Michael McDonagh & OrsV The Licensee, The Foxhunter Pub, Dublin
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of service in a pub - Prima facie case.
The complainants each 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 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.
1 Summary of Complainant’s Case.
1.1 The four complainants, along with two companions, attended at the respondent premises on Mother’s Day, 10 March, 2002 with the intention of having a meal. The mother of one of the complainants had very recently passed away and the group was subdued and not particularly in the mood to celebrate the day. They had gone out in order to cheer up one of the complainants who was due to go into hospital for surgery. The group ordered drinks and were in the course of being served when Mr. Declan Towey, Manager, stated that they could not be served and asked them to leave, stating that the refusal was in accordance with Section 15(2) of the Equal Status Act.
2. Summary of Respondent’s Case
2.1 Mr. Declan Towey denies that discrimination occurred and stated that his attention was drawn to the complainants as they entered the premises because they were loud and boisterous and that he felt that they had drink taken. He informed the complainants of this and stated that he was refusing them in accordance with Section 15(2) of the Equal Status Act.
3 Prima Facie Case
3.1 I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A(1) of the Equal Status Act 2000 (as amended by the Equality Act 2004) states that
“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the contrary”.1
Section 38A(2) states that
“This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person”.
4. Prima Facie Case – Complainants
4.1 The relevant evidence before me is:
§ The complainants, all of whom are members of the Traveller community, state that they had no drink taken when they attended at the respondent premises on the date in question.
§ The complainants state it was Mother’s Day and that their mood was subdued because of the very recent death of the mother of one of them and the impending surgery which one of them, who is herself a mother, was to undergo in the near future.
§ The complainants state that they had already ordered drinks and that some drinks had already been placed on the bar counter when Mr. Declan Towey, bar manager, approached them and stated that they could not be served.
§ The bar manager who refused service initially stated that his attention was drawn to the complainants as they headed to the bar because they were “loud”. It was subsequently established in oral evidence that he was not in a position to witness the complainant’s arrival in the premises. It was also established in oral evidence that the premises were so busy that it was necessary to shout to be heard, and that bar manager accepts that the complainants had to shout to be heard at the bar.
§ The complainants state that the bar manager who refused service did not tell them that he felt they had drink take. His only remark was that they were being refused in accordance with Section 15(2) of the Equal Status Act.
§ The respondent stated in written submissions that it is a house rule that groups of five or more who are not regulars or known to bar staff may be refused service and that such groups of five or more may be required without explanation to leave the premises. In oral evidence it was established that this rule was primarily introduced to prevent disorder at e.g stag parties but had not in fact ever been enforced and was not particularly relevant in the instant cases.
4.2 I find the complainant’s account the more compelling and I am satisfied that they were not behaving in a manner such as warranted a refusal of service. I am satisfied that the complainants have established facts from which it can be presumed that prohibited conduct has occurred in relation to them and that it is for the respondent to prove the contrary.
5 Respondent’s Rebuttal
5.1 Mr. Declan Towey, bar manager, stated that he was serving in another section of the bar when his attention was drawn to the complainants because they were very loud. He stated that there was no question of the complainants having been already served and that he, based on 25 years of experience in the bar trade, quickly reached the conclusion that the complainant’s group already had drink taken and that to serve them further could place them and other customers at risk.
5.2 At the time of the refusal signs were posted in the bar with regard to the provisions of Section 15(2) of the Equal Status Act. The respondent has ensured that all staff are trained in relation to good customer service and also the terms of equality legislation. A number of house rules have been formulated and are displayed on the premises indicating e.g. when customers will not be served and the type of behaviour expected of staff and customers.
5.3 The refusal of service to the complainants was in accordance with Section 15(2) of the Equal Status Act 2000.
6 Conclusions of the Equality Officer
6.1 The respondent states that the complainants were not served prior to the intervention of Mr. Declan Towey, who refused service, but rather that Mr. Towey refused service outright on foot of his conclusion that the complainants had drink taken. Mr. Towey based his conclusion on the sole fact that the complainants were “loud” and “boisterous” but he also accepts that the premises were extremely busy that day and that it was necessary for the complainants to shout to be heard over the noise of other customers. The complainants vehemently reject the assertion that they were loud or boisterous stating that they were subdued on foot of the very recent bereavement and the forthcoming surgery which one of them had to undergo.
6.2 Mr. Towey stated to the complainants that the refusal was in accordance with Section 15 (2) of the Equal Status Act 2000. The Section quoted does not provide for the refusal of service to any person but rather, provides that where a refusal of service by a licensee is made in good faith and is for the sole purpose of complying with licensing legislation then the refusal will not constitute discrimination. As the equality legislation, and not the licensing legislation, was uppermost in the mind of Mr. Towey in refusing service to the complainants , I am satisfied that the refusal was not for the sole purpose of complying with licensing legislation. Accordingly the respondent cannot avail of the defence afforded by the terms of Section 15 (2). Notwithstanding this Mr. Towey gave no evidence to indicate whether the complainants were being refused in accordance with the provisions of the Licensing legislation and if so, the precise provisions of that legislation which he felt applied.
6.3 Mr. Towey, in evidence, submitted a sign which had been posted in the premises at the time of the refusal. The sign refers to Section 15(2) of the Equal Status Act 2000 and states that “persons may be refused service……… unless they can produce valid proof of age”. The sign is not relevant to the instant complaints.
6.4 The complainants stated that the barman had already taken orders for their drinks when Mr. Towey appeared and that one of the drinks which had been ordered was on the bar counter. The complainants state that Mr. Towey removed the drink and questioned each of the complainants about what they had ordered. Mr. Towey then stated that they could not be served. I found the evidence provided by the complainants more compelling in this regard.
6.5 Mr. Towey stated that he was satisfied that the complainants had drink taken because they were loud and boisterous. In circumstances such as those described at 6.1 above ( noise levels in the premises high such that it was necessary to shout to be heard) I am not satisfied that the complainants were acting in a manner such that Mr. Towey could reach such a conclusion based solely on loudness. The complainants stated that they had no drink whatsoever taken and requested the presence of a Garda when refused.
6.6 I note that Mr. Towey stated that he was “surrounded” by the complainants after he refused service and that he was verbally abused by them. The complainants deny that they were abusive to Mr. Towey but state that they were upset and embarrassed when refused and were seeking a reason for the refusal. While I do not condone behaviour such as that described by Mr. Towey, the fact remains that such behaviour, if it occurred, was after the refusal of service and was not therefore part of the reason for the refusal.
6.7 I note the efforts made by the respondent to train staff on a range of issues including the terms of equality legislation. I note further that Mr. Declan Towey apologised to the complainants for any offense inadvertently caused to them by the refusal of service, particularly in light of the recent bereavement which Mr. Towey was not aware of at the time.
6.8 Taking the totality of the evidence into consideration I am satisfied, on balance, that the complainants have established a prima facie case of discrimination on the Traveller community ground which the respondent has failed to rebut.
7.1 I find that the complainants have established a prima facie case of discrimination on the Traveller community ground which the respondent has failed to rebut. I find therefore that the complainants were discriminated against on the Traveller community ground contrary to Section 3(1) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act.
8. Vicarious Liability
Section 42(1) of the Equal Status Act, 2000 provides that:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”.
While Mr. Declan Towey directly refused service to the complainants I am satisfied that he did so in the course of his duties, and that his employer, the Licensee of the Foxhunter is vicariously liable for Mr. Declan Towey’s actions in refusing service to the complainants.
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 be paid to each of the complainants by the respondent for the effects of the discrimination. In making this award I have taken into consideration the efforts made by the respondent as indicated at 6.7 above as mitigating factors with regard to the effects of the discrimination.
17 October, 2005
1See also Igen Ltd. V Kay Wong and Chamberlin Soliictors v Ms. I Emokpae and Brunal University v Ms. Gurdish Webster (Equal Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission – interveners), ref EWCA Civ 142  Cases No: A2/2004/1141, A2/2004/1397, A2/2004/2758.