EQUAL STATUS ACTS
DECISION NO. DEC-S2017-024
PARTIES
Mr. Patrick McDonagh, and Mr. Martin Stokes
-v-
City Cinemas Limited
FILE NO’s: es/2014/0056 & es/2014/0058
Date of issue: 21st of July, 2017
1. Dispute
This dispute involves a claim on behalf of the complainants
that they were discriminated against by the respondent, on grounds of membership of the Traveller Community when they were asked to leave the cinema. There are also claims of discrimination by association.
Background
2.1 The complainants referred complaints under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 20th of March, 2014 . It is submitted that the complainants entered the respondent’s premises to attend the cinema and see a film on 5th of February 2014, when they were asked to leave by a member of the respondent’s staff. The complainants submit that they asked to leave due to the fact that they are members of the Traveller community.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 25th of April, 2017 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 19th of May, 2017.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Complainants’ submission
The complainants submit that they were refused access to the cinema on the respondent’s premises on the 5th of February 2014.
The complainants submit that this refusal was due to the fact that they are members of the traveller community.
4. Respondent’s submission
The respondent submits that the complainants were refused access to the cinema on the night in question as they had caused trouble the previous night and had been abusive to staff of the respondent.
The respondent submits that the complainants had also previously caused trouble shouting in movies and disturbing other customers.
The respondent submits that the complainants were not refused due to being members of the traveller community and that they attended the cinema on a number of occasions both before and after the incident in question,
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of membership of the Traveller community in terms of sections 3 of the Equal Status Acts, 2000-2015 and whether the respondent discriminated against the complainants by association on this ground. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’
Section 3(1)(b) provides for discrimination by association whereby “a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated, is, has been or would be treated in a comparable situation.”
5.3 Section 3(2)(i) provides that: as between any two persons,
(i) that one is a member of the Traveller community and the other either is not (the “Traveller community ground”),
5.4 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.
6. Discrimination on grounds of membership of the Traveller Community
6.1 In making my decision I must consider whether the existence of a prima facie case has been established by the complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.
6.2 The complainants submit that they entered the respondent’s premises on the 5th of February 2014 with the intention of watching a movie. The complainants told the hearing that they had queued up to buy tickets for the movie but when they got out the counter they were told by a staff member “ye are not coming in here tonight lads”. The complainants advised the hearing that the staff member then left the counter and went into the back and reappeared with the Manager, Mr. A who told them that they were not coming in as they had caused trouble previously. The respondent advised the hearing that the complainants had tried to gain entry to the cinema the previous night without paying and had become abusive to a staff member when they were challenged on this. The respondent stated that the complainants had also caused trouble before by shouting in movies and disturbing other customers. The respondent produced a number of statements from staff to corroborate these assertions. Complainant, Mr. Stokes advised the hearing that he could not recall whether or not he was at the premises the night before the incident. Complainant, Mr. McDonagh told the hearing that he couldn’t remember if he was at the premises the night before or not and added that he had a brother who looked very like him and stated that it could have been him. Both complainants challenged the respondent on the claim that they had been noisy and disruptive on previous occasions. The complainants told the hearing that they were very embarrassed after the incident of being refused access to the cinema and that it was a while before they went back to the respondent’s premises again. Both complainants confirmed that they had been to the respondent cinema a number of times before and after the incident in question and that they had not been refused entry on those other occasions.
6.3 The respondent advised the hearing that the complainants were refused access to the cinema on the night of the 5th of February, 2015 as they had caused trouble the previous night and had been abusive to staff of the respondent. The respondent advised the hearing that the complainants had entered the premises the previous night and had walked past the ticket selling area without buying a ticket. The respondent stated that a member of staff told them that they had to buy a ticket to go beyond that point. The complainants told the staff member that they were using the toilets and were not going to see a film and so didn’t need a ticket. The respondent stated that the complainants were then allowed to use the toilet facilities but were told that they would have to leave if they did not buy a ticket. The respondent stated that the complainants became abusive to the staff member when asked to leave and threatened to ‘jump over the counter’ to him. The respondent advised the hearing that the complainants became very abusive after being refused entry and that Mr. Stokes threatened to punch a staff member in the face. The respondent stated that the complainants were asked to leave the premises by the respondent and by a member of the OMNI Security. The respondent stated that the complainants continued to cause a scene and refused to leave until the guards were called and they finally left after the guards arrived.
6.4 The respondent stated that the following night the complainants were refused access to the cinema due to their behaviour the previous night. The respondent advised the hearing that the complainants were not refused on grounds of membership of the traveller community but were refused due to their being abusive to staff and causing trouble the previous night. The respondent advised the hearing that the complainants have attended the cinema several times before and after the incident and that they do not refuse access to people on grounds of membership of the traveller community.
6.5 For the sake of completeness and as regards the claim of discrimination by association, I am satisfied from the totality of the evidence adduced that the complainants were refused access to the cinema on the night in question and that this was due to the fact that they were previously known to the respondent as they had on the previous night been engaged in aggressive and threatening behaviour towards staff. I find that the respondent in this regard is entitled to avail of Section 15 (1) of the Acts:
“nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, 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 disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, 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 goods or services are sought or the premises or accommodation are located”. [my emphasis]
6.6 I am satisfied from the totality of the evidence adduced that the respondent’s refusal to allow the complainants access to the cinema on the night in question was due to their threatening and abusive behaviour on the night previous to the incident. I am also satisfied that any person who was known to the respondent in circumstances where they had previously engaged in aggressive and threatening behaviour towards the respondent’s staff would have been treated in the same way by the respondent irrespective of whether or not that person was a member of the traveller community.
6.7 I am also satisfied from the totality of the evidence adduced that the complainants did attend the cinema at the respondent’s premises prior to and after the night in question. I am thus satisfied from the totality of the evidence adduced that the complainants were not discriminated against by respondent on grounds of membership of the Traveller community in respect of this matter.
6.8 Based on the totality of the evidence adduced in relation to these matters I am also satisfied that the complainants were not subjected to discrimination by association on grounds of membership of the Traveller community in respect of this matter.
7. Decision
7.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.
The complainant, Mr. Martin Stokes was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015,
The complainant Mr. Martin Stokes was not discriminated against by association on grounds of membership of the Traveller Community by the respondent contrary to section 3 of the Equal Status Acts, 2000-2015,
The complainant, Mr. Patrick McDonagh was not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015,
The complainant, Mr. Patrick McDonagh was not discriminated against by association on grounds of membership of the Traveller Community by the respondent contrary to section 3 of the Equal Status Acts, 2000-2015,
___________________
Orla Jones
Adjudication Officer/Equality Officer
21st of July, 2017