Martin O' Regan V The Bridge Hotel, Waterford (represented by Nolan Farrell & Goff Solicitors)
1. Dispute
1.1 This dispute concerns a complaint by Martin O' Regan that he was discriminated against, contrary to the Equal Status Act 2000, by the management of the Bridge Hotel,Waterford. The complainant maintains that he was discriminated against on the sexual orientation ground in terms of sections 3(1) and 3(2)(d) 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 dispute concerned a complaint by Martin O' Regan that he was refused service and asked to leave the Bridge Hotel, prior to closing time, by a member of staff on the night of 8/9 June 2002 (Saturday night /Sunday morning). Mr O' Regan claimed that this occurred because he was known to be gay.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operated a discriminatory policy against gay people. They maintain that the complainant was asked to leave because he was not a resident in the hotel.
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 his powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint 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 Matters for Consideration
5.1 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)(d) of the Act specifies the sexual orientation 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 sexual orientation contrary to Sections 3(1), 3(2)(d) and 5(1) of the Equal Status Act, 2000 in being asked to leave the Bridge Hotel on 8/9 June 2002.
5.2 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 Conclusions of the Equality Officer
6.1 Prima facie case
At the outset, I must first 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 sexual orientation ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant 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.
6.2 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.
6.3 With regard to (a) above, the complainant has satisfied me that he is gay. In relation
to (b), the respondents acknowledge that the complainant's presence in the Hotel was queried on the night of 8/9 June 2002 (Saturday night /Sunday morning) but they dispute the timethat this occurred. To determine whether a prima facie case exists, I must, therefore,consider whether the treatment afforded the complainant on 8/9 June 2002 was less favourable than the treatment a non-gay person would have received, in similar circumstances.
6.4 In considering whether the complainant has established a prima facie case, I have
noted the following evidence provided by the parties involved:
- Mr O'Regan was a former employee of the Bridge Hotel who worked in the hotel restaurant 5 years previously. He said that he knew both Mr Francis Malone and Mr Declan Power from that time and said that he was sure that they both would have remembered him as well.
- Mr O'Regan states that, during his employment with the Hotel, there was an incident involving Mr Malone where comments were made about Mr O'Regan's sexual orientation. The matter was resolved when Mr Malone offered an apology to Mr O'Regan which was accepted. Mr Malone confirmed the accuracy of this report at the Hearing. MrO'Regan left his employment with the Hotel shortly afterwards.
- Mr Malone confirmed at the Hearing that he knew Mr O'Regan from the time he worked in the hotel but says that he did not see him on the premises on 8/9 June until 5 am in the morning when he was about to leave the premises.
- Mr Declan Power stated that he was not aware that Mr O'Regan had been employed in the Hotel previously and explained that, as a doorman, five years previously, he would have only come on duty at 10.30 pm each night after the restaurant had closed and would not have seen Mr O'Regan. Mr O'Regan disputed this saying that he used to have to work until 11.30 pm each night, cleaning up, and that Mr Power would have seen him at that point each night.
- Mr Power said that he knew Mr O'Regan's face from seeing him in the hotel on several occasions as a customer. He said, however, that he did not know his name on 8 June 2002 nor did he know he was gay.
- Mr O'Regan said that he had visited the hotel on a few occasions, to attend private functions, in the intervening years since he left the hotel's employment and had encountered no problems in being served.
- Evidence was given by Mr O'Regan, his sister Tracy Homan and his cousin Jackie Moloney that a family group of 25 people had gone out to another pub for a few drinks at 9.30 pm on 8 June 2002. At 11.30 pm, the group split up and five of them decided to go to the Bridge Hotel. This group consisted of Mr O'Regan, Ms Homan and her husband, Ms Moloney and another female cousin.
- Ms Homan and her husband were staying overnight in the Bridge Hotel and invited the group back for a drink to watch the Lennox Lewis/Mike Tyson fight which was scheduled for 4 am the next morning and was been shown on the big screen in the Hotel.
- When the group arrived at 11.30 pm, they say that the hotel bar was packed and that up to 50% of those in the bar were non-residents. The two men went to find a table while the ladies went to the bar and bought a round of drinks.
- Mr O'Regan says that shortly after 12 midnight, Mr Power came over to him at his table, and asked him personally to leave as he was not a resident. Mr O'Regan says that he was the only person in the hotel that Mr Power approached at that time, 30 minutes before the official closing time.
- At around 12.15 am, 15 minutes before the bar was due to close, Mr O'Regan says that he sought a drink at the bar but was refused service. The women in his party, however, had no problem getting served at the bar. The complainant's two witnesses confirmed that this had happened. The complainant maintained that he was refused because he was gay.
- Mr O'Regan said that Mr Power approached him on a further 4/5 occasions that night, asking him to leave. Mr O'Regan said that he responded that he would not leave until such time as all the other non-residents had also been asked to leave.
- At the Hearing, the complainant's sister and cousin confirmed that Mr Power had approached the complainant on a number of occasions from 12 midnight onwards, asking him to leave.
- The complainant said that he believes that the reason he was treated in this manner by Mr Power was because Mr Power knew him from the time he worked in the Hotel and knew he was gay.
- Throughout the night, Mr O'Regan says that he was continually refused service by the barstaff but that the others in his group were served, which enabled them to buy drinks for him. He also claimed that there were many other non-residents in the Hotel bar that night and that they also continued to receive service after closing time
- At around 3 am, the complainant says that he and his sister went to the bar to order drinks and were asked to show that they were residents. His sister produced her room key. This was accepted and drinks were supplied for the group.
- Mr Power gave evidence that the first time he saw the complainant on the premises that night was around 1.30 am when he was looking for a drink at the bar with his sister. At that point, Mr Power says that he was trying to get the remaining non-residents to leave the hotel.
- When he saw Mr O'Regan, Mr Power says that he asked to see his room key. He says that Mr O'Regan's sister produced a room-key and said that they were residents. This was checked and confirmed by the Night Manager, Mr Malone, and the group were served. Mr Malone confirmed this sequence of events at the Hearing.
- Mr O'Regan said that he went to leave the Hotel around 5 am, after the boxing match had finished. At that point he was again approached by Mr Power who informed him that he was barred. When he questioned this, Mr O'Regan said that Mr Power refused to give him a reason.
- Shortly afterwards, according to the complainant, a barman came out and made the comment that, if he had been on the door earlier, that "the queer would not have been let in". The complainant states that this was the first direct reference made to his sexual orientation that night.
- Mr Power gave evidence that he had noticed Mr O'Regan leaving the Hotel around 5am and had offered to show him where the door bell was outside the Hotel, thinking he was a resident and would be returning later. Mr O'Regan then told him that he was not staying in the hotel.
- Mr Power said that Mr O'Regan then left with a female but returned minutes later. Mr
Power asked him to leave as he was not a resident. At that point, Mr Power said that Ms Homan then started shouting abuse at him and accused him of picking on her brother because he was gay. Mr Power said that this was the first time he had heard any reference made to the complainant's sexual orientation that night. He said that he immediately denied to the sister that this was the case. - Mr Power states that at no time during the night did a member of staff refer to the fact
that Mr O'Regan was gay - The barman who was on late duty that night, Sean Fortune, gave evidence that he was the only member of the barstaff on duty at 5am and denied that it was he who had made a comment about Mr O'Regan being "queer". The complainant acknowledged at the Hearing that Mr Fortune was not the man that he recalls making the comment at 5 am but says that it was another person who had been behind the bar that night.
Note One
At the Hearing, the respondents referred to the fact that they had conducted their own investigation into the alleged incident when they received notification that a complaint of discrimination was being considered. The investigation was coordinated by Mr Malone who asked each member of staff, who was involved that night, to supply him with a written report. In all, four reports were prepared, including one from Mr Malone himself. As these reports were not available at the Hearing, the Equality Officer requested that copies of same be submitted to him subsequent to the Hearing. On receipt, these were passed to the complainant for consideration.
Note Two
In the past, it has been the practice of the Equality Tribunal to anonymise decisions on the
sexual orientation ground on foot of feedback from clients indicating that potential complainants from the Gay and Lesbian community are often deterred from taking such cases by the fear of publicity. This option was afforded to the complainant in this case but he indicated that he did not wish to remain anonymous.
6.5 In considering whether discrimination occurred on 8/9 June 2002, I note that it is agreed by Mr O'Regan and Mr Power that the first clear reference to Mr O'Regan's sexual orientation was only made when he was leaving the premises. It would also appear that the only offensive comment allegedly made was made by an unidentified off-duty barman after 5 am. In view of the fact that the identity of the barman in question has not been clearly established and there is conflicting evidence as to whether such a comment was made, I find that the complainant has failed to supply me with sufficient evidence regarding the 5 am incident to establish a prima facie case of discrimination on the sexual orientation ground.
6.6 Therefore, in order to decide whether I consider Mr O'Regan was subjected to discriminatory treatment by the hotel, and treated less favourably than a non-gay person would have been treated, I believe that it is necessary to examine the events that occurred earlier in the night, particularly prior to closing time, when both residents and non-residents were entitled to be on the premises.
6.7 At the Hearing on 25 February 2004, I heard the complainant and his two witnesses state that he was initially asked to leave the hotel around midnight by Declan Power, and then refused service at the bar at 12.15am, a quarter of an hour before the official closing time of 12.30 am. The complainant contends that the reason for Mr Power's approach and his refusal at the bar was because Mr Power knew who Mr O'Regan was and also knew that he was gay. MrPower himself denies both these assertions saying that he first saw Mr O'Regan in the hotel at 1.30 am. Mr Power also contends that he only knew Mr O'Regan to see and that he did not know his name or that he was gay.
6.8 In considering this point, I have examined the written documentation and reports submitted by the respondents and I note, in particular, the report of the incident supplied by Mr Francis Malone where he states that at 1.30am "Mr D Power (Doorman) came to me and asked if a Mr O'Regan was booked into the hotel under the name of a Mr Honan". To me, this quote from Mr Malone calls into question Mr Power's assertion that he did not know Mr O'Regan by name. If Mr Power did not know Mr O'Regan's name prior to 1.30am, as he maintains, I find it difficult to understand how he could have learned it at that point, at a time when Mr O'Regan was trying to maintain that he was resident in the hotel under adifferent name. Having considered the above point, I find that it has placed a doubt in my mind as to the accuracy of Mr Power's assertion that he did not know who Mr O'Regan was prior to 8 June 2002. The establishment of this doubt has also lead to me doubting the accuracy of some of the other aspects of Mr Power's testimony. Accordingly, having listened to the evidence of all concerned, I find that it is the complainant's evidence that I consider to be the more compelling, leading me to the conclusion, on the balance of probabilities, that Mr Power did single Mr O'Regan out on the night of 8 June 2002, that he did approach Mr O'Regan with a request to leave before closing time, and that this request was on account of the fact that Mr Power knew that Mr O'Regan was gay.
6.9 I, therefore, find that Mr O'Regan was less favourably treated by the respondents on the night of 8/9 June 2002 because of his sexual orientation and that this treatment constituted discrimination contrary to the provisions of the Equal Status Act 2000. Accordingly, I find that the complainant has established a prima facie case of discrimination on the sexual orientation ground, and that the respondents have failed to rebut theallegation.
7 Decision
7.1 I find that a prima facie case of discrimination has been established by the complainant on the sexual orientation ground in terms of sections 3(1) and 3(2)(d) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
7.2 In considering the level of redress to award, I have taken into account the fact that the complainant may have been acting illegally by remaining on the hotel premises under false pretences that night. However, I also note that any such breach of the law would have occurred subsequent to the act of discrimination which I have found Mr O'Regan was subjected to. In the circumstances, I consider it appropriate to order that the respondent pay the complainant the sum of €1000 for the humiliation and suffering experienced by him, prior to official closing time, on 8/9 June 2002. I also order that arrangements be put in place within the Bridge Hotel to ensure that the complainant is made welcome, on an equal basis to heterosexual customers, should he decide to frequent the premises in the future. In addition, I order that the respondents ensure that all staff are made fully aware of their obligations under the Equal Status Act 2000 to ensure that incidents of this nature do not occur again.
Brian O'Byrne
Equality Officer
20 April 2004