ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00009172, ADJ-00009183 & ADJ: 00009187                          

Parties:

Anonymised Parties3 Complainants (Mr. B, Ms. C and J (a minor)) -v- A Kerry based Hotel  

Representatives   PADRAIG J. O'CONNELL SOLICITORS      /     Harrison O'Dwyer Solicitors

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000   Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000   Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00012060-001     CA-00012093- 001       CA-00012101-001       22/06/2017     22/06/2017       22/06/2017

Date of Adjudication Hearing: 03/11/2017

Workplace Relations Commission Adjudication Officer: Orla Jones

Procedure:

In accordance with Section 25 of the Equal Status Acts, 2000-2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.   For ease of administration, given that these three complaints relate to one alleged incident of discrimination they are being dealt with in a single decision.  

Background:

This dispute involves claims by three complainants that they were discriminated against by the respondent, contrary to section 3 of the Equal Status Acts, 2000-2015, on grounds of membership of the Traveller Community when they were refused accommodation for the night of 14th of May, 2017. The complainants referred complaints under the Equal Status Acts, 2000-2015 to the Workplace Relations Commission on the 22nd of June 2017.     It is submitted that the first named complainant entered the respondent’s premises on the l4th of May, 2017 to book a family room for the night in question but was refused accommodation.   The first named complainant, Mr. B submits that he was refused accommodation for himself and his family (his wife Ms. C and their son J (a minor)) due to the fact that they are members of the Traveller community.     In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case to me Orla Jones, Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. Written submissions were received from both parties.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 3rd of November, 2017. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.  

Summary of Complainant’s Case:

The complainant submits that he had walked into the respondent’s premises on the l4th of May, 2017 seeking to book accommodation for the night, for himself, his wife and their young child, the respondent’s receptionist initially accepted the complainant’s booking and payment for the accommodation, the receptionist went to get change for the complainant and came back with the manageress, the respondent’s manageress refused the booking and gave the complainant his money back stating that there were no rooms available for that night, the complainant submits that this refusal amounts to discrimination on grounds of membership of the Traveller Community, the complainant following the respondent’s refusal had to drive to another town to find accommodation for himself and his family for the night in question.  

Summary of Respondent’s Case:

The respondent submits that the complainant and his family could not be accommodated on the night in question as there were no bookings being taken for that night due to the fact that the rooms were to be fitted with new triple glazed windows the next morning in advance of tours arriving on Wednesday and so no guests were being accepted for the night in question, the only rooms being occupied on the night in question were 3 rooms occupied by guests who were staying over from previous nights, the respondent could not shut down search engines such as booking.com and so had to accommodate guests where bookings had been made and confirmed online, one such booking was made on the 13th for the night of the 14th and so had to be accommodated, the receptionist who dealt with the complainant’s booking inquiry was new and was unclear as to the procedure to be followed but had been told not to accept any new bookings that day due to the fact that new windows were being fitted in the hotel rooms the next morning, the respondent offered to ring around and find the complainant alternative accommodation for the night in question and offered him accommodation in the hotel on a different night.  

Findings and Conclusions:

The issue for decision by me now is, whether or not the respondent discriminated against the complainants on grounds of membership of the Traveller community in terms of sections 3 of the Equal Status Acts, 2000-2015. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 3(1) provides, inter alia, that discrimination shall be taken to occur where: (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 3(2)(i) provides that: as between any two persons, (i) that one is a member of the Traveller community and the other either is not (the “Traveller community ground”), Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the 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. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.   Discrimination on grounds of membership of the Traveller Community     In making my decision I must consider whether the existence of a prima facie case has been established by the complainant. Section 38A 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. 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, written and oral, made to me by the parties to the case.   The first complainant submits that he entered the respondent’s premises on the 14th of May, 2017 with the intention of booking a family room for the night to accommodate the complainant and his wife and child.   The complainant told the hearing that he had entered the respondent premises on the date in question and stated that he had approached the receptionist and had asked if he could book a family room for the night. The complainant advised the hearing that the receptionist had asked for his details and had printed off a form for him to sign to make the booking. The complainant went on to state that he had then handed the receptionist €100 in cash to pay for the room which cost €89.   The complainant, Mr. B told the hearing that the receptionist had then left the desk and went to get change for him.   The complainant told the hearing that he then went outside to call his wife Ms. C who was waiting in the car, to tell her to get the child and the bag ready as he had booked a room for the night.     The complainant advised the hearing that when he went back inside the receptionist had returned to the desk and was accompanied by Ms. O, the respondent’s manageress. The complainant told the hearing that Ms. O had advised him that there was no room available for that night and had handed him back his money.   The complainant told the hearing that he had asked Ms. O for a photocopy of the document containing his details to which Ms. O replied ‘no its rubbish’ and drew a line through the details in the document.   The complainant submits that this refusal of accommodation took place due to the fact that he is a member of the Traveller community.   The respondent advised the hearing that there were no rooms available for booking on the night in question as the respondent was due to carry out renovations the next morning which involved replacing the existing windows with triple glazed windows. The respondent stated that the windows were being replaced due to noise concerns as the Hotel is situated on the main street in the town and noise pollution was a big concern. The respondent advised the hearing that this renovation work was scheduled to be carried out on the morning of the 15th of May 2017 and the respondent as evidence of this produced a letter from Mr. E, Glazier who carried out the work.   The letter from the Glazier stated that the window replacement work was starting at 7 am on the morning of the 15th of May, 2017 and that he had advised the respondent not to have guests staying in the hotel at the time as there would be a lot of noise from the preparatory work involved in installing the windows.       The respondent stated that the hotel had decided to carry out the work at that time in preparation for its busy season when they cater for tours the first of which was arriving that Wednesday. The respondent stated that it had taken no new bookings for guests on the weekend in question and stated the only people staying in the hotel on the night in question were a small number of stayovers occupying three rooms who had been resident for a number of nights previously and who were staying on that night as well. The respondent stated that it could not shut down search engines such as booking.com and so had to accommodate guests where bookings had been made and confirmed online, the respondent stated that one such booking was made on the 13th for the night of the 14th and so had to be accommodated. The respondent advised the hearing that it had been decided that no new bookings were to be accepted on the 13th or 14th of May 2017 and stated that that no new bookings were taken on those dates apart from the one person who had booked online and so had to be accommodated.   The respondent as evidence of this produced extracts from the hotels booking reservation system which showed that no new guests booked in on the date in question and indicated that the last booking taken was at 3pm on Saturday the 13th of May for the night of the 14th and that this was made on booking.com.   The extracts from the reservation system show that of the 33 rooms in the hotel 3 rooms were staying on in the hotel on the night in question and only 1 new booking was accepted as advised by the respondent.   The complainant advised the hearing that he had gone into the hotel to try and book a room for the night and stated that his wife Ms. C and child J (a minor) were waiting for him in the car. He stated that he had called Ms. C to tell her to get the child and the bag ready as he had booked a room but that he then had to return to the car to tell them that they did not have a room for the night.   The complainant told the hearing that he had to drive to another town to find a room in another hotel for the night.   The second complainant, Ms. C advised the hearing that she had not entered the respondent’s premises but that she and the third named complainant, J (a minor) had been waiting in the car while Mr. B went in to the hotel to book a room. Ms. C advised the hearing that the complainant Mr. B had been very upset and angry when he returned to the car having initially told her that he had booked a room but then a few minutes later being told that there was no room available.   The respondent advised the hearing that the complainant’s booking inquiry was initially accepted by the receptionist who was new and who had understood that the complainant had already made a booking on booking.com.     Witness for the respondent Ms. O stated that the receptionist had come to her looking for change for the complainant and had told her that the complainant had showed her his phone and referred to a booking he had made on booking.com.   The complainant told the hearing that he had not made a booking on booking.com.     Ms. O advised the hearing that the hotel could not shut down online booking search engines and so bookings could have been made online for the night in question and one such booking had been made online the previous day and so the respondent was aware that it would have to try and accommodate those guests.   Ms. O stated that the receptionist had taken the complainant’s details to enter them on the system as she had understood that he had already made a booking.   Ms. O stated that she had explained to the complainant that there were no rooms available and that he had told her that there were rooms available on booking.com.   Ms. O stated that she had tried to explain to the complainant why there were no rooms available and that it was due to the preparatory work taking place the next morning but she stated that Mr. B became angry and started using abusive language and shouting over her saying that it was due to the fact that he was a member of the Traveller community.   The respondent advised the hearing that the complainant could have stayed in the hotel if there was a room available and stated that he was not refused due to his membership of the Traveller community.   The respondent stated that it often has guests staying who are members of the Traveller community and went on to state that one of its Directors, Mr. S has a close involvement with the local boxing club and stated that the hotel, as part of this connection, has hosted other boxing clubs overnight, some of whose members are members of the Traveller Community.   The respondent went on to state that one of its former employees was also a member of the Traveller Community. The respondent advised the hearing that it was shocked to be accused of discriminating against a member of the Traveller Community and stated that one of its regular customers in its bar was also a member of the Traveller Community.   The complainant in his evidence at the hearing stated that Ms. O had told him that the hotel was ‘full’ on the night in question. Ms. O in her evidence stated that she had not said that the hotel was full but that she had said there were ‘no rooms available’ due to the planned renovations in preparation for the tours. The complainant in his initial statement to the Commission stated that Ms. O had told him that there were ‘no rooms available’ thus corroborating her statement.   The respondent advised the hearing that the complainants were not refused accommodation on grounds of membership of the traveller community but were refused due to the fact that the hotel was having its windows replaced the next morning and thus the respondent was refusing all new bookings for the night in question for that reason as the noisy preparatory work was starting at 7 am.   The respondent advised the hearing that any person who showed up on the day in question looking to book a room for that night would have been treated the same way as they could not accept bookings from guests due to the planned work the next morning.   I am satisfied from the totality of the evidence adduced that the respondent’s refusal to provide the complainants with accommodation for the night in question was due to the scheduled renovations which were starting the following morning.       I am also satisfied that any person who had tried to book a room in the hotel that night would have been treated in the same way irrespective of whether or not they were members of the Traveller community.   Based on the totality of the evidence adduced in relation to these matters I am satisfied that the complainants were not discriminated against by respondent on grounds of membership of the Traveller community in respect of this matter.  

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 27 of that Act. In reaching my decision I have taken into account all of the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision. The complainants (Mr. B, Ms. C and J (a minor)), were not discriminated against by the respondent on grounds of membership of the Traveller Community contrary to section 3 of the Equal Status Acts, 2000-2015.

Dated:   14 December 2017

Workplace Relations Commission Adjudication Officer: Orla Jones

Key Words: Equal Status, Discrimination, Membership of the Traveller Community, Hotel, accommodation