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The right to refuse service in England
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institutions and agencies comprising marketing channels. Effective management in selection of channels and how channels are organized. Marketing communications and promotion -
Fig. 2 Marketers adjust the marketing mix to adapt to the changing environment.
selection, and organizational sion processes.
purchase deci-
0 Product manugement New product development and management of product/ service strategies. 0 strategic market planting - Analytical study of how marketing strategies are planned, executed and evaluated. 0 Channels of distribution - Social, economic and political relationships among the various
The right to refuse service in England Alan Pannett
Deportment oflaw, Politics and Economics, Oxford ~o~tec~~ic, Oxford, OX3 MU’, U.K.
It is often incorrectly assumed, by hoteliers, innkeepers and the like, that they have total control over who is to be served at their hotel, inn or restaurant. It is the purpose of this article to illustrate the misguided nature of such a belief, and furthermore, to show that far from there being an unqualified right on the part of the hotelier to refuse service, in certain cases hotel proprietors are under a positive duty to provide equality of service to all, regardless of the race or sex of the customer. It would equally be wrong to assume that every customer who seeks refreshment or accommodation has a right to receive the service he or she desires since to a large degree the hotelier is still able to effectiveIy regulate the clientele at his or her establishment. The doctrine of freedom of contract exists today Int.
J. Hospitality Management Printed in Great Britain
Vol. 3 No. 1 pp. 40-44
1384
Decision-making in the management of the elements of a firm’s promotional mix. Emphasis is on promotional tools as they apply to promotional strategy formulation including analysis, planning and coordinating the firm’s promotional activities. And if needed. . . sales management - Planning, organizing, control and evaluation of a sales force. Personal selling, sales force recruiting, selection, training, compensating motivating and evaluating. Associations such as the newly-named Hotel Sales and Marketing Association in America have done a good job in the sales area but may now have to move into more sophisticated marketing course work. As the competition stiffens and markets become more and more saturated those hotels with the best marketers will be the ones to survive. Hotel companies will benefit from educating their managers in marketing or by hiring competent marketers with the necessary skills and knowledge to enhance the rewards of successful survival.
in modern English law as it has for many centuries. No person may be forced to contract with another, the essence of a contract is a voluntary undertaking between the parties, which the law recognises as binding upon them. A contract of booking at an hotel, or a contract to provide refreshment at a restaurant are no different from any other forms of contract; they are entered into voluntarily. The customer selects the hotel or restaurant of his or her choice, and the services which he or she may require. The proprietor agrees to serve that person for an agreed price; alternatively the proprietor may refuse service to the customer, and if he does so, he cannot otherwise be made to contract with the customer against his wiI1. A contract to provide a service to paying customers is therefore like any other, voIuntarily undertaken. Inns however form an exception to this general rule of freedom of contract, since an innkeeper is (subject to certain exceptions) under a positive duty to provide reasonable refreshment and accommodation whenever sought by a travelier at the inn. An inn is defined for the present purposes by s.1(3) of the Hotel Proprietors Act 1956 as ‘. . . an establishment held out by the proprietor as offering food, drink and if so required, sleeping 0278-4319/84$3.00 @ 1884 Pergamon
+ 0.08 Press Ltd
41
Viewpoint accommodation, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received’. The duty therefore is not an absolute duty, it is only owed to those travellers who are able and willing to pay a reasonable sum (this proviso allows the innkeeper to demand payment in advance to ascertain that the traveller is able to pay for the services sought), and to those who are in a fit state to be received. This requirement is open-ended, and is used as a legal justification by innkeepers when refusing service to a customer. An example of how the law operates is where an innkeeper makes a requirement of male customers at his inn that they must wear a collar and tie. Such a rule is based on the fact the innkeeper may refuse service to those who are not in a fit state to be received. Many innkeepers therefore use this proviso to exclude from their premises young people who dress in an unconventional manner. A punk rocker, or a skinhead, may be refused service under the above proviso. Furthermore this proviso covers many less obvious situation, e.g. a man who is overtly gay may not be in a fit state to be received at an inn where the main clientele are robust males who take an antagonistic attitude towards gay men. Equally a communist may by reason of his political beliefs be unfit to be received at an hotel where the guests in residence on the day in question are delegates to a National Front meeting. These are but illustrations of a more general proposition, namely that the proviso to s.1(3) of the 1956 Act, which provides that an innkeeper may refuse service to a traveller who is not in a fit state to be received, enables the innkeeper to effectively regulate the clientele at his establishment. This is done by refusing service to those who might disrupt the good order and running of the establishment or cause annoyance or disquiet to other customers or guests (see Rothfield v North British Hotels (1920) S.C. SOS). Two further limitations should be pointed out at this stage, firstly that both the duty to provide refreshment and the duty to provide accommodation only apply to available supplies of food and drink in the first case (see R v Higgins [1948] 1 K.B. 165), and to vacant accommodation in the latter (see Browne v Brandt [1902] 1 K.B. 696). Secondly that the duty to provide refreshment and, if so required, accommodation, is only owed by innkeepers (i.e. proprietors of establishments within s.1(3) Hotel Proprietors Act 1956), to travellers (see Williams v Linnitt [1951] 1 All E.R.278). The duty is not owed by the proprietors of establishments outside the 1956 Act, nor is it owed by innkeepers to persons who are not travellers. We have seen that under
the Hotel
Proprietors
Act 1956 an innkeeper is under a general duty to provide service, subject to certain provisos. Is there scope for a more general proposition, namely, that a customer has a right to be served, and that an hotelier or restaurateur is under a positive duty to provide service. In recent years anti-discrimination legislation has been passed by Parliament, namely the Sex Discrimination Act 1975 and Race Relations Act 1976. It is unlawful to discriminate upon grounds of either race or sex in the provision of ‘goods, facilities or services to the public’. Hence it is unlawful to refuse service to a customer either on the grounds of his or her race (see s.20 Race Relations Act 1976) or sex (see s.29 Sex Discrimination Act 1975). However, do these provisions give rise to the more general proposition that there is a duty to provide service or are they simply further ‘provisos’ and exceptions to the general rule that a hotel proprietor has freedom to contract with whoever he or she chooses? Section 29 of the Sex Discrimination Act 1975 has given rise to the recent and important case of Gill and Another v El Vino Co. Ltd. [1983] 2 W.L.R. 155 (C.A.). Section 29 provides ‘It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services - (a) by refusing or deliberately omitting to provide her with any of them or (b) by refusing or deliberately omiting to provide her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members of the public or (where she belongs to a section of the public) to male members of that section.’ Section 29(2) thereafter goes on to give ‘examples’ of the facilities covered by s.29(1), those which are relevant to the hospitality industry are:
(4
‘access to and use of any place which members of the public or a section of the public are permitted to enter’ (this would cover shops, exhibitions, public houses, etc.);
in a hotel, w or‘accommodation similar establishment’;
(4
boarding
house
‘facilities for entertainment, recreation or refreshment’ (this would cover cafes, restaurants, wine bars, theatres, etc.).
What may amount to discrimination is defined by .. . . s.l(l) of the 1975 Act: ‘A person discrimmates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man . . .‘. Before examining the El Vino case in detail certain observations must be made about the
42
operation of the 1975 Act. To whom does the Act apply? Certainly, to all persons who are trading (albeit as an hotelier or otherwise), they are within the scope of the Act. However, voluntary bodies are expressly excluded by s.34 of the Act, hence if a woman is refused entrance to a charity ball or fete because she is female (or a man because he is male), since the function is organised by a voluntary body the Act does not apply and a complaint cannot be heard by the courts. It is clear however, that if the function was run other than by a voluntary body the refusal of service would amount to discrimination contrary to sections 1 and 29 of the Sex Discrimination Act 1975, e.g. Twambley v Jamal’s Wine LZar, The Times 2 October 1982. A further observation should be made, namely that with regard to inns as defined by s-1(3) of the Hotel Proprietors Act 1956, a refusal of service to a woman traveller is actionable, separately under the 1956 Act as a breach of the innkeeper’s duty to provide refreshment, etc. (see above). Therefore a woman traveller who is refused service at an inn due to the fact that she is a woman has two rights of action, namely under s.29 Sex Distrimination Act 1975, and under s.1(3) Hotel Proprietors Act 1956. Gill and Another v El Vino Co. Ltd. (supru) is a vital case for the hospitality industry, since it is the first case at Court of Appeal level on discrimination in the provision of catering services to the public. It is an important case in broader terms since it clearly shows the Court of Appeal’s attitude towards infringement of the 1975 Act. The facts of the case are well known and straightforward; the plaintiffs, who were both women, entered the defendant’s wine bar, stood at the bar and sought to order two glasses of wine. The wine bar had a rule that women were not to stand and drink at the bar whereas men could. In accordance with this rule the barman refused to serve them at the bar and informed them that if they sat at a table drinks would be brought to them. Waitress service was available at tables in the smoking room or by the main entrance to the bar. The plaintiffs brought an action alleging that the defendant’s practice of refusing bar service to women amounted to discrimination contrary to s.29 of the Sex Discrimination Act 1975. At first instance the plaintiffs’ claim was dismissed, however, on an appeal to the Court of Appeal it was held that the defendant had unlawfully discriminated against the plaintiffs contrary to s.29 of the 1975 Act by refusing them service at the bar. Lord Justice Eveleigh emphasised in his judgment that the courts should ‘take the simple words of the statute and try to apply them’. He found that the plaintiffs had been treated less favourably on the ground of their sex because they were denied the opportunity to drink and converse at the bar: seats might not be available and so they
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might be unable to obtain service at all. Eveleigh L.J. puts it more straightforwardly when he states: ‘It seems to me - and I do not apologise for going no further into the matter than saying “it seems to me” - that that is treating a woman less favourably than a man. It is as stark as all that, and I find myself incapable of explaining further the reasons for that conclusion.’ Lord Justice Griffith and Sir Roger Ormrod agreed that only one answer could be found, the defendants had treated the plaintiffs less favourably on the ground of their sex. But isn’t this a trifling and petty matter? Not so. It is clear from the judgements of the Court of Appeal that the Court was not prepared to apply the de mi~rimis principle. Eveleigh L. .I. put it in this way: ‘Can it be said that the refusal of. that facility was a matter that could be classified as de minimis? In other words, it seems to me that involves saying: “Well, she was less favourably treated by only very slightly”. I find it very difficult to evoke the maxim de ~~~~~~~ ~ZOY~ curat lex in a situation where that which has been denied to the plaintiff is the very thing that Parliament seeks to provide, namely facilities and services on an equal basis.’ This is the clearest possible indication of judicial attitudes to the legislation, namely that the Court of Appeal will not tolerate attempts to construe the 1975 Act in a narrow and legalistic manner. However, this enlightened approach taken by the Court of Appeal should be contrasted with that taken by the County Courts at first instance. In Twambley v Jamal Nouri Fattah t/a Jamal’s Wine Bar, The Times 2 October 1982, Judge Lord awarded only ‘nominal, contemptuous and derisory’ damages of one pence, describing the case as ‘frivilous and foolish litigation’ and ‘an absolute farce’. The plaintiff in that case, a man, brought an action against the defendant wine bar under s.29 of the 1975 Act. The plaintiff had been charged a fl entrance fee to the wine bar whereas women customers were admitted free, The plaintiff sought a declaration that this amounted to discrimination contrary to s.29 of the 1975 Act. Judge Lord in the Manchester County Court reluctantly held that it did. Though in doing so he described as ‘admirable’ the motives of the defendant, who had charged the fee in order to encourage more women to drink at the wine bar, since they were ‘ladylike’, and ‘did not get drunk or come onto the premises inebriated’ as did male customers. It is clear that the attitude of the Court of Appeal is more akin to the spirit of the legislation and that to a large degree the County Courts take a very narrow and restrictive approach. Radical discrimination is covered by the Race Relations Act 1976, which is worded in similar terms to the Sex Discrimination Act. Section 20(l) of the Race Relations Act 1976 provides: ‘It is
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unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services - (a) by refusing or deliberately omitting to provide him with any of them . . .‘. Thereafter s.20(2) gives identical examples to those stated in s.29(2) of the Act 1975 (infra). Discrimination Sex Discrimination is defined in s.l(l) of the Race Relations Act 1976 in the following terms: ‘A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons: or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.’ It is essential to establish that the discriminator discriminated against the plaintiff either ‘on racial grounds’ or because the plaintiff belonged to a particular ‘racial group’; these terms are defined by s.3(1) of the 1976 Act. ‘On racial grounds’ means on any of the following grounds: namely colour, race, nationality or ethnic or national origins. Racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins. The major cases on racial discrimination have been concerned with breadth of the Act, and who exactly the Act covers. The difficulty in interpreting the Act lies in the definitions of ‘racial group’ and ‘on racial grounds’. The 1976 Act was drafted with the protection of blacks in particular in mind. The Act rather clumsily deals with other groups. Are Sikhs for instance within the scope of the Act? Sikhs are in essence a religious group through members of the creed share certain national and ethnic origins. In Mandla v Dowel1 Lee [1983] 2 W.L.R. 620 the House of Lords held that Sikhs were afforded protection by the 1976 Act, since by reason of their shared customs, traditions, beliefs and characteristics it can be said that they are persons with a shared ethnic origin, and therefore a racial group within s.3(1). The 1976 Act does not of course protect individuals from discrimination on religious grounds, and both the High Court and the Court of Appeal ([1983] 3 W.L.R. 932) had held in Mandla v Dowel1 Lee that Sikhs were a religious group and
43
thus outside the protection provided by the 1976 Act. The divide between religious, ethnic and national grouping is not very clear, particularly in relation to members of the Jewish community. Is it unlawful discrimination under the 1976 Act to treat a Jew less favourably in the service one affords to him as a customer? Commonsense dictates that it clearly is racial discrimination. However, Jews may be considered primarily as a religious faith and if so considered to discriminate against a person because they are Jewish is not per se unlawful within the 1976 Act. However, Jews are clearly an ethnic group, and can because of the State of Israel be considered a national group, thus clearly they are within the scope of the Race Relations Act 1976. This issue came before the courts with regard to racial discrimination at work in Seide v Gillette Industries [1980] I.R.L.R. 427. The Employment Appeal Tribunal in that case took the view that the complainant, a member of the Jewish faith, could bring an action alleging discrimination based upon the fact that he was a Jew, since ‘. . . Jewish could mean that one was a member of a race or a particular ethnic origin as well as being a member of a particular religious faith’. Thus in recent decisions (particularly at House of Lords level in Mandla v Dowel1 Lee), the scope of the 1976 Act has been broadened to include certain groups which common sense would dictate are cleai’ly within the ambit of the 1976 Act, although the Act itself had not specifically provided for them. In cases where a person is refused service (and thus discriminated against) by an inn further protection is impliedly provided by the Hotel Proprietors Act 1956. Since the Hotel Proprietors Act only allows for the refusal of service where the traveller is either unable to pay a reasonable sum, or not in a fit state to be received, refusal on the basis of the traveller’s national or ethnic origin, i.e. on racial grounds, amounts to a breach of the innkeeper’s duty to provide service to travellers. An example of this is to be found in the case of Constantine v Imperial London Hotels Ltd [1944] 2 All E.R. 171. Constantine, a West Indian cricketer and a person of some considerable repute within his profession, was refused service at the Imperial Hotel due to the fact that he was black. The manager of the Imperial directed Mr Constantine to another hotel owned by the same company, the Bedford Hotel, where he would be accommodated. The principle in the case is obtuse, namely that the duty owed by an innkeeper may not be discharged at another inn owned by the innkeeper, i.e. the duty is a personal duty of the innkeeper owed by him at each establishment. If the facts of Constanine’s case were to be repeated today, the unfortunate traveller
44
would have two potential actions, firstly, and most simply, a claim under the Race Relations Act 1976 of unlawful discrimination on racial grounds brought under s.20, and secondly a claim brought under the Hotel Proprietors Act 1956, for breach of the innkeeper’s personal duty to provide refreshment and accommodation, contrary to s.1(3). It can be said by way of conclusion that a caterer or restaurateur has only a limited right to refuse service, they may only do so where such a refusal is not based on discriminatory criteria contrary to either the Sex Discrimination Act 1975 or the Race Relations Act 1976. An innkeeper’s right to refuse service is still further limited by reason of the positive duty to provide service imposed upon innkeepers by s.1(3) Hotel Proprietors Act 1956, and the common law (see R v Higgins [1948] 1 Q.B. 165 (C.A.)). H owever, despite these various limitations there still remains a vestigial right to refuse service based upon the doctrine of freedom of contract. The notion that a contract is entered into voluntarily by the parties remains sacrosanct, albeit subject to qualification. This right should not be abused, or be the subject of prejudice;
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restaurateurs et ah should not abuse the right and as a matter of policy should determine not to refuse service save and insofar as it is necessary to do so to maintain good order and respectability at their establishment. Although the law does allow restaurateurs etc. to ‘discriminate’ in certain circumstances (e.g. on the basis of sexual preference of their clientele, by refusing service to gay people) as a matter of practice such actions are unconscionable. Refusal of service is an area where a code of practice might be drawn up by interested parties within the hospitality industry, since on other matters (e.g. hotel booking practice) codes of practice have been relatively successful. It cannot be asserted however, that a customer has a positive right to service (save with respect to the right of a traveller at an inn to demand refreshment and accommodation), the caterer still retains the upper hand, and in the interests of maintaining respectability and nurturing the clientele at his or her establishment the caterer retains a right to refuse service, save and insofar as this right is statutorily restricted (and rightly so) where it is exercised upon discriminatory criteria.
institutions and agencies comprising marketing channels. Effective management in selection of channels and how channels are organized. Marketing communications and promotion -
Fig. 2 Marketers adjust the marketing mix to adapt to the changing environment.
selection, and organizational sion processes.
purchase deci-
0 Product manugement New product development and management of product/ service strategies. 0 strategic market planting - Analytical study of how marketing strategies are planned, executed and evaluated. 0 Channels of distribution - Social, economic and political relationships among the various
The right to refuse service in England Alan Pannett
Deportment oflaw, Politics and Economics, Oxford ~o~tec~~ic, Oxford, OX3 MU’, U.K.
It is often incorrectly assumed, by hoteliers, innkeepers and the like, that they have total control over who is to be served at their hotel, inn or restaurant. It is the purpose of this article to illustrate the misguided nature of such a belief, and furthermore, to show that far from there being an unqualified right on the part of the hotelier to refuse service, in certain cases hotel proprietors are under a positive duty to provide equality of service to all, regardless of the race or sex of the customer. It would equally be wrong to assume that every customer who seeks refreshment or accommodation has a right to receive the service he or she desires since to a large degree the hotelier is still able to effectiveIy regulate the clientele at his or her establishment. The doctrine of freedom of contract exists today Int.
J. Hospitality Management Printed in Great Britain
Vol. 3 No. 1 pp. 40-44
1384
Decision-making in the management of the elements of a firm’s promotional mix. Emphasis is on promotional tools as they apply to promotional strategy formulation including analysis, planning and coordinating the firm’s promotional activities. And if needed. . . sales management - Planning, organizing, control and evaluation of a sales force. Personal selling, sales force recruiting, selection, training, compensating motivating and evaluating. Associations such as the newly-named Hotel Sales and Marketing Association in America have done a good job in the sales area but may now have to move into more sophisticated marketing course work. As the competition stiffens and markets become more and more saturated those hotels with the best marketers will be the ones to survive. Hotel companies will benefit from educating their managers in marketing or by hiring competent marketers with the necessary skills and knowledge to enhance the rewards of successful survival.
in modern English law as it has for many centuries. No person may be forced to contract with another, the essence of a contract is a voluntary undertaking between the parties, which the law recognises as binding upon them. A contract of booking at an hotel, or a contract to provide refreshment at a restaurant are no different from any other forms of contract; they are entered into voluntarily. The customer selects the hotel or restaurant of his or her choice, and the services which he or she may require. The proprietor agrees to serve that person for an agreed price; alternatively the proprietor may refuse service to the customer, and if he does so, he cannot otherwise be made to contract with the customer against his wiI1. A contract to provide a service to paying customers is therefore like any other, voIuntarily undertaken. Inns however form an exception to this general rule of freedom of contract, since an innkeeper is (subject to certain exceptions) under a positive duty to provide reasonable refreshment and accommodation whenever sought by a travelier at the inn. An inn is defined for the present purposes by s.1(3) of the Hotel Proprietors Act 1956 as ‘. . . an establishment held out by the proprietor as offering food, drink and if so required, sleeping 0278-4319/84$3.00 @ 1884 Pergamon
+ 0.08 Press Ltd
41
Viewpoint accommodation, without special contract, to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities provided and who is in a fit state to be received’. The duty therefore is not an absolute duty, it is only owed to those travellers who are able and willing to pay a reasonable sum (this proviso allows the innkeeper to demand payment in advance to ascertain that the traveller is able to pay for the services sought), and to those who are in a fit state to be received. This requirement is open-ended, and is used as a legal justification by innkeepers when refusing service to a customer. An example of how the law operates is where an innkeeper makes a requirement of male customers at his inn that they must wear a collar and tie. Such a rule is based on the fact the innkeeper may refuse service to those who are not in a fit state to be received. Many innkeepers therefore use this proviso to exclude from their premises young people who dress in an unconventional manner. A punk rocker, or a skinhead, may be refused service under the above proviso. Furthermore this proviso covers many less obvious situation, e.g. a man who is overtly gay may not be in a fit state to be received at an inn where the main clientele are robust males who take an antagonistic attitude towards gay men. Equally a communist may by reason of his political beliefs be unfit to be received at an hotel where the guests in residence on the day in question are delegates to a National Front meeting. These are but illustrations of a more general proposition, namely that the proviso to s.1(3) of the 1956 Act, which provides that an innkeeper may refuse service to a traveller who is not in a fit state to be received, enables the innkeeper to effectively regulate the clientele at his establishment. This is done by refusing service to those who might disrupt the good order and running of the establishment or cause annoyance or disquiet to other customers or guests (see Rothfield v North British Hotels (1920) S.C. SOS). Two further limitations should be pointed out at this stage, firstly that both the duty to provide refreshment and the duty to provide accommodation only apply to available supplies of food and drink in the first case (see R v Higgins [1948] 1 K.B. 165), and to vacant accommodation in the latter (see Browne v Brandt [1902] 1 K.B. 696). Secondly that the duty to provide refreshment and, if so required, accommodation, is only owed by innkeepers (i.e. proprietors of establishments within s.1(3) Hotel Proprietors Act 1956), to travellers (see Williams v Linnitt [1951] 1 All E.R.278). The duty is not owed by the proprietors of establishments outside the 1956 Act, nor is it owed by innkeepers to persons who are not travellers. We have seen that under
the Hotel
Proprietors
Act 1956 an innkeeper is under a general duty to provide service, subject to certain provisos. Is there scope for a more general proposition, namely, that a customer has a right to be served, and that an hotelier or restaurateur is under a positive duty to provide service. In recent years anti-discrimination legislation has been passed by Parliament, namely the Sex Discrimination Act 1975 and Race Relations Act 1976. It is unlawful to discriminate upon grounds of either race or sex in the provision of ‘goods, facilities or services to the public’. Hence it is unlawful to refuse service to a customer either on the grounds of his or her race (see s.20 Race Relations Act 1976) or sex (see s.29 Sex Discrimination Act 1975). However, do these provisions give rise to the more general proposition that there is a duty to provide service or are they simply further ‘provisos’ and exceptions to the general rule that a hotel proprietor has freedom to contract with whoever he or she chooses? Section 29 of the Sex Discrimination Act 1975 has given rise to the recent and important case of Gill and Another v El Vino Co. Ltd. [1983] 2 W.L.R. 155 (C.A.). Section 29 provides ‘It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services - (a) by refusing or deliberately omitting to provide her with any of them or (b) by refusing or deliberately omiting to provide her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members of the public or (where she belongs to a section of the public) to male members of that section.’ Section 29(2) thereafter goes on to give ‘examples’ of the facilities covered by s.29(1), those which are relevant to the hospitality industry are:
(4
‘access to and use of any place which members of the public or a section of the public are permitted to enter’ (this would cover shops, exhibitions, public houses, etc.);
in a hotel, w or‘accommodation similar establishment’;
(4
boarding
house
‘facilities for entertainment, recreation or refreshment’ (this would cover cafes, restaurants, wine bars, theatres, etc.).
What may amount to discrimination is defined by .. . . s.l(l) of the 1975 Act: ‘A person discrimmates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man . . .‘. Before examining the El Vino case in detail certain observations must be made about the
42
operation of the 1975 Act. To whom does the Act apply? Certainly, to all persons who are trading (albeit as an hotelier or otherwise), they are within the scope of the Act. However, voluntary bodies are expressly excluded by s.34 of the Act, hence if a woman is refused entrance to a charity ball or fete because she is female (or a man because he is male), since the function is organised by a voluntary body the Act does not apply and a complaint cannot be heard by the courts. It is clear however, that if the function was run other than by a voluntary body the refusal of service would amount to discrimination contrary to sections 1 and 29 of the Sex Discrimination Act 1975, e.g. Twambley v Jamal’s Wine LZar, The Times 2 October 1982. A further observation should be made, namely that with regard to inns as defined by s-1(3) of the Hotel Proprietors Act 1956, a refusal of service to a woman traveller is actionable, separately under the 1956 Act as a breach of the innkeeper’s duty to provide refreshment, etc. (see above). Therefore a woman traveller who is refused service at an inn due to the fact that she is a woman has two rights of action, namely under s.29 Sex Distrimination Act 1975, and under s.1(3) Hotel Proprietors Act 1956. Gill and Another v El Vino Co. Ltd. (supru) is a vital case for the hospitality industry, since it is the first case at Court of Appeal level on discrimination in the provision of catering services to the public. It is an important case in broader terms since it clearly shows the Court of Appeal’s attitude towards infringement of the 1975 Act. The facts of the case are well known and straightforward; the plaintiffs, who were both women, entered the defendant’s wine bar, stood at the bar and sought to order two glasses of wine. The wine bar had a rule that women were not to stand and drink at the bar whereas men could. In accordance with this rule the barman refused to serve them at the bar and informed them that if they sat at a table drinks would be brought to them. Waitress service was available at tables in the smoking room or by the main entrance to the bar. The plaintiffs brought an action alleging that the defendant’s practice of refusing bar service to women amounted to discrimination contrary to s.29 of the Sex Discrimination Act 1975. At first instance the plaintiffs’ claim was dismissed, however, on an appeal to the Court of Appeal it was held that the defendant had unlawfully discriminated against the plaintiffs contrary to s.29 of the 1975 Act by refusing them service at the bar. Lord Justice Eveleigh emphasised in his judgment that the courts should ‘take the simple words of the statute and try to apply them’. He found that the plaintiffs had been treated less favourably on the ground of their sex because they were denied the opportunity to drink and converse at the bar: seats might not be available and so they
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might be unable to obtain service at all. Eveleigh L.J. puts it more straightforwardly when he states: ‘It seems to me - and I do not apologise for going no further into the matter than saying “it seems to me” - that that is treating a woman less favourably than a man. It is as stark as all that, and I find myself incapable of explaining further the reasons for that conclusion.’ Lord Justice Griffith and Sir Roger Ormrod agreed that only one answer could be found, the defendants had treated the plaintiffs less favourably on the ground of their sex. But isn’t this a trifling and petty matter? Not so. It is clear from the judgements of the Court of Appeal that the Court was not prepared to apply the de mi~rimis principle. Eveleigh L. .I. put it in this way: ‘Can it be said that the refusal of. that facility was a matter that could be classified as de minimis? In other words, it seems to me that involves saying: “Well, she was less favourably treated by only very slightly”. I find it very difficult to evoke the maxim de ~~~~~~~ ~ZOY~ curat lex in a situation where that which has been denied to the plaintiff is the very thing that Parliament seeks to provide, namely facilities and services on an equal basis.’ This is the clearest possible indication of judicial attitudes to the legislation, namely that the Court of Appeal will not tolerate attempts to construe the 1975 Act in a narrow and legalistic manner. However, this enlightened approach taken by the Court of Appeal should be contrasted with that taken by the County Courts at first instance. In Twambley v Jamal Nouri Fattah t/a Jamal’s Wine Bar, The Times 2 October 1982, Judge Lord awarded only ‘nominal, contemptuous and derisory’ damages of one pence, describing the case as ‘frivilous and foolish litigation’ and ‘an absolute farce’. The plaintiff in that case, a man, brought an action against the defendant wine bar under s.29 of the 1975 Act. The plaintiff had been charged a fl entrance fee to the wine bar whereas women customers were admitted free, The plaintiff sought a declaration that this amounted to discrimination contrary to s.29 of the 1975 Act. Judge Lord in the Manchester County Court reluctantly held that it did. Though in doing so he described as ‘admirable’ the motives of the defendant, who had charged the fee in order to encourage more women to drink at the wine bar, since they were ‘ladylike’, and ‘did not get drunk or come onto the premises inebriated’ as did male customers. It is clear that the attitude of the Court of Appeal is more akin to the spirit of the legislation and that to a large degree the County Courts take a very narrow and restrictive approach. Radical discrimination is covered by the Race Relations Act 1976, which is worded in similar terms to the Sex Discrimination Act. Section 20(l) of the Race Relations Act 1976 provides: ‘It is
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unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services - (a) by refusing or deliberately omitting to provide him with any of them . . .‘. Thereafter s.20(2) gives identical examples to those stated in s.29(2) of the Act 1975 (infra). Discrimination Sex Discrimination is defined in s.l(l) of the Race Relations Act 1976 in the following terms: ‘A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons: or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.’ It is essential to establish that the discriminator discriminated against the plaintiff either ‘on racial grounds’ or because the plaintiff belonged to a particular ‘racial group’; these terms are defined by s.3(1) of the 1976 Act. ‘On racial grounds’ means on any of the following grounds: namely colour, race, nationality or ethnic or national origins. Racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins. The major cases on racial discrimination have been concerned with breadth of the Act, and who exactly the Act covers. The difficulty in interpreting the Act lies in the definitions of ‘racial group’ and ‘on racial grounds’. The 1976 Act was drafted with the protection of blacks in particular in mind. The Act rather clumsily deals with other groups. Are Sikhs for instance within the scope of the Act? Sikhs are in essence a religious group through members of the creed share certain national and ethnic origins. In Mandla v Dowel1 Lee [1983] 2 W.L.R. 620 the House of Lords held that Sikhs were afforded protection by the 1976 Act, since by reason of their shared customs, traditions, beliefs and characteristics it can be said that they are persons with a shared ethnic origin, and therefore a racial group within s.3(1). The 1976 Act does not of course protect individuals from discrimination on religious grounds, and both the High Court and the Court of Appeal ([1983] 3 W.L.R. 932) had held in Mandla v Dowel1 Lee that Sikhs were a religious group and
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thus outside the protection provided by the 1976 Act. The divide between religious, ethnic and national grouping is not very clear, particularly in relation to members of the Jewish community. Is it unlawful discrimination under the 1976 Act to treat a Jew less favourably in the service one affords to him as a customer? Commonsense dictates that it clearly is racial discrimination. However, Jews may be considered primarily as a religious faith and if so considered to discriminate against a person because they are Jewish is not per se unlawful within the 1976 Act. However, Jews are clearly an ethnic group, and can because of the State of Israel be considered a national group, thus clearly they are within the scope of the Race Relations Act 1976. This issue came before the courts with regard to racial discrimination at work in Seide v Gillette Industries [1980] I.R.L.R. 427. The Employment Appeal Tribunal in that case took the view that the complainant, a member of the Jewish faith, could bring an action alleging discrimination based upon the fact that he was a Jew, since ‘. . . Jewish could mean that one was a member of a race or a particular ethnic origin as well as being a member of a particular religious faith’. Thus in recent decisions (particularly at House of Lords level in Mandla v Dowel1 Lee), the scope of the 1976 Act has been broadened to include certain groups which common sense would dictate are cleai’ly within the ambit of the 1976 Act, although the Act itself had not specifically provided for them. In cases where a person is refused service (and thus discriminated against) by an inn further protection is impliedly provided by the Hotel Proprietors Act 1956. Since the Hotel Proprietors Act only allows for the refusal of service where the traveller is either unable to pay a reasonable sum, or not in a fit state to be received, refusal on the basis of the traveller’s national or ethnic origin, i.e. on racial grounds, amounts to a breach of the innkeeper’s duty to provide service to travellers. An example of this is to be found in the case of Constantine v Imperial London Hotels Ltd [1944] 2 All E.R. 171. Constantine, a West Indian cricketer and a person of some considerable repute within his profession, was refused service at the Imperial Hotel due to the fact that he was black. The manager of the Imperial directed Mr Constantine to another hotel owned by the same company, the Bedford Hotel, where he would be accommodated. The principle in the case is obtuse, namely that the duty owed by an innkeeper may not be discharged at another inn owned by the innkeeper, i.e. the duty is a personal duty of the innkeeper owed by him at each establishment. If the facts of Constanine’s case were to be repeated today, the unfortunate traveller
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would have two potential actions, firstly, and most simply, a claim under the Race Relations Act 1976 of unlawful discrimination on racial grounds brought under s.20, and secondly a claim brought under the Hotel Proprietors Act 1956, for breach of the innkeeper’s personal duty to provide refreshment and accommodation, contrary to s.1(3). It can be said by way of conclusion that a caterer or restaurateur has only a limited right to refuse service, they may only do so where such a refusal is not based on discriminatory criteria contrary to either the Sex Discrimination Act 1975 or the Race Relations Act 1976. An innkeeper’s right to refuse service is still further limited by reason of the positive duty to provide service imposed upon innkeepers by s.1(3) Hotel Proprietors Act 1956, and the common law (see R v Higgins [1948] 1 Q.B. 165 (C.A.)). H owever, despite these various limitations there still remains a vestigial right to refuse service based upon the doctrine of freedom of contract. The notion that a contract is entered into voluntarily by the parties remains sacrosanct, albeit subject to qualification. This right should not be abused, or be the subject of prejudice;
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restaurateurs et ah should not abuse the right and as a matter of policy should determine not to refuse service save and insofar as it is necessary to do so to maintain good order and respectability at their establishment. Although the law does allow restaurateurs etc. to ‘discriminate’ in certain circumstances (e.g. on the basis of sexual preference of their clientele, by refusing service to gay people) as a matter of practice such actions are unconscionable. Refusal of service is an area where a code of practice might be drawn up by interested parties within the hospitality industry, since on other matters (e.g. hotel booking practice) codes of practice have been relatively successful. It cannot be asserted however, that a customer has a positive right to service (save with respect to the right of a traveller at an inn to demand refreshment and accommodation), the caterer still retains the upper hand, and in the interests of maintaining respectability and nurturing the clientele at his or her establishment the caterer retains a right to refuse service, save and insofar as this right is statutorily restricted (and rightly so) where it is exercised upon discriminatory criteria.