ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00004774

Complaint:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00006828-001 30/08/2016   Date of Adjudication Hearing: 24/10/2017

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

The Complainant is a member of the Traveller community. The Complainant claims that he was discriminated against by the Respondent on the grounds of his 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 relation to the Respondent’s refusal to afford him access to the restaurant at its hotel on 13th March, 2016.

Summary of Complainant’s Case:

The Complainant is a member of the Traveller community. The Complainant’s wife attended at the Respondent’s hotel on 13th March, 2016 for the purposes of having carvery lunch with her two daughters. She had arranged to meet the Complainant at the hotel so the family could enjoy Sunday lunch together. The Complainant was travelling separately to the venue with their son having attended a boxing tournament earlier that day. When the Complainant’s wife and daughters were refused entry to the hotel she believed that it was a misunderstanding and decided to wait for her husband (the Complainant) to arrive who was only five minutes away. When the Complainant arrived, he asked his wife and children to wait in the car while he went to speak to the doorman. The Complainant was told by the doorman that the premises were under new management and that no Travellers were allowed entry. The Complainant rang the Gardaí at 2:20 p.m. so that they could record this event and make a note of same in their records. The Complainant then asked the doorman to get the Manager as he wanted to speak to the Manager with regard to what was going on. The Complainant is well known to many of the staff at the hotel as a frequent patron. In fact, the Complainant had attended at the hotel along with twelve other members of his family the previous St. Valentine’s Day for a meal. The Complainant and his family had been patrons of the hotel for many years. When the Manager arrived, he looked at the Complainant and would not let him in. The Complainant was advised the next day by a member of staff that the “new owner” of the hotel wished to speak to him. The Complainant was anxious at that stage to iron out any confusion there may have been as he had never been refused entry to this hotel nor has he ever been refused entry to any public house or hotel in his local area. The Complainant is a well-known member of the community and is held in high esteem in same. During the course of this conversation, this gentleman named a number of people, including a local retired Garda Sergeant, and advised the Complainant he would let them know the trouble he was causing. The Complainant understood this to be a threat. The Complainant had done nothing wrong and eventually hung up the telephone rather than be required to listed to further insults and threats. In cross-examination, the Complainant denied that the reason he was refused entry to the hotel on the date in question was due to the fact that only pre-booked customers or residents were only being served lunch on account of the particular day being Mother’s Day. The Complainant submitted that the date in question was not, in fact, Mother’s Day, as this was celebrated the previous week on 6th March, 2016. The Complainant also denies that he became argumentative with the Respondent’s staff on the material date or that he subsequently engaged in a campaign of telephone abuse by calling the hotel’s reception on upwards of fifteen times between that afternoon and the following evening. The Complainant claims that the reason why he was refused access to the Respondent’s hotel on the date in question was wholly attributable to his membership of the Traveller community.  

Summary of Respondent’s Case:

It was submitted on behalf of the Respondent at the oral hearing that the ownership of the hotel changed in May, 2017 and that the existing owners were not in situ when the alleged discrimination against the Complainant occurred on 13th March, 2016. The hotel’s current General Manager attended the hearing to defend the complaint and indicated that she was only appointed to this position in May, 2016, and therefore, she was not in a position to adduce any direct evidence in relation to the events that were alleged to have transpired on the date of the incident involving the Complainant. However, the General Manager indicated that the current owners of the hotel had carried out due diligence checks prior to acquiring the hotel and were aware that these proceedings under the Equal Status Acts were pending. The letter dated 15th April, 2016 which was sent by the existing owners of the hotel to the Complainant’s solicitor in response to the notification (ES.1 Form) in relation to the instant complaint was submitted in evidence. The main points put forward in this letter in defence of the claim can be summarised as follows: ·         There was a large sign outside the Respondent’s hotel on 13th March, 2016 stating that reservations were required for Mother’s Day lunch. The instructions to the Security Guard were very clear – only pre-booked customers or residents of the hotel would be served lunch as it was the busiest day of the year. ·         The Complainant presented at the hotel and became argumentative and forced his way through the security staff and made his way to reception. The Complainant repeatedly asked for the Manager. ·         The General Manager of the hotel spoke to the Complainant and again reiterated that the restaurant was fully booked. ·         There were other well-known Travellers served lunch in the hotel on the date in question. ·         The Complainant began a campaign of abuse whereby he telephoned the hotel’s reception on upwards of fifteen times between the evening of 13th March, 2016 and the following afternoon. The Complainant repeatedly asked to speak to the Manager despite the fact that he had conversed with him on the afternoon in question. ·         The Manager was not working on the Monday in question and the owner spoke to the Complainant. He again reiterated to the Complainant that the restaurant was fully booked on the afternoon in question and indicated that if he continued with this harassment of staff that he would have to speak to the Garda Siochana. The following submissions were made on behalf of the Respondent in relation to the complaint at the oral hearing: ·         The Respondent accepts that the Complainant is a member of the Traveller community and that he has succeeded in establishing a prima facie case of discrimination in relation to the present case. Accordingly, the Respondent accepts that the burden of proof has shifted and that the onus rests with it to establish that the refusal of service was not attributable to the fact of the Complainant’s membership of the Traveller community. ·         The Complainant’s evidence that a Security Guard would openly state that he was refused entry to the hotel because he was a Traveller it is not plausible. ·         The Complainant’s evidence that the then owner of the hotel would “threaten him with the Gardaí” is not plausible. ·         The Complainant accepted that he was afforded entry to the hotel on numerous occasions prior to the alleged refusal of service, including on St. Valentine’s Day 2016. The Respondent submits that this evidence is not consistent with the Complainant’s claim that there was a blanket ban on Traveller’s from accessing the hotel on 13th March, 2016 but rather would support the Respondent’s contention that the refusal of service occurred because the Complainant was not a resident of the hotel or did not have a prior reservation. ·         The Complainant was unable to adduce any evidence that persons of non-Traveller status who did not have a reservation or who weren’t residents were afforded entry to the hotel’s restaurant on the date in question. ·         The Respondent acknowledges that the Complainant submitted documentary evidence in the form of a letter from the Garda Siochana which confirms that he made a telephone call to a local Garda Station on 13th March, 2016 stating that he was refused entry to the Respondent’s hotel. However, the Respondent submits that this document does not support the claim of discrimination as there is no reference to the Complainant having indicated to the Garda on the relevant occasion that the refusal of service was attributable to his Traveller status.  

Findings and Conclusions:

Jurisdictional Issues The Respondent submitted that the Adjudication Officer does not have jurisdiction to investigate the present complaint on the basis that the Complainant has failed to comply with the notification provisions of Section 21(2)(a) of the Equal Status Acts.   This provision requires that a person seeking redress under the Acts must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence. In the instant case the incident of discrimination is alleged to have occurred on 13th March, 2016. The Complainant’s solicitor wrote to the Respondent on 30th March, 2016 in relation to this matter and this letter was followed up with an ES.1 Form (Notification Form) which was sent to the Respondent on 31st May, 2016. The Respondent submits that the letter which the Complainant’s solicitor sent to the Respondent on 30th March, 2016 does not comply with the requirements provided for in Section 21(2)(a)(ii) of the Acts on the basis that it fails to include any indication of the Complainant’s intention to seek redress under the Acts in relation to the matter in the event that he was not satisfied with the Respondent’s response to the allegation. It was also submitted that the ES.1 Form which was sent to the Respondent on 31st May, 2016 was sent outside of the two-month time limit provided for in Section 21(2)(a) of the Acts. The Respondent further submits that the Complainant has not demonstrated reasonable cause for extending the time limit in accordance with the provisions of Section 21(3)(a)(i) of the Acts or that there are exceptional circumstances to justify a decision to dispense with the requirement for notification in accordance with the provisions of Section 21(3)(a)(ii) of the Acts. The Complainant disputes the Respondent’s contention that the letter dated 30th March, 2016 does not comply with the requirements provided for in Section 21(2)(a)(ii) of the Acts and submitted that it clearly refers to the provisions of the Acts which prohibit discrimination against members of the Traveller community. It was submitted that this letter very clearly signals the Complainant’s intention to seek redress under the Acts if the matter was not addressed to his satisfaction. In the alternative, and without prejudice to the foregoing, the Complainant also submitted that there are reasonable grounds for the Director General to grant an extension to the two-month time limit in accordance with the provisions of Section 21(3)(a)(i) of the Acts. The Complainant submitted that the Respondent was clearly aware of the nature of the incident of discrimination after receiving the letter dated 30th March, 2016 and as a result no prejudice arose in relation to its ability to defend the claim. In considering this matter, I note that it was not in dispute that the Respondent received the letter sent by the Complainant’s solicitor on 30th March, 2016 in relation to the alleged indecent of discrimination. In this letter the Respondent’s Solicitor states: “Our clients would like to draw your attention to Section 19 of the Intoxicating Liquor Act 2003 which sets out that if a person is discriminated against under the Equal Status Act, that they may apply to the District Court for redress. Furthermore, our clients refer you to the provisions of the Equal Status Act 2000-2011 which expressly prohibit discrimination against individuals based on their membership of the Traveller community. Please note that our clients intend to fully take this matter further as they feel that they need to be vindicated for the manner in which they were treated”. I note that reference is made in this letter to the provisions of Section 19 of the Intoxicating Liquor Act 2003 which provides that jurisdiction for the investigation of complaints of discrimination under the Equal Status Acts in relation to licensed premises resides with the District Court. In the present case, the alleged prohibited conduct relates to the refusal of access to the restaurant at the Respondent’s hotel, and I am satisfied therefore, that jurisdiction to investigate such a complaint under the Equal Status Acts rests with the Director General of the Workplace Relations Commission. Therefore, notwithstanding the inclusion in this letter of a reference to the incorrect redress provisions in the legislation, I am satisfied that the Complainant’s intention to seek redress under the Equal Status Acts in relation to the alleged prohibited conduct was clearly articulated and communicated to the Respondent in the letter on 30th March, 2016. Having regard to the foregoing, I find that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts. Accordingly, I find that I have jurisdiction to investigate the substantive complaint of discrimination in the present case. Substantive Issue The matter referred for investigation turns upon whether or not the Complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(i) of the Equal Status Act and in terms of Section 5(1) of that Act. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the Traveller community ground) .... A person is treated less favourably than another person is, has been or would be treated.   Section 3(2)(i) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a member of the Traveller community and the other is not (the “Traveller community ground”),” Section 5(1) of the Act provides: "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 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination 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, written and oral, made to me by the parties to the case. The issue for consideration in the instant case is whether the Complainant was refused access to the restaurant at the Respondent’s hotel on the date in question on the grounds of his membership of the Traveller community contrary to the Equal Status Acts. First, I must consider whether the Complainant have succeeded in establishing a prima facie case of discrimination. In order to do so, the Complainant must satisfy three criteria in relation to his complaints. He must (1) establish he is covered by a discriminatory ground (in this case the Traveller Community ground); (2) it must be established that the specific treatment alleged by the Complainant actually occurred and (3) there must be evidence that the treatment received by the Complainant was less favourable than the treatment someone who was not a member of the discriminatory ground would have received in similar circumstances. In this case, it is not a fact in dispute that the Complainant is a member of the Traveller Community thus satisfying the first of the criteria outlined above. Neither was it in dispute that the Complainant was refused access to the restaurant at the Respondent’s hotel on 13th March, 2016. This is sufficient to satisfy the second of the three criteria set out above. Regarding the third of the criteria, the Complainant adduced evidence that the Respondent’s Security Guard informed him at the point of entry to the hotel’s restaurant that Travellers were not allowed access on the date in question. I am satisfied that the Complainant would have been known to the Respondent’s staff as member of the Traveller community based upon his evidence that he was well known in the locality and would have frequented the Respondent’s hotel on a regular basis prior to the indicated that occurred on the date in question. I found the Complainant to be an impressive witness and his detailed evidence to be wholly credible in relation to the circumstances giving rise to this complaint. The Respondent did not adduce any direct evidence in relation to the actual events giving rise to this complaint and in the absence of any rebuttal evidence on behalf of the Respondent, I fully accept the Complainant’s uncontradicted version of the events that transpired on the date in question. It was open to the Respondent to request the hotel staff (including the Security Guard and Manager) who were on duty and had witnessed the incident on the date in question to attend the hearing to give evidence in relation to the matter. However, the Respondent neither produced any such witnesses at the hearing nor did it provide an indication of any attempts made to request the attendance of such persons. Whilst I accept that the ownership of hotel has changed hands since the occurrence of incident giving rise to this complaint, I find that the current owners, being the named Respondent in these proceedings, are vicariously liable for the prohibited conduct in accordance with the provisions of Section 42 of the Equal Status Acts. In the circumstances, I find that the reason the Complainant was refused access to the restaurant at the Respondent’s hotel on 13th March, 2016 was attributable to the fact of his membership of the Traveller community. Having regard to the foregoing, I find that the Complainant has established a prima facie case of direct discrimination on the grounds of his membership of the Traveller community and that the Respondent has failed to rebut the inference of discrimination.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. I have concluded my investigation of this complaint and based upon the aforementioned, I find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of direct discrimination on the ground of membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Acts, which has not been rebutted by the Respondent. In accordance with Section 27 of the Acts, I order the Respondent to pay the Complainant €3,000 in compensation in respect of the finding of direct discrimination on the ground of membership of the Traveller community. This award is arrived at having regard to the seriousness of the discrimination imposed and the humiliating effect on the Complainant arising from the very public manner in which he was refused access to the restaurant at the Respondent’s hotel.   Dated:   14.12.17 Key Words:Equal Status Acts – Direct Discrimination – Membership of the Traveller community – Refusal of Service – Prima facie case established – No rebuttal evidence - Compensation awarded