O'Driscoll's Public House, Wicklow
(Represented by Cullen, Tyrrell & O'Beirne, Solicitors)
1.1 This dispute concerns a claim by Ms. Noirin Callanan that on 14 July, 2002, she was denied a service in the respondent premises on family status grounds in that she was accompanied by her son. 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. Overview of complaint
2.1 The complainant, while awaiting the commencement of a firework display, went to the respondent premises in order that her son could avail of the toilet facilities. She chose the respondent premises because (i) she was anxious for her son's safety and did not wish to use the public toilet facilities and (ii) was aware that the respondent premises was a quiet, respectable and well run establishment. She ordered two cokes on entering the premises and was refused service by the barman because she was accompanied by her son. The complainant left the premises and was served in another premises which had an outdoor seating area.
2.2 The respondent states that he had no blanket ban on children in the premises in place at that time and that children, accompanied by their parents attended at the premises on a regular basis. However, this was the first time that the respondent had ever seen a child on the premises at that late hour. A week long festival was taking place in the locality at the time and he felt that in light of all the circumstances, with thousands of people milling around the seafront, adults only present on the premises drinking alcohol, and the fact that he was about to call last orders in the pub, it was inappropriate for the twelve year old to be present in the premises.
3. Matters for consideration
3.1 At the outset, 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 Acts 2000-2004 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".
3.2 The complainant states that she was refused service by the respondent on the evening in question because she was accompanied by her son, and this is not disputed by the respondent. The latter states that the refusal of service was made in good faith in accordance with the requirements of Section15 (2) of the Equal Status Act 2000.
3.3 At the time of the refusal of service there was nothing in the Licensing Acts 1833-1999 which prohibited children from being in a licensed premises with their parents. The Intoxicating Liquor Act 2003 introduced a specific exception to the Equal Status Act 2000 whereby the exercise of a licensee's discretion not to permit a person under 15 accompanied by parent or guardian to be in a bar at any time shall not of itself constitute discrimination. The case before me, however, deals with an incident which occurred prior to the new legislation being enacted and, therefore, my decision must have regard to the laws that were in force at the time of the incident. I am satisfied that the complainant has established a prima facie case of discrimination on the family status ground which the respondent has failed to rebut.
4.1 I find that, on 14 July 2002, the respondent acted in breach of the Equal Status Act 2000 in refusing service to the complainant and that his actions constituted discrimination on the family status ground.
5.1 In light of the exceptional nature of the circumstances of this particular case and the fact that both parties were, in fact, acting in the best interests of the child on the night in question I do not feel that a heavy penalty against the respondent is warranted. I therefore order that the respondent pay to the complainant the sum of €100 for the effects of the discrimination.
In making this award I have taken into consideration the fact that, following the refusal of service by the respondent, the complainant drew a great deal of attention on herself by actively canvassing the views of patrons of the respondent premises about the refusal.
22 February, 2006