David Morrissey & Philip Breen (Represented by Michael Sheil & Partners, Solicitors) V The Licensee, McGowan's Public House. Dublin (Represented by Mason Hayes Curran, Solicitors)
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Gender ground, Section 3(2)(a) - Marital Status Ground, Section 3(2)(b)Disposal of goods and supply of services, Section 5(1) - Refusal of service in a public house - Certain activities not discrimination, Section 15(2) - Prima Facie case.
1. Dispute
1.1 This dispute concerns claims by David Morrissey and Philip Breen that on 7 September, 2002 they were denied service in the respondent premises on the grounds of their gender and marital status. The respondent denies that discrimination occurred. The complainants referred a claim 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 then delegated the case to me, Dolores Kavanagh, 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.
2. Summary of Complainants' Case
2.1 The complainants state that they, along with two male companions, were refused entry to the respondent premises by a member of the respondent's staff on 7 September 2002, when they sought to be admitted to the respondent premises. The complainants were told that only regulars could be admitted but are aware that friends of theirs who had never been to the premises previously had been admitted that evening. The complainants contend that they were refused entry on the basis of their gender and marital status as they saw a group of females, and couples, being admitted to the premises while they were standing at the entrance to the respondent premises.
3. Summary of Respondent's Case
3.1 In relation to the complaints the respondent states that the doorman was unhappy with the way one member of the group spoke to him and as a consequence refused the group admission. This was unconnected to the complainant's gender or marital status.
4 Prima Facie Case
4.1. At the outset, I must first consider whether the existence of a prima facie case has been established by the complainants. 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 gender and marital status grounds)
(b) Evidence of specific treatment of the complainant 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 the same, or similar circumstances.
4.2 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. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5 Prima Facie Case - Complainants
5.1 The complainants are both single males. This fulfils (a) at 4.1 above. Both parties agree that the complainants were refused service on 7 September, 2002. This fulfils (b) at 4.1 above. In relation to key element (c) above the complainants state that they witnessed a group of five females and a number of couples being admitted to the respondent premises while they were at the entrance speaking with the door staff. In the circumstances I am satisfied that the complainants were treated less favourably than the females and the couples in question and have, therefore fulfilled (c) above and have established a prima facie case of discrimination on the gender and marital status grounds.
6 Respondent's Rebuttal
The respondent states that the premises had a very poor reputation locally when the current owners took over the license. The main problem was noise and disruption caused in the neighbourhood as patrons left the establishment at closing time. The local Garda Superintendent had told the new (current) owners that unless they dramatically improved things he would not recommend that they keep the license. The new owners had therefore introduced a range of measures to deal with the difficulties, including those whereby all patrons were stopped entering the premises until the door staff had an opportunity to talk to them and gauge their demeanour. The owners had paid for the installation of double glazed windows in houses close to the respondent premises to minimise noise disruption to residents. They also had security staff on duty along the route out of the premises, near neighbouring houses, to prevent disruption to the locals at closing time. Any person whom the door staff feel are unsuitable to be admitted are refused entry. The respondent fully accepts that certain patrons will take offence at this and that some patrons may erroneously be prevented from entering, but the policy has been very effective in eliminating the problems which previously existed. The local Garda Superintendent has congratulated them on the improvements in general.
The respondent gave detailed evidence of the average attendance at the respondent premises, which is very high (circa 1000-1200 on average). The respondent states that many of the patrons on any given night would be single males. The only reason why the complainants and their companions were refused entry on the night in question was because of the manner in which one of the group, (not one of the complainants), answered the doorman. The latter was unhappy with the response and stopped the group entering the premises. When the complainants asked to see the manager, the doorman called one of the owners to the door. The owner, who had overheard the conversation between the doorman and the group, upheld the doorman's decision.
Mr. Bernard McGowan, the owner who had been present at the door on the night in question, explained that the premises is open until very late and, rightly or wrongly, the door staff have to gauge the ability of patrons to behave in a reasonable manner for the full night, based on a cursory discussion at the door. Sometimes the door staff gets it wrong in that they exclude persons who may be fine, or admit persons who subsequently have to be asked to leave. However, the strict admission policy is working successfully overall.
7 Conclusions of the Equality Officer
Having considered all of the evidence in detail I understand how the complainants might have felt that they were being treated unfairly in circumstances whereby they witnessed a group of females and a number of couples enter the respondent premises while they were stopped at the door. However, the complainants were at the door for a very short period of time and were not in a position to say that no single males were admitted to the premises at any time that evening. Also, it is unclear as to whether those who entered the premises were well known to the respondent. I find the evidence presented by both parties to be compelling. However, the complainant have not satisfied me that the refusal was based purely on either the gender or marital status. It is equally possible that the doorman was unhappy with the response of one of the complainant's companions, who was not available to provide evidence in this matter. I am therefore not satisfied on balance, in all the circumstances, particularly whereby the respondent clearly takes a very responsible attitude to the manner in which the respondentpremises is managed, that the refusal of entry to the complainants was discriminatory on either of the stated grounds.
6 Decision
I find that the complainants were not discriminated against on the gender or marital status grounds contrary to Section 3(1)(a), and 3(2)(a) and (b) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
______________________________
Dolores Kavanagh
Equality Officer
9 July, 2004