John McDonagh (represented by Justin Sadleir, Solicitors) V The Menlo Park Hotel, Galway (represented by VP Shields & Son, Solicitors)
Headnotes
Equal Status Act, 2000 - Direct discrimination, Section 3(1)(a) - Traveller community ground, Section 3(2)(i) - Disposal of goods and supply of services, Section 5(1) - Refusal of function booking in hotel - Prima facie case.
1. Dispute
1.1 This dispute concerns a claim by John McDonagh that in mid-August 2001, he was denied a service in the Menlo Park Hotel on the grounds that he is a member of the Traveller community. The respondent denies that discrimination occurred. The complainant 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 (based on written and oral submissions)
2.1 The complainant states that he went to the Menlo Park Hotel in mid-August 2001 to book a function room for a christening and was told by the person with whom he spoke that the hotel function rooms were unavailable for the foreseeable future as they were fully booked. The complainant indicated at the time that he did not accept this. The hotel's general manager, Mr. David Keane was sent for. Following discussions with Mr. Keane the complainant was told that a function room was available for a date in November 2001. This date was acceptable to the complainant. Discussions followed about the arrangements for the christening function.
2.2 Some days later the complainant returned to the hotel to pay a deposit for the function room. Mr. Keane put him off saying that he needed to discuss the matter with the owners of the hotel and that the complainant should return the next day. On doing so the complainant was informed by Mr. Keane that he had been instructed by the hotel owners to refuse the booking and that this was done on foot of legal advice received.
2.3 The complainant acknowledged that, on a date some weeks before he sought to make the booking, he, his brother in law and their wives had spent the evening in the hotel bar. They had experienced no difficulty gaining admission to or being served in the hotel on the evening in question. Prior to leaving the hotel the complainant went to the toilets. As he returned he saw that his brother in law was having an argument with a member of the hotel's staff in the foyer of the hotel. The complainant went to stand beside his brother in law but had had no part in the incident and was unaware of what precisely had given rise to it. He, the complainant, had assisted the hotel management in removing his brother in law from the hotel on that occasion. His brother in law had later told him that a member of staff at the hotel reception had made objectionable remarks about his being a Traveller and that he had simply reacted to those remarks.
2.4 The complainant had not caused the incident and had in no way taken part in it. He is in no way responsible for the actions of his brother in law. There was no basis therefore for refusing him the use of the hotel's facilities. It is the complainant's contention that he was refused use of the hotel's function facilities because he is a Traveller.
3. Summary of Respondent's Case (based on written and oral submissions)
3.1 The respondent states that the complainant's brother in law had been drinking in the hotel bar on the earlier date in question. He was in the company of the complainant and two women. As he was leaving the hotel bar the brother in law had passed racist remarks to two customers of the hotel (both foreign nationals) and had blocked their way into the bar. A member of staff had witnessed this and had asked the man to step aside. A heated argument ensued and the duty manager was sent for to deal with the complainant's brother in law. It was while the duty manager was dealing with the matter that the complainant arrived on the scene. While the respondent accepts that the complainant did not become involved in the matter, neither did he do anything to assist in the situation.
3.2 In mid-August 2001 when the complainant went to the hotel to book a function room the person with whom he spoke was the duty manager who had dealt with the above incident. The duty manager had recognised the complainant and immediately associated him with the earlier incident. On the basis of the probability of the complainant's brother in law attending at the proposed function he informed the complainant that the hotel had no available function rooms.
3.3 The complainant had become insistent in his tone and had threatened to take a case under the Equal Status Act 2000 against the hotel if he was not provided with a suitable function room. When Mr. Keane, the general manager, spoke with the complainant the latter was still insistent and adamant. The complainant had also insisted that he wanted a private bar facility for the function up to 10.00 p.m. This was unusually late for such a function. Mr. Keane felt that he had no option but to allow the complainant a booking because of the threat by the complainant of taking an equality case. He had sought assurances from the complainant that the brother in law who had been involved in the earlier incident would not be in attendance at the christening function and this assurance had been given. However, Mr. Keane still had misgivings about accepting the booking.
3.4 Following discussions with the owners in which Mr. Keane aired his misgivings he was directed to refuse the booking on foot of legal advice received to the effect that the hotel was not obliged to take a booking in circumstances whereby the duty of care to the hotel patrons and residents was paramount and, because of the past experience with the complainants brother in law, they should refuse the booking.
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 Traveller community ground)
(b) Evidence of specific treatment of the complainants 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.
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 - Complainant
5.1 The complainant is a Traveller and this is not disputed by the respondent. This fulfils (a) at 4.1 above. Both parties agree that the complainant's booking for a function was ultimately refused by the respondent. This fulfils (b) at 4.1 above. In relation to (c) above the complainant's brother in law had been involved in an incident on the respondent premises on an earlier date. The complainant was in the company of his brother in law that evening and they had been served all evening in the hotel bar, along with their wives. Neither the complainant nor the duty manager who was called to deal with the matter had been present when the incident arose initially. Neither can therefore attest as to the precise reason for the incident. What is agreed by the parties is that such an incident did in fact occur. While the complainant had not contributed actively to the earlier incident involving his brother in law, the fact remains that he was associated with the actions of his brother in law by the respondent and refused the function booking on that basis. Prior to this incident arising the complainant was served in the respondent premises and the issue of his Traveller identity had not arisen. The complainant has provided no evidence to indicate that a non-Traveller would not be associated in the same manner with an individual who had been involved in a similar incident and refused service and/or use of facilities on that basis. In the circumstances the complainant has failed to satisfy (c) above and has therefore failed to establish a prima facie case of discrimination on the Traveller community ground.
Decision
The Equality Officer found that the complainant was not discriminated against on the Traveller community ground contrary to Section 3(1)(a), and 3(2)(i) of the Equal Status Act 2000 and in terms of Section 5(1) of that Act.
______________________________
Dolores Kavanagh
quality Officer
25 November, 2003