Wetherspoons' travellers case: The dangers of barring entry

The facts are that, in 2011, a group of travellers who had been attending a conference next door were refused entry to the Coronet because the manager had concerns about a recent disturbance at Dale Farm, in Essex, which was being discussed at the conference and because of previous disorder at the premises. 

The travellers were eventually allowed to enter when one of the group produced a police identity card and agreed to take responsibility for their behaviour; other members of the group included a barrister and a priest.

Members of the group sued Wetherspoon for damages for direct discrimination on the grounds of race (which includes ethnic or national origins, colour and nationality).

Ten claims were dismissed but, in eight cases, the judge found discrimination was proved and awarded £3,000 in damages to be paid to each claimant.

I have been involved with advising pubs for a long time and it has to be said that there is, among a few operators, a view that travellers are associated with problems in pubs. This is, of course, a discriminatory view just like all other elements of discrimination because it makes an assumption that all travellers behave in this way.

It was refreshing therefore that the judge in the Wetherspoon case made it clear in his judgment that the conduct of the pub in initially baring the travellers was “suffused with the stereotypical assumption that Irish travellers and English gypsies cause disorder wherever they go”. This, the judge added is “racial stereotyping”, and “it can be reduced to this crude proposition that they cause problems wherever they go”.

I am sure that the judgment will make some operators (just like Wetherspoon has promised) review their policies and staff training in relation to this sensitive issue.

This unfortunately, is not an isolated case and there has been a recent newspaper report four young men being refused access to a premises in Leicester because they are black. Although the doorman, who is filmed by one of the men, does not specifically state this he refers to acting on instructions from the management that a “quota” has been reached (presumably of black people).

This word has im-mediate connotations with positive action taken by some South African sporting teams to readdress the damage caused by years of apartheid. Police in Leicester are investigating this matter.

It is important to reassure licensees and operators that they are still able to bar customers or persons wishing to enter their premises through their door staff without giving any reason. As a firm, it is not uncommon to be asked by clients whether an action baring an individual often for inappropriate or offensive conduct or remarks is lawful, fearful of some form of action that is sometimes threatened by that individual. However, it is perfectly lawful to do so and no reason has to be given.

This is a common law right — in other words it is not enshrined in the Licensing Act 2003 nor was it in its predecessor. It is not even directly relevant to the issue of licensing itself but is based on the old common law principle that because a public house is not a public place, the owner, manager or controller of that place is able to decide who is welcome in his premises and who is not.

If he decides even arbitrarily that a person is not welcome that person can be told to leave or refused entry without recourse and in the absence of discrimination, he does not have a legal remedy. Indeed this has been extended and affirmed by case law, the Haverhill Pubwatch case in 2009 decided that the baring of an individual by the Pubwatch not just from the pub where the misdemeanour occurred but from all pubs in the area was lawful and this action occurs in many Pubwatch pubs up and down the country now.

The exception to all of this is the Equality Act 2010, which makes it clear its principle is that “everyone accessing your... facilities... [should do so] fairly, regardless of their age, gender race, sexual orientation, disability, gender reassignment, religion or belief”.

The legal position is, therefore, a mixture of old common law and recent statute; the practice of barring individuals is still lawful but not when it is in any way based on discrimination.