ADJ-00008595

Complainant

Respondent

Anonymised Parties

A member of the Travelling Community

A Pub/Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00011557-001

24/05/2017

The claim concerns an allegation that the Complainants, having booked a function in a Kildare Pub/restaurant, had their booking cancelled on the discriminatory grounds that they were members of the Travelling Community.

The Complainants contacted the Respondent via Facebook on the 20^th October 2016 requesting a function room booking for the 26^th May 2017. Various correspondences/E mails followed, without incident, in relation to the booking. The requested Deposit was paid. On the 20^th November, by e-mail the Respondent asked for a telephone number for their booking system which the Complainants supplied on the 24^th November. On the 10^th December, the Respondent telephoned the number supplied and had a brief conversation with the Complainants. The Complainants alleged that the Male Complainant had a pronounced traveller accent and it would have been obvious that he was a Traveller. On the 13^th December 2016, the Complainants received an email from the Respondent returning their deposit and cancelling their booking. It was their contention that the cancellation was because of the phone call of the 10^th December. The Respondent became aware from that phone call that the Complainants were Travellers and thus cancelled their booking for discriminatory reasons.

Regarding the date in question (the 26^th May 2017) the Respondent had received two inquiries/ potential bookings. It was necessary to choose one and following normal procedures he had established that the Complainants had not supplied a telephone contact number in good time. This was a requirement of the Booking system. Accordingly, he had to choose the alternative booking and disappoint the Complainants. There was never any suggestion that the disappointment of the Complainants regarding the booking had anything to do with their membership of the Travelling Community. In fact, the Respondent premises regularly hosted events involving the Travelling Community and evidence was given to this effect.

In simple the Complainant had not adhered properly to the Respondents Booking Policy and when faced with a choice between the competing claims for the day in question he had to disappoint them. It was a normal commercial decision albeit disappointing to the Complainants.

3:1     The Law and the Burden of Proof

It is settled Law that Section 85 (A) of the Employment Equality Act which is mirrored by Section 38(a) of the Equal Status Acts 2002-2015 has to be referenced. I rely on the analysis in Bolger, Bruton, Kimber; Employment Equality Law 1st Ed. 2012 at 2-214 to 2-222.

Burden of proof

The cited Authorities argue at 2.214 P106   that Section 85A of the Employment Equality Acts imports the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant “from which it may be presumed that there has been discrimination in relation to him or her”. It stems from the former Burden of Proof Directive (which effectively codified the case law of the Court of Justice) which is now consolidated into the new Equality Directives.

Furthermore, it is well recognised in the case law that direct evidence of discrimination is infrequent and therefore the rules on burden of proof have to take account of this in providing for effective judicial remedies for aggrieved parties.

The issue of the evidential requirements for both Complainants and Respondents has been carefully considered and promulgated in the case law of the Tribunal and the Labour Court. The starting point is the decision of the Labour Court in Southern Health Board v Mitchell, [2001] ELR 201 a decision which predates the new Directives and s.85A but still remains the leading decision on the shifting of the burden of proof. The court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy EDA0821 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The argument that mere membership of a protected class and specific treatment was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule” Valpeters v Melbury Developments Limited [2010] ELR64

Therefore, the cited Authorities argue, the evidence adduced by the Complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment.

3:2       Consideration of Evidence in the case in hand / both Oral and Written

In applying the Legal principles elicited above to this case it in necessary firstly for the Complainant to establish a prima facie case, to effectively establish facts that are of “sufficient significance to establish a presumption of discrimination”Labour Court above at Valpeters v Melbury developments Limited [2010] IRLR

Once the “Presumption of Discrimination” is established the actions of the Parties can then be evaluated further.

The first key fact was that the Complainants followed all the requirements of the Respondents regarding Deposits, EW Mail addresses and a telephone number. It was accepted that there was a delay of some 3 to 4 days in forwarding a phone number but in view of the extensive e mail traffic that already existed confirming the booking this was not in my view material.

The second key fact in my view was the oral evidence of the Pub manager who in my view admitted that he had taken a second booking for the day in question from a “Good regular customer” who he did not want to disappoint. Accordingly, he cancelled the Complainant’s booking.

The Legal Representative for the Complainant in his Form ES.1 had asked for full details, “a comprehensive chronology of all interactions witht his alleged other party”. This request was never complied with in writing or indeed orally save for the Managers’ comments and I take negative inference from this refusal.

Thirdly in the Respondents first Legal reply dated the 17^th February 2017 it was stated that the alternative booking had been taken because the Complainant’s had not “Been forthcoming with the deposit”. This was clearly at variance with the facts and the Legal representative admitted that he had been “Clumsy” with the facts.

The oral evidence from the waitress in the Pub I found vague and somewhat confusing. The disputed phone call on the 10^th December 2016 which was alleged to have involved strong language from the Male Complainant was much disputed. It was maintained the phone had been passed almost immediately to the female Complainant who was effectively dealing with the booking and the opportunity to have strong language from the male Complainant did not arise. In any event the booking had not been refused at this stage and I could see no reason for a verbal dispute at that stage.

The oral evidence of the Pub Manager as regards whether he knew in advance of the Traveller status of the Complainant I found unconvincing. The Complainant were openly using a Halting site address and the Respondent was in a Pub business only a few miles away.

The oral evidence of the female Complainant, the mother of the child who was due to have the Function in the Reception Room, was, in my view genuine. She explained that she had been very careful to comply with all requirements as she was well aware of the difficulties faced by members of her Community in getting bookings.

3:3       Summary and conclusion.

In conclusion, I came to the view that the clash of bookings had placed the Respondent in a difficult commercial situation. In the Restaurant/Pub business this would not be unusual. Normally it is accepted practice to contact the parties to discuss the situation and seek some form of acceptable resolution. However, no effort was made to discuss the situation with the Complainants and no explanations or indeed alternative arrangements were suggested.

In reviewing the evidence and evaluating the situation I came to the view that this approach would not have happened to a member of the Settled Community. There was in my view a legally sound “clear inference – the presumption of discrimination” that the membership of the Travelling Community was a significant influencing factor in the cancellation of the booking and the manner in which it was done.

Accordingly, I came to the view that an act of discrimination had taken place.