Equal Status Act 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-051
Mr. Peter McGuffin and Mr. Enda Harte
(Represented by Peter Crowley and Co. Solicitors)
V
Eyre Square Hotel
(Represented by V.P. Sheilds & Son Solicitors)
File No. ES/2005/0306 - 0307
Date of Issue 29 August 2008
Full Case Report
DEC-S2008-051
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – Sexual Orientation ground, section 3(2)(d) – Disposal of goods and provision of services, section 5(1) – Inferences from failure to supply information, etc., section 26 - Vicarious liability, section 42(1), 42(3) – Intoxicating Liquor Act 2003, section 19.
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. Mr. McGuffin and Mr. Harte referred a claim to the Director of the Equality Tribunal under the Equal Status Act 2000 to 2004 on 15 September 2005. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts 2000 to 2004, the Director then delegated the case to me, Tara Coogan, 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. The investigation under section 25 of the above Acts commenced on 11 April 2008. An oral hearing as part of the investigation was held in Galway on 30 June 2008.
2. Dispute
2.1. The dispute concerns a complaint under the Equal Status Acts 2000 to 2004 by the complainants, Mr. McGuffin and Mr. Harte, that they were treated less favourably in terms of section 3(1)(a) by the respondent, Eyre Square Hotel, in being refused a service that is generally available to the public contrary to section 5(1) because of their sexual orientation in terms of section 3(2)(d). The incident took place on 3 June 2005. A subsequent incident took place on 19 June 2005. The respondents were notified on 30 June 2005.
3. Case for the Complainants
3.1. The complainants, who state that they were tired of having to look for places to socialise and have fun, decided to host a number of gay-friendly events in Galway in 2005. In order to identify a service provider who would allow the complainants to use their facilities, the complainants put together a background paper and approached a number of service providers to identify a location that could host such events. In May, the Victoria Hotel, which is also owned by the respondent, agreed to let the complainants use their resources every second Thursday. According to the arrangement established between the parties, the complainants promote the venue and arrange the music and pay a percentage of the door profits to the respondent. The respondent provides the facilities and provides staff. The first event took place on 12 May 2005.
3.2. The complainants hosted a few events in the Victoria Hotel without any incidents. They state that the hotel staff were helpful and, while the complainants acknowledge that they were waiting for the momentum for the events to build, the complainants viewed the events as successful. They were, however, on a lookout for a venue that they could host on a weekend night as these are more likely to attract larger numbers and the most commercially advantageous.
3.3. The complainants were told that they could host an event in the Eyre Square hotel on the June bank holiday Sunday, 5 June 2005. The complainants advertised the event on specific websites and posted posters that they stated are ‘designed not to offend’ around the city. These posters contained the rainbow flag with an inverted ‘E’ that operated as signifiers for those ‘in-the-know’. The complainants emphasised that the events were not exclusive to members of the gay community. Any person was welcome to enjoy themselves and to have fun.
3.4. The complainants received a phone call from a named manager at the Eyre Square Hotel on the bank holiday Friday, 3 June 2005. The named manager told the complainants that he had been told that the event could not take place in the hotel and that he should have never given them the venue for the Sunday night. He informed the complainants that he had sent a member of staff to remove the posters that had been placed around the city.
3.5. The complainants stated that this information “came out of the blue” and that, after the initial shock, they insisted that they must meet with the manager in person to discuss the matter. The complainants stated that they were concerned that the event was to be cancelled at such short notice as they had advertised widely and knew that people would be travelling to Galway specifically to party at the Eyre Square Hotel. The complainants stated that - after some persuasion and insistence from them- the named manager agreed to meet the complainants later that day.
3.6. During this meeting, the complainants explained to the manager that they simply could not cancel such an event at such short notice. The event had been promoted and people had made arrangements to travel to the city specifically for that purpose. The complainants argued that it would be too late to notify everyone that the event had been cancelled. They also stated that they demanded to know why the event had to be cancelled at such short notice and why a member of the hotel staff had been dispatched to remove their posters. The manager, the complainants argue, told them that the order had come from the top and that the proprietor himself was very angry that such an event was to take place in his establishment. The complainants maintain that when they asked the manager what had made the proprietor so angry, the named manager told them that the proprietor was annoyed to find out that a gay event was taking place in his hotel and that it was the proprietor himself who had ordered the event to be cancelled. The named manager then allegedly told the complainants that the complainants and their events were embarrassing the respondent.
3.7. As a result of this meeting, the complainants were able to convince the named manager that it was too late to cancel the event as they had no way of ensuring that people intending to take part could be informed of such a cancellation. The event took place and the complainants were happy with the numbers. They report that the event passed without any incident.
3.8. On Sunday 19 June 2005 the complainants were informed that the Thursday slot in the Victoria Hotel was no longer available for them to use. The named manager of the Victoria Hotel told the complainants that he had been told to get rid of them as the proprietor had been ridiculed by third parties telling him that things must be really bad in his hotel as it was catering for ‘those’ people.
3.9. The complainants maintain that the hosted a total of 5 events in the two hotels belonging to the respondent. They claim that they were never told by anyone associated with the respondent that the events were losing money. They insist that they were informed by the manager of the Victoria Hotel that the takings were up and that they never received anything but positive feedback from the staff of the hotel(s). They state that they have never met the proprietor and that they have always been open about the nature of events that they were catering for. The complainants stated that they had never had any difficulties with any of the respondent’s staff or with any of the people frequenting the events. The complainants maintain that they were told that the events had to be cancelled because the complainants themselves were gay and the events they were organising were openly about and for gay people. While the complainants state that they would not have personally viewed the events as unsuccessful, they state that they would not have had any difficulties in understanding the cancellation of an event for profitability reasons. However, they state that they would have expected the respondent to talk to them about any such issue to allow for the parties to explore jointly if anything could be done to rectify the situation. This, they state, never happened.
3.10. The complainants state that the cannot comment on any of the spreadsheets presented at the hearing as they have never seen them before and were not involved in that aspect of the events.
3.11. The complainants further state that they are currently running a number of successful Gay, Lesbian, Bi and Trans (GLBT) club nights in Galway and elsewhere in the country.
4. Case for the Respondent
4.1. The respondent owns two hotels in Galway. In the main, he stated in direct evidence, the respondent leaves the day-to-day management of these properties to his managers. He stated that he meets with them, in normal circumstances, once a month.
4.2. The respondent does not deny that the events were cancelled by his managers but stated that the only reason why the events were cancelled was because the events were not making a profit. The respondent maintains that he knew nothing of the events before he received the notification forms from the complainants. He stated in direct evidence that his only concern about his properties is that events are profit making.
4.3. The respondent queried at the hearing why his hotels would have agreed to host gay-friendly events in the first place if they allegedly had a problem with gay people? He noted that the complainants had admitted that it was his manager that had made contact with the complainants and offered the use of the hotel premises to them. The respondent stated that he employed a number of gay people in his businesses.
4.4. The respondent stated in direct evidence that he did not meet with his manager to discuss the alleged incident. The respondent stated that neither the manager of the Eyre Square nor the Victoria Hotel was available to give evidence at the hearing and there are no reports concerning the incident for the Tribunal to inspect. The respondent further stated that he was satisfied that all of his staff were informed of their obligations under the Equal Status Acts. These, he maintained, were communicated to them in their contracts of employment.
4.5. The respondent categorically denies that it discriminated against the complainants on the grounds of their sexual orientation. The respondent maintains that the decision to cancel the events was made for commercial reasons and not for any reasons associated with the complainants’ sexual orientation. He says he cannot comment on why someone would say he was embarrassed about a gay event taking place in his hotel as he knew nothing about them in the first instance.
5. Conclusions of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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.
5.2. In making this decision I have taken cognisance of both oral and written submission’s made by the parties. The final submission was received from the complainants’ representative on 17 July 2008.
5.3. I note that most of the evidence in relation to this complaint relates to the alleged actions of managers working for the respondent. Section 42(1) of the acts defines vicarious liability:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”.
Section 42(3) outlines the defence:
“In proceedings brought under this Act against an employer in respect of an act alleged to been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee –
(a) from doing that act, or
(b) from doing in the course of his or her employment acts of that description.
5.4. While I note that the respondent queried the reasons why his staff would undertake to co-host gay events with the complainants if they had a problem with them, I also note that the respondent stated in direct evidence that he knew nothing of these events until he received the complaint notification form from the complainants. It is clear from the complainants’ direct evidence that the named hotel managers, who the respondent stated were responsible for the day-to-day management of the two hotels in question, had no issue with the complainants’ sexual orientation nor with the type of events they were hosting. It is also clear, from the undisputed evidence, that something or someone caused the manager to react in this unreasonable manner. I note that the respondent does not refute the fact that his staff removed the complainants’ posters nor that there was an attempt to abort the planned event with very short notice.
5.5. I find that the manager(s) did tell the complainants that the reason why the events had to be cancelled was because of their association with the gay community. I also accept that the reason why the managers claimed that this decision was coming from the top was because the managers believed that it did. It is clear that the nature and influence of this feedback was such that it led the managers to take such drastic action as to remove the complainants’ posters and to inform the complainants that the reason why the events could not go ahead was because of the sexual orientation of the complainants.
5.6. I have been presented with no evidence to indicate that the respondent took any reasonably practicable steps to prevent the employee from doing so in the course of his employment.
5.7. While I accept that the nights organised by the complainants may not have been very profitable for either party and that any venue has a right to cut its losses when a service is not profit making, I have found no evidence to indicate that that this issue was communicated to the complainants. While spreadsheets were presented at the hearing I note that the complainants were not able to comment on any of the costs presented to them at the hearing as they were never privy to the specific outlays for the evenings or the hotel’s general overheads. The complainants were only able to point out that an event detailed on the spreadsheet was not one organised by them.
5.8. In any event, the alleged losses are not large enough nor frequent enough for a reasonable person to accept that they were so alarming as to justify the abrupt attempt to cancel the bank holiday event. The fact that the hotel had sent a member of its staff to tear down the complainant’s posters and that the manager told the complainant’s that this was done because the proprietor had insisted that it was to be done is enough to establish a prima facie of discrimination on the sexual orientation ground.
5.9. I also find that a reasonable person would, when presented with a notification form about an incident he has no knowledge of under the Equal Status Acts 2000 to 2004, contact his manager(s) to obtain a report of their version of events. I also find that it is reasonable to presume that a respondent, who maintains he has a legitimate reply to such a complaint, would communicate it to the complainants. While the respondent stated that the reason why he did not believe it to be pertinent was because he had fought what he considered to be spurious complaints of this nature before this Tribunal before, I find, in accordance with section 26 of the Acts, that this failure to reply to the complainants and to provide them with the appropriate information around the time of the incident creates a further inference of discrimination. The respondent has failed to rebut this inference.
5.10. While I did not receive any submissions or hear any arguments in relation to jurisdiction, I am satisfied that this matter falls under section 5(1) of the Equal Status Acts 2000 to 2004 and not under section 19 of the Intoxicating Liquor Act 2003. This is because the incident complained of did not take place in, or at the entry point, to a licensed premises.
6. Decision
6.1. In accordance with section 25(4) of the Acts, I conclude my investigation and issue the following decision:
The complainants, Mr. Harte and Mr. McGuffin have established a prima facie case of discrimination on the sexual orientation ground. In accordance with section 27(1)(a) of the Acts I award each of the complainants €1500 for the effects of the prohibited conduct.
Further, in accordance with section 27(1)(b) I make an order that the respondent immediately develop an equal status policy and carries out appropriate training to ensure that all of his staff are adequately informed of their responsibilities under the Equal Status Acts 2000 to 2008.
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Tara Coogan
Equality Officer
29 August 2008