Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

Representatives

Ms Clare-Ann Temple                  Benville Robinson Solicitors

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054625-001

23/01/2023

CA-00054625-001

This matter came before the WRC dated 23/01/2023 as a complaint submitted under section 21 Equal Status Act, 2000. 

The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 03/05/2024. 

The specific complaint is one of discrimination against by a person, organisation/company who provides goods, services or facilities alleged to have taken place on 22/07/2022 by reason of disability and by reason of membership of the Travelling Community as set out in the Complainant’s WRC complaint form.  The Complainant claims the Respondent treated him unlawfully by discriminating against him in the provision of goods/services. 

For completeness the date of the alleged acts is in fact 24/07/2022.  The date was amended on consent at hearing.    

The Respondent refutes the claim in its entirety.  It is the Respondent’s position that the Complainant was not discriminated against by a reason of a disability or by reason of membership of the Travelling Community. 

Both parties provided written submissions with supporting documentation including CCTV stills and footage from the Respondent on 04/04/4024.  The Complainant’s submission was provided to me at the commencement of hearing.  

As a separate point, the WRC, in its pre-hearing correspondence, sets out a clear request for submissions and all documentation relied upon for the hearing to be filed by the parties in advance of the hearing date.  It does not make for a fair or efficient hearing for any of the parties to refer to or to produce documentation at hearing without first having furnished same to the opposing party and to the Adjudication Officer. 

CA-00054625-001

Complainant’s submission – Overview

The Complainant attended at the Respondent cinema to view the new Top Gun Movie Maverick.  He purchased a ticket which included drink and popcorn.  The Complaint submits at some point during the movie a group of other customers had been asked to leave the cinema due to unruly behaviour.  The Complainant submits shortly after this he left to use the toilet facilities and that when he was on his way to the toilet a member of cinema staff said to him “you, little lad, you go with the rest of them.” 

The Complainant submits he had undergone a full liver transplant 10 weeks previously and even though he was 15 years old at the time he looked significantly younger and he submits he was “obviously a very unwell looking child.”  The Complainant submits his medical condition and needs resulted in him leaving his seat on several occasions during the movie to go to the toilet.  The Complainant submits the request for him to leave despite engaging in no inappropriate or antisocial behaviour on the day was based on his membership of the Travelling Community and prejudicial association with other members of the Travelling Community attending the cinema on that day. 

The Complainant submits he was lumped into this situation by the Respondent by reason of his membership of the Travelling Community simply because other members of the Travelling Community had been asked to leave because of alleged antisocial behaviour.

The Complainant submits he was asked to leave when he was on his way to the toilet and this caused him significant distress and he began crying as a result of the incident.  The Complainant telephoned his mother who attended and spoke to the Manager (hereafter AM) who offered for the Complainant to go back in but he had missed a portion of the movie and he was too distressed.  The Complainant submits it is his belief that he was asked to leave the premises because he is a member of the Travelling Community and he submits he believes he was afforded little respect by the cinema staff due to a discriminatory attitude held because of his membership of the Travelling Community. 

Complainant direct evidence on oath

The Complainant states his Mom dropped him off to attend the cinema and he was with a friend with whom he sat beside.  The Complainant submits some of his cousins were there too.  He states he went to the toilet a few times.   The Complainant submits they were told to go back to their seats at one stage.  The Complainant states AM pointed his finger at him and said you kiddo – out.  The Complainant states he phoned his mother from the toilet and he was very upset.

Cross-examination of Complainant

The Complainant stated it was a friend sitting beside him in Row J Seat 9 and not a cousin.  The Complainant states he called his mother when his friend left him at which point his representative intervenes and states to him that is not the instruction the Complainant initially gave her.  (At this point in the cross examination the Respondent is seeking to clarify what he perceives as discrepancies between the attendance note filed in the Complainant’s appendices to the written submission, the submission as filed and the evidence being adduced).   

The Respondent puts it to the Complainant that he states he called his mother from the toilet yet he was only in the toilet for 29 seconds at that point.  The Respondent asks the Complainant when he was upset and crying to which he responds when he was going down in the escalator.  The Respondent asks the Complainant if he had actually talked to AM and after a long pause, he replied no.  The Respondent puts it to the Complainant that he had stated he was crying and he asked him when to which the Complainant replied that he was crying when he was going down in the escalator. 

Direct evidence of mother of Complainant on oath (hereafter M)

M states her son phoned her and said he had to leave the cinema and he was tormented.  When she went back she spoke to AM and asked him did he put her son out and he said he went out with the rest. 

Cross-examination of M

When asked by the Respondent why it took her so long (29 minutes between him phoning her and when she came back in to complain) M replied that she went for a walk to calm him down and to relax him a bit and to get him a drink.

Closing submission of Complainant

The Complainant representative does not find it credible that the Respondent witness did not know they were Travellers.  The failure to provide training in diversity and equality is cited.  The Complainant representative submits there was no incident report completed until the WRC complaint was received by the Respondent.  This was discrimination purely by association.  The Complainant representative submits he (the Complainant) was asked to leave and this is the key issue in this case. 

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Respondent’s submission – Overview

The Respondent submits that the Complainant was not discriminated against either by reason of a disability or by reason of membership of the travelling community.  The Respondent submits that the Complainant left the cinema premises voluntarily after visiting the cinema’s toilet facilities.

By way of background the Respondent submits the Complainant attended the 2.10 pm showing of the film Top Gun Maverick in its cinema on Sunday 24 July 2022 and he was seated in the back row of the auditorium in Row J Seat 10.  The Respondent submits there were 42 tickets sold for that performance.  The Assistant Manager (hereafter AM) was on duty on the day and he had to deal with several unruly patrons during the showing of the movie. 

The Respondent submits the behaviour of the occupants in ROW E, SEATS 10-12 was being monitored and AM was forced to warn the occupants of ROW E, SEAT 10 & 11 about their behaviour.  The Respondent submits this conversation continued out in the corridor and at this time the Complainant got up from his seat and went to the corridor to listen to this conversation and then returned to his seat.   The Respondent submits shortly afterwards, AM was forced to instruct the occupants in ROW E, SEATS 11-12 to leave the premises because of persistent bad behaviour.

The Respondent submits at this time the occupant of ROW J, SEAT 9 and the Complainant left their seats and proceeded to the foyer to listen to this altercation and then returned to the auditorium. The Respondent submits on this occasion, the Complainant resumed his seat but the occupant of ROW J, SEAT 9 remained standing at the back of the auditorium and continued to remonstrate with AM.

The Respondent submits AM approached the standing occupant of ROW J, SEAT 9 and ultimately asked him to leave the premises for unacceptable behaviour.   The Respondent submits the Complainant followed the occupant of ROW J, SEAT 9 out of the auditorium to listen to the altercation.

The Respondent submits it is their position that AM did not ask the Complainant to leave the premises as submitted by the Complainant “you, little lad, you go with the rest of them.”  The Respondent submits AM did not converse with the Complainant at all during the alleged incident.  The Respondent submits that the Complainant was not refused permission to visit the toilet facilities or impeded in any way.  The Respondent submits the CCTV footage shows the Complainant visiting the toilet facility with another acquaintance (the occupant of Row J Seat 2) before he chooses to exit the premises voluntarily. 

The Respondent submits there is no question that the Complainant engaged in any unacceptable behaviour on the day in question. 

Direct evidence of Respondent witness AM on oath

AM outlined he had worked in the cinema for 17 years and he is used to dealing with various issues including unruly customers from time to time.  While on duty he conducts routine auditorium checks.  Routine issues would include customers using mobile phones and they would be given 2 – 3 warnings.  AM states in more serious issues 2 warnings would be given and he confirmed he had received training in dealing with unruly customers. 

On the day in question AM stated he could hear noise coming from the auditorium.  He entered and stood at the front and 2 customers from row E came out and he asked them to keep the noise down.  AM states the 2 in question returned to their seats.  AM states he went back a short time later to check things and a customer approached him complaining about the people in front of him in Row E.  AM submits he had already warned them and he asked them to leave.  AM states the Complainant and his friend followed them out to hear what was going on and they both returned but the Complainant’s friend did not resume his seat in the back row (Row J Seat 9) while the Complainant did resume his seat. 

As AM was leaving the auditorium he could hear “Fuck you” coming from the still standing occupant of Row J Seat 9.  AM states he went up the steps and asked the occupant of Row J Seat 9 to resume his seat.  AM states the occupant of Row J Seat 9 became aggressive and shouted and screamed at AM.  AM states the occupant from J Row J Seat 9 followed him down the steps. 

AM states he did not direct any conversation to the Complainant throughout this.  AM states the conversation with the customer from Row J seat 9 became more heated again in the corridor and AM states the customer told him “I will kill you and your family – you are dead”.  AM states he did not notice the Complainant and he states he never said those words as alleged by the Complainant to him.  AM states he had no reason to interact with him (the Complainant) and he categorically did not say those words.

Cross-examination of Respondent witness AM

The Complainant representative reaffirms with AM that he categorically did not ask the Complainant to leave which the witness reaffirms.  The Complainant representative asks AM if he gestured towards the Complainant to which AM replies he does not believe he did.  The Complainant representative comments that she finds it bizarre that there is no sound quality on the CCTV which is put as more of a statement than a question to AM.  The Complainant representative asks AM why he called security and whether or not he needed security to deal with the occupant of Row J seat 9 or with other members of the Travelling Community to which he replies to deal with the occupant of Row J Seat 9. 

The Complainant representative asks AM what equality training his employer had provided to which he replies no specific training other than training in how to deal with anti-social behaviour.  The Complainant representative asks if he has ever before asked members of the Travelling Community to leave to which he replies he would not know that.  The Complainant representative asks AM if he is telling her he did not know they were Travellers to which he replies not until the Complainant’s family came back. 

The Complainant representative’s line of questioning turned to what she referred to as the extremely serious matter of the death threats he had received from the occupant of Row J seat 9 and what he had done about it to which he replied that the Garda that the cinema security guard had brought to the Cinema from the shopping centre had taken a statement from him and he had never followed it up since to which the Complainant representative expresses her surprise that the Gardai did not further investigate the matter.

Closing submission of Respondent

The Respondent does not believe AM spoke to the Complainant at all on the way out.  It is his final submission that the Complainant left because his friend was gone and he did not want to remain on his own. 

CA-00054625-001

In conducting my investigation, I have reviewed the relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the content of the CCTV footage.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

For the sake of completeness, I note the Complainant alleges discrimination against by a person, organisation/company who provides goods, services or facilities by reason of disability and by reason of membership of the Travelling Community.  I note the Complainant did little to advance or engage with the disability element of his complaint at hearing or in the written submissions provided to the WRC where the primary focus was on the Complainant’s “eviction (from the Cinema) solely related to his membership of the Travelling community and resulting prejudicial associated with other members of the Travelling community.” 

Accordingly, I am satisfied the matter for decision is whether the Complainant, as a member of the Traveller Community, was discriminated against by the Respondent. 

Having carefully considered at length all the evidence presented to me I am of the view that on the face of it the within case could be interpreted as one which turns on whether certain words were spoken as alleged by the Complainant or whether the Complainant left the cinema of his own accord after his friend had been requested to leave as submitted by the Respondent. 

I have heard a direct conflict of evidence from the parties in this regard.  However, what is not in dispute here between the parties is that there was a disturbance in the cinema on the day in question at the screening of the movie. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities. 

In fulfilment of my duties under statute I am obliged to make all relevant inquiries into this complaint including an inquiry into and consideration of the surrounding circumstances.  Irrespective of the conflicts in evidence on certain matters, there is no conflict whatsoever in the crucial evidence as adduced as to the disturbance caused by anti-social behaviour in the cinema.     

The Relevant Law

The Equal Status Act 2000-2015 (ESA) as amended prohibits discrimination in the provision of goods and services, accommodation and education.  It covers the ten protected grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller Community and housing assistance (only as regards the provision of accommodation). 

I reference the definition of discrimination provided in section 3 of the ESA as follows:

Discrimination (general).

3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(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) or, if appropriate, subsection (3B),(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) 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, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

Or

(c) where an apparently neutral provision would put a person] referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Section 3(2)(i)

“that one is a member of the Traveller community and the other is not (the “Traveller community ground”.

The Complainant has submitted his complaint as a member of the Traveller community and his status as a Traveller is not disputed.  I am satisfied the Respondent is providing a service within the meaning of the Equal Status Acts.   

Section 5 of the ESA provides clear direction against prohibited conduct as follows:

“5. – (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred.  It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. 

The ESA also provides for certain exceptions.  One such exception relates to the prevention of criminal or disorderly conduct or behaviour and is provided for under section 15(1) of the Equal Status Act as follows:

“Certain activities not discrimination.

15.—(1) For greater certainty, 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.”

Section 15(1) provides that the Equal Status Act permits a service provider to decline service in circumstances where they believe that there is a substantial risk of criminal or disorderly conduct or behaviour.   

Ms Judy Walsh notes in Walsh, Equal Status Acts 2000-2011 Discrimination in the Provision of Goods and Services (Blackhall Publishing, 2012), at p. 143 “that section 15(1) applies to those alleging discrimination who are notresponsible for the criminal or disorderly conduct [emphasis added] where she notes “the defence is not limited to cases where the person alleging discrimination is responsible for the criminal or disorderly conduct.”  Ms Walsh notes that section 15(1) is limited to action being taken “on grounds other than discriminatory grounds.”   

I am mindful of the case of Mr. Patrick McDonagh and Mr. Martin Stokes v. City Cinemas Limited, DEC-S2017-024.  This case 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 were also claims of discrimination by association.  The facts of the case are that the two complainants were refused admission to a cinema because of their threatening and abusive behaviour towards a staff member on the previous night.  The Equality Officer highlighted that she considered “the totality of the evidence adduced.”  The Equality Officer found that the respondent was entitled to avail of section 15(1) of the Acts. 

The Relevant Facts

The accounts of the parties of the events as they unfolded on the day are contradictory apart from agreement on the fact there was a disturbance in the cinema.  I am satisfied it is not in dispute that there was a disturbance in the cinema on the day in question caused by antisocial behaviour of a number of patrons.  For the avoidance of any doubt there is absolutely no suggestion that the Complainant participated in any shape or form in this type of behaviour.

If it is accepted the Complainant left the cinema of his own accord after his friend, beside whom he was sitting had been asked to leave, there would be no case to answer.  Conversely, if it accepted the Complainant was asked to leave the cinema then it has to be decided if the Complainant was asked to leave because he was a member of the Traveller Community which is what is alleged. 

There is little disagreement between both sides on the facts of matters as they evolved in the cinema that afternoon.  It is common case there was challenging behaviour in the auditorium which commenced while the credits were rolling, and the movie soundtrack was playing before the movie had even started as ascertained from the timelines.  It is not disputed that the Complainant was in the company of one of those engaged in such behaviour and it is not disputed that the Complainant had in fact attended the cinema with that individual and occupied the seat beside him in the back row of the auditorium.  I fully accept that the Complainant did not engage at any time in such behaviour and this is not in dispute. 

In my careful consideration of the factual matrix in this case I am satisfied there is an obligation on me to engage with the totality of the evidence [emphasis added] adduced as highlighted by the Equality Officer in the case ofMr. Patrick McDonagh and Mr. Martin Stokes v. City Cinemas Limited, DEC-S2017-024.

From the evidence adduced I note AM observed a potential disturbance in the auditorium from CCTV and attended the auditorium to check this out.  I accept there was a complaint about the behaviour made by a customer.  I am satisfied a number of patrons were asked to leave and were escorted off the premises when they failed to comply with requests to keep the noise down.  Prior to this they had been spoken to in the corridor by AM.  The Complainant and his friend in Row J seat 9 left their seats to observe these interactions twice returning to their seats thereafter with the Complainant resuming his seat on both occasions. 

I am satisfied the occupant of Row J seat 9 refused to resume his seat after both he and the Complainant had left their seats to listen to the exchanges in the corridor for the second time.  I am satisfied that the conduct of the occupant of Row J seat 9 was such that he was escorted from the premises. 

I am satisfied having taken the totality of the evidence into consideration that from the commencement of the disturbance those responsible for it had already embarked on a trajectory towards escalation which could only ever end in one outcome and that was being asked to leave the cinema.  I am satisfied there was a certain inevitability about the manner in which the Complainant’s trip to the cinema would end on the day in question through no fault of his.       

I am satisfied and I am prepared to accept that AM is a “reasonable individual” with significant experience working in the cinema and in dealing with unruly behaviour.  For the avoidance of any possible doubt, I am satisfied that any other persons engaging in the same type of behaviour who were not members of the Traveller Community would have been treated the same way namely they would have been asked to leave the cinema.  I am satisfied there was no evidence adduced that the Complainant was treated less favourably or differently than someone who is not a member of the Traveller Community. 

I am satisfied that a person or persons who were not members of the Traveller Community would have been treated in a similar way whilst engaging in anti-social behaviour in a cinema and impeding other paying customers in their enjoyment of the movie.  Accordingly, the Complainant has failed to establish a prima facie case of discrimination within the meaning of section 3 of the Equal Status Acts. 

For the purpose of this investigation involving an examination of the totality of the evidence it matters not what was said or by whom but rather the backdrop against which the alleged utterances were made or not as the case may be. 

Having engaged with and having considered the totality of the evidence, I am satisfied that the section 15(1) exemption applies in this case and I make this finding for the reasons set out above.    

For the reasons set out above, I conclude the refusal of service was not made on a discriminatory ground if indeed the Complainant was asked to leave the Cinema but was in accordance with section 15(1) of the Equal Status Acts. 

CA-00054625-001

I decide that section 15(1) applies and there was no discrimination.  Accordingly, I find this complaint to be not well-founded. 

Membership of Traveller Community; disturbance in a cinema;