Mr. Liviu Axinte (represented by Blackwell & Co., Solicitors) V Q-Bar Dublin
Equal Status Acts 2000 to 2004 - Direct discrimination, section 3(2)(h) - race ground
- refusal of service - prima facie case - vicarious liability
1.1 This dispute concerns a claim by Mr. Liviu Axinte that on 27 May 2002 he was refused entry to the Q Bar and that this refusal was because of his race. The Equality Authority, at time acting on behalf of the claimant, referred a claim on 26 November 2002 to the Director of Equality Investigations (now the Director of the Equality Tribunal) under the Equal Status Act 2000. A hearing was held in the case on 16 November 2004.
2 Evidence which is not in dispute:
The allegation of discrimination centred on the claim that Mr. Axinte was refused entry to the Q-Bar on 27 May 2002 and further was told the next day that if he insisted on an apology he would be permanently barred. The following statements by the complainant were not disputed by the respondent:
- Mr. Axinte is a Romanian-born Irish citizen and was an Irish citizen at the time of the incident.
- He went to the Q-bar on the afternoon of Monday 27 May 2002 between 2pm
and 3pm, with a friend.
- He had been in the Q-bar previously on up to 5 occasions without difficulty
- On this occasion he was refused entry by the security guard
- He complained to the manager on duty that evening, 27th May
- The manager took the details and suggested Mr. Axinte call in the following
- Next morning Mr. Axinte called to meet the day manager on duty Mr. Ciaran Kelly who said he had the basic facts but was just waiting to discuss the matter with the security guard
- That evening Tuesday 28th, Mr. Kelly, the day manager, telephoned Mr. Axinte back.
Consequently the dispute centres around the reason for the refusal on Monday 27 May 2002. There is a further issue round the contents of the discussion between the
respondent's manager and the complainant during the phone conversation on the
evening of Tuesday 28th
3. Evidence which is in dispute:
3.1.Alleged discrimination: complainant's submission
3.1.1 The complainant stated that he had tried to enter the Q-bar in the early afternoon of 27 May. He had been there before during the day time without difficulty. On this occasion he was refused entry. The only difference he could see between the earlier times, when he was allowed to enter, and this particular time, when he was refused, was that on this occasion only he was heard by the security guard speaking with his friend in his own language (Romanian). In response to the respondent, he clarified that, although he was a Dublin Bus employee, he had been wearing blazer, shirt and trousers (not Dublin Bus uniform) and consequently did not contravene the dress code.
3.1.2 His account was supported by a witness, Mr. Ciprian Axinte (no relation), who had accompanied the complainant during the incident. He clarified that he was a chef, not a Dublin Bus employee. There was therefore no question of his wearing Dublin Bus uniform and thus contravening the dress code.
3.1.3 The complainant stated that, in the conversation on the evening of 28th May, the manager had told him that he was refused because the doorman had thought he wanted to use the toilet facilities. He further stated that on the evening of the 28th the manager had refused to apologise and had said that if an apology were given the complainant would be permanently barred from the premises.
3.1.4 The complainant stated that he had not been back to the Q-bar since.
3.2 Alleged discrimination: respondent's submission
3.2.1 The respondent's initial defence (in their response to notification) was that the
complainant had been refused because he wore Dublin Bus uniform: the respondent's
dress code was to refuse entry to persons wearing uniform.
3.2.2 At the hearing the respondent stated that they had mistaken the complainant and consequently were unable to rely on their previous submission that the complainant had been refused because he wore Dublin Bus uniform. They said that the complainant had referred to working for Dublin Bus during his first telephone call on the evening of the 27th and they had as a result confused this incident with another incident the same day involving a Dublin Bus driver in uniform. The respondent did not dispute the chain of events described by the complainant but was unable to comment as to why the complainant had been refused. They explained that they had not retained any video record of the evening. At the hearing they were not certain if they had retained the Q-bar's incident book or other log of the event and undertook to make a search and send it to me by 30 November. By letter of 7 December the respondents informed me that they had not retained the 2002 diary as this was used only for non-permanent notes such as messages.
3.3.3 The respondent did however deny categorically that they would have refused entry for discriminatory reasons. In particular they stated that the Q-bar relied heavily on business from non-nationals at lunchtime and would therefore not have a racially discriminatory policy. They cited the fact that the complainant had acknowledged that he had successfully used their service on up to 5 previous occasions. They provided a copy of their comprehensive equality policy which they stated was in place at the time of the alleged incident. They further stated that it was their understanding that the door staff (who were employed by sub-contractors) were trained in nondiscrimination issues by their sub-contracting employers.
4. Further issue: alleged refusal of apology on 28th May
4.1 The complainant indicated that he had been very happy with the way the duty manager talked to him on the evening of 27th May and also with the way that the day manager talked to him on the morning of 28th May. However he was not at all happy with the conversation when the respondent called him back on the evening of 28th May. He alleged that the manager Mr. Kelly had said to him that, while a mistake had been made, the management had the right to refuse admission and an apology could not be given - furthermore, if the complainant insisted on an apology, he would not be allowed into the premises again.
4.2 The respondent's manager Mr Kelly stated that he had called the complainant on 28th May to apologise. He stated that the complainant had insisted on an apology from the individual doorman and he had not given this as he felt it was exclusively a matter for him to apologise, as he represented management and management had exclusively the right to refuse admission. It became clear during the hearing that there was a difference of view between Mr. Kelly and the Director of the Q-bar; the latter conceded that, while unusual, it was certainly possible in principle for an individual member of staff to offer a personal apology.
4.3 On a number of occasions during the hearing the respondent expressed to the complainant apologies for the refusal.
5.1 I must first consider the evidential burden which a claimant must discharge before a prima facie case of discrimination on the race ground can be established.
5.2 On a number of occasions the Labour Court has considered the evidential burden which a claimant must discharge before a prima facie case of discrimination on any of the discriminatory grounds can be made out. Most recently the Court stated that "the test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed"1 While the statutory underpinning for this shift in the burden of proof exists only since the enactment of the Equality Act 2004 (18th July 2004), in equality cases before this Tribunal, on any of the prohibited grounds, it has been established for many years in the jurisprudence of the Tribunal that, where a claimant establishes facts from which it may be presumed that prohibited conduct has occurred, it is for the respondent to prove the contrary. The Tribunal has consistently applied this shift to cases on all grounds under both employment equality and equal status legislation.
5.3 In this case the claimant has stated, his witness has supported, and the respondent has not disputed, that:
a) he is of Romanian origin, thus establishing membership of a particular ground for discrimination, and
b) he was refused entry to the Q-bar, that he had at the time been compliant with the respondent's dress code and that, in contrast to previous times when he had not been
refused service, he had been speaking Romanian.
5.4 I consider therefore a prima facie case has been established and the burden now shifts to the respondent to prove the contrary.
5.5 The respondent was not able to give any other reason why the complainant had been refused entry. In particular, although the respondent was on notice of the possible complaint on the day of the incident and was formally notified within a month, the respondent:
- had not retained video evidence. While the manager had said at the time of the incident the video was available, it was not the respondent's practice to retain the video where the events were not in dispute.
- was unable to produce the log records and
- did not bring as a witness, or explain the absence of, the individual security guard who had refused entry.
5.6 In the absence of any evidence to the contrary, I consider that the complainant has established and the respondent has failed to rebut a prima facie case of discrimination on the race ground.
5.7 I further note that, while the respondent had in place a comprehensive equality policy, the respondent relied on the security sub-contractors to provide training and there was no evidence of procedures being in place to ensure that door persons were trained in equality issues. I refer to section 42(2) of the Equal Status Act which provides that anything done by a person as agent for another person, with the latter's authority, shall be treated for the purposes of the Act as done also by that other person. I conclude therefore that the respondent is vicariously liable for the refusal of service.
5.8 In relation to the subsequent telephone conversation on 28th May, I accept on the balance of probabilities that the respondent's manager genuinely if mistakenly believed that it was up to him as manager to apologise. I further consider on the balance of probabilities that the respondent's manager would not have adopted the 1 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003 rigid approach that offering an apology would have meant barring the complainant thereafter. I consider this to be a matter of misunderstanding rather than further evidence of discrimination.
6.1 Having found that the complainant has established a prima facie case which has not been rebutted by the respondent, I find that Mr. Axinte has been discriminated against contrary to the Equal Status Act 2000 on the ground of race by the refusal of service on 27th May 2002.
6.2 In relation to the appropriate remedy in this case, I consider that the complainant has not shown that the refusal of service was part of a general policy of discrimination on the grounds of race. I note also that the respondent gave a personal apology during the course of the hearing.
6.3 I therefore order that the sum of €150 be paid to the complainant as compensation for humiliation and breach of his statutory right not to suffer unlawful discrimination.
6.3 I further order that the respondent take steps to satisfy themselves that the door-staff have individually received training in avoiding discrimination, rather than relying on a third-party's general assurances that staff have been so trained.
Date: 9 December 2004