Equal Status Acts 2000 - 2008
Equality Officer Decision
DEC-S2009-001
Michael Grogan
(represented by Douglas Kelly & Son, Solicitors)
V
Crocketts on the Quay, Ballina
Date of Issue 13 January 2009
File Ref ES/2003/671
Equal Status Acts 2000 - 2008
Decision DEC-S2009-001
Key words
Equal Status Act 2000 - Direct discrimination, section 3(1)(a) - Family Status ground, section 3(2)(c) - Supply of goods and services, section 5(1) - Refusal of service in a Pub/Restaurant - Establishment of a prima facie case - Non attendance at Hearing by respondents – Intoxicating Liquor Act, 2003 (Commencement) Order 2003
1 Delegation under the Equal Status Acts, 2000 - 2007
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. On 9 January 2008, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director 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 - 2007.
2 Dispute
This dispute concerns a complaint by Michael Grogan that he and his family were discriminated against on the family status ground by the proprietors of Crocketts on the Quay, Ballina when they were refused a meal at 6.50 pm on Sunday 20 July 2003.
3 Summary of Hearing
3.1 The Hearing of this complaint was scheduled for 10am on 15 October 2008. On 13 October 2008 the respondent, Mr Paul Murphy, informed the Equality Officer by phone that he was not proposing to attend the Hearing to answer such “a ridiculous allegation”. In response, it was explained that the Hearing would proceed as planned as equality legislation required that a Hearing be convened to enable the complainant to put their case and also to provide the respondent with an opportunity to rebut any allegation made. Mr Murphy was also informed that if he was not in attendance that the complainant’s evidence would be heard on the day and would be taken into account by the Equality Officer in making his decision.
On 15 October 2008, the complainant arrived for the Hearing at 10am as required. As there was no sign of the respondent, the commencement of the Hearing was delayed for 30 minutes in case he had been detained en-route.
3.2 When the respondent had not appeared by 10.30 am, I convened the Hearing explaining that, despite the fact that the respondent was not in attendance, that in cases under the Equal Status Acts the onus was still on the complainant to provide evidence establishing a prima facie case.
The complainant then described how he and his family had visited Crocketts on the Quay in Ballina for a meal at 6.50pm on Sunday 20 July 2003 after a day at the beach. On arrival they were informed that the restaurant had a strict policy that all children must be off the premises by 7.30pm and that, as there was insufficient time for them to order and eat their meals by 7.30pm that evening, that they could not be accommodated. The complainant said that he found the incident very humiliating as he had been a regular there before and many customers on the night would have known him.
3.3 At the Hearing, the complainant’s solicitor made reference to the Intoxicating Liquor Act 2003 and stated that, to her knowledge, its provisions relating to children in pubs had not yet come into force on 20 July 2003. Accordingly, she believed that the complainant had suffered discrimination on the family status ground contrary to the provisions of the Equal Status Act 2000.
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, 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.
Accordingly, despite the fact that the respondent did not attend the Hearing in this case, the onus is still on the complainant to establish a prima facie case before any consideration can be given as to whether discrimination occurred.
4.2 In the case before me, the complainant maintains that on 20 July 2003 it was contrary to the provisions of the Equal Status Act 2000 to refuse children admission to a licensed premises. In the past, similar such cases have been brought before the Tribunal. In both the case of Maughan v The Glimmer Man (DEC-S2001-20), involving an incident that occurred on 2 November 2000 and Travers and Maunsell v The Ball Alley (DEC-S2003-109/110) relating to an incident that occurred on 11 May 2001, the Equality Officer found that the complainants had suffered discrimination contrary to the provisions of the Equal Status Act on being asked to leave the pub in question because of having children in their company.
4.3 The case before me, however, happened some years later in mid 2003 at a time when the Intoxicating Liquor Acts were being revised in an effort to provide more clarity in the area of publicans’ rights with regard to restricting access to children. For this reason, I consider that it is appropriate to examine the timeframe that was involved in amending the Intoxicating Liquor Acts in 2003 and its relevance to the incident under discussion in this case.
4.4 The Intoxicating Liquor Act 2003 (No 31 of 2003), which provided publicans with the discretion to restrict the presence of persons under 18 on their premises (under Section 14), was enacted on 14 July 2003, a week before the refusal in this case.
However, the relevant Commencement Order (S.I. No. 362 of 2003) only provided for the enactment of Section 14 with effect from 29 September 2003indicating that on 20 July 2003, publicans still had not been legally granted the discretion to restrict the presence of persons under 18 years of age.
4.5 In light of the above, I am satisfied that the respondents acted in contravention of the Equal Status Act 2000 in refusing access to the complainant’s children on 20 July 2003. As the respondents did not take the opportunity to rebut the allegation at Hearing, I find in favour of the complainant in the matter.
5 Decision
I find that a prima facie case has been established on the family status ground in terms of sections 3(1) and 3(2)(c) of the Equal Status Acts 2000 – 2008 and that the respondents have failed to rebut the allegation.
I award the complainant the sum of €600 for the upset and humiliation caused on the night.
Brian O’Byrne
Equality Officer
13 January 2009