Complainant

Respondent

Anonymised Parties

 A Claimant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00006388-001

05/08/2016

The claimant and his brother asserted that they were discriminated against under the Equal Status Act by the respondent on the 28th.Feb.2016 when they alleged they and 2 of their friends were refused a game of pool because of their membership of the Traveller community. It was submitted that when they entered the centre at 6.20 pm for a game of pool , they were told they could not play as the premises was closing but the claimants took issue with this as the closing time was 7.00p.m.It was submitted that a few minutes later a group of settled people entered the hall to play bowling , that they paid and proceeded with their bowling session. When the claimants complained about this they were advised that some evenings previously , a few lads had broken a pool stick and this was why they could not play .The staff member confirmed to him that none of his party were present on that occasion but the people involved were friends of the claimant. It was submitted that the claimant and his friends were then told that 2 people would have to leave because the staff member made up a rule that only 2 people can play at a given time. It was submitted that the staff member wrote out this rule in front of them and got the manager EB to approve the rule. The claimant and his friends complained that this was very embarrassing for them with people watching and that they were not kids and there were 3 pool tables , four in the party and 2 could play at each table.

It was submitted that the staff member gave 3 excuses ; they were closing , the incident where pool sticks had been broken and the made up rule of restricting play to 2 people at any given time.

It was submitted that when the claimant and his party questioned the manager why this was happening to them , she said she was calling the guards , “   we told her to do so and we waited for the gardai to arrive at 6.55.They spoke with the guards and explained what had happened” .It was submitted that this was a clear case of discrimination.

The claimant gave direct evidence of his experience on the night in question – when he was asked under cross examination why he had persisted in questioning the staff he said it was in response to their advancing 3 different reasons for precluding his party from playing pool .In response to questions about why he had not sought to play slot machines or bowling , he replied that he did not pursue alternatives as he had been advised that the premises was closing. When asked if he accepted that for health and safety reasons the respondent had to keep an eye on the pool tables he asserted that NoM told him two people would have to leave.

In his direct evidence the claimant’s brother questioned how 2 of his party were allowed paly pool when the pool area was allegedly closed because of the absence of male staff member PK. It was put to the claimant under cross examination that the complaints of slagging   and being treated like children by his colleagues over the incident could not amount to discriminatory treatment. He did not accept that the premises was in the process of closing down .He stated that he had difficulties in the premises previously when he was wrongly accused of jumping on a table and that he got an apology for the false accusation. He asserted that when staff member NoM   was engaging with him she said that some of your lads were involved in the recent incidents involving damage to poll cues. He clarified that he asked for the list of rules from the staff member. He stated that they were never told that MrP.K was not working   that night.

In summing up the claimant’s representative contended that the respondent was vicariously liable for the actions of his staff , that the claimants were discriminated against because they were members of the travelling community , that the claimants were not involved in the previous incident. It was submitted that account should be taken of the evidence of Mr.PK who did not recall the 2 person rule.

The claimants submitted a short video clip of some of the exchanges with Ms.NoM on the 28.02.16.The clip was taken covertly by the claimant’s phone. No issue was raised about the admissibility of this evidence.While the sound is not entirely clear it does record Ms.NoM stating to the claimant that only 2 people are allowed to play pool at any given time and that this applied to all customers.

The respondent denied the allegation of discriminatory treatment and asserted that all ethnic communities use and continue to use the centre. According to the respondent’s representative the centre had a multi ethnic and multi cultural clientele and that some of the complainants use the centre regularly prior to and post the incident at issue. It was submitted that the claimant’s party were shouting loudly , demanding pool and intimidating female staff demanding to play pool 5 minutes before closing time. It was asserted that the gardai had to be called .

It was submitted that pool tables had been closed for the evening   .It was submitted that pool cues had been damaged prior to the 28.02.16 and that as a consequence pool playing was restricted and closely supervised. A third male member of staff was not available to supervise pool that evening.

It was contended that the ethnicity of the claimant was not mentioned or considered by any staff member.” It was not mentioned until DM brought it up to justify the group’s behaviour”. It was submitted that any member of the public is allowed to enter and use any of the services provided they behave reasonably and comply with day to day management rules of the services. It was contended that users are not expected to oblige staff members to open pool tables and that it was unacceptable for a party to arrive when the premises were closing and harass 2 female staff members to the extent that they called the gardai.

It was submitted that the female staff were asked by the party to give the group the rules in writing , signed by the manager and that they felt sufficiently threatened to produce the document which did not satisfy the group. It was contended that another visitor sought permission to play pool at the same time and was similarly refused and the fact that another group were allowed to bowl was not relevant. It was further submitted that the rules of the premises provide that only 2 people can play pool at the one time. It was asserted that pool was not available for anyone on the day that the premises was short staffed and that was why the premises was closing early.It was submitted that the actions of the respondent were based on health , safety and security grounds , that this was provided for under Section 15 and that it could not be deemed to amount to discrimination.

It was contended that it was not only the pool area that was closed but also the indoor soccer and wrestling and that the bowling party had been facilitated because the family had prebooked for bowling.

A forensic scientist gave evidence on behalf of the respondent of examining the memory key submitted into evidence by the claimant – which contained 2 images identified as captured on the 28.02.16 – one of which contained a notice to the effect that pool tables are open after 5.00p.m. and the other notice was the notification signed by the manager that “ only 2 people allowed to play pool at any given time after 5.00p.m”.He confirmed the short film clip on the memory key   which was 1m.48s in duration and captured on the 28.02.16.He explained the background noise level was extremely high and that he had endeavoured to enhance speech clarity marginally.

Mr.P K gave evidence on behalf of the respondent and explained that he was absent on the night in question owing to a family occasion. He recounted his experience of the day the pool cues were damaged and the cloth was slashed and indicated   that as a result a decision had been taken to seek deposits for cues     and to curtail the pool hours until after 5.00p.m.He described how disturbing the pool cue incident had been and stated that he had been intimidated and that often you can have a large congregation of people around a pool table. Arising from the health and safety concerns it was agreed to restrict pool to 2 persons per table. He explained the incremental closing down of the separate sections on a Sunday evening and that while you might accommodate a bowling session (€25) late on a Sunday , a game of pool would not be viable. He described how some times he was intimidated by clients who had used a pool cue as a weapon but he did n’t call the gardai that night. He stated he was aware of the respondent’s Health & Safety statement , that everyone was welcome at the respondent’s premises and that it was not reasonable for 4 people to look for a game of pool half an hour before closing time. Under cross examination , MrPK was unable to clarify if any of the claimant’s party were involved in the previous cue breaking incident and was unaware of the previous incident when the claimant received an apology from the respondent. It was put to him that he was aware a week in advance he was going to be absent on the 28.02.16   which left plenty of time for the respondent to erect a notice to say the pool tables were closed. He indicated that the policy allowed that 2 people could go and 2 people stay and it was put to him that you cant just change the rules depending on who comes in the door. It was put to him that a game lasts 10-30 minutes and why 2 of the party were allowed to play if the pool area was closed off.Mr.PK said that the staff had intended to have a formal meeting after the pool breaking incident to draw up proper procedures and policies and that pool cues were kept behind the counter after the incident.Mr.PK could not recall when the rule came in restricting pool to 2 people.

Ms.EB the centre manager gave evidence on behalf of the respondent and submitted that because the day was quiet , a decision had been made to close the centre early but they had overlooked the booking for bowling by the family who had pre -booked. When the 4 gentlemen arrived they refused their request to play for half an hour; she stated that many of the customers would be strangers to her – they had decided arising from the previous pool cue breaking incident that “ a fella” would have to be present when pool was going on – she described not knowing what to do on previous occasions where pool players would shout , nudge and elbow each other and arising from this the decision was taken to have a gentleman present for pool playing. She stated that NoM was intimidated by the claimant’s party and that was why she allowed 2 people to play. She said that she did nt feel she had to put the new rules in writing but did so when approached by NoM who was intimidated. She said Ms.NoM asked her to call the guards. Under cross examination it was put to Ms.EB that she had barred the claimant from the premises and the respondent had to apologise to the claimant on that occasion. In response to a question why the rules were changed in circumstances where it did not make economic sense to open the pool area , Ms.EB stated that the rules were changed because Ms.NoM felt intimidated.

Ms.NoM was unable to give evidence owing to college commitments but set out her version of events in a written submission. It was consistent with the evidence of the other respondents’ witnesses , with the following exception in her statement “E made the decision to ring the guards and she dialled the number and spoke with the guards”.

In his direct evidence , the respondent Mr.M said that the centre was never built for people to play pool ; it was easy to see 2 people playing the game .He asserted that the guards were called as “ the girls felt intimidated”. Under cross examination ,Mr.M stated that 2 of the party were asked to leave because of the incident the previous week. He stated that he had to standby NOM’s decision to allow 2 people to play. He said the first time the rule was captured in writing was when NoM asked for it to be written up. Staff had been advised on the Saturday morning of the 2 person rule.

In summing up , the respondent’s representative argued that the respondent could not be held accountable for the slagging of the claimant and his brother .This was a de minimus kind of action that did not meet the threshold of significance. The respondent’s actions were not discriminatory and they had provided objective justification for the rule change and the events on the night – health and safety , health and safety of children , workers and other patrons and it was submitted that not everything could be expected to be committed to paper. This was day to day decision making on the spot , that was proportionate , objective and reasonable. It was argued that 2 members of the ethnic group were allowed to play ; that this was not disproportionate or discriminatory. The provisions of ECJ 57325/00 D.H. and Others v The Czech Republic and 27996/06 Sejdic and Finci v Bosnia Herzegovina were invoked in support of the respondent’s arguments. It was argued that the matter of playing bowling was entirely different – it was not proportionate for the claimant’s to ask for shut down pool tables to be opened up .

In a post hearing submission from the respondent , an extract of the bookings for the 28.02.16 was entered – it indicated a crossed booking in the diary for 6-6.30pm.

Section 38(A) of the Act sets out the burden of proof which applies in a claim of discriminatory treatment. 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 .In deciding on this complaint , therefore, I must first consider whether the existence of a prima facie case has been established by the claimant. 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.

I have taken account of all of the submissions and evidence presented by the parties .It is not disputed that the claimants were travellers and that the respondent’s staff justified their actions on the basis of previous incidents involving travellers and known to the respondent’s staff as friends of the claimants. The respondent has not disputed the evidence of the claimants that reference was made by the respondent’s staff that some of the claimant’s lads were involved in the previous incident involving damage to cues. No documentary evidence was presented to support the respondent’s contention of the adoption of a revised policy on pool playing in response to the previous incident during which pools were damaged. Additionally ,I have taken into account the   evidence of the respondent’s manager who did not recall when the 2 person restriction rule was brought in .I consider that the undisputed evidence of the claimant that 3 reasons were advanced for denying the claimants the pool game – the premises was closing , the previous incidents involving their “friends” and the new 2 person rule- of significance. Taking all of the foregoing into account , I have concluded that the claimants have established a prima facie case of discrimination on the Traveller ground contrary to Section 5(1) of the Equal Status Acts.I don’t accept the respondent has convincingly rebutted the assertion that the claimants were treated less favourably than non travellers would have been in similar circumstances. Consequently , I am upholding the complaint and require the respondent to pay the claimant €1,250 compensation for the effects of the discrimination suffered