DEC-S2014-007

The Equality Tribunal

Equal Status Acts, 2000 to 2013

Equality Officer Decision

DEC-S2014-007

Barry Tapster

-v-

Kinlay House Hostel

File Ref: ES/2012/0165

Date of Issue:12 August 2014

Keywords: Equal Status Acts 2000-2013 – provision of accommodation – age ground – race ground - Section 3 (1)(a) - Section 3(2)(f) and (h) – Section 6(1)

1. This complaint was referred to the Director of the Equality Tribunal on 19 November 2012 under the Equal Status Acts, 2000 – 2013 (hereinafter “the Acts”). In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Valerie Murtagh, 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, 2000-2008. On 9 May 2014, my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 21 May 2014. The complainant attended the hearing but the respondent was not present and failed to provide an explanation for same.

2. This dispute concerns a claim by the complainant that he was discriminated against by the respondent on grounds of age and race in terms of section 3 (2) (f) and (h) of the Acts in relation to being treated less favourably in relation to access to accommodation at the respondent hostel.

3. Summary of the Complainant’s case

3.1 The complainant was 48 years old at the time of the incident and is from Co. Derry. He went to the respondent hostel on Friday 13 July to book in for the night. He was in Cork for a couple of days to participate in a karate training event ahead of an important seminar being held in Hungary the following week. He had planned to stay with a fellow participant but this had fallen through so he had to find accommodation at late notice. He first tried another hostel where he had stayed previously but they were full so he rang the respondent hostel and was assured by the female member of staff that he spoke to that there were a number of dormitory beds available which the complainant confirmed that he was happy with as he was arriving as a lone male. It took the complainant about 10 minutes to get to the respondent hostel following the telephone call. As the complainant made his way into the lobby of the hostel, a man asked him in a brusque manner and without identifying himself, where he was going. The complainant replied that he was booking in and continued to move towards the reception desk which had a small queue of people standing waiting to book in for the night. At this point the man advised the complainant that the hostel was full and that he could not stay. The complainant replied that he had discussed it with a staff member at the counter as he was just recently assured that there was space. The man in question said he worked there and went around to the other side of the counter and requested the complainant to leave. At this point, the complainant states that there was a young woman just ahead of him and the man started telling her that she should go to another hostel named S hostel but the complainant was able to tell her it was full as he had just come from there.

3.2 The complainant then left the building and walked a little bit up the street mulling over what to do. He decided to go back down to the hostel to pick up the free hostels maps that are provided and would have contact details of other hostels in the area. He then went back into the lobby and went up to the counter to ask for the free maps. He noticed that the staff were booking the young woman who had been in the queue with him into the hostel for the night. It became obvious to him that that the male staff member had been lying when he said there was no space previously and had just been trying to get rid of him so that he could book others in but not him. The complainant felt that the male member of staff had not expected him to return so soon. The complainant requested a reason why the other person was being booked in and why he was not. The male member of staff said he did not want him staying there and would not give a reason for same. The complainant then stated that he was being discriminated against for no reason and that he was entitled to an explanation under equality law. The complainant states that the man then raised his voice considerably and said that he didn’t want the complainant staying in the hostel. The complainant stated that he was not leaving the premises until he was given an adequate explanation for being turned away. The male member of staff then came around to the front of the counter and stood directly in front of him demanding aggressively that he leave. The complainant said he was not going to leave until he got an adequate explanation. The male employee grabbed the complainant and began to shove him towards the door and when he got to the inner door, he could not push the complainant any further and after a bit of exertion on his part, he gave up and kept insisting that the complainant leave.

3.3 The complainant submits that he tried to reason with the male employee and found out his name was H and so the complainant spoke to him in the small bit of Arabic he was familiar with but the complainant states that he rejected these attempts at friendly communication. H then rang the local Garda station and requested that they send someone over to the hostel. The complainant asked the female staff member why he was told there was availability during the telephone conversation and then refused accommodation on arrival. She said there were only female rooms left and this is why the other woman was able to stay and he was not despite the fact that both were in the queue earlier and were advised there was no space left. After a short space of time, two Gardaí arrived at the hostel and the male officer took the complainant outside to get his side of the story whilst the female officer talked to H. The complainant explained to the officer the sequence of events and subsequently the female officer returned to join them. The complainant states that the female officer advised that H could refuse to admit him if he wished and that he could do nothing about it. The complainant stated that there is equality law in Northern Ireland which stated that such discrimination is unlawful. The complainant contends that the female officer replied that such legal protection did not pertain in the Republic and that this was why doormen at nightclubs could refuse entry to customers if they so wished. The male officer then intervened and stated that the complainant should cut his losses and leave the premises.

3.4 The complainant then left the hostel and tried to find alternative accommodation but to no avail. As a result, he had to spend the night trying to sleep in his car which resulted in him having a sore back and which impaired his karate training session the following day. The complainant alleges that he was primarily discriminated against on grounds of age but also feels it was due to his nationality. He states that the guests he observed in the respondent hostel were all foreign tourists and were all considerably younger than him with the oldest in their twenties. The complainant is of the view that when the male member of staff saw him entering the hostel, decided that he did not fit the profile that he wanted his guests to have and so refused to let him stay without any explanation. The complainant states that the male employee did not want Irish people staying in the hostel, perhaps because of past negative experiences and that he thought that the complainant was too old to stay in a place which was full of young people and foreign tourist backpackers. The complainant found the whole experience distressing and demeaning.

4. Summary of the respondent’s case

4.1 The respondent did not engage with the Tribunal at all.

5. Conclusions of the Equality Officer

5.1 The matter referred for investigation was whether or not the complainant was discriminated against on the age and race ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions and oral testimony made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:

3.- (1) For the purposes of this Act, discrimination shall be taken to occur -

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)

Section 6 (1) of the Equal Status Act, 2000 states that “A person shall not discriminate in - …(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”

I am satisfied that the respondent was providing a service related to accommodation to the complainant. I note that when the complainant telephoned the respondent hostel, he was advised by a female member of staff that there were a number of dormitory beds still remaining available. However, on arrival at the hostel within 10 minutes, he was advised by H in an aggressive manner that the hostel was full and that he could not stay. At the time, there was a young female in the queue in front of him and H started yelling at her that she should go to another hostel as there was no space available. However, on return to the hostel within 5 minutes or so, he noticed that staff were now checking in the young female in question. When the complainant asked why the young female was being checked in and he was not, H said he did not want the complainant staying there but would not give a reason. The complainant submitted that he feels that he was discriminated against primarily on the grounds of age as he observed many young foreign national backpackers around the hostel. He is also of the view that there may have been an element of discrimination on grounds of nationality as all of the persons he observed around the hostel were young foreign tourists with back packs.

5.2 The respondent did not engage in any way with the Tribunal in relation to the complaint, therefore I have to consider the uncontested evidence of the complainant. Having examined the evidence available, I find that the complainant has established a prima facie case of discrimination. Based on the evidence, I note that when he contacted the hostel by telephone, he was advised that there were plenty of dormitory beds available. It is apparent that he had a conversation with a female member of staff who obviously noticed that he had an Irish accent and confirmed that there was space available. However, when he arrived at the premises, the manager H when he observed the complainant coming into the hostel may have felt that the complainant did not fit with the demographic clientele (that of young back-packers) of the hostel and refused him accommodation on that basis. From the evidence available to me, I am satisfied that the refusal of accommodation was based on an initial impression by H, the manager of the complainant and I find that this initial impression was based on the complainant’s age. I note the complainant stated that he observed a number of young back-packers around the hostel on the evening in question. I found the complainant to be a cogent and credible witness and in the absence of any evidence from the respondent to the contrary, I find that the complainant has established a prima facie case of discriminatory treatment on the age ground. However, I am not satisfied that the complainant has demonstrated a prima facie case of discriminatory treatment on the grounds of his nationality. In this regard, in addressing the probative burden, I am mindful of the Labour Court’s finding in the case of Melbury Developments v Arturs Valpeters EDA 0917 that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case. I note that, the female staff member who observed the complainant’s Irish accent when he telephoned requesting accommodation, confirmed that there were dormitory beds available so I am satisfied that his nationality was not a factor in the decision to refuse him accommodation. I am of the view given the sequence of events that he was refused accommodation on the basis of his age and he is entitled to succeed with this aspect of his claim.

6. Decision

6.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.

6.2 I find that

(i) the respondent did not discriminate against the complainant on grounds of race.

(ii) the respondent did discriminate against the complainant on the grounds of his age.

In accordance with the provisions of the Acts, I award the sum of €500 in respect of the effects of the discriminatory treatment to the complainant. I also order that the respondent reviews its policies and procedures to ensure that they are in compliance with the Equal Status Acts. In addition, I order that the respondent provides training for all its staff in the provisions of the Equal Status Acts.

Valerie Murtagh

Equality Officer

12 August 2014