Equal Status Acts, 2000-2008
Decision No. DEC-S2010-034
Richard Martin
-V-
Esplanade Hotel
Key words
Equal Status Acts - Section 5 or Section 6 - indirect discrimination, Section 3(1)(c) - particular disadvantage - legitimate aim - reasonable and necessary - prima facie case rebutted - internet only rates - online booking
1. Delegation under the relevant legislation
1.1. On 27th February, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 5th February, 2010, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced.
1.2. Submissions were sought from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Monday, 19th April, 2010. Both parties were in attendance at the hearing.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was indirectly discriminated against by the respondent on the age ground contrary to the Equal Status Acts (hereinafter referred to as "the Acts") in terms of Sections 3(1)(a) and Section 3(1)(c) of the Equal Status Acts and contrary to Sections 5(1) and/or Section 6(1) of the Equal Status Acts in that the respondent treated him less favourably by refusing to quote him a room rate over the phone, which he submitted puts him at a disadvantage relative to younger persons and that this refusal was not objectively justified by a legitimate aim and the means of achieving that aim were not appropriate and necessary.
3. Summary of the Complainant's Case
3.1. The complainant is 83 years of age. He submitted that he phoned the respondent on 29th August, 2008 with a view to booking the respondent hotel for a visit to Bray (where the hotel is located) which he intended to make the following month. He submitted that he asked for the nightly room rate from Mr A, the staff member who took the call. He said that Mr A told him that it wasn't possible to provide the required information and that he would have to go online to obtain this information. He submitted that he informed Mr A of his age and that he did not have a computer and did not know how to use one. He said Mr A then told him that he should get someone else to do it for him, to which the complainant replied he was not comfortable with getting someone else to take care of what he considered to be his personal business.
3.2. The complainant said that Mr A refused to provide him with information about the room rates requested. He denied that Mr A provided him with a room rate of €109 B&B, as alleged by the respondent, and that the documentary evidence he provided showed this. He did state that Mr A told him that he could come along on the day in question and pay whatever the rate was on that particular day, plus any additional charges that might apply. He said he was distressed and irate at what had happened and was of the view that, once he mentioned his age, "that was the end of the story", although he agreed there was no overt remarks about his age. He also noted that he was present to give evidence but Mr A was not, and his evidence therefore carried greater weight.
3.3. The complainant submitted that when he made his visit to Bray, staying in another hotel, he collected a comment card from the reception of the respondent hotel and that this card provided "by phone" as an option for booking the hotel. He said the hotel was not busy and had a placard outside its door indicating a room rate for that particular night, although he could not recall what that rate was. He also quoted an ad from a newspaper which, he said, stated that special offers can be taken over the phone.
3.4. The complainant submitted that he is not familiar with modern IT technology and does not have access to it. He presented in evidence reports from the Central Statistics Office and Work Research Centre (WRC)/Age Action Ireland to show that, while IT and accessing services via the internet have become the accepted norm for most age groups in society, for older people this is not the case. He submitted that a significant percentage of the 65+ age group cannot or do not have access to online facilities. While this research did not deal specifically with the 80+ age group, he submitted that it appears clear from that research that the discrepancy would be more pronounced among that age group. In short, he stated that use and literacy with regard to computers reduces significantly with age and that there is a clear distinction between age brackets in this regard.
3.5. The complainant submitted that, in refusing to give him details of its overnight rate, the respondent indirectly discriminated against him on the age ground, in terms of Section 3(1)(c) and in light of Section 42 of the Acts which made it responsible for the actions of Mr. A. He stated that the requirement to access this information over the internet put him at a particular disadvantage compared with younger service users and that the respondent was appraised of the complainant's age and difficulty accessing the internet from the outset. He said that he had not been given a quote, but even if he had, it would still be discriminatory to have the package in question quoted only online. He further submitted that the requirement to use the internet to access the information has not been objectively justified by a legitimate aim which has been achieved through appropriate and necessary means, particularly when other means can be used to achieve the aim in question. In any event, he did not accept that the aim was a legitimate one as the stated purpose, achieving maximum occupancy, was not achieved in this case and this was backed up by the fact that there were vacancies at the time the complainant sought to book.
3.6. In short, the complainant submitted that the respondent as a service provider (in the context of Section 5(1) of the Acts) and accommodation provider (in the context of Section 6(1) of the Acts), has indirectly discriminated against the complainant on the age ground in the provision of its service and in the provision of accommodation and/or any services or amenities related to accommodation.
4. Summary of the Respondent's case
4.1. The respondent stated that Mr A no longer worked for it and so was not able to give evidence on its behalf. It accepted that this meant it only had his word for what was said. However, it submitted that Mr A did offer the complainant a per night rate in the course of the telephone conversation in question, viz. €109 and €25 for dinner. It said that it was sufficient that they had given a quote and that no-one who rings up would not be given a quote. The respondent did not dispute the complainant's evidence in relation to the comment card or that the hotel was not busy on the day he stayed in Bray. It said it imagined that there were people staying in the hotel that night who had booked by phone, but did not know for certain. It could not say what rate these people would have been given as rates fluctuate every day.
4.2. The respondent said that its policy is to merely direct potential customers online to avail of better rates and that it would never refuse to take a booking over the phone. It stated that the internet offers in question are cheaper because there is no advertising cost worth talking about and no labour cost; thus, the discount arising can be passed on to the customer. It stated the purpose of the policy is to maximise occupancy as it gives people more buying power. It stated that approximately 30% of its bookings are made online and 70% are from other means, so online bookings are not the only channel for selling rooms. Nonetheless, it accepted that an error had been made in relation to the handling of the phone call from the complainant and that Mr A should have taken the complainant's number and asked the Manager to ring back to deal with the problem. While it said this was a customer service issue rather than a discrimination issue, it said it gave a fulsome apology to the complainant in the course of its correspondence with him.
4.3. In relation to the newspaper ad referred to by the complainant, the respondent stated this was an ad from a later time (June 2009) than the time the complainant booked, that business had changed in the meantime and special rates are now quoted online and by phone, depending on availability.
4.4. The respondent rejected the complainant's assertion that it discriminated against him on the ground of age. It stated that the majority of its tour business on any given year is made up of senior citizens who are valuable clients and it has not received any other complaints of discrimination against older customers. In that regard, it said it had been running since 2003 without complaint. In short, it submitted that the issue was one of customer service not discrimination as the way the complainant was dealt with was as a person and not as an 83-year old man.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Applicable Provision of Acts
5.2. I note the respondent submitted that both Section 5 and Section 6 are applicable in this case. However, this is precluded by the provision of Section 5(2) as, if Section 6 applies, Section 5(1) does not. The service or facility at issue in this case is clearly the use of an hotel for recreation or leisure purposes. I am satisfied that, as such, it is a matter that is properly considered under Section 5 of the Acts. In that regard, I note that other complaints involving a similar service have been dealt with by this Tribunal under Section 5.
Neutral Provision
5.3. The complainant submitted that the practice/requirement to access room rate information over the internet, and in particular in refusing to give the complainant the details of the overnight rate, is discriminatory on the age ground within the meaning of Section 3(1)(c). This provision states that discrimination on any of the grounds occurs: -
"where an apparently neutral provision puts a person [on any of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
5.4. The respondent submitted that its policy in general was to make available, through the internet, special discounted rates which were not made available through other methods of booking the use of its facilities. It submitted that most telephone customers were provided with the room rate for the time for which the booking was sought; where no date was indicated, as in this case, they were provided with the room rate at the time the inquiry was made. Either way, the respondent submitted that they were informed about and encouraged to avail of the discounted rates that could be obtained through the internet. I am satisfied, based on the totality of the evidence, that the policy employed by the respondent in relation to internet rates is as thus described by it. In short, I am satisfied that the respondent provided room rates to persons booking by phone but had discounted rooms available for sale over the internet and that, as far as Section 3(1)(c) is concerned, this is the neutral provision that is at issue in this complaint.
5.5. The question I must consider, then, is not whether Mr A acted in a discriminatory fashion in failing to provide a room rate, but whether the respondent's general policy of providing discounted room rates over the internet was discriminatory. If Mr A did fail to provide the complainant with a room rate, he was failing to properly implement this policy. In that case, his treatment of the complainant in the course of this phone call is, as submitted by the respondent, a customer service issue, as I am satisfied that it had nothing to do with his age. It is therefore not a matter for me to consider.
Section 3(1)(c)
5.6. I must now consider whether the respondent's policy was indirectly discriminatory, within the meaning of Section 3(1)(c). It is clear that the policy in question puts the complainant at a disadvantage vis-à-vis other persons because he does not have the computer skills necessary to avail of discounted internet offers provided by the respondent. I am also satisfied that, in this jurisdiction, persons of the complainant's age are significantly less familiar with modern information technology than other persons, particularly in relation to usage of the internet. The documentary and statistical evidence provided by the complainant clearly shows this to be the case; indeed, it showed that the vast majority of such persons consider they do not have the knowledge and skills necessary to use the internet. In that context, and in all the circumstances of the present complaint, it is clear that the neutral provision at issue puts the complainant at a particular disadvantage compared with persons of a different (younger) age.
5.7. I am satisfied that the complainant has established facts from which it may be presumed that prohibited conduct has occurred in relation to him and he has established a prima facie case of indirect discrimination on the ground of age. However, the respondent can successfully rebut this prima facie case if it can show that the neutral provision in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
5.8. In that regard, the respondent submitted that the aim of the policy in question was to increase occupancy; the complainant submitted that it failed in this aim because the hotel was not busy when he went to investigate the matter on the night he planned to stay there. I note the Acts require only that the aim in question is legitimate, it does not necessarily have to be successful. I note that the proliferation in usage of the internet as a sales tool for anything from purchasing airline tickets to buying a bucket show that this is an enormously well-established and effective business practice. In any event, I am satisfied that, at least in the respondent's case, there was a reduction in administrative costs associated with using the internet as a method for booking accommodation and other services from it. The respondent was able to pass on this reduction in costs to potential customers by offering discounted rates to them, and I am satisfied that this could potentially increase and/or maximise occupancy. Therefore, I am satisfied that the aim was a legitimate one.
5.9. The fact that the aim in question is legitimate is insufficient on its own to justify the existence of the respondent's policy in the context of Section 3(1)(c): the means used to implement this policy must also be appropriate and necessary to achieving the stated aim. If the internet had been the only method available for booking rooms with the respondent, that would have had the effect of denying the complainant access to the respondents services without assistance from someone who could use a computer and would not have been appropriate in that context. In short, those unable to avail of such offers are not precluded from availing of the respondents services. In that regard, I note that the majority of the respondent's customers did not book using the internet.
5.10. The policy in question was to provide discounts to persons who availed of the respondent's services by using the internet rather than other methods of booking. Providing the same rates through other methods as through the internet would make a nonsense of the strategy required to implement this policy. Therefore, it is perfectly reasonable and necessary for the respondent not to offer the discounts in question to other customers in such circumstances as this, and where it has already been established that the aim in question was legitimate.
5.11. In short, the complainant has established a prima facie case of indirect discrimination as the respondent's policy to provide discounted rates over the internet set him at a particular disadvantage because of his age. However, the respondent has successfully rebutted this as I am satisfied that this policy was put in place to achieve a legitimate aim viz. increasing occupancy in the respondent hotel, and the means of achieving that aim were appropriate and necessary.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that the complainant has established a prima facie case of discrimination on the age ground in terms of Sections 3(1)(c), 3(2)(g) and Section 5 of the Equal Status Acts, and that the respondent has successfully rebutted the allegation of discrimination.
6.3. Accordingly, I find in favour of the respondent in this case.
_____________
Gary O'Doherty
Equality Officer
6th July 2010