Wayne Osborne and Stacey Killeen V Skelly's Pub
Delegation under the Equal Status Act, 2000
These complaints were referred 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 has delegated these complaints to me Mary O'Callaghan, 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, 2000. The hearing of the case took place in Dublin on 30th June 2004.
1.1 This dispute concerns a claim by Mr. Wayne Osborne and Ms Stacey Killeen that they were discriminated on the grounds of their Family Status when they were refused entry with their children to Skelly's Pub Artane, Dublin on 20th January, 2002. The complainants have alleged that the treatment they received was contrary to Section 3 (2) (c) of the Equal Status Act 2000 and in not being provided with a service which is generally available to the public they were subjected to treatment contrary to Section 5 (1) of the Act.
1.2 The Respondent maintains that the non admission of children to the premises results from restrictions attaching to the pub premises following a previous fire.
2. Summary of the Complainant's Case
2.1 The complainants said that they went to Skelly's pub on the afternoon of 20th January 2002 together with their children. They wanted to show the children the snooker tables. They were to meet another couple who were also bringing their children along. Skelly's operates as a licensed premises and snooker hall. The complainants said that their children were aged 21/2 and 4 years at the time. They said that they drove the short distance from their home to the premises and when they got there they got out of the car. As they approached the entrance to Skelly's they noticed a member of staff, who they named, outside the door repairing a light fitting. They said that the staff member told them that they could not go in to the premises as no children were allowed. The complainants said that while they were still standing by the entrance two young people who they took to be teenagers walked passed them holding snooker cues and walked into the premises. One of the complainants remarked that he thought that admitting unaccompanied young people was inappropriate. The complainants said that this was the first time they had gone to the premises with their children.
2.2 The complainants said that they went back to their car, phoned the friends they had arranged to meet and made alternative arrangements. They said that they went on to Tolka Park Sports Ground where they discussed what had happened with a member
of the bar staff there. They said that the barman told them that they should get the name of the man who had refused them and check out what they could do about it. Mr. Osborne said he returned to Skelly's later and got the man's name and had a short conversation with him. The staff member said that no children or underage people were allowed. The complainants said that they believed that this was discrimination against them because their children were with them. Ms. Killeen recalled that in years gone by she had gone into the premises when she was under age without difficulty. They said that they had not returned to Skelly's to drink since then although Mr. Osborne had gone there to get some information in order to help him pursue this complaint.
3. Summary of the Respondent's Case
3.1 The respondent said that he had been a director of the company running Skelly's since 1990. The premises operated under a lease on the site of a former club which had been destroyed by fire some 10 years earlier and in which a large number of patrons were fatally injured. The pub business operated on a lease from the original owner of that club. He said that because of the history of the premises the fire chief had laid down very rigid conditions which had to be met before the premises was allowed to reopen. For this reason the management had adopted a strict house rule that no children would be allowed on the premises. He said that he was very aware that if there were any breaches of the fire regulations whatsoever his licence would be withdrawn. He also said he would not be insured for the presence of children on the premises.
3.2 He acknowledged that when the premises initially opened they used to let regular customers bring children onto the premises with them but they used to stay at the back of the hall. The strict no children policy had been in operation for 4-5 years. He said that Skelly's could accommodate 200-300 patrons with the snooker room accommodating up to 60. He said that most of their customers were regulars who ranged in age up to about 70 years. He said that a rule of "over eighteens only" applied to the snooker hall. The respondent said that the rule was well known in the locality and that younger people used the local recreation centre "the Rec" which was located just across the road from Skelly's as a venue for entertainment.
3.3 The respondent said that he knew Mr. Osborne to see from the locality and may have known his father. He said that he knew him as a customer of Skelly's in the past and that there had never been any difficulties between them. He said that he was not on the premises on 20th January 2002 when the complainants arrived but he considered the staff member who had refused the complainants entry to be a very responsible member of staff who would have enforced the rules of the business. He said the staff member had since left his employment and now had a bar managerial position in another county.
3.4 The respondent said that the only reason the no children rule applied was to ensure that he did not risk his licence which was subjected to more than the usual restrictions because of the history of the premises. It was not a discriminatory measure.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainants have succeeded in establishing a prima facie case. In order to do so the complainants must satisfy three criteria in relation to their complaints. They must (1) establish they are covered by a discriminatory ground (in this case the Family Status ground); (2) it must be established that the specific treatment alleged by the complainants actually occurred and (3) there must be evidence that the treatment received by the complainants were less favourable than the treatment someone who was not covered by the discriminatory ground would have received in similar circumstances.
4.2 In this case the complainants went to Skelly's accompanied by their children who were in their care at the time and this fulfils the first of the criteria outlined above. It is a fact agreed between the parties that the complainants were refused entry as there were children with them at the time they sought to enter the respondent's premises and, therefore, the second criteria is satisfied. Thirdly it must be shown that the treatment of the complainants was less favourable than that which would be afforded to another person in similar circumstances who had sought to enter the premises but who did not have family status. It has been agreed by both parties to the complaint that the refusal occurred because they had children with them when they went to Skelly's and therefore I conclude that the third criteria has been met and that the complainants have established a prima facie case of discrimination.
4.3 In circumstances where a prima facie case of discrimination has been established by the complainant, it is then assumed that the treatment received by the complainant is discriminatory. The burden of proof shifts to the respondent, who must then rebut the inference of discrimination to show that his actions were not discriminatory.
4.4 In effect this is the approach provided for by Council Directive 97/80/EC1 - the Burden of Proof Directive and has been enacted into Irish law by the Equality Act 2004 which applies the principle to decisions under the Equal Status Acts 2000-2004. The Labour Court and Equality Officers have employed the practice of shifting the burden of proof in discrimination cases under Irish Law since before any European Community legislation required it.2 In Dublin Corporation v Gibney the Equality Officer defined prima facie evidence as "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred."
1 Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex
2 See DEE 4/1983 (Labour Court) Bailieborough Community School.; EE 5/1986 (Equality Officer) Dublin Corporation v Gibney
4.5 Both the High Court and the Supreme Court have also applied the principle of shifting the burden of proof in accordance with European Community Law.3
5.1 The respondent's rebuttal centres on the particular premises where this incident occurred and the controls that need to be in place, governing its operation as a licensed premises. This results from the particularly tragic history of the premises and the operation of the licence there. The circumstances surrounding this particular premises are such that it would not be permitted to operate as a licensed premises without many precautions being taken to ensure the protection of patrons, particularly in relation to fire safety, which are over and above those that would apply to other similar premises without this particular history. The respondent has said that he is particularly sensitive to the requirements regarding safety which surround the granting of the license to operate the premises and it is for this reason the no children rule was put in place.
6.1 There have been a number of previous decisions by Equality Officers on the Family Status Ground. In Shanahan v One Pico DEC-S2003-056 and Curtis v Lotamore the Equality Officers found that in those cases the refusal to provide a service to parents while accompanied by their children was discriminatory.4
6.2 The respondent in this case has raised the situation where the conditions attaching to his license have led him to impose a ban on the presence of children on the premises at all times. In considering this evidence I must consider Section 15 (2) of the Equal Status Acts 2000-2004 which states "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." In concluding whether Section 15 (2) of the Equal Status Acts 2000-2004 applies to this case I am particularly mindful of the history of this premises. I note in particular DEC-S2003-109/110 Grainne Travers and Timothy Maunsell v The Ball Alley
House, another case in which family status was the ground of complaint, where the Equality Officer quite correctly stated that "In some situations, ..., publicans have run into difficulties in cases where ... over-broad measures have gone further than required by the licensing acts and did not take account of the parallel obligations imposed by the Equal Status Act." 5
6.3 I do not, however, consider that this case is on all fours with those I have mentioned, given the unique circumstances of the licensed premises in question here and the decisions that the respondent might make in good faith regarding his license. I have concluded that the focus of the "good faith" action as provided for in section 15.2 of the Equal Status Act is on the honesty of the intention, even the making of an honest mistake, so long as it is taken for the sole purpose of ensuring compliance with
3 Nathan v Bailey Gibson (Supreme Ct.) 1998 2 IR 162; Conlon v University of Limerick (High Ct.) 1999 2 ILRM 131
4 Ms. Paola Shanahan v One Pico Restaurant DEC-S2003-056; Melanie Curtis v Lotamore Ltd. t/a The Barn Restaurant DEC-S2003-154.
5 DEC-S2003-109/110 Grainne Travers and Timothy Maunsell v The Ball Alley House
the Licensing Acts. In this case I found the respondent's evidence of his intentions, at
the hearing and the history of his dealings with the fire authorities, convincing in this respect. The premises at the centre of this complaint, holds an unparalleled position in
recent history in terms of the tragedy that occurred there involving young people. I also note that the children in this case were ambulant, which was not the case of those in the other cases mentioned, where the infants were either in baby seats or in their mother's arms. Because of this I have come to the conclusion that that the decision taken, not to allow children on the premises was a decision that was taken in good faith.
6.4 In the light of the previous cases mentioned and while there has been no written evidence of the requirement from the fire authorities regarding the presence of children, I am inclined to the view that the respondent was honest in his intention but may have been mistaken. While Section 15(2) exempts a mistake which has already occurred, it may not excuse a service provider from clarifying his legal obligations for the future when they are on notice that there is a question as to whether they are in fact complying correctly with the law. Therefore, I strongly recommend that the respondent contacts the fire authorities in order to clarify this specific issue. At this point I wish to echo the statement of the Equality Officer in DEC-S2003- 109/110 cited above, where he said "I note that new legislation is now in place (the Intoxicating Liquor Act 2003) which introduces a specific exception to the Equal Status Act 2000 whereby the exercise of a licensee's discretion not to permit a person under 15 accompanied by parent or guardian to be in a bar at any time shall not of
itself constitute discrimination, and I hope that this new legislation will provide publicans with sufficient latitude to address the contentious issue of children in pubs."
7.1 The incident under investigation here occurred prior to the enactment of the 2003 legislation and in such circumstances the provisions of the new legislation did not apply. However, I accept that in this case a decision was taken in "good faith" by the staff member regarding the matter for the purposes of protecting the pub license in the unique circumstances of this particular premises. I therefore, find for the respondent.
13th December 2004