DEC-S2013-018

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000-2011

Decision DEC–S2013-018

PARTIES

Patrick Moran and Vera O'Brien Moran (and on behalf of their three children, minors), John Mongan (deceased) and Linda Mongan (and on behalf of their son, a minor) and Thomas Dooley and Vera Dooley (and on behalf of their three children, minors)

and

Hotel Minella Limited

(represented by Mr. Patrick Barden B.L.

on the instructions of O'Shee, Murphy & Co. Solicitors)

File Reference: ES/2012/035-39, ES/2012/060-67

Date of Issue: 11th December, 2013

Keywords: Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) – Traveller community Ground, Section 3(1)(i) – Disposal of Goods and Services, Section 5(1) – Disorderly behaviour or conduct, Section 15(1)

Delegation under the Equal Status Acts, 2000 to 2011

This complaint was referred to the Director of the Equality Tribunal on 4th October, 2007 under the Equal Status Acts, 2000 to 2011. On 1st October, 2012, in accordance with his powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, 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, 2000-2011 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 19th April, 2013.

1. Dispute

1.1 The complainants claim that they were against by the respondent on the grounds of their membership of the Traveller community in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts and contrary to section 5(1) of the Equal Status Acts in terms of the respondent's request for them to vacate the rooms they had booked at its hotel and its treatment of them generally during their stay at the hotel.

2. Summary of the Complainants' Case

Evidence of Mrs. Vera O'Brien Moran (and on behalf of her two children – both minors)

2.1 Mrs. Vera O'Brien Moran stated that her family, which included her husband (Mr. Patrick Moran) and their three children, made a reservation to stay at the respondent's hotel for three nights from 30th December, 2011 to 1st January, 2012 to celebrate the festive period. The complainant stated that other members of her extended family also made a reservation to stay at the hotel for the period. The complainant submitted that they arrived at the hotel between 6 and 7 p.m. on 30th December, 2011 and checked into the hotel at that juncture. The complainant stated that she heard shouting in the hall outside of her room at around 7:30 p.m. and when she went to investigate she realised that her son was being verbally abused by the owner of the hotel, Mr. A. She claims that Mr. A was asking how many of them 'Travellers' were staying in the hotel and what room(s) they were staying in. The complainant stated that after returning to her room following this incident she was subsequently informed by her son that her husband was being denied access to the premises by Mr. A at the front door of the hotel.

2.2 The complainant stated that her husband telephoned the Gardaí to report the incident and she confirmed that he was subsequently allowed access to the hotel following the intervention of the Gardaí subject to the condition that they would not leave the bedroom. The complainant stated that they were not allowed by Mr. A to bring any of their luggage, including essential feeding items for her infant child, from their car to the hotel bedroom. The complainant stated that they were refused access by Mr. A. to the hotel's restaurant later that evening when they attempted to order some food for the family. The complainant stated that Mr. A stood in front of the door to prevent them from accessing the restaurant and refused to allow them entry. The complainant stated that it was only after her husband telephoned the Gardaí for a second time that Mr. A agreed to provide her family with sandwiches which they were forced to eat in their bedroom like prisoners.

2.3 The complainant stated that they were awoken the next morning (i.e. 31st December, 2011) by a loud knock to their bedroom door and when she opened the door she found that two bowls of cornflakes and two slices of toast had been left on a tray at the foot of the door. The complainant stated that she had not ordered breakfast through room service and she claims that the respondent brought it to her bedroom to prevent her family from accessing the breakfast facilities in the hotel's restaurant that morning. The complainant stated that her family were ordered to leave the hotel by Mr. A that morning despite the fact that they had made a reservation to stay at the hotel for three nights. The complainant stated that her family checked out of the hotel at the reception desk later that morning. She claims that the treatment afforded to her and her family by the respondent during the course of their stay at the hotel amounted to discrimination on the grounds of the membership of the Traveller community.

Evidence of Mrs. Linda Mongan (and on behalf of her husband (deceased) and child (a Minor))

2.4 Mrs. Linda Mongan informed the Tribunal at the hearing that her husband, Mr. John Mongan, was deceased since the present complaint was referred to the Tribunal. Mrs. Mongan submitted that the Tribunal had jurisdiction to proceed with the investigation in relation to her deceased husband's claim and she proceeded to adduce evidence in relation to the alleged discrimination on his behalf.

2.5 Mrs. Linda Mongan stated that her family, which included her husband (Mr. John Mongan) and their son, had planned to stay at the respondent's hotel for three nights from 30th December, 2011 to 1st January, 2012 to celebrate the festive period. The complainant accepts that she signed the reservation form under her sister's surname rather than her own but claims that she had done so purely because the reservation had been made in her sister's surname. The complainant stated that other members of her extended family had also made a reservation to stay at the hotel during this period. The complainant stated that she and her family went to their bedroom after checking in at reception and collecting their bedroom keys. The complainant stated that she subsequently went to the bedroom of Mr. Thomas Dooley and Mrs. Vera Dooley (i.e. her sister, who was also staying at the hotel) to collect their son. The complainant stated that she was bringing her nephew into the elevator to return to her room when an individual who identified himself as the owner of the hotel (i.e. Mr. A) arrived and asked her nephew what he was doing in the corridor. Mr. A proceeded to inform the complainant's nephew that the elevator was broken and not to use it. The complainant stated that she was in the elevator trying to keep it open for the child as Mr. A approached and she claims that Mr. A did not see her as he spoke to the child. The complainant stated that the child's father (Mr. Thomas Dooley) came out of his room at that juncture and Mr. A informed him that they would not be staying at the hotel until New Year's Day. The complainant stated that she returned to her room at that juncture.

2.6 The complainant stated that having subsequently spent some time in her bedroom she proceeded to the bar/restaurant in the hotel. The complainant ordered a drink for her child and asked for a menu as she wished to order some food; however, as the menu was not forthcoming the complainant went to a menu which was fixed by a wall and then sought to place and order for food. The complainant stated that upon ordering she was informed by a servant or employee of the respondent that there was no food despite the fact that other patrons and residents were seated in the restaurant and having food at that juncture. The complainant stated that she left the restaurant at that juncture and upon leaving asked if she could have milk for her child; however, this request was refused by an individual who identified himself as the owner of the hotel (i.e. Mr. A). The complainant stated that Mr. A and another employee positioned themselves at the door leaving the restaurant leaving other patrons and residents enter and exit the area while refusing them entry. The complainant stated that she repeated her request for a drink for her child and was subsequently furnished with a container filled with an orange cordial type drink while Mr. A reiterated that they would not be served in the restaurant. The complainant stated that she and her family felt embarrassed and humiliated at this treatment, particularly in front of other residents, and ultimately had no option but to go to a fast food outlet in the vicinity for food. The complainant stated that after eating they returned to their room at approx. 11 p.m. and filled out the order card for breakfast for the following morning.

2.7 The complainant stated that they were awoken the next morning (i.e. 31st December, 2011) by a loud knock to their bedroom door and when she opened the door she found that two bowls of cornflakes and two slices of toast had been left on a tray at the foot of the door. She stated that this was not the breakfast that they had ordered the previous night and that there was no food for her child. The complainant stated that she and her family checked out of the hotel and left the premises later that morning. The complainant denies that either she or her husband engaged in any troublesome behaviour during the course of their stay at the hotel and she claims that the treatment afforded by the respondent to her family amounted to discrimination on the grounds of their membership of the Traveller community.

Evidence of Mrs. Vera Dooley (and on behalf of her three children - Minors)

2.8 Mrs. Vera Dooley stated that her family, which included her husband (Mr. Thomas Dooley) and their three children, had planned to stay at the respondent's hotel for three nights from 30th December, 2011 to 1st January, 2012 to celebrate the festive period. The complainant stated that her brother-in-law had booked the room in advance of their arrival at the hotel; however, she confirmed that they discharged the cost of the room for the first night of their stay upon arrival at the hotel between 6 p.m. and 8 p.m. on 30th December, 2011. The complainant stated that her family went to their bedroom, which was on the ground floor, immediately after checking into the hotel. The complainant's son subsequently went out to the corridor outside of their bedroom with his aunt, Mrs. Linda Mongan, and her husband. The complainant stated that they intended to use the elevator to go to Mrs. Mongan's room when Mr. A arrived at the scene and began to enquire in an aggressive manner as to what they were doing in the corridor. The complainant stated that Mr. A proceeded to have the elevator turned off and then sought to enquire from the complainant's husband, Mr. Thomas Dooley, as to how long the family intended to stay at the hotel. The complainant's husband indicated that he and his family were possibly staying until New Year's Day to which Mr. A replied that they would not be staying until New Year's Day. The complainant stated that her husband was confused by the ill-mannered and aggressive attitude that was shown to him and his family as no such attitude had manifested itself when the family checked into the hotel earlier that evening.

2.9 The complainant stated that the family subsequently left their bedroom and went to the hotel's restaurant to have a meal; however, when they attempted to enter the restaurant Mr. A proceeded to close the door and deny them access. The complainant stated that when she complained to Mr. A about this treatment he replied that it was his hotel and he could as he liked. The complainant stated that Mr. A called the Gardaí at that juncture and that having spoken to them upon arrival at the hotel, Mr. A informed the Gardaí that he would provide the complainants with food but he subsequently failed to do so. The complainant stated that her family had no option but to go a local fast food outlet for a meal which added to the inconvenience and embarrassment experienced by them as a result of their treatment by the respondent.

2.10 The complainant stated that her family went to their bedroom after returning from the fast food outlet and having showered and changed their clothes decided to have a drink at the hotel's bar. The complainant stated that Mr. A, upon seeing her and her husband approaching the bar, immediately arranged to close the bar and move the guests who had been seated there into the restaurant area. The complainant stated that the Gardaí were again called to the hotel and on discussing the matter with the members who attended, they were advised to contact their legal representatives as it was a civil matter. The complainant stated that Mr. A requested them to leave the hotel, however they were unable to find alternative accommodation at that juncture and therefore had to spend the rest of the evening in their bedroom. The complainant stated that her family were refused breakfast in the dining room the following morning and instead the respondent sent three bowls of cornflakes and two trays of toast to their bedroom. The complainant stated that her family left the hotel at around 11:00 a.m. that morning and she confirmed that Mr. A provided her with a refund of the hotel room fees, both for herself and other members of the extended group, upon departing the premises.

3. Summary of the Respondent’s Case

3.1 The respondent presented evidence from Mr. A, Hotel Proprietor and Mr. B, Security Officer, both of whom were present at the hotel on the night of the incidents which form the basis of the complainants' claims. The respondent submitted that the hotel has no record of the complainants in the present complaint having booked into the hotel under their own names on the night in question i.e. 30th December, 2011. However, Mr. A, Hotel Proprietor, gave evidence that a series of incidents occurred on that night concerning a group of guests who behaved in a disruptive, abusive and threatening manner towards him and other members of staff on that occasion. At the oral hearing, Mr. A identified the complainants who were in attendance, as being part of the group of the guests that had booked into the hotel under different names and had engaged in the fore mentioned behaviour on the night in question.

3.2 The respondent submitted that on the evening of 30th December, 2011, when Mr. A arrived in the reception area of the hotel, he noticed a boy who was behaving in a disruptive manner by jumping in and out of the lifts and banging on the lift buttons. When Mr. A requested the boy to stop some adult members of the group became hostile, verbally abused him and shouted at him in an aggressive manner. Mr. A informed the members of the group that he was not prepared to accept this behaviour, which was intimidating and frightening to the hotel staff, and requested them to leave the hotel. The respondent submitted that members of the group continued to shout at Mr. A and to verbally abuse him. Mr. A was shoved by one of the male members of the group which prompted him to call the Gardaí to the hotel. The respondent submitted that two members of the Gardaí subsequently arrived at the hotel but informed Mr. A that it was a civil matter and they would not be getting involved.

3.3 The respondent submitted that two male members of the group subsequently asked to be served at the bar; however, this request was refused by Mr. A on the basis of their previous behaviour towards him and the other hotel staff. One of the men complained that Mr. A was discriminating against the group and that their rights were being infringed and proceeded to call the Gardaí again. The respondent submitted that the Gardaí arrived at the scene for a second time and spoke with Mr. A and members of the group and the Gardaí advised the members of the group to go to their rooms. The respondent submitted that Mr. A agreed with the Gardaí that the complainants could stay at the hotel for the night on the basis that they would vacate the premises the following morning. The respondent submitted that the group continued to behave in a disruptive manner after the Gardaí had left the premises and threw food which had been served to them, on the floor of the hotel reception. Mr. A stated that one of the male members of the group threatened to ruin the wedding reception which was booked into the hotel the following day.

3.4 The respondent submitted that the members of the group eventually went to their rooms. However, the next morning when Mr. A was in the reception area, one of the male members of the group started verbally abusing him and demanded a refund. The respondent submitted that Mr. A refused to speak to this man and instead dealt with one of the female members of the group (who he identified as Mrs. Vera Dooley at the oral hearing). The respondent submitted that Mrs. Vera Dooley agreed that the members of the group would leave the hotel on the basis that the cost of their stay was refunded. Mr.A stated that the complainants were provided with a refund and they left the hotel on the morning of 31st December, 2011.

3.5 The respondent denies the claim that the complainants were subjected to discrimination on the grounds of the membership of the Traveller community and submitted that they were engaging in threatening, disruptive and abusive behaviour towards Mr. A and the hotel staff and it was on that basis that they were requested to leave the hotel. The respondent submitted that it would be totally unreasonable to expect Mr. A or the other hotel staff to accept such behaviour from guests and hence the complainants' welcome was withdrawn. The respondent submitted that the same principles and treatment would have been applied to any guests of the hotel (i.e. Traveller or non-Traveller) who behaved in such a manner.

4. Non-Attendance of Complainants at the Oral hearing

4.1 I notified the parties of the date of the hearing which was scheduled to take place on 19th April, 2013, by registered post, on 12th February, 2013. In the case of both parties, this notice was sent to the solicitor's that were nominated to act on their behalf. The solicitors acting on behalf of the complainants notified the Tribunal by letter on 17th April, 2013 that its firm was no longer acting on behalf of the complainants in this matter and that the complainants would be present at, and representing themselves, during the proceedings. In the circumstances, I am satisfied that all reasonable efforts had been made to inform all of the complainants of the dates of the hearing. However, two of the complainants namely, Patrick Moran (Senior) and Thomas Dooley (Senior) did not attend the hearing on 19th April, 2013 and there was no explanation offered on their behalf regarding their non-attendance.

4.2 In the light of the foregoing and in accordance with Section 25(4) of the Equal Status Acts, I issue the following decision. As part of my investigation under Section 25 of the Acts, I am obliged to hold a hearing. I find that the failure of Patrick Moran (Senior) and Thomas Dooley (Senior) to attend the hearing was unreasonable in the circumstances and accordingly, that any obligation under Section 25(1) in respect of these complainants has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in relation to these two complainants, I conclude the investigation of their complaints and find against these complainants.

5. Issue of Jurisdiction in relation to the complaint by Mr. John Mongan (deceased)

5.1 An issue of jurisdiction arose in relation to whether or not the Tribunal had the jurisdiction to continue with the investigation and hearing of Mr. John Mongan's complaint following his death. Mrs. Linda Mongan submitted that the complaint of her husband, Mr. John Mongan, has survived his death and that the Tribunal does, in fact, have jurisdiction to proceed with its investigation in the matter. The respondent indicated that it did not wish to make any submissions in relation to this issue.

5.2 In considering this issue, I have taken cognisance of Section 7(1) of the Civil Liability Act, 1961 which provides as follows:

“7.-(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate”.

I am satisfied that an action or complaint of discrimination brought under the provisions of the Equal Status Acts, such as in the present case, constitutes a ‘cause of action’ on behalf of the complainant within the meaning of section 7 of the Civil Liability Act, 1961. I am also satisfied that there is no provision in the Equal Status Acts that precludes a complaint of the kind made by Mr. John Mongan from being a cause of action or from devolving on his estate. Furthermore, I am satisfied that the death of Mr. John Mongan does not mean that his complaint of unlawful discrimination ceased to be proceedings under the Equal Status Acts. In the circumstances, I find that the present complaint under the Equal Status Acts has survived the death of the complainant, Mr. John Mongan, and I am satisfied that his spouse Mrs. Linda Mongan is entitled to continue to pursue the complaint on his behalf. Accordingly, I find that the Tribunal does have jurisdiction to investigate and hear the complaint which had been referred to the Tribunal by Mr. Mongan prior to his death.

6. Conclusions of the Equality Officer

6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2011 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 can rely in asserting that prohibited conduct has occurred in relation to him. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.

6.2 The claims of discriminatory treatment in the present case are based on the events that took place during the course of the complainants' stay at the respondent's hotel on the night of 30th December, 2011. It was not in dispute between the parties that the complainants stayed at the respondent's hotel on the night in question and that they were subsequently requested by the respondent to vacate the premises the following morning. However, the precise reason and facts surrounding the respondent's decision to deny the complainants further access to its facilities is very much in dispute between the parties in this case. The respondent, on the one hand, claims that members of the complainants' group engaged in disruptive and threatening behaviour on the premises on the night of 30th December, 2011 with the result that their welcome was withdrawn and the entire group were requested to vacate the hotel the following morning. The complainants, on the one hand, deny that any of the members of their group engaged in disruptive or threatening behaviour during their stay at the hotel on this occasion and they claim that the reason they were requested to leave the hotel was directly attributable to their membership of the Traveller community.

6.3 Therefore, the question that I must address in the circumstances of the present case is whether or not the respondent's decision to request the complainants to leave the hotel was attributable to their membership of the Traveller community or was directly related to the disruptive and threatening behaviour which the respondent claims occurred on the night of 31st December, 2011. In considering this issue, I have found the respondent's evidence to be more compelling, and on the balance of probabilities, I am satisfied that a number of incidents involving male members of the complainants' group did, in fact, occur at the hotel on the night in question. I am satisfied that these members of the group engaged in threatening and disruptive behaviour in the hotel on the night in question which resulted in the respondent taking the decision to request the complainants to leave the premises.

6.4 In coming to this conclusion, I have found Mr. A's (Hotel Proprietor) evidence to be very credible and I note that it was also corroborated by Mr. B, Security Guard, who provides a part-time security service for the hotel and who was called to the premises on the night in question to assist with an unsavoury incident that was taking place involving a number of the complainants. I am satisfied that Mr. B's account of the events on the night was totally consistent with the evidence given by Mr. A and that it corroborates his claims that the behaviour of these members of the complainants' group resulted in a hostile and intimidating atmosphere in the hotel on that occasion. I have also noted that the nature of these incidents were of such gravity that the Gardaí were called to the premises on two separate occasions. I accept that there was no evidence to suggest that the female members of the group engaged in the threatening or disruptive behaviour on the night in question. However, I am satisfied that the respondent's decision to request all of the members of the group, including the female members, to leave the hotel was not attributable to their Traveller identity but rather was as a direct consequence of their association with those members of the group who had engaged in this unacceptable behaviour.

6.5 Section 15(1) of the Equal Status Acts provides that:

"For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (the ''customer'') in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located."

To invoke this section of the Acts the respondent must show that there was a substantial risk of criminal or disorderly conduct or behaviour if the complainants had been allowed continued access to the hotel's facilities following the incidents that transpired on the night of 30th December, 2011. Based on the totality of the evidence adduced in relation to the incidents that occurred on this occasion, I am satisfied that it was not unreasonable for the respondent to come to the conclusion that there would have been a substantial risk of further disorderly conduct or behaviour in the event that continued access to its facilities was afforded to certain members of the complainants' group. I find therefore that the respondent is entitled to invoke section 15(1) of the Acts in the circumstances of the present case in terms of its decision to request the complainants to leave the hotel and to deny them further access to its facilities. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller community.

7. Decision

7.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.

Enda Murphy

Equality Officer

11th December, 2013