Kenneth James V Stanalees Services Ltd., t/a The Traders Pub, Dublin
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Family Status ground, Section 3(2)(c) - Disposal of goods and supply of services, Section 5(1) - Refusal of service - Certain matters or activities not prohibited, Section 14 - Prima facie case.
1.1 This dispute concerns a claim by Mr. Kenneth James that on 16 June, 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 admission to the respondent premises on
the afternoon of 16 June 2002 because he was accompanied by his children. He was told that children were not allowed into the premises for safety reasons while an international soccer match, featuring the Irish national team, was being shown,. However, a number of other customers who were accompanied by their children were on the premises at the time and were being served.
3. Summary of Respondent's Case
3.1 The respondent states that children were not allowed on the premises on the date in
question for safety reasons. Some older, teenage, children were permitted on the premises in the course of the day because the risk of accident to these children was substantially less. The decision not to allow young children on the premises on the day in question was taken in light of experience in the course of an earlier screening of an international match, when young children were in danger of being hurt or crushed.
4.1 On 16 June 2002 the complainant attended at the respondent premises at circa midday along with two friends of his and their children. The respondent staff stopped them from entering stating that no children were allowed on the premises that day for safety reasons because an international soccer match featuring the Irish national team was being screened in the premises. The complainant and his friends accepted this and the friends left with their children to see the match elsewhere.
4.2 The complainant entered the premises. Within an hour of arriving in the pub the
complainant saw children enter the pub with their parents. He was horrified to see lots of
children arrive into the premises in the course of the afternoon as his two friends who had
been refused admission had travelled from Naas and from Portarlington respectively and had been refused entry with their children. In light of the presence of children in the pub, at
around 4-4.30 p.m. the complainant left the pub to collect his own two children from their
Grandmother's house nearby. When the complainant arrived back at the premises a short
while later the barman walked out from behind the bar, approached the complainant and
refused him entry because he had his children with him. The complainant felt that he and his children were being discriminated against because there were lots of other children on the premises and their parents were being served.
4.3 The complainant had been a regular customer in the respondent premises for years
prior to this incident and was very embarrassed when the barman approached him in front of everyone. Notices stating "no children allowed" were displayed on the walls of the pub on the date in question. The complainant accepts that he responded to the refusal of service inappropriately and called the barman names, for which he has since apologised. He called in to the premises in the days following the incident and apologised for his behaviour. The assistant manager had told him that he had reviewed video footage of the incident and would not accept the apology as the complainant had behaved in an unacceptable manner following the refusal to admit him. The complainant pointed out that the video footage would clearly show other children on the premises. The respondent indicated that the video tape in question had been recorded over and was not available as evidence.
4.4 Witnesses on behalf of the complainant confirmed that a number of children were on
the premises on the date in question. One lady who was seated immediately behind them had a very young child, approximately four years old, seated on her lap throughout the day. This lady was seated immediately inside the door and was not approached at any time by the staff in the premises. A number of children were also seated directly in front of the screen on which the match was being shown. The witnesses estimate the ages of these children as being twelve years old and less. In their opinion some of the children looked much younger than twelve years old. The witnesses stated that the ages of the children was not the issue. The complainant had been told that no children would be allowed in, not that some would be allowed in. The signs displayed in the premises made no allowance for age or other factors in relation to the admission of children. Neither witness has returned to the premises since the incident because of the manner in which the complainant and his children were treated.
4.5 The complainant had attended at the pub on the Thursday preceding the date of
refusal. There were no signs displayed in the premises indicating that children would not be admitted to the premises on the day of the match screening nor had any member of staff brought the matter to his attention at that time.
4.6 The respondent indicated that in the course of an earlier screening of an international
soccer match on 11 June, 2002 (also featuring the Irish national soccer team) the premises was extremely crowded to the extent that staff had to be physically led through the crowds of customers in order to prevent the trays and drinks which they were carrying from being toppled over by enthusiastic supporters who were jumping up and down in the course of the match. On foot of this experience senior management in the respondent premises decided that children would not be admitted for the next match screening on 16 June, 2002. As most of the regular clientele are known to the staff of the premises they were told by the staff in the days leading up to the second screening that children would not be admitted on the day of the screening.
4.7 Refusals in the premises, which rarely occur, normally occur in situations in which
customers constitute a danger to themselves or others, when for instance they have excess
alcohol consumed. The barring of a customer normally occurs in situations where the
customer has insulted staff e.g one customer head-butted a barman and was barred as a
consequence. Another customer who had had too much to drink put a concrete block through the windscreen of a staff member's car and was subsequently barred. The complainant was barred not just because of the manner in which he had spoken to the barman, but also because the lady who was seated behind the complainant, who had the young child on her lap, had made a complaint against the complainant to the effect that he had referred to her in the course of his discussion with the barman. The latter confirmed that the complainant had referred to the woman and the fact that she had a child with her but had made no other reference to the lady in question.
4.8 Children aged twelve years and upwards were admitted to the premises because it had been decided that they required less adult supervision. The assistant manager stated that he had been walking around the perimeter of the premises all day and that no child under the age of twelve had been admitted. When the complainant pointed out that there was a lady seated behind him with a young child, she had been asked to leave. The assistant manager was also responsible for the display of signs on the day which stated that "in the interest of the safety of all patrons it would be best if children did not attend the next World Cup match". The signs in question had been disposed of some time ago and were not available to be presented in evidence.
4.9 The normal policy in the premises with regard to the presence of children is that
parents are expected to supervise the children, regardless of age, at all times, even when the children are going to use the toilets. If any difficulties are encountered, e.g. children moving about unsupervised, a general announcement is made over the p.a. system asking the parents to supervise the children. If the request is ignored then further service is refused to the parents/adults responsible for the children in question. The respondent stated that the complainant had been asked to get his children to sit down in the past. The complainant accepted that this was the policy, and that on one or two occasions in the past he had been asked by staff to get his children to sit down, but pointed out that children must move about at times to e.g. go to the bathroom.
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 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, 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 children on the date in
question. This fulfils (a) at 5.1 above. Both parties agree that the complainant was refused
admission 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 admission not simply because of his family status as a parent, but specifically because he had his children present with him. I am satisfied that the definition of family status under section 2(1) of the Equal Status Act 2000 includes situations whereby those with family status have immediate physical responsibility for persons who have not attained the age of 18 years. The respondent confirmed at the Hearing of this matter that any adult person attending at the premises unaccompanied by a child/children was admitted to the premises. The complainant was therefore treated less favourably than persons unaccompanied by a child/children and this 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 It is not the policy of the respondent premises to exclude children. Ordinarily children
are admitted when supervised by an adult. 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. Furthermore, on the day in question older children were permitted entry to the premises because they did not require the same level of supervision and did not pose the same risks as younger children.
7.2 The respondent's actions are covered by Section 14 of the Equal Status Act 2000 on
the basis that children were excluded on the date in question on health and safety grounds,
specifically in accordance with Section 6 and Section 7(i) of the Safety, Health and Welfare at Work Act 1989. The respondent also owes a duty of care to the children themselves and to other patrons, in accordance with the terms of the Occupiers Liability Act 1995. The respondent also wished to rely on the findings of the Equality Officers in DEC-S2001--20, Maughan v The Glimmerman, (para 7.8, last sentence) and DEC-S2003-109-110, Travers & Maunsell v The Ball Alley House.
8 Conclusions of the Equality Officer
Section 14 Equal Status Act 2000
8.1 Section 14 of the Equal Status Act 2000 states that "nothing in this Act shall be
construed as prohibiting -
(a) the taking of any action that is required by or under -
(i) any enactment or order of a court
(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation on the State.
The respondent states that Section 14 (a) (i) allows the exclusion of children from the
respondent premises on the date in question in that Sections 6 and 7(1) of the Safety Health and Welfare at Work Act 1989 and the terms of the Occupiers Liability Act 1995 apply.
8.2 Screenings of soccer matches are quite commonplace and are generally strongly
advertised in order to attract customers to the premises in question. Such is the success of
these screenings that premises are generally so crowded that all patrons have difficulty in
comfortably sitting or standing through the screening, and would in general have great
difficulty in moving about the premises. The evidence in this case clearly indicates that this
was the situation in the respondent premises on the date in question and on the date of the
earlier screening. On this basis I do not accept the respondent's argument that young children were refused entry on health and safety grounds in accordance with Sections 6 and 7(1) of the Safety Health and Welfare at Work Act 1989.
8.3 To look at it another way, the respondent states that he excluded children from the
premises for (i) their own safety (ii) the safety of other patrons and/or staff. This implies that
the children's presence on the date in question, and on the date of the earlier screening, posed the primary risk to their own safety and to the safety of other patrons. No credible evidence was presented to support this argument. While it is clearly reasonable that the exclusion of the children on the date in question would have prevented the risk of their being crushed, I am satisfied that the same risk was not eliminated for other patrons and/or staff by the absence of the children. Furthermore such a risk should not arise in the first place if one is diligent about health and safety requirements. Effectively the only thing achieved by the exclusion of the children was the elimination of the respondent's liability for their safety while on the premises. This could not have arisen as an issue in the first place if the respondent had correctly controlled the number of patrons present on the premises. The exclusion of children from the premises did nothing to lessen the risks posed to other patrons or staff by overcrowding. This latter, which was a consequence of the respondent's own actions, defeats the respondent's arguments that children were excluded for health and safety reasons and raises more questions than it answers as to whether the respondent complied with the referenced Sections of the Safety, Health and Welfare at Work Act 1989. In particular, while it is clear that the respondent could reasonably foresee certain dangers/risks posed by the presence on the premises of large crowds on foot of the earlier screening, it is unclear why no direct action was taken to counter those dangers/risks.
8.4 With regard to the respondent's reference to the Occupiers Liability Act 1995, the
terms of the Act impose a duty of care on occupiers, in relation to their premises, with regard to "dangers existing thereon". "Dangers" is defined in the Act as relating to the state of the premises and "existing thereon" implies a state of permanence or continuity in relation to the danger posed e.g. fixtures, fittings etc I am satisfied that children are in fact "entrants" within the terms of the Act. The occupier's duty of care extends to them while on his/her premises. No evidence was provided to demonstrate how the state of the respondent premises is relevant in this matter.
8.5 The policy as stated by the respondent that children would not be admitted on the date
in question may have been introduced with the genuine objective of avoiding the risk of
crushing posed by the unusually high number of patrons present, but " it was not consistently applied in practice, and thus no defence" (Judge O'Leary, CC, Kerry, Kiely v O'Donoghue's Bar, 2003). While I accept that older children may not require the same level of supervision, it has been indicated by both parties to this complaint that the signs posted in the premises for the occasion stated that "children" would not be admitted. No exceptions were indicated. Evidence was also presented, and accepted by the respondent, to the effect that a woman seated immediately behind the complainant and his companions in the respondent premises had a young child, aged approximately four years, seated on her lap throughout the screening of the soccer match. The child in question was younger than the complainant's two children who were aged eight and nine years respectively at the time. The respondent cannot seek to establish a defence on the basis of the various pieces of legislation quoted when he did not apply policy consistently. Furthermore, the health and safety of older children and the adults present in the premises is no less important than that of the younger children who were excluded from the premises. I note that the complainant was refused entry with his children at a time when the screening of the soccer match in question was concluded and the crowd had dispersed to some degree. While it is not the role of the Tribunal to interpret the provisions of the legislation quoted by the respondent, it is required of the Tribunal to determine whether such legislation comes within the terms of Section 14 of the Equal Status Act 2000, in order to determine whether the respondent has taken any action that is required by or under that legislation and thus has a defence in accordance with Section 14. I am not satisfied that the respondent has demonstrated that the action taken, i.e the exclusion of children from the premises on the date in question, is required by or under the legislation quoted. I am not therefore satisfied that the respondent has a defence under Section 14 of the Equal Status Act 2000.
8.6 Other issues
In short, the respondent actively created a situation whereby his premises attracted crowds of patrons such that staff, according to the respondent's own evidence, had to be physically led through crowds of customers to ensure that trays which they were carrying were not knocked over when enthusiastic fans, not children, spontaneously jumped up to cheer in the course of the match being screened. The respondent's only response to this situation was to exclude children from the premises and thereby also exclude those persons who were accompanying the children. Patrons who were not accompanied by children were admitted, despite the continuing dangers posed by overcrowding. No evidence was presented by the respondent to show what objective assessment of the risk of overcrowding and its attendant dangers had been carried out. Specifically, no evidence was presented to show what objective criteria had been taken into consideration in arriving at the decision to exclude only children from the premises, thereby excluding those adults in their company.
8.7 The manager of the respondent premises stated that the complainant was ultimately
barred from the premises not simply for his unacceptable behaviour following the request for him to leave the premises. He was barred specifically as a result of a complaint received by the manager from the customer who had her child with her. The woman in question complained that the complainant "referred to her in the course of his conversation with staff". The reason the complainant was involved in conversation with staff was because he was lawfully opposing what he regarded as an act of unlawful discrimination under the Act and he was simply citing the case of the woman with the child to support his argument. He was entirely entitled to do so. The respondent accepts that the complainant did not address the woman in question directly and was not insulting to or about the woman but merely referred to her in the course of the discussion between the complainant and the bar staff.
8.8 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.
8.9 The Decisions of the Tribunal quoted by the respondent both indicate that the Equality
Officers did not accept the imposition of blanket bans on children under the age of eighteen years from licensed premises, but they did accept that there might be occasions on which defences under the Equal Status Act 2000 could successfully be invoked in relation to the banning of children. I am satisfied that the Equality Officers had primarily in mind situations arising such that the supervising adult in the company of children acted irresponsibly or allowed the children to act irresponsibly to the extent that the licensee in question could quite reasonably exclude or remove them from his/her premises, neither of which was the situation in the instant case.
8.9 In September 2003 new provisions were introduced to the Equal Status Act 2000 by
the Intoxicating Liquor Act 2003. The new provisions allow publicans discretion to exclude
children at any time of day with effect from September 2003. However, the incident which is the subject of the complaint at hand occurred before the introduction of these provisions and must, therefore, be decided on the law as it applied at the time. In this regard Section 34(2) of the Intoxicating Liquor Act, 1988 stated that "it shall not be unlawful for the holder of a licence of any licensed premises to allow a child to be in the bar of his licensed premises at any time (other than a time during which the sale of intoxicating liquor is prohibited under the Act) if such child is accompanied by his parent or guardian"
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. The complainant's actions in referring to the woman who was present in the premises with her young child were in accordance with Section 3(2)(j)(iv) of the Equal Status Act 2004. (see para. 8.6 above). As the barring of the complainant resulted directly from this, according to the manager of the premises, the complainant was also discriminated against on the victimisation ground.
9.1 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."
9.2 Under Section 27 (1) (a) I hereby order that €500 and €1000 be paid to Kenneth
James, complainant, by the respondent for the effects of the discrimination and victimisation respectively.
22 December, 2004