Sarah Jane Reddin and Ben Gilroy V Ryan's Bar and Restaurant, Ratoath (represented by McAlinden & Gallagher, Solicitors )
This dispute concerns a complaint by Sarah Jane Reddin and Ben Gilroy that they were
discriminated against, contrary to the Equal Status Act 2000, by Ryan's Bar and Restaurant, Ratoath, Co Meath. The complainants maintain that they were discriminated against on the family status ground in terms of sections 3(1)(a) and 3(2)(c) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainants' Case
2.1 The complainants state that they and Mr Gilroy's son went to Ryan's Bar and Restaurant around 8pm on Friday 21 February 2003 for a meal. When they entered the premises, the barman told them that they would not be served as they had a child with them. The barman informed them that it was the pub's policy not to allow children on the premises after 6.30 pm.
3 Summary of Respondent's Case
3.1 The respondents explained that, many years previously, the pub had been sued over an accident which had occurred on its premises involving a child. On account of that incident, the then owner of the pub, who is now deceased, took a decision not to permit children on the premises after 6.30 pm. That policy is still in operation.
4 Delegation under the Equal Status Act, 2000
4.1 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 myself, Brian O'Byrne, 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.
5. Evidence of Parties
- Ryan's Bar and Restaurant was recommended to the complainants for a meal. Neither had ever been on the premises before.
- On 21 February 2003, the complainants arrived at the pub for a meal shortly after 8
pm. Mr Gilroy's 6 year old son was with them.
- As soon as they entered the pub, they say that a barman approached them and
informed them that "no kids were allowed on the premises". On telling him that they were only seeking a meal, he told them that he was "following instructions" and could not let them stay.
- Mr Gilroy stated at the Hearing that he then informed the barman that the law had
changed and asked him to confirm that he was being refused because of the child. The barman confirmed to him that this was the case.
- As they were upset over the manner in which they were refused, the complainants say that they then left and went to the Gardai in Ashbourne to report the matter. After that they went to another restaurant where they had no trouble getting a meal.
- Mr Gerry Ryan, who now runs the pub, explained that the pub has had a policy of not
allowing children on the premises after 6.30pm for many years. He explained that, nearly 40 years previously, the pub had been sued over an accident which had occurred on its premises involving a child. On account of that incident, Mr Ryan's father, who is now deceased, took a decision not to permit children on the premises after 6.30 pm.
- This policy has not changed since then and the pub has a sign in the window which
clearly states that children are not permitted on the premises after 6.30 pm. Mr Ryan states that the majority of his customers support this policy and that he has only ever had a few minor complaints about it.
- Mr Ryan said that he was not aware of the fact that the provisions of the Equal Status
Act 2000 may have had a bearing on this policy. He said that he is, however, aware that there was legislation in 2003 which introduced a 9 pm "watershed" for children in pubs.
- At the Hearing, the respondents offered an apology to the complainants for any hurt
suffered but explained that the barman was simply enforcing a policy which the pub had applied for 40 years and that they did not realise that the policy may have been illegal in some way.
- The respondents also questioned whether direct or indirect discrimination was
involved saying that the complainants themselves would have been served with no difficulty if they had arrived without the child in their company.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to
occur where, on any of the grounds specified in the Act, a person is treated less favourably
than another person is, has been or would be treated. Section 3(2)(c) of the Act specifies the family status ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claimed that they were discriminated against on the family status ground contrary to Sections 3(1), 3(2)(c) and 5(1) of the Equal Status Act, 2000 in being refused service in Ryan's Bar and Restaurant on 21 February 2003.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to
demonstrate that a prima facie case of discrimination exists, must establish facts from which discrimination could be inferred. If established, the burden of proof then shifts to the
respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has beenestablished by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Existence of a discriminatory ground (e.g. the family status ground)
(b) Establishment of facts to show that specific treatment occurred
(c) Evidence that the treatment received by the complainant was less favourable than the
treatment someone, not covered by that ground, would have received in similar
If and when those elements are established, the burden of proof shifts, meaning that the
difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground.
7.2 With regard to (a) above, the complainants have satisfied me that they had a child in
their company on 21 February 2003. In relation to (b), the respondents acknowledge that the complainants were refused service because of the child's presence. To determine whether a prima facie case exists, I must, therefore, decide whether or not I consider that the complainants were covered by the family status ground on 21 February 2003 and, if so,
whether I consider that the treatment they received was less favourable than the treatment
someone not covered by that ground would have received, in similar circumstances.
7.3 Complaints on the family status ground, similar to the ones under consideration, have
been heard previously by the Equality Tribunal in Travers & Maunsell v The Ball Alley
House (DEC-S2003-109/110)and in Shanahan V One Pico Restaurant (DEC-S2003-056)
where the question as to whether the alleged discrimination was direct or indirect was also
deliberated upon. In both cases, parents were refused service while they had a child in their company and in both cases the respective Equality Officers, having found that the parents were covered by the family status ground, also found that direct discrimination had occurred. I consider that the circumstances of the complaint now under consideration are similar to the above cases and, therefore, I am also satisfied that the complaint in this instance is also one of direct discrimination.
7.4 The two cases referred to above, together with two further cases, Maughan v The
Glimmer Man (DEC-S2001-020) and Curtis & Lotamore v the Barn Restaurant
(DEC-S2003-154) all dealt with situations where parents were refused service because they were in the company of a child. In all four cases, the respective Equality Officers found that discrimination on the family status ground had occurred. I consider that the case before me involves a similar set of circumstances and outcome, and for this reason, I am satisfied that the treatment afforded Sarah Jane Kelly and Ben Gilroy on 21 February 2003 also constituted discrimination on the family status ground.
7.5 Accordingly, I find that the complainants were directly discriminated against on the
family status ground contrary to the provisions of the Equal Status Act 2000 in being refused service in Ryan's Bar and Restaurant on 21 February 2003.
8.1 I find that the complainants have established a prima facie case of discrimination on
the family status ground in terms of sections 3(1), 3(2)(c) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act. I also find that the respondents have failed to rebut the allegation.
8.2 Since this incident occurred, new legislation has been enacted (the Intoxicating
Liquor Act 2003) which grants licensees more discretion as to when children may or may not be permitted onto their premises. Under Section 25 of the Intoxicating Liquor Act 2003, a new section 15(3) has been added to the Equal Status Act 2000 which provides that a licensee's decision not to permit an under-15 accompanied by parent or guardian to be in the bar at any time shall not in itself constitute discrimination. The case before me, however, deals with an incident which occurred prior to the new legislation being enacted and, therefore, my decision must have regard to the laws that were in force at the time of the incident. I, therefore, find that, on 21 February 2003, the respondents acted in breach of the Equal Status Act 2000 in refusing service to the complainants and that their actions constituted discrimination on the family status ground.
8.3 In their defence, the respondents have made the point that they have being practising
the same policy with regard to children for almost 40 years and that they were unaware in
February 2003 that their policy may be in conflict with the provisions of the Equal Status Act 2000. In this regard, I note that, while the complainants may have made the point to the barman on 21 February 2003 that he was acting illegally, they have stated that they were unaware at the time of precisely what legislation was involved and, therefore, were unable to convey this information to the barman on the night. In light of this, and the fact that three of the four decisions referred to above had not yet been published in February 2003, I am prepared to accept that the respondent was unaware of the implications of the Equal Status Act 2000 at the time and that he did not intentionally discriminate against the complainants on 21 February 2003 For this reason, I consider that a low level of compensation is appropriate in this case and I order that the respondent pay each complainant the sum of €150 for the inconvenience and loss of amenity suffered on 21 February 2003.
17 December 2004