Derek Webster V MDM Taverns Lt., t/a The Coach House Pub, Dublin
1.1 This dispute concerns a claim by Mr. Derek Webster that on 24 March, 2002, he was denied a service in the respondent premises on family status grounds in that he was accompanied by his children. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of Complainant's Case
2.1 The complainant states that he was refused service in the respondent premises at 7p.m on 24 March 2002 because he was accompanied by his family. He was asked to leave the premises because his family was present and was told that he would be served on his return.
3. Summary of Respondent's Case
3.1 The respondent states that it is policy not to have children on the premises after 6p.m.The complainant was on the premises with his family after that time on the date in questionand was therefore asked to leave the premises.
4.1 The complainant stated that he was a regular in the respondent premises for several years and had regularly (approx. once per month) attended there with his family on Sundays for family lunch. The family had often remained on the premises after 6p.m and had never before been requested to leave. His wife usually left with the children in order to take them home and get them ready for bed etc. while he remained on the premises in the company of friends. On the date in question the complainant and his family were seated in a raised "snug" seating area located under a stairwell. There was one large table and two small round tables in the seating area, all occupied by the complainant, his family and friends in the course of the day. The complainant and his wife selected these seats because they were away frommost other tables and only had one means of access which made it easier to prevent the children form leaving the area. On the evening in question he was told by the barman that he would not be served further because his family was present. The complainant explained to the barman that they were getting ready to leave and that he was ordering one drink for himself.The barman stated that he would not serve him until he left with his family, because as long as he was on the premises they would not leave. He told the complainant that he would be served on his return. While the barman does not recall asking the complainant to leave, he does recall stating that he would serve the complainant once the complainant's family had left the premises.
4.2 Witnesses on behalf of the complainant state that they were present in the afternoon in the company of the complainant and his family and that the complainant's children werequiet and were blocked from leaving their seats by the complainant and his companions. The children had toys and colouring books with them and were occupied with these. None of the witnesses, one of whom had his own two children with him, recalls any approach from staff in the afternoon regarding the behaviour or noise levels of the children. The complainant's wife was also present and does not recall any such approach by staff.
4.3 The complainant was very annoyed with the abrupt and offensive manner and tone inwhich he was refused service and felt that the bar manager was making an example of him.Several of the complainant's friends and neighbours were seated nearby when he was refused and were surprised at the manner in which he was treated, especially as there were other families on the premises at that time. The complainant found this very embarrassing and humiliating.
4.4 In written submissions from the respondent it was stated that all staff concernedremembered the day in question quite clearly and distinctly because it wasPalm Sundayand the premises was very busy. The complainant was refused further service at 7p.mbecause it was decided that he had consumed too much alcohol. Furthermore he hadbeen approached and asked to leave on several occasions because of theunacceptablebehaviour of his children who had been running wild in the course of theafternoon. The complainantignored these requests.
4.5 The respondent has a policy that all children must be off the premises by 6 p.m. as the respondent feels that a pub environment is unsuitable for children and it is important for people coming in for a quiet drink in the early evening that they can do so in the best possible environment and have a chat without interruption. This policy has been in place since the premises started providing carvery food. Notices regarding the policy are clearly displayed and an announcement is made at 5.45 p.m. to remind parents to have children off the premises by 6p.m
4.6 When the complainant approached the bar at 7 p.m he was told that he was not being served as he had been asked on numerous occasions to take his children off the premises. The complainant became very aggressive and demanded service. The barman decided that the complainant had quite a lot of drink consumed as he had been drinking pints all day and his wife had been drinking bottles of lager. The complainant made a spectacle of himself when he was refused. The complainant was the only person left on the premises at the time with his children.
4.7 In oral evidence at the Hearing of this complaint the respondent corrected much of the written material submitted stating that the complainant had not been asked to leave the premises earlier in the day. The written information provided was based on statements taken from two staff members who were present on the day in question. However the barman who had refused further service to the complainant was not present when the written material was compiled and submitted. On his return the facts were ascertained and it was determined thaty some of the information provided in written submissions was inaccurate. Specifically, the complainant had not been asked to leave the premises at any time in the course of the day and was not told that the reason for the refusal to serve him was because he refused to leave the premises earlier in the day. Furthermore the complainant was not the only person remaining on the premises with his children at 7 p.m.
4.8 In oral evidence members of the respondent's staff stated that from the outset, early in the day, all children present on the premises were "wrecking their heads" because they were"running wild" and were "noisy". One member of staff had repeatedly stated to the barmanager and another staff member that she was "losing her rag" with the children in thepremises.
4.9 The respondent states that a group of persons seated near the complainant and his family circa lunchtime asked to be moved to another table because of the noise levels coming from the complainant's table.
4.10 Two members of staff stated that that circa 7 p.m they were each having a coffee and cigarette when they heard a man at the bar counter swearing and being abusive to the bar manager. They stated that the man had clearly been refused drink because he was drunk.The staff members could not see the bar clearly from where they were seated and did not hear why the man was refused service but from their experience in the trade and from the man's demeanour they were certain that it was because he was drunk. The man then followed the bar manager swearing and shouting at him as he made his way to the kitchen area.
5 Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has
been established by the complainant. There are three key elements which need to be
established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (e.g. the Family Status ground)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainants was less
favourable than the treatment someone, not covered by that ground, would have
received in the same, or similar circumstances.
5.2 If and when those elements are established, the burden of proof shifts, meaning tha the difference in treatment is assumed to be discriminatory on the relevant ground. In suchcases the complainant does not need to prove that there is a link between the differenceand the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case - Complainant
6.1 The complainant is a parent and was accompanied by his wife and children on the date in question. This fulfils (a) at 5.1 above. Both parties agree that the complainant was asked to leave the premises at 7 p.m. because he was accompanied by his children on that date. This fulfils (b) at 5.1 above. In relation to key element (c) above it is common case that the complainant was refused further service not simply because of his family status as aparent, but specifically because he had his children present with him. I am satisfied that thedefinition of family status under section 2(1) of the Equal Status Act 2000 includessituations whereby those with family status have immediate physical responsibility for persons whohave not attained the age of 18 years. The respondent confirmed at the Hearing of this matter that the complainant was asked to leave the premises because his children were on thepremises No other reason was provided to the complainant for the refusal of service. Thecomplainant was therefore treated less favourably than persons unaccompanied by a child/children andthis satisfies (c) at 5(1) above. 6.2 I am satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7 Respondent's Rebuttal
7.1 The respondent stated that normal policy in the premises is that children must be off the premises by 6 p.m. as the respondent feels that a pub environment after 6p.m. is not a good environment to have children in. This policy is loosely applied and rarely enforced. It would be used e.g when someone accompanied by children has created a problem or was causing difficulty on the premises. They would, in such circumstances, be asked to leave the premises in accordance with the policy.
7.2 The complainant accepts that he had attended at the premises on a number of occasions when accompanied by his children and had encountered no difficulties in gaining admission or service. There is therefore clearly no policy of discrimination on the family status ground in the respondent premises. The latter is family friendly.
7.3 The complainant and his family had been on the premises from early that day and the complainant and his wife had been drinking all day. He had been asked on a number of occasions to control the activities of his children who were running wild but had failed to do so.
7.4 The respondent is required under the Licensing Acts to run a peacable and orderlyestablishment and the evidence shows that the complainant's children behaved in a disorderly manner. The respondent had, in good faith, requested that the complainant remove his children from the premises. Therefore Sections 15 (1) and 15(2) of the Equal Status Act 2000 are defences in this matter. The Occupier's Liability Act is also a defence as it provides that the respondent owes a duty of care to visitors to his premises and to employees and the children themselves.
8 Conclusions of the Equality Officer
8.1 Having carefully considered all of the evidence in this matter I do not accept the respondent's claim that the complainant was asked, in part, to leave the premises because of the fact that he had too much drink taken. It simply does not make sense that a customer would be told that they would be served further alcohol if that were the case. Furthermore,the respondent staff accept that persons accompanied by children, including the complainant,had often stayed on the premises past 6p.m and this had not been challenged by the staff .
8.2 It is clear from the evidence that the policy as stated by the respondent that children should be off the premises by 6 p.m was inconsistently applied. While no exceptions were ever indicated by the respondent it is clear that the policy was rarely enforced and when it was it was applied subjectively.
8.3 The respondent's statement that the complainant's children had been "running wild"was not substantiated by the evidence. Rather, what was striking about the evidence was the stated consistent complaints from one specific member of staff about the presence of children from the outset and the fact that this staff member and another had made repeated references to the manager in this regard. In particular the two staff members had repeatedly stated to the manager that they wanted all children off the premises by 7 p.m so that they could complete the work of tidying the premises in preparation for the evening's clientele and go home.
8.4 The respondent states that the fact that the complainant had been a regular patron for five years and had previously been served when accompanied by his children clearly shows that no policy of discrimination exists in the respondent premises. The fact that persons who are accompanied by children are served by the respondent, or that the complainant has been served on other occasions, does not, and cannot, in itself defeat the case for discrimination, as the respondent argues. There are different degrees of discrimination, ranging from an outright refusal to serve persons accompanied by children in any circumstances, to serving them in some situations but where a doubt or a problem arises, tending to treat them less favourably than persons who are unaccompanied by children in the same circumstances (see Stokes & Ors v 79 Inn, DEC-S2003-117-119, para. 6.7).
The latter is by far the more common. Both ends of the spectrum are contrary to the Act.Evidence that a pub serves persons accompanied by children regularly, or has previously served them, can contribute to a defence by showing that the respondent does not practise the more blatant and deliberate forms of discrimination. However, such evidence does not prove that the more subtle and unconscious forms of discrimination cannot occur. It may suggest that they are less likely to do so as a general rule, but it is only one of a number of factors which may be relevant in assessing whether discrimination has in fact occurred.
8.5 Section 15 (1) of the Equal Status Act 2000 provides that "nothing in the Act prohibiting discrimination, shall be construed as requiring a person to .................. or provide services.............. to another person 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 ...................... Or the provision of services.................. 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 services are sought".The respondent provided no credible evidence to demonstrate how the complainant or any member of his family had behaved in such a manner, prior to the refusal of service, as would lead a reasonable person to believe that the provision of service to the complainant would lead to the type of behaviour envisaged by this Section. A number of references were made by the respondent to the effect that the complainant and his wife had been drinking all day.However, none of the respondent staff could quantify how much either the complainant on his wife had had to drink. The respondent incorrectly stated what the complainant's wife had been drinking.
8.6 Section 15(2) of the Equal Status Act 2000 provides that "Action taken in good faith by or on behalf of the holder of a licence or other authorisation which permits the sale of intoxicating liquor, for the sole purpose of ensuring compliance with the Licensing Acts,1833 to 1999, shall not constitute discrimination".The respondent provided no evidence to show that any breach or potential breach of the Licensing Acts arose in the instant case. It is also clear from the evidence presented that two staff members brought a great deal of pressure to bear on the barman to have all children off the premises by 7 p.m. so that they could tidy up and go home. As this Section requires that action taken by the licensee is for the sole purpose of complying with the Licensing Acts,and this does not appear to have been the case, I am satisfied that Section 15(2) is not applicable in the instant case.
8.7 The Occupier's Liability Act 1995 imposes a duty of care on occupiers towards "entrants" to the premises regarding the physical state of their premises in respect of "any danger existing thereon". No evidence was provided to show how this Act applies in the instant case - i.e in what way is the physical state of the premises relevant to the matter at hand.
8.8 The respondent stated that the policy regarding the 6 p.m. watershed for children being present on the premises was introduced at the same time that the premises began to provide carvery food. It was introduced to provide a mechanism for removing "disruptive"persons from the premises. The respondent provided no evidence of a similar policy existing which was/is applicable to persons unaccompanied by children. As the policy is aimed at using the presence of children as a pretext for removing disruptive persons from the premises,and no evidence was provided of an equivalent policy to remove persons without family status from the premises, then the policy is both flawed and discriminatory from the outset. The implication of the policy and the use to which it is put is that only persons with family statusare disruptive. Even in its flawed state, no credible evidence was presented to show that the policy applied in the instant case as no credible evidence was provided to show that the complainant, his wife or their children had behaved in a manner which was unduly disruptive or unacceptable.
8.9 The respondent staff stated that when they witnessed the refusal of service to the complainant they immediately assumed that the complainant was refused service because he was "obviously drunk". It did not occur to either of them that the complainant had been refused service because of the behaviour of his children. I find it odd that the staff members in question immediately reached such a conclusion in circumstances whereby the same two members of staff stated in writing that the behaviour of the complainant's children had been"out of control", "running wild", "loud", "crying", "noisy" etc all through the day and the barman had stated that he would provide further service to the complainant when his family left the premises. Service was not therefore refused on the basis of the complainant having had too much to drink. On balance I found that the evidence presented by and on behalf of the respondent was lacking in consistency and was at times contradictory and that the evidence provided by and on behalf of the complainant was more compelling. This in no way excuses the complainant's behaviour after the refusal of service, whether it was "annoyed" or" aggressive" behaviour as put forward by the complainant and respondent respectively.However, as this behaviour followed the refusal of service it was not a factor in the original decision to withhold service from the complainant.
8.10 I am satisfied that the fact that a number of children were running about unsupervised,some of whom may have been the complainant's, circa lunchtime on the day in question,had been a cause of concern to members of staff in the respondent premises. However, the evidence simply does not support the claim that the complainant's children behaved orcontinued to behave in a manner such that it warranted a refusal of service some hours later.
8.11 The respondent staff gave evidence that some people at a nearby table asked to bemoved because of the noise level coming from the table at which the complainant and hisfamily were seated, and this was preventing them from enjoying their meal. This indicatesthat the complainant's children were in fact seated at the table with their parents at lunchtime.The fact that people asked to be moved away from where a number of children were seated at the next table is not particularly unusual and is not necessarily a reflection on the children who may have simply been conducting themselves as most young children do when out for ameal.In any event this occurred circa lunchtime, yet a refusal of service did not take place until several hours later.
8.12 I note that the complainant's friend and his two children were also present in therespondent premises at the time of the refusal of service. No evidence was provided to indicate why he was not also refused service at 7 p.m However he was seated with the complainant and his family, had not approached the bar for further service and it may have been obvious to the barman that there was little likelihood of his staying on the premisesafter the refusal of service to the complainant. On foot of the refusal of service to the complainant the friend in question finished up his drink and left with his children shortly after the complainant. The complainant has not attended at the respondent premises since he was refused service.
I am satisfied on balance that the complainant was refused service because of thepressure brought to bear by staff members to have all children off the premises by 7 p.m on the date in question, in order to facilitate their chores. No evidence was provided to show how the presence of the children impacted on their duties, if at all. As I am satisfied that the complainant was refused on this basis and it was stated to him that his children were thereason for the refusal of service I find that the complainant was discriminated against on the Family Status ground contrary to Section 3(1)(a), and 3(2)(c) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
10.1 Under section 25(4) of the Equal Status Act, 2000 redress shall be ordered where a
finding is in favour of the complainant in accordance with section 27. Section 27(1) provides that: "the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
(b) an order that a person or persons specified in the order take a course of action
which is so specified."
10.2 Under Section 27 (1) (a) I hereby order that €1000 be paid to Derek Webster,
complainant, by the respondent for the effects of the discrimination.
10 December, 2004