Equal Status Acts 2000 - 2008
Decision DEC-S2008-055
John Hahessy & A Female Complainant
(represented by Donal T Ryan & Co. Solicitors)
V
Grants Castle Hotel, Cashel
(represented by Matthew McNamara & Son, Solicitors)
Key words
Equal Status Acts 2000 - 2008 - Direct discrimination, section 3(1)(a) - Marital Status ground, section 3(2)(b) - Supply of goods and services, section 5(1) - Refusal of service in a hotel
Delegation under the Equal Status Acts 2000 - 2008
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000 on 15 October 2003. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, 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 Acts 2000 - 2008. The Hearing of the complaint was held on 19 June 2008.
Summary of Claim
This dispute concerns a complaint by John Hahessy and the female complainant that they were discriminated against by Grants Castle Hotel, Cashel on 11 May 2003 when they were refused service in the hotel. The complainants maintain that discrimination occurred on the marital status ground. The claim was notified to the respondents on 2 July 2003.
Evidence of Parties at Hearing
At the outset of the Hearing, Mr Hahessy indicated that the female complainant would not be in attendance as she no longer wished to pursue her complaint. In response, I informed the parties that, in light of her failure to attend and give evidence that I would be finding against the female complainant on the basis that she had not established a prima facie case of discrimination.
John Hahessy gave evidence that at the time of the incident in 2003 he had been separated from his wife on and off for a number of years. At that time, the female complainant was his partner but they have since split up.
Mr Hahessy said that around that time he was a regular visitor to the Grants Castle Hotel for both food and drink at various times of the day and evening. The female complainant had often accompanied him on those occasions.
Mr Hahessy’s wife had been employed in the Grant Castle Hotel for many years prior to 2003 and he was aware in May 2003 that she was still working there part-time. Mr Hahessy said that he understood that her job involved working in the kitchen or cleaning bedrooms. He was not aware that she worked on occasion in the restaurant.
He said that he had never personally seen his wife on any occasion he had called in to the hotel when he knew that she was on duty. Nor had he ever had any problem getting served before on those occasions.
On Sunday 11 May 2003, he and the female complainant decided to have a Sunday lunch in Grants Castle Hotel. He said that Ms Peggy Cummins was on duty when he arrived and that he greeted her on arrival. He said that they then went to the bar and sat down to order lunch.
He said that, at that point, Ms Cummins approached him and said that his wife was working in the kitchen and that she would prefer if he left. When he queried this, he said that Ms Cummins said out loud “I would prefer if ye didn’t come back”.
Mr Hahessy said that he was extremely embarrassed by the episode as he believed that a number of customers had heard Ms Cummins’ remarks. He and the female complainant then left the hotel. He said that Mrs Cummins’ actions took him completely by surprise and that the embarrassment and humiliation he suffered was such that he has not frequented the hotel since.
At the Hearing, Margaret (Peggy) Cummins gave evidence that her family had taken over the hotel in 1973 and that Mr Hahessy’s wife had worked in Grants Castle Hotel for many years prior to 2003. She said that she and Mrs Hahessy were very good friends.
She said that she knew Mr Hahessy to see and was aware that he had been barred from the hotel and nightclub some years before. She stated, however, that this barring was not a factor in her asking him to leave the hotel on 11 May 2003.
She said that she was aware at the time that there had been marital difficulties between the couple as Mrs Hahessy had confided in her. She was also aware from a recent conversation with Mrs Hahessy that she had a particular concern in 2003 over her husband’s involvement at the time with a younger woman because of the close proximity in age to the Hahessy’s own son.
Ms Cummins said that she herself usually only worked the lunch shifts and that she could not recall John Hahessy ever coming to the hotel for lunch before 11 May 2003.
On Sunday 11 May 2003, Mrs Hahessy was working in the bar area serving food as she usually did. Ms Cummins explained that by May 2003, Mrs Hahessy’s duties had widened and that she was by then regularly serving food to lunch-time customers on Sundays as well as doing some kitchen work. In response, Mr Hahessy said at the Hearing that he had not been aware that his wife had been given the additional role of serving lunches on Sundays.
Ms Cummins said that she was taken by surprise when Mr Hahessy arrived in the hotel on 11 May 2003 with a woman. She said that she immediately associated that woman with the younger woman that Mrs Hahessy had described as going out with her husband.
She said that her immediate concern was for Mrs Hahessy who, at that point in time, was preparing desserts upstairs. She felt that seeing her husband with the other woman in the hotel would be uncomfortable and upsetting for Mrs Hahessy and might start some “trouble” between them as they were going through a separation at the time.
Ms Cummins said that she simply did not want any “hassle” on the day. Mrs Cummins also said that the fact that Mr Hahessy had been barred previously from the hotel’s nightclub was not a factor in her decision that day.
Ms Cummins decided that the best course of action to take was to ask Mr Hahessy to leave, which she did. She said that she did so in a quiet voice and does not believe that other customers would have heard. Mr Hahessy and the woman left when asked to do so.
Afterwards she went to Mrs Hahessy and told her what had happened. Mrs Hahessy was surprised her husband had come in and simply said “That’s fine”.
At the Hearing, the respondent’s legal representative argued that Ms Cummins had “acted in good faith” in accordance with Section 15(2) of the Equal Status Acts in refusing service to Mr Hahessy, in order to ensure compliance with the provisions of the Licensing Acts. In this regard, the representative referred to an incident some years previously where the complainant had been barred from the hotel’s nightclub for engaging in disorderly behaviour and claimed that Mrs Cummins’ refusal was guided by a fear of further “disorderly conduct” occurring.
Conclusions of the Equality Officer
Section 38A (1) of the Equal Status Acts 2000 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that he/she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
In this particular case, the female complainant did not appear at the Hearing. Accordingly, I find that the female complainant has not established a prima facie case.
In considering the case of Mr Hahessy, I note that there is agreement between the parties that he and the female complainant visited Grants Castle Hotel at lunchtime on 11 May 2003 and that they were asked to leave by the restaurant manager, Mrs Margaret Cummins.
The complainant claims that his eviction from the hotel was because his wife worked in the hotel, that the manager was aware from his wife that they were separated and that this was the reason the manager decided to refuse him service. Accordingly, he believes that he was asked to leave solely because of his marital status and he claims that this action constituted discrimination contrary to the provisions of the Equal Status Acts 2000-2008.
In considering the evidence of Mrs Cummins, it is clear that she and Mrs Hahessy were very close and that Mrs Hahessy had taken her into her confidence with regard to her marital situation. It is also apparent that Mrs Cummins became gravely concerned on 11 May 2003 when Mr Hahessy arrived with the female complainant, knowing that his wife was working on the premises at the time.
It would also appear that, on seeing Mr Hahessy and the female complainant arrive together, Mrs Cummins made an impulsive decision to ask Mr Hahessy to leave because of her concern over the effect that the couple’s arrival might have on Mrs Hahessy.
Having listened to Mrs Cummins’ evidence, I find that I am prepared to accept, on the balance of probabilities, that it was not Mr Hahessy’s marital status that influenced Mrs Cummins but it was more her personal concern over the impact Mr Hahessy’s presence in the restaurant might have on Mrs Hahessy that prompted her decision to ask him to leave.
Accordingly, I do not consider that Mr Hahessy suffered discrimination on the marital status ground contrary to the provisions of the Equal Status Acts and I find that a prima facie case of discrimination has not been established by him.
Decision
I find that, by failing to appear at the Hearing on 19 June 2008, that the female complainant has failed to establish a prima facie case of discrimination on the marital status ground.
In the case of John Hahessy, I also find that a prima facie case of discrimination has not been established by him on the marital status ground in terms of sections 3(1) and 3(2)(b) of the Equal Status Acts 2000 - 2008 .
Brian O'Byrne
Equality Officer
16 September 2008