Peter Duffy and Samuel Lawless
Barcode/ Westwood Club
(Represented by Peter Duff & Co Solicitors)
Equal Status Acts 200-2004- Direct discrimination, Section 3(1)(a)- gender ground, Section 3(2)(a)- family status ground, Section 3(2)(c)- Disposal of Goods and Services, Section 5(1)- Refusal of service
Delegation under the Equal Status Act 2000
These complaints were 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 complaints to me Mary O'Callaghan, 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 -2004. The hearing of the case took place in Dublin on Wednesday 19th April, 2006.
1.1 The complainants allege that they were subjected to discriminatory treatment when they sought entry to Barcode Bar at the Westwood Club Clontarf Road in Dublin on 2nd February 2003. They maintain that that this treatment is in breach of the Equal Status Act 2000 in terms of Section 3 (2) (a) and 3 (2) (c) and contrary to Section 5 (1) of the Act, i.e. that they were refused access to goods and services because of their Gender and Family Status.
2. Summary of the Complainants' Case
2.1 The complainants said that on Sunday 2nd February 2006 they went to an inter-county Gaelic football match between Dublin and Armagh at Croke Park. They were accompanied by Mr. Lawless's step son who was aged 8 years and another child who was his friend. Mr Duffy said that he knew Mr. Lawless's step son since he had been born but did not know the other child at that time. Following the match they went to Barcode, which is the bar and restaurant facility attached to the Westwood Club. It was about 5 p.m. and it was their intention to have something to eat with the children in their company. When they neared the entrance of the premises, they noticed a family comprising two adults (male and female) and children going in ahead of them. These people were admitted but when the complainants Mr. Duffy and Mr. Lawless got to the door with the two boys in their company they were prevented from entering. Both complainants reported that the door man stopped them and told them that they could not be admitted and when Mr. Lawless asked for a reason for the refusal he was told that they would not be admitted because they had no women with them to look after the children. When they asked if this meant that two men could not bring children in to eat without a woman they were told "yes". They said in response to the evidence of the respondent's door man that no one asked them if they had any relatives already on the premises.
2.2 They said that they were shocked at this response and they walked away and got the DART home where they told Mr. Lawless's partner who telephoned the club and having first spoken to the security manager, asked to speak to the manager. They said that she was told that the manager was too busy to come to the phone. They said that they received a telephone call from the manager of the club but they believed this only happened because they had brought their story to a national newspaper. The outcome of their complaint to the club was that they were offered a free meal but they refused this. They said that Mr. Lawless's partner was told at that time that the premises had been full of children and that the door staff had been instructed not to let any more in. They found this explanation strange as the couple in front of them had been with children and gained access.
3. Summary of the Respondent's Case
3.1 The respondent said that Barcode operated as a bar, restaurant and entertainment centre on three levels within the Westwood Club and included games facilities for children on one of these levels. A copy of the "House Policies" which were in place for the business at the time of the incident complained of was provided to the Tribunal at the hearing of this case and this included policies in relation to the requirements for the supervision of children on the premises. While these state that children must at all times be accompanied by a parent or guardian there is no reference to a gender requirement for the adult accompanying a child. The policy also requires children to be off the premises by 8 p.m.
3.2 The respondent said that on the date of the incident complained of the Armagh football team and many of their fans had congregated at Barcode in advance of the match and shortly before the game, the team left, as did a proportion of the supporters, while the remainder stayed in Barcode to see the match on the big screen. Accordingly the premises was very busy throughout the day and particularly busy in the period immediately following the match when many of the supporters of both teams returned to avail of the food and drink facilities. At some point during the late afternoon/early evening a decision was taken to restrict admission to the premises to those who had reservations. In a written response to the complaint made by the complainants it was stated that no further children were admitted that day due to the fact that Barcode was at full capacity.
3.3 The door man who dealt with the complainants said that he works in Barcode at weekends only as he is normally resident outside of Dublin. He said that it was a popular venue for families to come to for a meal on a Sunday and regularly got very busy. He said that on the day of this incident he was working at the door when a message came from management not to let any more people in without reservations as the place was full. He said that normally about half of the customers would have reservations. He said that he did not know the complainants and he denied saying that they would not be admitted without a woman to look after the children. He believed that he may have asked them if their wives were inside, as although entry was being restricted to reservations only, he would have allowed those who already had family members on the premises to enter. He said that the complainants may have misinterpreted this remark as meaning they needed a woman in their company but he maintained his enquiry was in no way discriminatory.
3.4 He said that some time later the manager had told him that there had been a complaint about what had happened and he gave the manager his account of events as outlined above. He understood that the complainants had been offered a meal by the management.
3.5 The security manager concurred with the account given by the door man saying he had been informed by the manager over the internal radio system to restrict admissions that day. He said the decision to offer the complainants a free meal was in the interest of maintaining goodwill.
4. Conclusions of the Equality Officer
4.1 At this point in my considerations the burden of proof in relation to whether discrimination occurred rests with the complainants. I must first consider whether the complainants in this case, Peter Duffy and Samuel Lawless have established a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria. It must be established that they are covered by the relevant discriminatory ground/s i.e. in this case those of gender and/or family status. It must also be established that the actions complained of actually occurred and finally it must be shown that the treatment of the complainants was less favourable than the treatment that would be afforded to another person in similar circumstances who was who was of a different gender and/or did not have family status. They must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainants if the complaint is to fail.
4.2 Mr. Duffy and Mr. Lawless have lodged their complainants in respect of two of the discriminatory grounds set out in Section 3 of the Equal Status Act. These are Gender and Family Status. I will at the outset look at the latter of these two grounds, i.e., Family Status I must consider the definition of Family Status as set out in the act and its application to the position of each of the complainants. Family Status is defined in the Equal Status Act at Section 2 as applicable to Section 3 (2)(c) as follows:
"family status" means being pregnant or having responsibility -- (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years....,
In relation to the incident under investigation both complainants were accompanied by Mr. Lawless's step son and his friend. For the purposes of this investigation I must be satisfied that each of or both of the complainants had family status by virtue of the children in their company when they went Barcode.
4.3 Mr. Murdoch in his Dictionary of Irish Law defines in loco parentis as follows "A person who is not the parent of a particular child but takes on himself parental offices and duties in relation to the child." (1) I am of the view that Mr. Lawless as the step parent of one of the two children in the group, the other of whom was that child's friend satisfies the criteria as set out in the definition of Family Status under the Equal Status Act and I would consider that his status was that of step parent to one of the children and in loco parentis with regard to the other for the purposes of their day out. I consider Mr. Duffy's position to be different in that he is the parent of neither child and although he knew Mr. Lawless's step son well, he was in his company on that day while the child's (step)parent was there. I do not consider that he would have been acting in loco parentis in relation to either child, as he had only met the other child for the first time that day while in the company of Mr. Lawless and his stepson. Therefore, I conclude that with regard to the circumstances surrounding this incident, Mr. Lawless had family status while Mr. Duffy did not.
4.3 In respect of the other ground of complaint, gender, I am satisfied that both complainants are covered by the gender ground.
4.4 The second element of the test for establishing a prima facie case of discrimination is that the actions complained of must have occurred, in this case a refusal of access to the Barcode premises on Sunday 2nd February 2003. This element is not disputed. In fact both sides agree that the complainants were refused entry to Barcode and therefore this test can be deemed satisfied.
4.5 With regard to the third test, that of less favourable treatment, this must be considered in regard to gender in respect of both complainants and in regard to family status also in respect of Mr Lawless. The evidence of the complainants has been that when they arrived at the entrance to Barcode they witnessed a family group comprising two adults (male and female) together with their children being admitted to the premises but that when they sought access they were told that they required a woman to be with them to look after the children. This contrasts with the account of the respondent which is that there was no policy requiring the attendance of a woman with children on the premises so long as they were under the supervision of an adult. The respondent asserts that what was asked of the complainants was whether their wives were already on the premises so that an exception to the restricted access in place at the time could be allowed, to enable the complainants and the two boys with them to enter the premises and join any family members already inside. I conclude from this evidence that the family status issue does not on the balance of probabilities underpin any possible discriminatory action that could have occurred in the circumstances outlined. The evidence does not support the contention that it was because Mr. Lawless was a parent or in loco parentis he was refused but if there were discriminatory reasons for the refusal it was because he was not a woman or in the company of a woman. I conclude therefore that neither Mr. Duffy or Mr. Lawless have established prima facie cases of discrimination on the family status ground
4.6 In considering the ground of gender in respect of both complainants, I am left to decide which of two accounts of what was said to the complainants is the most compelling version of what occurred, when the complainants sought to enter Barcode that Sunday. I am conscious of the fact that both parties acknowledge that the premises was particularly busy that day. I am also conscious of the fact that both parties accept that a reference to the presence of the complainants' wives was made although the basis on which this was made differs considerably and is crucial to any determination of less favourable treatment being afforded to the complainants on the ground of their gender. If I am to accept the version of events provided by the door man on duty that day and who spoke with the complainants I would conclude that gender was not an issue in the refusal but rather that the presence of others of the complainant's party on the premises was what was being assessed. The complainants' allegation that they were refused because they were told they required a woman with them to look after the children would suggest that the gender of the two men was significant in the refusal. In considering the two differing accounts carefully, I have reached the conclusion that on the balance of probabilities the complainants were most likely mistaken in their interpretation of what was said to them that day and that the reason they were refused was that the premises was already full and that there was no one waiting for the complainants and their party inside. I conclude therefore that the complainants have not established prima facie cases of discrimination on the gender ground.
5.1 These complaints alleged discrimination on the grounds of gender and family status. I am satisfied that Mr. Samuel Lawless met the criteria for lodging his complaint under both of these grounds while Mr. Duffy met the criteria on the ground of Gender only. I note that it is possible that family status may have been imputed to Mr. Duffy or that it is also possible that he had acquired family status by association but I do not consider that evidence was presented to the Tribunal to establish either of these possibilities as a fact. I find that both complainants have failed to establish prima facie cases of discrimination on either or both of the two discriminatory grounds cited and accordingly the complaints of Peter Duffy (ES/2003/0245) and Samuel Lawless (ES/2003/0280) are not upheld (DEC-S2006-044).
31st May 2006
(1) Murdoch, Henry A Dictionary of Irish Law -a sourcebook revised 2nd ed. Topaz Publications Dublin 1998 and 1993 at pg. 259