EQUAL STATUS ACTS
DECISION NO. DEC-S2018-012
PARTIES
3 Complainants, Mr. M, Ms. K and G (a minor)
-v-
Multiplex Cinemas Limited
FILE NO’s: ES/2013/0151, ES/2013/0152 & ES/2013/0153
Date of issue: 15th of May 2018
Dispute
This dispute involves a claim on behalf of three complainants, Mr. M, Ms. K and G (a minor), 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 on grounds of family status.
2. Background
2.1 The complainants referred complaints under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 1st of November 2013. It is submitted that the complainants entered the respondent’s premises to attend the cinema and see a film on 28th of May 2013, when they were prevented from doing so by a member of the respondent’s staff. The complainants submit that this happened 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 31st of August 2017 to me Orla Jones, Adjudicator/Equality Officer, 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 1ST of February, 2018.
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 a film at the respondent cinema on the respondent’s premises on the 28th of May 2013,
- The complainants submit that this refusal was due to the fact that they are members of the traveller community.
Respondent’s submission
- The respondent submits that the complainants had successfully bought tickets at the cinema and were on their way in the lift to the VIP screen when a member of staff had sought to clarify that they had the correct tickets to access the VIP screening,
- The complainants were not refused access to the cinema on the night in question but were asked to present their tickets to ensure they had the correct ticket type for the VIP screening,
- Once the complainant’s showed they had the correct ticket type they were permitted to proceed to the screen for which they had valid tickets,
- The respondent submits that the complainants were not refused due to being members of the traveller community but that they chose to leave the premises after their tickets were checked.
Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainants on grounds of membership of the Traveller community in terms of sections 3 of the Equal Status Acts, 2000-2015. A claim on the ground of family status had also been submitted but was withdrawn at the hearing. 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 complainants 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.
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 complainants. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants 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 28th of May 2013 with the intention of watching a movie. The first complainant Mr. M told the hearing that he and his wife Ms. K and his brother G who was 8 years old at the time had queued up and bought three tickets to a VIP screening of a movie which Mr. M states cost him about €60 for the three of them. Mr. M stated that he then checked with a member of staff where to go as he didn’t know where to go for the VIP screen and states that he was directed to go to the lift to travel up to the VIP cinema screen. Mr. M stated that he and his wife K and his younger brother G then proceeded to the lift to go to the screen and that they got into the lift with three other people whom it is submitted were not members of the traveller community. Mr. M told the hearing that he was in the lift when he saw a member of staff walking very fast towards the lift, Mr. M stated that the member of staff put his hands between the lift doors and forced them to open and said to the complainants ”get out, come on get out, you know you don’t have VIP tickets, get out”, Mr. M stated that the staff member then placed his arms over the heads of the complainants and herded them out of the lift repeating that they hadn’t tickets for the VIP area even after Mr. M told him that he had VIP tickets. Mr. M stated that he told the staff member that they had VIP tickets and proceeded to show him that he had money and could afford such tickets.
6.3 The complainants stated that the other people in the lift were not members of the traveller community and that their tickets were not checked or questioned. Mr. M stated that he and his wife, who was pregnant at the time, were very embarrassed and that it was very upsetting for his younger brother to have been treated in this manner due to the fact that they are members of the traveller community.
6.4 The complainant Mr. M stated that he then asked the staff member if he could speak to a manager and the staff member initially told him that he was the manager but later went to get the manager. The complainant stated that the manager came out and apologized to them and told them they could proceed to the VIP area. The complainant stated that they refused to go back in to the lift as were too embarrassed to go back in to see the movie after being herded out of the lift in such a manner and after such a scene had been caused in front of other customers including the people in the lift who were also going to see the same film.
The complainant told the hearing that he wasn’t even offered a refund or anything on the night but stated that the respondent had later sent them 6 VIP tickets in the post, after they had made a complaint of discrimination, the complainants did not avail of this offer.
6.5 The respondent in its initial response to the complaint had submitted that the complainants were stopped while in the lift as a staff member erroneously concluded that they did not have the ticket type for the show they were attending.
6.6 The respondent in a later submission stated that the complainants were stopped as a staff member wished to query what screen the complainants were going to as they were in a lift which only allows access to one part of the auditorium. The respondent also submitted that it has many different types of tickets and that patrons can have their tickets checked at any time to ensure they have the correct ticket for the screen and film which they are going to see. The respondent prior to the hearing also submitted that the complainants became abusive when a staff member asked to check their tickets and after requesting to speak to the manager informed him that they would not be watching the movie and that they would be engaging a solicitor.
6.7 The respondent one the day of the hearing submitted that the complainant’s were stopped while in the lift as there was a young child in their company, the respondents told the hearing that they have a policy to ensure that minors are accompanied at all times while in the cinema due to an incident which occurred in the past involving two minors who had wandered into a cinema screen unaccompanied and who had ‘been molested’ by another customer, an incident which had been reported to the guards at the time.
6.8 The respondent told the hearing that following this incident it now ensures that no unaccompanied children are allowed access to the cinema screens. The respondent stated that the staff member in question stopped the complainants on the night in question as there appeared to be an unaccompanied child in the lift with what seemed to be ‘a young couple on a date’. This is the first time that this reason has been offered by the respondent as a reason for stopping the complainant’s from proceeding to the VIP area. While this may be a very real concern for the respondent it is an issue which was only mentioned at the hearing of the claim and was never provided as a reason for stopping the complainant’s either on the night the complainant’s attended the cinema or in any of the later correspondence from the respondent. In any event the child in question was at the time accompanied by the complainant (his older brother) and the complainant’s wife (his sister in law) and so could not or should not have raised concerns associated with an unaccompanied child as he was not an unaccompanied child.
6.9 The respondent at the hearing stated that the staff member who had stopped the complainants on the night in question was no longer in their employment and was not present to give evidence at the hearing. The respondent stated that the manager who was on duty on the night in question had also since left their employment and was not present to give evidence at the hearing.
6.10 The complainant’s told the hearing that they were humiliated and embarrassed after the way they were treated in front of other customers in being herded out of the lift under the assumption that they could not have had VIP tickets due to the fact that they are members of the traveller community. The complainants told the hearing that the other customers in the lift were not treated like this and that they were not members of the Traveller community.
6.11 I am satisfied from the totality of the evidence adduced that the complainants in this case have established a prima facie case of less favourable treatment on grounds of membership of the traveller community and that the respondent has failed to rebut that inference. I am thus satisfied that the complainants were discriminated against on grounds of membership of the traveller community.
Decision
7.1 Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 27 of that Act. I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant’s Mr. M , Ms. K and G (a minor) were discriminated against by the respondent on the ground of membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts.
7.2 In accordance with Section 27 of the Acts, I order the Respondent to pay each of the three Complainants, Mr. M, Ms. K and G (a minor) €1,000 each in compensation in respect of the finding of direct discrimination on the ground of membership of the Traveller community. This award is arrived at having regard to the seriousness of the discrimination imposed and the humiliating effect on the complainants arising from the very public manner in which the discriminatory treatment took place.
___________________
Orla Jones
Adjudicator/Equality Officer
15th of May, 2018