been established and that the respondent has failed to rebut the allegation of discrimination.
Decision
On the basis of the foregoing, I find that the complainant was discriminated against by the respondent in terms of Section 3(1) and 3(2)(i) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act. In the circumstances, I order that the respondent pay to the complainant the sum of €500 for the effects of the discrimination.
Enda Murphy
Equality Officer
5th March, 2008