William and Lily Ward
# No. 1 . Bar
Equal Status Acts, 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, Establishment of Prima facie case -Vicarious liability -Section 42
Delegation under the Equal Status Act 2000
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 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 Portlaoise on Friday 14th July, 2006.
1. Summary of the Complainants' Case
1.1 The complainants said that on 19th May 2002 they went to the "#1" Bar in Tullamore as it was Mrs. Ward's birthday. They had never been there before, although both were living in the Tullamore area. They went to "#1" from another pub in the town where they had been for about 45 minutes and where they had 2 drinks. It as about 10: 30 when they got to "#1".
1.2 When they got to the entrance of the venue they were stopped by a door man, who upon examining their ID, proceeded to allow Mrs. Ward in and stopped her husband. Mrs. Ward said she believed she was being allowed to proceed because her ID was in her single name rather than Ward which was the name she took upon marriage. Mr. Ward was told that he would not be admitted because there had been trouble with Wards (not the complainants) about 15 minutes earlier. The complainants said that there were three door staff at the entrance to the venue and that when they sought to speak to manager, two of these left the door and went inside while the remaining member of door staff, a woman whom Mrs. Ward knew from a computer course she had embarked on previously, advised them to "keep cool you'll be alright" as this type of behaviour from the door staff was not unusual.
1.3 When the door staff returned another member of staff who Mrs. Ward took to be someone in authority, was with them and when he enquired as to what was wrong he was told by his colleague "remember that incident about 15 minutes ago?" and he replied "oh yeah". Mrs. Ward was upset and wanted to pursue the issue but her husband advised that they should just go away and they just walked away. While they were at the door Mrs. Ward said that other patrons were being admitted to the venue whilst they were made to stand to one side. Both complainants said that they believed the reason they were refused access to the premises was because they were Travellers and the name Ward was associated with members of the Traveller community in the town.
1.4 Mrs. Ward said that she returned to "#1" at lunch time 2 days later to speak with the manager about the issue and when she asked to see him was told he was watching a match. She said another member of staff took her name and contact details but she never heard anything more.
2. Summary of the Respondents case
2.1 The respondent's Personnel Manager and Security Manager attended the hearing for the respondent. They described the venue as being in the centre of Tullamore town and while it was connected in a business sense to a local hotel it was located in separate premises. "#1" is generally busy at weekends as it comprises a Nite-Club, Bars and bistro. The customer age profile would generally be under 30s and comprises a mix of locals and passers through the town.
2.2 The Security Manager said that there were a number of Travellers among the regular customers of the venue and gave the name of a relative of the complainants as an indicator of this. He did not recognise the complainants. He said that he had no dealings with the complainants on the evening in question and that he was of the belief that the incident didn't happen as he was not called to attend to it nor was he told about it. In fact he had no recollection of the incident
2.3 In relation to a written response made to the complaint suggesting that the refusal arose because the complainants were deemed to have too much drink taken, the Security Manager said that this would have related to their ID the nature of their speech and that they may have been unsteady on their feet. He said that between 10 and 20 people were refused each night because of intoxication. He had no record of refusals for that night. He refuted any statement that there was an incident involving members of the Ward family that night and pointed out that not all Wards in the locality were members of the Traveller community. He said that all of the security staff on duty that night were direct employees of the business and an earlier independent security contractor had been replaced as it had proved unsatisfactory. All staff would have been trained to a level that incorporated information on their obligations under the Licensing Acts and the Equal Status Act.
3. Conclusions of the Equality Officer
3.1 At the outset the burden of proof in relation to whether discrimination occurred rests with the complainant. I must first consider whether the complainants in this case, William and Lily Ward, have established prima facie cases 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 i.e. in this case that they are members of the Traveller community. 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 not a member of the Traveller community. 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 complainant if it is to fail.
3.2 In relation to the first point to be established, it is not in dispute that the complainants are members of the Traveller community. The second point that the refusal actually occurred is not agreed but I consider on the balance of probabilities from the evidence provided that a refusal did occur and the only rebuttal to this is that the security manager was not aware of it and believed he would have been made aware of a situation such as this. The third fact that has to be shown for a prima facie case to be established is that of less favourable treatment. In this case the complainants have said that others who were not travellers were being allowed to enter "#1" while they were left at the door. The respondent has said that there is no policy of discrimination and that the Security Manager believes he would have been made aware of an incident at the door if it had occurred. I consider that the complainants have established on the balance of probabilities that the incident did occur and that reference to who they were i.e. Wards, certainly implies treatment that was different to other potential customers that night. I am satisfied that the surname Ward was associated in the minds of those who refused the complainants with Travellers and that the refusal of "Wards" was in fact allied to their Traveller status. On this basis I consider that the complainants have established a prima facie case of discrimination.
4.1 I note the respondent's evidence that there in no policy of discrimination applying in "#1" and that the security manager believes that he would have been made aware of the incident complained of, if it had occurred. In relation to the presence of a deliberately discriminatory policy I fully accept that such a policy did not pertain on the part of the management in "#1". In relation to the second point that the security manager would be aware if any incident such as that complained of, I am of the view that if a staff member chose to depart from the policy of the premises it is not something that would be brought to the attention of management and I am of the view that this is what occurred on the evening complained of and that Section 42 of the Equal Status Act regarding vicarious liability applies. I have considered Section 42 ( c) of the Equal Status Act which states that "....it shall be a defence for the employer to prove that he employer took such steps as were reasonably practicable to prevent the employee ........ (b) from doing in the course of his or her employment acts of that description." I have not been convinced, however, that such steps were taken regarding the monitoring of the door staff in this case and I note that it was not a manager but another member of the venue staff who endorsed the doorman's decision to refuse the complainants. Accordingly I find that the rebuttal of the respondent to the case of discrimination on the Traveller community ground established by the complainants is not sufficient to rebut the prima facie evidence of the complainants.
5. Decision and Redress
5.1 I find that the complaints William and Lily Ward (ES/2002/0752-0753) are upheld and I order the respondent to pay the Complainants William and Lily Ward the sum of €400 each and to issue them with an invitation in writing indicating that they will be welcomed under the same conditions as any other customer. I also order that the respondent ensure that the security staff at "#1" are regularly reminded of the obligations under the Equal Status Acts 2000-2004 of service providers (DEC-S2006-068).
6th September 2006