Phil Allen explains the importance of having a clear and consistent policy and well-trained door staff to head off discrimination claims
I have really good door staff. However, I have been told that they operate a no-travellers policy. Should I be concerned; do we not have free rein to decide who is allowed in?
It is unlawful to refuse to provide a service (which you provide to the public) to someone because of race or ethnic origin. Race includes Irish travellers or Romani gypsies. So if travellers are refused entry because they aretravellers, that is unlawful race discrimination.
You also unlawfully discriminate if the reason someone is refused entry is because they are in a group with travellers, even if they don't share the same ethnicity.
You can apply a consistent policy to all customers. So a door policy that refuses entry to certain-sized groups is fine. However, that policy must be applied consistently. While door staff may commonly use such explanations in person, if the policy is not recordedor genuinely applied, it will not stand up to scrutiny in court.
In the recent case of the Traveller Movement v JD Wetherspoon, direct race discrimination was found when a group was refused entry to a pub. The judge said the decision was "suffused with the stereotypical assumption that Irish travellers and English gypsies cause disorder wherever they go" and found this was "racial stereotyping". The judge rejected the pub owner's argument that there was a no-large-groups policy, pointing out that it was not evidenced by the risk assessments.
Race discrimination claims brought by customers are relatively rare. The amount awarded is often limited, meaning claims are rarely worthwhile. Many door practices that would be vulnerable if legally challenged will never give rise to a claim. While there are few reported cases, it is possible thatthere may be an increase in claims following the widespread publicity surrounding the Wetherspoon case.
The key to defending discrimination claims is to have clear and supported evidence of your policies and practices, and to apply those rules consistently to all. So if you have a no-groups policy, record it and apply it to all customers. You can turn away potential customers if you have good grounds for doing so; however those grounds cannot be about ethnicity or stereotypical assumptions. The need for door staff to make quick assessments based on experience can conflict with the importance of avoiding bias. However, you need to ensure your door staffs' gut reaction is not, in practice, discrimination on the grounds of race.
Courts can assume discrimination in the absence of a satisfactory explanation. Make sure your staff understand the need to havea reason for their decision which is non-discriminatory. You can also defend discrimination claims where you have taken all reasonable steps to prevent your staff from acting in such a way. Train your staff and have a policy. If the door staff are not employed by you, ensure that you have required the provider not to act in a discriminatory way.
- Have clear documents and risk assessments recording any genuine door policies.
- Train staff on the importance of not discriminating.
- Look into any allegations of discrimination.
- Ensure that your staff's decisions are evidence-based and not about stereotypical assumptions.
There has been a notable increase in publicity around door practices based upon race, such as refusing entry to members of the traveller community. While in the Wetherspoon case each claimant was only awarded £3,000 for injury to feelings, the total costs and awards would have been significant. Do you really want to risk the adverse publicity discrimination allegations can cause? The stigma for an organisation from a finding of race discrimination can be huge and is best avoided if at all possible.
Phil Allen is a partner in the employment, pensions and immigration team at Weightmans LLP