Noel Morrell (represented by P Gillespie & Co, Solicitors) V Hogans Bar, Ballina (represented by Michael G Bohan & Co, Solicitors)
1. Dispute
This dispute concerns a complaint by Noel Morrell that he was discriminated against, contrary to the Equal Status Act 2000, by the staff of Hogans Bar, Ballina. The complainant maintains that he was discriminated against and victimised on the marital status ground in terms of sections 3(1)(a) and 3(2)(b) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainant states that he and members of his wife's family were refused a last drink before closing time on 30 April 2001, as a result of which a female relative of his wife, who complained at the time, was barred from the pub. The complainant states that when he returned to the bar on 5 May and again on 6 May 2001, it was made clear to him that he himself was also barred. The complainant maintains that this decision was taken against him because members of his wife's family had caused trouble previously in Hogans Bar. The complainant maintains that the pubs treatment of him constituted discrimination on the marital status ground.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they discriminated against Mr Morrell. They maintain that the complainant was barred because he himself caused trouble on the night in question.
4 Delegation under the Equal Status Act, 2000
4.1 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 complaints to myself, Brian O'Byrne, 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.
5.1 Evidence of Complainant
- The complainant believes that he was discriminated against and victimised because of his marriage to a member of the Delaney family and that this constituted discrimination on the marital status ground.
- Mr Morrell grew up a few doors away from the Martin family and has known Kevin Martin all his life.
- Mr Morrell is married to Josephine Morrell (nee Delaney)
- Noel Morrell was a regular in Hogans bar for 7/8 weeks prior to the incidents complained of
- Mr Morrell has never caused trouble in Hogans Bar
- On Monday 30 April 2001, the complainant visited Hogans Bar with his wife, her mother Mary Delaney and her sister at 10.15 pm.
- Kieran Martin was working behind the bar. Kevin Martin was also present but was sitting outside the bar
- At 11.15 pm, four other members of the Delaney family came in, including one female, Ms A
- At 11.25 pm, Mr Morrell asked for a last drink but was told the bar was closed. He was, however, served with a packet of cigarettes.
- The other family group were also refused service at which point Ms A questioned the barman as to why they were shutting early.
- Mr Morrell recalls that the other group were served two drinks each before the bar was closed.
- Both groups left together around 11.30 pm.
- On their departure, Ms A, who worked in a local restaurant, made a remark to the barman to the effect that he might have problems next time he came into her for a meal
- Mr Morrell said that subsequent to the incidents, he met a barman, Mr B, who was on duty in Hogans bar on Tuesday 1 May, who told him that he was instructed that night that none of the Delaneys or Mr Morrell were to be served again in Hogans Bar.
- Mr B is now working elsewhere and declined to attend the Hearing.
- On Saturday 5 April 2001, Mr Morrell's daughter made her Confirmation. After the church, Mr Morrell decided that all the family should go to Hogans Bar for a drink before going for a meal.
- Mr Morrell first drove his wife and some members of his family to the pub and then went back for the rest of his family.
- On her arrival, Mrs Morrell ordered and was served drinks for herself, her mother and her children.
- On his arrival, Mr Morrell was approached by Kevin Martin who said that he would not serve him because of the "incident" involving his brother Kieran on 30 April.
- Mr Morrell's family then left the pub
- That evening, Mr Morrell met Kieran Martin on the street and asked him to talk to his brother about the situation
- The next day, 6 May 2001, Mr Morrell called to Hogan's Bar to see whether Kieran Martin had met Kevin Martin and whether he had changed his mind about not serving him
- Inside, Kevin Martin made it clear that he was not going to serve him again
- Mr Morrell denies having visited the premises since May 2001.
Evidence of Respondent - Kevin Martin
- Hogans Bar has been run by the Martin family for many years. Mr Kevin Martin has managed the pub since 9 March 2001
- Kevin Martin has known Noel Morrell all his life.
- Kevin Martin said that he was aware at the time of the incidents that Noel Morrell had been barred from other pubs and that he had appeared in court on several occasions
- However, as he had known Mr Morrell for a long time, he was prepared to give him the benefit of the doubt and serve him from the time he took over the pub in March 2001.
- He was unaware at the time of the incidents that Mr Morrell's wife was a Delaney
- Members of the Delaney family were regular customers of his in March and April 2001 and had not caused him any trouble.
- On 30 April 2001, he arrived in Hogans Bar late in the evening. He was off duty that night and sat outside the bar.
- His younger brother Kieran was working behind the bar.
- He recalls Mr Morrell being on the premises and that the other group arrived after 11 pm
- He remembers signaling to his brother after 11.30 pm that it was time to close the bar.
- After midnight, after his brother had escorted Mr Morrell and the Delaneys from the premises, Kieran told him that Ms A had been abusive on the way out and that Mr Morrell had deliberately "brushed against" him.
- On hearing this, Mr Martin decided that both should be barred from the premises from then on.
- On 5 April 2001, Mrs Morrell came into the pub and he served her, her mother and two children.
- Shortly afterwards, Noel Morrell arrived and he told him that he would prefer if he "took his custom elsewhere" on account of 30 April 2001. Mr Morrell and his family left immediately.
- On Sunday 6 April 2001, Mr Morrell again visited the pub asking whether Kevin Martin had spoken to his brother Kieran the night before.
- Mr Martin confirmed that he had spoken to his brother and again told Mr Morrell that he did not want him on the premises.
Evidence of Respondent - Kieran Martin
- Kieran Martin remembers Mr Morrell arriving with some female companions on 30 April 2001.
- He also remembers the Delaney family group arriving around 11.15 pm. They were served two drinks each before both groups left around 12.15 am
- He recalls being asked for more drink after hours but he did not serve anyone
- When he was letting the two groups out the front door at 12.15 am, Ms A became abusive and told him not to bother coming to her restaurant.
- When Noel Morrell was leaving, "he brushed up against him" in a threatening manner. He felt afraid and told his brother afterwards that he felt that Mr Morrell was trying to intimidate him.
- On hearing this, Kevin Martin told him that Noel Morrell and Ms A were not to be served again.
Evidence of Respondent - Mr Shane Kelly
- Mr Kelly was working as a barman in Hogans Bar in March 2002
- On 31 March 2002, a man, who he now knows to be Mr Morrell, burst into the bar at 5.45 pm demanding to see Kevin Martin.
- He shouldered Mr Kelly out of the way in the process. While he was on the premises, Mr Morrell was very abusive.
- Mr Martin was not on the premises at the time. Mr Morrell left, having been told this by customers.
6 Matters for Consideration
Preliminary Issue
6.1 At the hearing on 19 November 2002, the respondents argued that the complaint should be deemed inadmissible as the notification required under Section 21(2)(a) of the Equal Status Act 2000 had not been served on the respondent within the two monthsspecified. The respondents pointed to the fact that Mr Morrell did not forward the ODEI 5 form to the respondents until 5 July 2001 and, as Mr Kevin Martin had informed Mr Morrell of his decision on 5 May 2001, the respondents argued that Mr Morrell's notification was sent one day late and therefore the complaint should be deemed inadmissible.
6.2 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(b) of the Act specifies the marital status ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that he was discriminated against on the grounds of his marital status, contrary to Sections 3(1), 3(2)(b) and 5(1) of the Equal Status Act, 2000 in being refused service in Hogans Bar on 5 and 6 May 2001.
6.3 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.4 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100)
7 Conclusions of the Equality Officer
Preliminary Issue
7.1 At the hearing on 19 November 2002, the respondents argued that the complaint should be deemed inadmissible as the notification required under Section 21(2)(a) of the Equal Status Act 2000 had not been served on the respondent within the two months specified. The respondents pointed to the fact that Mr Morrell did not forward the ODEI 5 form to the respondents until 5 July 2001 and, as Mr Kevin Martin had informed Mr Morrell of his decision on 5 May 2001, the respondents argued that Mr Morrell's notification was sent one day late and therefore the complaint should be deemed inadmissible. Section 21(a) of the Equal ,Status Act 2000 states that before seeking redress under the Act, the complainant shall, within 2 months after the prohibited conduct is alleged to have occurred, notify the respondent in writing of the nature of the allegation. On considering Section 21(2)(a) of the Act, I find that I must agree with the respondents argument that 5 July 2001 is not within 2 months of 5 May 2001 and that, therefore, a notification sent on 5 July 2001 in relation to an incident on 5 May 2001 would be "out of time" under the Act. In this regard, I have been guided by the Decision in the Employment Equality case A Complainant v A Company (DEC-EE-2001-023) where a similar situation arose relating to time limits.
7.2 In this case, however, Mr Morrell claims that the last act of discrimination occurred when he called to the pub on 6 May 2001 to establish from Kevin Martin whether he had spoken to his brother since the previous evening and whether, on the basis of their conversation, he had reversed his decision. In considering this point, I am inclined to accept that, when Mr Morrell called to the pub on 6 May 2001, he still believed that there was a chance that he would be readmitted to the pub . For this reason, I am prepared to accept that Kevin Martin's confirmation of his decision to Mr Morrell on 6 May 2001 was the date on which it was made patently clear to Mr Morrell that he was barred from the pub. Accordingly, I accept that 6 May 2001 was the first date on which Mr Morrell was made fully aware of the ban and I am prepared to accept that it is likely that it was only on 6 May that Mr Morrell first began to consider whether he may have suffered discrimination. Accordingly, I am prepared to accept Mr Morrell's contention that 6 May 2001 was the date of the most recent incident of alleged discrimination.. As 5 July 2001 is within two months of 6 May 2001, I therefore consider that Mr Morrell did meet with the provisions of Section 21(2)(a) in notifying the respondent of the alleged act of discrimination and that his complaint is admissible under the Act.
7.3 Prima facie case I must now consider whether the existence of a prima facie case has been established by the complainant.
There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the marital status ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.4 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.5 With regard to (a) above, the complainant has based his complaint on the grounds of marital status, claiming that the decision to bar him was taken because he was married to a member of the Delaney family. He claims, therefore, that Mr Martin's decision to bar him constituted discrimination on the marital status ground under the Equal Status Act 2000.
7.6 In order to decide whether the complaint is covered by the provisions of the Equal Status Act 2002, I must first consider how the term "marital status" is defined in the Act and whether I consider the complainants' case is covered by this ground.
Section 2(1) of the Equal Status Act 2000 defines "marital status" as follows: "marital status" means being single, married, separated, divorced or widowed"
Section 3 (1) of the Equal Status Act 2000 states that "discrimination shall be taken to occur where .... on any of the grounds specified ... a person is treated less favourably than another person is, has been or would be treated"
Section 3 (2)(b) of the Equal Status Act 2000 identifies "marital status" as one of the discriminatory grounds and describes it as follows: "That they are of different marital status"
7.7 Having considered the above definition, it appears clear to me that the "marital status" ground, as defined in the Equal Status Act 2000, relates specifically to a situation where a person is treated differently than another person because their marital status is different from that other person. Therefore, for a married person to claim that they were discriminated against on the "marital status" ground, it must be shown that the treatment afforded them was different to the treatment a single, separated, divorced or widowed person would have received in similar circumstances.
7.8 Having considered Mr Morrell's complaint, I find that he is not alleging that he was treated differently than a single, separated, divorced or widowed person. Instead, he is claiming that he was treated differently because of his marriage to a member of a family, members of whom had caused trouble previously in Hogan's Bar. Having deliberated on this issue, I find that I cannot accept that Mr Morrell's interpretation of the "marital status" ground falls within the definitions contained in the Equal Status Act 2000. Accordingly, I find that the incidents complained of do not fall for investigation under the Equal Status Act 2000 and, therefore, it is not for me to decide whether the complainant was treated unfairly or not by Hogans bar on 5 and 6 May 2001.
7.9 I, therefore, find that the complainant has failed to establish a prima facie case of discrimination on the marital status ground.
8 Decision
8.1 I find that a prima facie case of discrimination has not been made by the complainant in establishing that he was discriminated against on the marital status ground in terms of section 3(2)(b) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
Brian O'Byrne
Equality Officer
15 January 2003