EQUAL STATUS ACTS
DECISION NO. DEC-S2016-073
PARTIES
Roisin Courtney and Deirdre Lennon
Complainants
(Represented by Tiernan Lowey BL,
instructed by Roisin Courtney & Co. Solicitors)
AND
Zenith Café Ltd T/A Copán Café and Bar
Respondent
(Represented by O’Brien Dunne Solicitors)
File reference: ES/2014/71 & 72
Date of issue: 14th. November, 2016
Introduction:
1.1 The complaints are made pursuant to the Equal Status Acts on the grounds of age and race and were referred by the complainants to the Equality Tribunal on the 15th April 2014. The respondent is a public house and a licensed premises.
1.2 In accordance with his powers under section 25 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 20th July 2016. The complainants attended the hearing and were represented by Tiernan Lowey, BL. O’Brien Dunne solicitors represented the respondent and five witnesses attended on its behalf. The respondent also presented CCTV footage of the incidents relevant to these complaints.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the submission and evidence of the complainants:
2.1 The complainants outline that this claim relates to the events of Saturday, 1st March 2014 when they travelled to Dublin for the purpose of attending the respondent venue. It was a wet and stormy night and they arrived at the venue at 10pm. They had gone straight to it. As one complainant sought to enter the venue, there was an exchange with a representative of the respondent on the door. This led to this complainant being refused entry. The other complainant was also refused entry as she reached the entrance, having gone to an ATM. The complainants outlined that, having viewed the CCTV, it is clear that other patrons were not interrogated on their entry to the venue and given that these patrons were younger, an inference of discrimination can be made. While some patrons were asked to establish their age, most patrons entered without being questioned. The complainants said that they raised with the door staff their compliance with the Equality Acts and that they were stunned, shocked and humiliated by these events. They outlined that no reason was given for their refusal.
2.2 In closing submissions, the complainants outlined that there was jurisdiction to hear these complaints as it was for a respondent to provide an engineer’s report demarcating the extent of the licensed premises. The respondent had not done so. It was also submitted that the jurisdiction issue was one that could be waived. It was submitted that the complainants had established a prima facie case of discrimination. While no words had been used that directly related to age, the absence of any alternative explanation for the refusal leads to the inference of discrimination on grounds of age. The explanation provided by the respondent did not stand up.
3. Summary of the submission and evidence of the respondent:
3.1 The respondent outlines that it was their policy to engage with patrons on their way into the venue. This is to gauge their response and whether there was any reason to refuse entry. In respect of the events of the 1st March 2014, the manager who refused entry said that he had made this decision because of the nature of the interaction with the complainants. Commenting on the CCTV, he said that he did not ask questions of patrons he knew, only those who he did not know or who looked under 21. Two patrons gave evidence of their custom at the respondent venue and stated that they had not been subject to discrimination on grounds of race or age.
3.2 The respondent outlined that it had no objection on grounds of jurisdiction. It wished to meet the case. In respect of the substance of the claim, the staff on duty had made a judgement call that they were entitled to make. The respondent had to be careful to comply with its legal duties and make decisions in good faith regarding admission. It was not relevant whether the decision was a correct or an incorrect one. In this case, there was nothing to suggest discrimination on either ground.
4. Findings and reasoning:
4.1 The complaints are made pursuant to the Equal Status Acts. The complainants outline that they were refused entry on discriminatory grounds. While the complaint forms refer to both age and race, the case advanced at hearing solely related to age.
4.2 The first question to determine is whether the complaints are captured by section 19 of the Intoxicating Liquor Act, 2003. This provision prevents the Equality Tribunal (and its successor, the Workplace Relations Commission) from hearing certain complaints of discrimination; redress may instead be sought in the District Court. The complainants wished to advance their case at the adjudication and the respondent wished to meet their case. A further question is whether I can determine the case with the consent of the parties.
4.3 The relevant provisions of section 19 states as follows
19.—(1) In this section—
“Act of 2000” means the Equal Status Act 2000;
“Authority” means the Equality Authority;
“Court” means the District Court;
“discrimination” means discrimination within the meaning of the Act of 2000, but does not include discrimination in relation to—
(a) the provision of accommodation or any services or amenities related to accommodation, or
(b) ceasing to provide accommodation or any such services or amenities;
“prohibited conduct” means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of a person in contravention of Part II (Discrimination and Related Activities) of the Act of 2000 on, or at the point of entry to, licensed premises.
(2) A person who claims that prohibited conduct has been directed against him or her on, or at the point of entry to, licensed premises may apply to the District Court for redress.
…
(11) (a) The Act of 2000 shall cease to apply in relation to prohibited conduct occurring on, or at the point of entry to, licensed premises on or after the commencement of this section.
(b) Claims relating to prohibited conduct so occurring before such commencement shall be dealt with as if this Act had not been passed.”
4.4 Section 19 of the Intoxicating Liquor Act, 2003 is clear that the Equal Status Acts do not apply to prohibited conduct on, or at the point of entry to, licensed premises. The Act further provides that recourse may be made to the District Court. The complainants assert that it is for the respondent to provide plans that demarcate the extent of the licensed premises. Also, the respondent did not raise the jurisdiction issue and wished to proceed and meet the case. It is clear from the evidence, including the CCTV, that these events took place at the point of entry to the respondent venue and it is also clear that the respondent operates a licensed premises. It follows that the refusal of entry occurred at the point of entry to the licensed premises and this case falls within the ambit of section 19. Given the wording of section 19(11), I do not have jurisdiction to determine the complaints even where both parties indicate their consent for such a course of action.
5. Decision:
5.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that arising from section 19 of the Intoxicating Liquor Act, 2003 these complaints relate to the point of entry of a licensed premises and does not fall within the jurisdiction of the Workplace Relations Commission.
___________________
Kevin Baneham
Equality Officer / Adjudication Officer
14th November 2016