EQUAL STATUS ACTS
DECISION NO. DEC-S2017- 035
PARTIES
Ethel Soga
Vs
Red Cow Moran Hotel
FILE NO: Et-158286-es-15
DATE OF ISSUE: 3rd of October, 2017
1. Dispute
This dispute involves a claim by the complainant against the respondent that she was discriminated against on the ground of race, in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Equal Status Act, 2000-2015 to the Equality Tribunal on the 18th of August, 2015.
2.2 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 on the 2nd of February, 2017 to me Orla Jones, an Adjudication/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. This is the date I commenced my investigation. 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 5th of May 2017. Final correspondence in respect of this matter took place on the 16th of August 2017.
2.3 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.
3. Summary of complainant’s case
3.1 It is submitted that
the complainant, who is South African, booked a room on 23rd of February, 2015, in the respondent hotel for her Birthday party on the 20th of June, 2015,
the complainant returned to the hotel prior to her party on the 8th of June 2015 and was shown a different bigger room than the one she had initially booked,
the complainant raised this with the respondent and was mocked and laughed at by the respondent for suggesting that it was not the same room,
it was later clarified that the room could be partitioned in different ways,
the complainant was initially told that she could not have the room until 6.30 pm on the day of her party as her booking was from 7pm, which would not give her enough time to decorate the room before her guests arrived,
Ms. K of the respondent hotel later agreed that the complainant could come to decorate the room at 4pm on the day of the party,
the complainant arrived at the hotel at 4 pm on the day of her party (3 hours before the party) and was refused access to the room as she was told there was a function going on and that she could not have the room until 6 pm, Ms. K was not present and had not communicated the arrangement to other staff,
the complainant became very upset and a member of staff Mr. J agreed that he would ensure that the room was decorated before the party,
the room was decorated by the respondent’s staff but a guest informed the complainant that a number of guests who arrived at 6 pm had to help with the decorating as the room was not ready,
this treatment is due to the complainant’s race.
4. Summary of respondent’s case
4.1 The respondent submits that
it refutes entirely the complainant’s allegations of discrimination on the ground of race,
the respondent employs a diverse workforce and has a diverse customer base with customers from all over the world,
the complainant had booked a room in the respondent hotel for her Birthday party on the 20th of June, 2015,
the complainant returned to the hotel prior to her party and was shown the room she had booked, but on this occasion the room was without partitions so looked much bigger than it had when the complainant saw it previously,
Ms. K explained to the complainant that the room cold be partitioned in different ways to make it bigger or smaller and that it had been partitioned on the last occasion the complainant came to see it,
the complainant had agreed with the hotel that she would come to the hotel early on the day of her birthday to decorate the room and cover the chairs herself,
the complainant arrived at the hotel 3 hours before her party but was not allowed into the function room to decorate it at that time as there was a function ongoing,
the complainant was upset at this and spoke to a staff member Mr. J who agreed that he and other staff members would decorate the room for her when the function was over,
the respondent’s staff decorated the room as advised to the complainant,
the complainant’s party was a big success and she thanked the respondent’s staff for their help.
5. Findings and Conclusions of the Equality Officer
5.1 The issues for decision by me are, whether or not, the respondent discriminated against the complainant, on grounds of race, in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 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.
5.2 Discrimination
5.2.1 Section 3 (1) and (2) of the Equal Status Acts, 2000-2015 set out the definition of discrimination as follows;
“3. (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:
(h) that they are of a different race colour nationality or ethnic or national origins (the “ground of race”),
5.2.2 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.
5.3 Allegations of Discriminatory treatment
5.3.1 The complainant advised the hearing that she had met with Ms. K of the respondent hotel on the 23rd of February, 2015 and that she had booked a room in the respondent hotel for her Birthday on the 20th of June, 2015. The complainant stated that she had at the time of booking the room paid a deposit of €300 and secured the room for her birthday.
5.3.2 The complainant advised the hearing that she returned to the hotel on the 8th of June 2015 and that she was on this occasion shown a different room which was much bigger than the room she had initially booked. The complainant advised the hearing that she went home and phoned the respondent after her visit and raised the issue of the bigger room with Ms. K of the respondent hotel who replied “Im baffled how can walls be built or disappear overnight”. The complainant told the hearing that it seemed that Ms. K was making fun of her and mocking her. The complainant advised the hearing that Ms. K then invited her to come back to the hotel to look at the room again which she did on the 10th of June, 2015. The complainant advised the hearing that on the 10th of June, 2015 the room in question was divided in half by a partition and looked the same as it had when she first visited. The complainant stated that she was satisfied that this was the room she had booked.
5.3.3 Ms. K of the respondent agreed with the complainant’s version of events re the initial booking of the room and stated that the complainant had raised the issue that the room was a lot bigger when she retuned to look at it on the 8th of June. Ms. K stated that the complainant had raised this over the phone after her visit of the 8th of June and stated that she had replied by telling the complainant that the room can be partitioned in different ways and into different sizes. Ms. K told the hearing that she had then invited the complainant to return to the hotel to view the room again which the complainant accepted and returned on the 10th of June 2015. Ms. K advised the hearing that the function room was partitioned into two rooms on the day the complainant returned i.e. the 10th of June and that the complainant was satisfied that this was how the room had looked when she had booked it. The complainant at the hearing agreed that she had been satisfied with how the room looked on this visit and that this was how it was for her party. Ms. K told the hearing that she did not mock the complainant or laugh at her and that she was happy to explain that the room looks different depending on how it is partitioned. She stated that she herself is from the Phillipines and of Asian descent and would not discriminate against anyone.
5.3.4 The complainant advised the hearing that she had arranged for a party organiser to decorate the respondents function room for her birthday. She stated that she had invited 100 guests and that the organiser had indicated that she would need to start decorating the room a number of hours before the party. The complainant stated that she was initially told that she could not have the room until 6.30 pm as her booking was from 7pm which would not give her enough time to decorate the room before her guests arrived. The complainant told the hearing that after speaking to her party organiser she had emailed Ms. K on the day before the party and asked for permission to start covering the chairs for the party at 4pm, which Ms. K agreed she could do. The complainant advised the hearing that she had arrived at the hotel at 4 pm on the day of her party (3 hours before the party) and was refused access to the function room as she was told there was a function going on and that she could not have the room until 6 pm. The complainant stated that Ms. K was not on duty at the time and had not communicated the arrangement to the other staff on duty. The complainant stated that she was also told by Duty Manager, Mr. J that she could not take the chairs outside to cover them as it was going to rain. The complainant stated that she became very upset at this and that Mr. J had told her to go home and get ready for her party and that he would ensure that the room was decorated before the party. The complainant advised the hearing that the room was decorated by Mr. J and other members of the respondent’s staff but she stated that a guest had informed her that a number of guests who arrived at 6 pm had to help with the decorating as the room was not ready. Witness for the respondent Mr. J advised the hearing that there was a function in the function room until 6 pm on the day of the complainant’s party and that the intention was that she could cover her chairs outside the back of the hotel but that he advised her on the day of the party that it was going to rain and that her chair covers would get ruined if she brought them outside for covering. Mr. J stated that the complainant became very upset at this and that he had tried to comfort her by telling her to go home and get ready for her party and that he and other staff members would sort out the decorating for her. Mr. J advised the hearing that the earlier function had finished at 6pm and that he and a number of staff had immediately began decorating the room. Mr. J stated that a few of the complainant’s guests arrived at 6.30pm and that they had joined in with the decorating but also started rearranging the layout of the tables stating that it was not done in the way the complainant had wanted. Mr. J stated that he had rearranged the tables as requested and that he had even helped the DJ to set up. He stated that the room was ready for 6.45pm before the scheduled start time of 7 pm.
5.3.5 The complainant submits that the respondent’s treatment of her amounts to discrimination on grounds of race. It is clear from the evidence adduced that no reference was made to the complainant’s race either direct or indirect and that the complainant had sought to access a service of the respondent by booking a room for her party which she succeeded in doing and that her party was held in the respondent’s function room. The complainant also advised the hearing that the party was a success and that more guests arrived than were invited and that the respondent facilitated her by bringing in extra chairs and food for these guests. It does seem from the evidence adduced that the was some confusion over the size of the room which she initially booked which was resolved and over the access to the room for the purpose of decorating the room prior to the party which was resolved by the respondent’s staff decorating the room for the complainant. The evidence adduced by the parties in respect of these incidents does suggest an element of misunderstanding or lack of communication between staff on the respondent’s part but does not support the claimant’s allegations of discrimination on grounds of race. The complainant has adduced no evidence to support her claim that this amounts to less favourable treatment due to her race or that someone of a different race was/ or would have been treated differently, in the same circumstances. I am thus satisfied from the totality of the evidence adduced here that the complainant was not discriminated against on grounds of race in respect of this matter.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision. I find –
that the complainant was not discriminated against by the respondent on the ground of race in terms of Section 3 and, contrary to Section 5 of the Equal Status Acts, 2000-2015.
____________________
Orla Jones
Adjudicator/Equality Officer
3rd of October, 2017