Frances Kenna (Represented by Dermot Lavery & Company Solicitors) V Mr. Ridley Nite Club (Represented by Lorna Lynch BL instructed by Ahern & McDonnell Solicitors
Delegation under the Equal Status Act, 2000
This complaint was 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 this complaint 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 Acts, 2000-2004. The hearing of the case took place in Dundalk on Monday 6th December 2004.
1.1 This dispute concerns a claim by Ms. Frances Kenna that she was discriminated against on the ground of her membership of the Traveller community when she was refused entry to Mr. Ridley Nite Club Dundalk on 17th March 2002. Ms. Kenna alleges that the treatment she received was contrary to Section 3 (2) (i) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public she was subjected to treatment contrary to Section 5(1) of the Act.
1.2 The respondent disputes the allegation of discrimination and submitted that while the staff on duty had little recall of the incident complained of, the night club does not discriminate against Travellers. In circumstances where a customer produces a valid ID the only reason for a refusal would be if the customer's behaviour warranted such a refusal.
2. Summary of the Complainant's case
2.1 The complainant said that on St Patrick's night 17th March 2002, she met up with a friend of hers to go to Mr. Ridley Nite Club in Dundalk. They met in the complainant's house and then left after 10 pm to into the town to the club. She said that she had never been in the club before. She was 21 years of age at the time. As they got to the door of the premises, the club was not yet open and there was a queue outside. She noticed two men at the door Mr. Bryan Oliver who she knew to see, as he was an acquaintance of her brother's and another man who she has since identified as Mr. Niall Sweeney. As she and her friend got near the door she was asked for ID but her friend was not. As she didn't have any ID with her, the complainant decided to phone her father who was at home and ask him to bring her Passport and Driving licence which she kept together in a folder, into her in the town.
2.2 Shortly afterwards her father arrived by car with the documents, gave them to her and went away. She returned to the night club entrance where she showed her passport and driving licence to the doormen. She said that Mr. Bryan Oliver looked at the ID. The door staff including Mr. Oliver took the documents aside and started to snigger. She was refused entry and was not given a reason for the refusal. She said that Mr. Oliver knows her family, although not herself personally, as he had been at school with her brother. Mr Oliver's father also repaired vans for her family.
2.3 When asked why she thought she was refused she said she believed it was because she was a Traveller. She said that although her father was not a Traveller, her mother was, and she and her siblings all regarded themselves a Travellers and had lived a Traveller lifestyle, travelling with relatives at various stages in their lives. She said she was from Dundalk and would be well known locally and known as a Traveller. She was involved with a Dundalk Travellers scheme and the Society of St Vincent de Paul Traveller's project.
2.4 She was asked if she had expressed annoyance when she was initially refused and said that she had not. She had merely contacted her father who had brought her ID to the club for her within 10 minutes. She accepted that there could be a variety of reasons for someone being refused but she had done nothing. She didn't see anyone else being refused and no ID was requested of her friend who was with her. She had concluded that she was refused because she was recognised as a Traveller.
2.5 The complainant's father and sister appeared as witnesses or the complainant. They said that both had gone into the town to bring the complainant her ID. Both confirmed also that the complainant considered herself a Traveller, as did all of the family except her father who came from a non-Traveller background. The complainant's father said that although he was not a traveller, his wife was and he had met her in Dundalk when he was posted there with the Defence Forces.
3. Summary of the Respondent's Case
3.1 The respondent Mr. Colm Kehoe, said that the club had been open under his management for 16 years. The premises operated as a bar, restaurant and night club. The overall capacity is 450 patrons. The nightclub was aimed at those aged over 21 and the clientele was 60% local. The respondent said he was not on the premises on the night of the incident complained of and does not know the complainant.
3.2 He said that he understood that Bryan Oliver, the manager, had done a number of courses in customer service including training in the provisions of the Equal Status Act.
3.3 Three members of staff of the club appeared as witnesses for the respondent. These are Messrs. Niall Sweeney, Bryan Oliver and James Connolly. All three said that they were working on the door of the club on the night of this incident.
3.4 Evidence of Niall Sweeney
- Mr. Sweeney said that he was working on the door of the night club. He said that he recalled asking the complainant for ID on the night of the incident. He said that not everyone is asked for ID. If people were known to the door staff ID would not be required. He said that once someone produces valid ID the only reason they would not be admitted is if they were aggressive or the tone of their voice was threatening. He said that he could not remember if the complainant had been aggressive but if she was refused, he assumed that that was the case.
- He was asked if it was unusual, where two people approached the club seeking entry that one would be allowed in while the other was not. He said it possibly could happen. In this case the manager, Bryan Oliver was there. The owner of the club intervened to say that if it was considered best to leave one person out they would do so.
- He said he had not received any official training in the Equal Status Act and he relied on his experience in relation to who should or should not be admitted. Mr. Sweeney said that he did not know the complainant or that she was a member of the Traveller community. He didn't know her as a customer of the club and he had not seen her there since this incident.
- When asked why, in his opinion, the complainant was refused he said that her ID was requested because she looked young. Something must have been said, but he could not recall.
3.5 Evidence of Bryan Oliver - Manager
- Mr Oliver said that he is the manager of Mr Ridley Nite club and that he was on duty on the night of 17th March 2002, the night of the alleged incident. He said he had no recollection of the event complained of. He did not remember Ms. Kenna, who he said he does not know, being there that night. He said that St. Patrick's night was a busy night in the club.
- Mr. Oliver was asked if he knew any of the Kenna family and he confirmed that he knew Ms. Kenna's brother. Mr Oliver confirmed that he was from the same housing estate as the Kenna family. He said he did not have any recollection of the complainant identifying herself to him.
- He said that checking for IDs was part of the door policy and that a strict door policy was enforced at the night club. He said that the night club was a successful operation. Mr. Oliver said that checking for ID was a useful tool in relation to assessing people. It gives the doorman time to make his mind up. He said that he attended monthly meetings of the VFI on behalf of the respondent and had attended a number of training courses organised by that body in relation to customer service. He said that this included training on the provisions of the Equal Status Act 2000. He said that in circumstances where a person who has been refused due to no ID, subsequently produces a valid ID, a refusal would only arise where the person seemed to have a point to prove; where they had a grudge or showed aggression. He denied that he engaged in sniggering or laughing that night. He said he regarded everyone as a potential customer.
- When it was put to Mr Oliver that the complainant produced her ID and there was no evidence of aggression and she did not get and explanation for her refusal, Mr. Oliver said that they don't get into specifics at the door. If customers wanted an explanation they could come back the next day for one and they would be told this.
- Mr. Oliver was asked if recognised Ms Kenna as a Traveller, particularly as he would have seen her name on the ID documents. He said he did not recognise her.
3.6 Evidence of James Connolly
- Mr. Connolly said that he was a member of the security staff at Mr. Ridley Nite club and that he was on duty on the night in question. He said he had no recollection of the incident. He agreed with earlier witnesses that there was a strict door policy enforced at the club. And that people who had too much drink or were too young would not be admitted. He said that the ID request gives time to make a decision regarding admission. He said that he had not received any training on the provisions of the Equal Status Act. Mr Connolly confirmed that although Garda ID was preferable, a passport or driving licence was accepted as valid ID at the club.
4. Conclusions of the Equality Officer
4.1 First, I must assess whether the complainant has succeeded in establishing a prima facie case. In order to do so the complainant must satisfy three criteria in relation to her complaint. She must (1) establish she is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the complainant actually occurred and (3) there must be evidence that the treatment received by the complainant was less favourable than the treatment someone who was not a member of the Traveller community would have received in similar circumstances.
4.2 In this case it is not disputed that the complainant is a member of the Traveller community thus satisfying the first of the criteria, outlined above. In relation to the second criterion, the one witness of the respondent who said he has a recollection of the event i.e., Mr Sweeney the respondent's witness confirms that Ms Kenna came to the door of the club that night and that she returned with valid ID and was refused. This concurs with the complainants claim that she was subjected to a refusal on the night in question and therefore I am satisfied that the second test has been met. The third criterion which must be met by the complainant in establishing a prima facie case is whether there is evidence that the treatment afforded to the complainant by the respondent was less favourable than that which would have been given to another person in similar circumstances, who was not a member of the Traveller community.
4.3 In this case I have considered the evidence of both parties in relation to this incident. The evidence points to the fact that the complainant did go to the night club and on an initial refusal due to lack of a valid ID, she returned thereafter with her passport and her driving licence, both of which are acceptable as ID to the respondent. On presentation of these documents she was again refused and in her opinion this was because she was recognised as a member of the Traveller community by the manager, who would know her family. The respondent's evidence in relation to this specific incident is scanty. Only Mr. Sweeney has acknowledged that he encountered the complainant at the door of the club that night although he says Mr. Oliver was there also. Although Mr. Sweeney said that he does not recall if the complainant said something inappropriate or had drink taken he has suggested this was the case if the complainant was refused entry.
4.4 Mr. Oliver, who accepts that he was on duty at the door that night, and who both Mr. Sweeney and the complainant confirm was there, has said that he cannot recall the incident. His evidence refers only to the general policy of the club in relation to admissions and does not cast any light on this incident. Mr. Connolly who also said he was there that night has said that he has no recollection of the complainant. It should be noted that the complainant does not have a recollection of Mr. Connolly being at the club either. And on this basis I conclude that he may have not been on the scene during the time Ms. Kenna was seeking entry to the night club.
4.5 I am conscious of the fact that the memory of events relating to this incident is considerably lacking on the part of the respondent's witnesses. However, the complainant notified the respondent of her complaint just a few weeks after the incident. On the basis of the evidence presented, I find that I have not been provided with any substantive evidence that the complainant behaved in any way that would give rise to a refusal on the part of the respondent. I conclude that the complainant has confirmed that she did provide valid ID at the door of the club and I conclude that the treatment she received was less favourable than that which would have been given to another person in similar circumstances who was not a member of the Traveller community. Therefore, the complainant has established a prima facie case of discrimination which the respondent has not rebutted.
4.6 I conclude that on the balance of probabilities she was recognised as a Traveller by the manager of the night club when she presented her ID and the manager noticed her name and where she was from. I also conclude that this was the reason underpinning the second refusal that night. I accept that there was a strict door policy in place at the club and the request for ID comprised part of this policy and that the initial request for ID and refusal was not discriminatory.
5. Decision and Redress
5.1 I am required to reach a decision as to whether on the balance of probabilities the treatment received by the complainant was discriminatory. On the basis of my conclusions above I find that the complainant was subjected to a discriminatory refusal by the manager. Under Section 42 of the Equal Status Acts 2000 an employer is vicariously liable for the actions of his employee. I therefore uphold the complaint and order that the respondent pays the complainant Frances Kenna €500 as redress for the effects of the discrimination including the loss of amenity suffered.
Mary O' Callaghan
21st December 2004