ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004847

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 10/02/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

• This is an equal status case where there is alleged discrimination on the grounds of being a member of the traveller community by a hotel.

• The Complainant claims to have been discriminated against by the Respondent in the provision of accommodation or any such services or amenities under Section 3(2)(i) of the Equal Status Act, 2000.

• The Complainant is a regular customer of the Respondents hotel. The Complainant made a booking from the 26 March 2016 to the 28 March 2016. The Complainant stated that he paid a deposit of €50 in 2016 for his booking. The Complainant noted that he made this booking for March himself.

• The Complainant noted that the booking was subsequently cancelled in a call to his sons mobile which was given on the booking. The Complainant stated that they gave the wrong address for their booking.

• The Complainants son was told that this booking had been cancelled. The Complainant’s son explained that he must have been confused with his parents. The Respondent allegedly told the Complainants son to tell his parents that the booking was cancelled and that they were not welcome in the Respondents premises.

• The Complainant stated that he has never had any issue staying in the hotel. The Complainant stated that he has never been drunk in the Respondents premises. The Complainant stated that he only ever attends the Respondents premises with his wife and that he has never been there with a group of people. The Complainant noted that he may have attended New Years in 2012/2013 but that he was not entirely sure. He noted that he may have stayed every August since then but that he wasn’t sure exactly when he stayed but stated he has had no issues since 2012 or prior to that time and nobody had mentioned any issues to the Complainant at any time during his frequent stays in the hotel.
• The Complainant stated that he was informed via his Solicitor because he was a member of a group which had caused trouble in the Respondents hotel and that was the reason why he wasn’t welcome back to the Respondents hotel.

• In regards to the alleged incident which occurred at New Year 2012/2013 the Complainant stated that he only goes into the Ballroom and not into the back bar. The Complainant stated that he was not in the back bar where the incident occurred.

• The Complainant stated he was not there with a group and was there with his wife.

• When presented with Bookings from the Respondents system the Complainant stated that his grandchildren had a made some booking for him however he always uses his own name and address when making a booking.

• The Complainants Wife (CW) stated that they have never had any previous issues in the Respondents hotel. CW stated that they know of the families who were named as they are from the same area as them but that they didn’t socialise with them. CW stated that one of those families did not go to the show with them. CW stated that they have never had any problem in all the times that they have stayed in the Respondents hotel. CW claims that they have stayed in the Respondents hotel between ten and twelve times. CW stated that she didn’t see any trouble in the hotel on the night in question and stated that they were not in the back bar. CW stated that the show finished at approximately 00:30pm and they got something to eat and went to bed then.

• The Complainant stated that they have been going to this hotel for a long time and there has never been any issues with them before this occasion.

• The Complainant stated that they have been barred from the hotel because they were associated with this group. However, it was noted that no one spoke to them regarding any issue at any time during their stay.
• The Respondent disputes any discrimination towards the Complainant as the Respondent claims they were not aware the Complainant was a member of the travelling community.

Respondent’s Submission and Presentation:

• The Respondent stated that on the 31 December 2012 and the 1 January 2013 an incident occurred whereby there were issues with the group the Complainant was with. It is alleged by the Respondent that the Complainant was drinking and got drunk while drinking with that group of people.

• The Respondent stated that the Deputy Manager (DM) was on duty. DM knows the Complainant and his wife from coming to the hotel for years. DM stated that there had been issues regarding the group the Complainant was with. DM gave examples of the following behaviour: smoking inside, using residence room numbers by non-residents etc.

• DM stated that the Complainant was never on his own that he was always with others. DM stated that on December 31 2012 he knew the people who were with the Complainant. DM stated that they got complaints regarding children running around and they asked the group to control the children. DM stated that the group was made up of approximately eighty or more people and that they were in the ballroom. DM said that the group of men stayed in the bar.

• DM stated that the Complainants shirt was open and that he was drunk. DM stated that he did not see the Complainant intimidate anybody but that he did see him in the group that was boisterous. He stated that the Respondents hotel made the decision not to ask them to leave as they did not want to escalate the problem. DM stated that the trouble started at 20:30pm and that he last saw them at 01:00am approximately.

• DM stated that he was unware that the Complainant was a traveller. DM stated that he did not speak with the Complainant specifically that night but he did see him in this group.

• DM stated that the hotel received serious complaints about the group and their behaviour. DM stated that the complaints started the following day. DM stated that he did not say anything to the Complainant the next day before he left. The Respondent stated that further to this behaviour the Respondent had to refund other guests in the hotel due to their bad experience. This resulted in damage to the good name and reputation of the hotel.

• It was confirmed that the Complainant stayed in the hotel after this again.

• DM stated that the group had booked to stay for two or three nights. DM stated that he did speak with one family within the group. DM said that he is 100% certain that the Complainant was part of the group which caused all the problems on the night.  

• DM stated that every group in the hotel are treated the same if there is any trouble. DM stated that he was afraid due to the group’s behaviour. DM stated that it was a behavioural issue not a criminal issue therefore he did not call the Gardai.

• The Head of Security (HS) stated that the issue on New Year’s Eve 2012/2013 started early regarding children running around. HS stated that there was one hundred people in the group approximately. HS stated that the males were around the bar. He stated that they were taking other people’s seats and that the children were not being controlled and that they were taking over the dance floor. HS stated that he approached the group about these matters and they threatened him. HS stated that the group went into the Residence Bar after this and that they were loud. HS stated that some group came back the following night who were not residents in the hotel and that they were refused entry. HS stated that he saw the Complainant in the Ballroom and going into the Residents Bar. HS stated that those people did not do anything specifically to cause trouble but it was their association with this group.

• The Bar Manager (BM) stated that he had trouble with people on the night of 31 December 2012. BM stated that he did not recognise the Complainant nor his wife.

• The General Manager (GM) stated that he worked on the early shift from 06:00am on the morning of January 1 2013. GM stated that he spoke with one of the families that morning. GM stated that he did not recognise the Complainant and that he was not told of any issues referencing the Complainant.

• A Security Member (SM) stated that there were issues on New Year’s Eve referencing to the group. SM stated that he did not recognise the Complainant.

• DM stated that when he saw the Complainants name on the booking he recognised it. DM called the number on the booking and asked if he was speaking with the Complainant. The person on the phone answered ‘yes’. DM then asked the person on the phone if he was at the hotel on New Year’s 2012/2013. The person on the phone replied ‘yes he was’. DM then stated that they were cancelling the booking due to poor behaviour on that night. DM stated that the person on the phone then said they would be contacting their Solicitor.

• The Respondent further stated that the Respondent was not aware that the Complainant is a member of the travelling community therefore no discrimination occurred as a breach to the Acts.

• The Respondent stated that they do not operate any policy of discrimination against members of the travelling community and this is evidenced by the fact that bookings were taken and honoured from the Complainant on numerous occasions over the past 8 years.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision:

The Complainant is seeking for the Adjudicator to confirm that he was discriminated as a result of being a member of the traveller community.

Legislation involved and requirements of legislation:

In line with Section 3 (1) and (2) of the Equal Status Act, 2000 and 2004;

(1) For the purposes of this Act, discrimination shall be taken to occur where:

(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,

(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and

(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,

(ii) The person is obliged by the provider of a service (within the meaning of section 4 (6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,

(iii) substantially more people outside the category than within it are able to comply with the condition, and

(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(i)that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Section 5(1) provides that:

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Section 15(1) of the Act:

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.

Decision:

There is a requirement for the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

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.

1. Notification Procedures As Prescribed By The Legislation:

Under the Equality Status Act 2000 Section 21(2) the Complainant is obliged to notify the Respondent that a case is to be taken as a result of the alleged discrimination and that the case is to be referred for redress within 2 months after the last such occurrence. The Respondent has claimed that this requirement has not been met.

However upon review of the timeline as per below the Adjudicator is of the opinion that she is satisfied to investigation due to the failure of the Respondent to notify the Complainant of the incidents as confirmed by DM in evidence and they were first notified on the 18 March 2016.

• On the 31 December 2012/ 1 January 2013 the alleged incidents occurred.
• In August 2015 the Complainant frequented the hotel. This reservation was not cancelled.
• On the 18 March 2016 the Complainants booking was cancelled and he was informed of the alleged incidents occurring previously.
• On the 22 March 2016 the Complainant established initial communication with the Respondent.
• On the 18 August 2016 due to failure of engagement talks the Complaint form was submitted and received by the WRC on the 24 August 2016. The Complainants representatives had informed the Respondents of the same in several email correspondence.

However, there is no formal letter or other form of other form of notification that the Complainant is pursuing this case but it is inferred in email correspondence.

Regarding the appropriate notification, I am satisfied that the Respondent was on notice of the complaint when the Complainant’s representative wrote to the Respondent on 4 August 2016 and 23 August 2016. The ES1 form is not a statutory form. I accept that these emails meets the notification required under Section 21 of the Acts in that it describes the nature of the allegation and the Complainant’s intention, if not satisfied with the Respondent’s response, to seek redress. 

2. Section 15 (1) of the Equal Status Act 2000

The legislation confirms that nothing in the legislation prohibits discrimination shall be construed as requiring a person/Company to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person. It specifically relates to where there is 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.

Section 19 (11) of the Intoxicating Liquor Act 2003 refers to the ceasing of the provision of goods and/or services. In this case that prohibited conduct is alleged this legislation provides for referring of a case to the District Court. Similiarly, as the Complainant feels discriminated as per one of the grounds of the Equal Status Act 2000 therefore has an entitlement to take his case under the Equal Status legislation.

The Adjudicator is satisfied to investigate the allegations.

3. Discrimination

As per the Acts Section 3(1b)(i) states that discrimination shall be taken to occur where a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated. In this case the Complainant was associated with the group that caused misconduct on the date in question. The Complainant confirmed that he is a member of the travelling community. A “group” has been mentioned throughout. The Respondent have not referred to the travelling community but that was implied.

Section 3(2i) stated that discrimination shall to taken to occur when one is a member of the Traveller community and the other is not. The Complainant claims to have been discriminated against as he is a member of the travelling community. The Respondent has noted that they were unaware of the status of the Complainant as a member of the Traveller community. In addition, the Complainant has stayed in the Respondents hotel many times previous inferring no previous discrimination. The Respondent has given evidence which stated that any guest of the hotel would be treated in the same manner has inexcusable behaviour and/or misconduct occurred. The Adjudicator finds that the Complainant was not excluded from the Respondents hotel as a result of his membership of the Traveller community.

The Respondent has imparted plausible evidence which notes that the reason the Complainant was restricted from making future bookings was due to the poor behaviour witnessed on the 31 December 2012/January 2013 as part of a group. The Adjudication considers it legitimate and appropriate to deny access going forward to the same people due to the behaviour of the group and their misconduct. The conduct resulted in a monetary loss to the Respondents business in addition to an impact on the reputation of the business. The motive in this case to prevent this group from access to the hotel is due wholly to their conduct, not due to the fact that they are members of the travelling community.

The Respondent stated that the hotel had to refund other guests in the hotel due to their bad experience as a result of the behaviour of the Complainant and the Group he was associated with. This resulted in damage to the good name and reputation of the hotel which is claimed to be a multi award winning hotel in family tourism. I accept that the Complainant was barred as a result of appalling behaviour however I find the Respondent could have dealt with the matter in a more proactive demeanour.

Section 3(2i) stated that discrimination shall to taken to occur when one is a member of the Traveller community and the other is not. The Complainant claims to have been discriminated against as he is a member of the travelling community. The Complainant has stayed in the Respondents hotel many times previous inferring no previous discrimination. The Respondent has given evidence which stated that any guest of the hotel would be treated in the same manner had inexcusable behaviour and/or misconduct occurred. The Adjudicator finds that the Complainant was not excluded from the Respondents hotel as a result of his membership of the Traveller community. 

The Respondent has imparted plausible evidence which notes that the reason the Complainant was restricted from making future bookings was due to the appalling behaviour witnessed on the 31 December 2012/January 2013 as part of a group. The Adjudication considers it legitimate and appropriate to deny access going forward to the same people due to the behaviour of the group and their misconduct. The conduct resulted in a monetary loss to the Respondents business in addition to an impact on the reputation of the business. The motive in this case the Adjudicator finds was to prevent this group from access to the hotel is due wholly to their conduct, not due to the fact that they are members of the travelling community. However, the Adjudicator finds it remarkable that such an issue would go unmentioned to the Complainant and the Group on check out or alternatively via letter further to the incident. I do accept the validity of the argument put forward in respect to the safety at the time however, I don’t find it appropriate that the Complainant was not written to further to the incident to inform of the appalling behaviour experience and inform them that they were barred from the premises going forward in light of the poor behaviour that was experienced in the hotel.

In accordance with these Acts, I conclude this investigation and issue the following decision: that the complainant has not established a prima facie case on the ground of “that one is a member of the Traveller community and the other is not (the “Traveller community ground”),” The Complainant is this case has not reached the necessary burden of proof to confirm his claim is well founded on the grounds contrary to the Equal Status Acts 2000 and 2012 and the claim fails.

Dated:   05/04/2017