Agnes Barry (represented by Florence G. MacCarthy & Associates, Solicitors) V Richardson's Pub (represented by Michael McDarby & Co., Solicitors)
1.1 This dispute concerns a complaint by Agnes Barry that she was discriminated against, contrary to the Equal Status Act 2000, by Richardson's Pub, Eyre Square, Galway. The complainant maintains that she was discriminated against on the family status ground in terms of sections 3(1) and 3(2)(c) of the Equal Status Act 2000 in not being provided with
service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Agnes Barry that she sought admission to Richardson's Pub at lunch time on St Patrick's Day 2002 but was told by the doorman that he could not allow her to bring her baby and buggy inside.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against families. They maintain that the complainant was not allowed in as the pub was full and that, in their opinion, it was not a safe environment for a baby.
4 Delegation under the Equal Status Act, 2000
4.1 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 the complaint 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 Matters for Consideration
5.1 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 complainant claims that she was discriminated against on the grounds of her family status contrary to Sections 3(1), 3(2)(c) and 5(1) of the Equal Status Act, 2000 in not being admitted to Richardson's Pub on 17 March 2001.
5.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his or her actions were driven by factors which were non-discriminatory.
5.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub
6 Conclusions of the Equality Officer
6.1 Prima facie case
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) Membership of a discriminatory ground (e.g. the Family status ground)
(b) Evidence of specific treatment by the respondent
(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 circumstances.
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.
6.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
6.3 With regard to (a) above, the complainant has satisfied me that she had a baby with her on the day in question. In relation to (b), the respondents accept that the complainant was refused admission to the Pub on 17 March 2002. To determine whether a prima facie case exists on the family status ground, I must, therefore, consider whether the treatment afforded the complainant on 17 March 2002 was less favourable than the treatment someone without a child would have received, in similar circumstances.
6.4 In deliberating on the case, I consider the following to be the principal pieces of evidence put before me:
- Agnes Barry and her partner Denis Ward were regular visitors to Richardson's Pub prior to 17 March 2002. They had often seen children and buggies in the pub
- Richardsons Pub is situated in Eyre Square and is very popular with parade-goers on St Patrick's Day because of its location.
- The pub considers itself a family friendly pub and often has many children on its
premises during the day-time
- The pub has a capacity of 100 and fills up quickly on busy days
- Doormen have been instructed to turn away customers when the premises are quite full and have regularly turned away groups for this reason
- The pub has, on occasion, turned away wheelchair users when the pub was full,
explaining to them that there was no room inside to accommodate them
- On 17 March 2002, the pub opened around 12.30 pm and immediately had an influx from those watching the parade outside the pub
- Agnes Barry and Denis Ward had arranged to meet some family members (including Ms Kathleen Ward) in Richardsons on St Patrick's Day at 1 pm.
- Agnes Barry and Denis Ward approached the door together and Denis Ward entered ahead of Ms Barry. He said that when he went in, he saw his brother at the bar and went over to him. The pub was busy but not full.
- Ms Barry was behind Mr Ward and while she was negotiating the steps with the buggy she said that a doorman said to her "You are not coming in here with that"
- She said that she explained that her family and friends were already inside and offered to fold up the buggy. The doorman again repeated that she was "not getting in"
- When Mr Ward noticed that Ms Barry had not followed him in, he went outside again and he said the doorman told him that Ms Barry was " not getting in with that buggy"
- Mr Ward informed the doorman that he had seen children inside already but the doorman would not relent. Eventually the doorman became abusive and told them to find another pub.
- When they asked for the manager, the complainant said that the doorman told them that he was "not on the premises"
- Ms Kathleen Ward gave evidence that she had been waiting inside Richardsons with her husband and children. While the pub was busy, it was not packed. She recalls seeing other children in the pub and also a child in a buggy. They had a table to themselves and there was room for Ms Barry, Mr Ward and the baby.
- When she saw Mr Ward going back outside the pub, she followed him to see what the problem was. As she was friendly with the doorstaff, she explained that she had seats for the couple and offered to hold the baby on her lap. The doorman said "no" and told her that the baby had already been refused with its mother.
- While they waited outside, at least three other adults were admitted. Shortly afterwards, a another lady approached the pub with a child in a buggy and was assisted into the pub by the doorman.
- Ms Barry said that the incident "destroyed her day" and that she was very upset
particularly as it was a very cold day, she was pregnant at the time and she could see that her baby needed to be in out of the cold
- The manager, Fergus McGinn, gave evidence that the pub quickly filled up on 17 March 2002 and that within 20 minutes a number of children were already "hyper" inside.
- Mr McGinn said that he thought that the situation was "dangerous" and said that he had to speak to several parents including the complainant's relative Kathleen Ward. He then instructed the doorstaff to "limit the numbers".
- He says that he recalls seeing Mr Greally being involved in a "confrontation" at the front door and asking Mr Greally later what the "commotion" was
- Ms Gemma Breathnach gave evidence at the Hearing that she was the woman who was seen being admitted to the pub by the complainant that morning. She explained that she was a relative of Mr McGinn's and that she only wanted to go upstairs to view the parade with her child and that, at no time, did she actually enter the bar area.
- Mr Keith Greally said that he was one of the doormen on duty on 17 March 2002. After the pub had been open 20 minutes, Mr McGinn came to him and told him to "keep an eye on numbers" as the place was very full.
- When Ms Barry arrived with her buggy, he said that he saw that the child was very young and, as the manager had said that the pub was packed, he was concerned about the child's safety. He said that he explained this to Ms Barry and told her that he could not let her in.
- He said that he does not recall anyone offering to hold the baby in their arms or asking for the manager. He said that there was "nothing much in the conversation", that everyone was "very civil" and that the situation passed off peacefully
6.6 On the basis of the evidence before me, it is clear that Fergus McGinn does not normally treat parents with children less favourably than others. However, from the testimony provided at the Hearing, I consider that St Patricks Day 2002 was an exception as it is clear from Mr McGinn's remarks that children had already begun to cause problems for him within a half hour of the pub opening. For this reason, I have difficulty in accepting that Mr McGinn did not give instructions to doorstaff with regard to children when he told them to "limit numbers".
6.7 I also have difficulty in accepting the evidence provided by Mr Greally that no one asked for the manager, that no one offered to hold the baby in their arms and that everyone was "very civil" when entry was being refused. Indeed this last point, in particular, is called into question by the publican himself who recalls seeing Mr Greally involved in a
"confrontation" at the front door.
6.8 Having deliberated on all the evidence before me, I consider, on the balance of probabilities, that children were causing a problem for Mr McGinn on 17 March 2002 and that, shortly after the pub had opened, he made a conscious decision to restrict further access to children and conveyed this instruction to the doorstaff.
6.9 While I accept that Mr McGinn's decision may have been taken for safety reasons and that he had justifiable concerns about customers' safety, what I cannot accept is the manner in which his decision was implemented by the doorman. Having considered the complainant's evidence, I am satisfied, on the balance of probabilities, that a genuine offer was made to fold up the buggy and for the baby to be held by an adult while in the pub. I am also satisfied that, in making this offer, the complainant was acknowledging the concerns of the publican and putting forward a reasonable solution to the publican's perceived problem. However, instead of agreeing to or even considering this offer, it would appear from the evidence before me, that Mr Greally adopted a totally inflexible attitude towards Ms Barry and her child and that he dealt with her in a very abrupt manner. It is at that point that I consider Ms Barry was treated less favourably than a person, who was not accompanied by a child, would have been treated. If Mr Greally had shown some understanding of Ms Barry's position, had taken the time to explain the pub's safety concerns to her and had explored the options available to her, I consider that this would have been a reasonable approach to have taken and would probably not have led to an accusation of discrimination. The evidence before me suggests that this did not happen, however, and I consider that the treatment afforded Ms Barry and her child was unreasonable in the circumstances and that it constituted discrimination on the family status ground contrary to the provisions of the Equal Status Act 2000.
6.10 I, therefore, find that a prima facie case of discrimination on the family status ground has been established and that the respondents have failed to rebut the allegation. Accordingly, I find that the refusal on the pub's part to admit Ms Barry and her baby on St Patrick's Day 2002 constituted discrimination on the family status ground.
7.1 I find that a prima facie case of discrimination has been established by the complainant on the family status ground in terms of sections 3(1) and 3(2)(c) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
7.2 In considering the level of redress to award, I am cognisant of the fact, from the evidence before me, that the respondent does not normally engage in any form of discriminatory treatment against parents with children. Accordingly I consider that a heavy penalty is not warranted and I order that the respondent pay the complainant the sum of €800 for the hurt and humiliation suffered and that the complainant and her family be welcomed back to Richardson's Pub whenever they decide to visit the pub again.
12 February 2004