ADJ-00013219

Complainant

Respondent

Parties

Noreen O'Brien

Gleneagle Hotel (Killarney) Limited

Representatives

Helena Clark Kerry Travellers Health & Community Development Project

Emer O' Sullivan Niall Brosnan & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017423-001

13/02/2018

This dispute involves a claim by the complainant that she and three members of her family 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 entry to an event in the respondent hotel on the 15th of August 2017. The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Workplace Relations Commission on the 13th of February 2018.

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 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.     As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing of this complaint on the 19th of July, 2018.   The respondent on the day of the hearing sought and was granted an adjournment.   The matter was rescheduled for 4th of September 2018.

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.

It is submitted that

The complainant and three members of her family were refused access to a concert in the respondent hotel on the night of 15th of August 2017 due to the fact that they are members of the Traveller Community.

It is submitted that

The complainant was refused access to the concert at the respondent hotel on the night in question due to the fact that she was intoxicated and unable to look after herself.

Conclusions of the Equality Officer

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.     Claims of victimisation and of failing to provide reasonable accommodation were also made, but these were not pursued 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 complainants. 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 complainant Ms. N told the hearing that she and her mother Ms. E and her two sisters Ms. V and Ms. M were refused entry to a concert in the respondent hotel on the night of 15th of August 2017. The complainants mother Ms. E told the hearing that her daughter Ms. V bought 2 tickets for a concert being held in the respondent Hotel on the morning of 15 August 2017 in Ticketmaster. The complainants told the hearing that the two tickets were for Ms. E and her daughter Ms. V (complainant).

The complainants told the hearing that Ms. M and Ms. N later decided to go to the concert as well.   The complainants mother Ms. E advised the hearing that her son-in-law phoned the respondent hotel before the concert and asked if they could pay for the event at the door. It is submitted that he was told yes, they can pay at the door.   The complainants told the hearing that Ms E and her three daughters (including Ms. N) went to the concert venue together on the night of the 15th of August 2017.     The complainants told the hearing that the youngest sibling Ms. M was driving.

The complainants told the hearing that they arrived at the respondent Hotel and that Ms. E and her daughter Ms. V walked up together to the door with her other daughter Ms. N following behind.   The complainants told the hearing that as they approached the door two security guards came running down the hotel steps and said   “Hold it; where do you think you are going?”.     It is submitted that the security guard then asked Ms. V if he could check her bag for alcohol.

The complainants told the hearing that the security guard did not find any alcohol in the bag; all that was there was her money, tickets and her makeup.   The complainants told the hearing that none of them had been drinking that night and that the complainants mother Ms. E hadn’t drank in years due to medication she was prescribed and that Ms. M was not drinking as she had been driving that night.   The complainants went on to state that none of them had been drinking before the event but that Ms. V and Ms. N had planned to have a glass of wine or two once they went into the hotel.   Ms. N clarified during the hearing that she had not had a drink beforehand but “planned to have a drink” later on.

Ms. V went on to state that she then told the security guard “look, this is the tickets that we bought today. If there is nothing in my bag and none of us have been drinking and we have the tickets, can you give me an explanation or reason why we can't come in?”

Ms. V told the hearing that the security guard told her “Ye are not getting a reason or explanation, ye are not getting in tonight.“ Ms. V submits   that she then asked “What makes us different to anybody who went in tonight?” and that he responded by saying “No, no, you are not coming in tonight.” Ms. V stated that he was laughing together with the other security guard and saying sarcastically: “ If you want to, you can change your ticket and get your €17.50 back.”

Ms. V told the hearing that she replied “I am not short of 17.50; I don't need it.” Ms. E told the hearing that she then became upset and said: “We’ll go home.”

The complainants told the hearing that the respondent then said to to them “Lads, you might as well go all home, because none of the four of ye are getting in tonight.” The complainants told the hearing that in the meantime settled people were passing them by and going in.

The respondent in their initial response to the complaint had detailed another incident involving a different group of people who had been refused entry to the hotel on the night in question due to their attempting to bring alcohol into the premises with them and who once refused entry displayed aggressive behaviour towards the staff of the respondent hotel.   The respondent later clarified that their witnesses on the first scheduled day of hearing had identified that the complainants in the within complaint had not been involved in the other incident and stated that their submission in respect of the attempt to smuggle alcohol into the venue and aggressive behaviour did not relate to the present complainants and was unconnected to the complainants as it related to a separate incident.   The respondent stated that this had only become clear to the respondent when it was faced with the complainants at the first scheduled day of hearing at which point the respondent recognised the complainants as being unrelated to the incidents in their previous submission.

The respondent advised the hearing that the reason the complainants had been refused admission to the concert on the night in question was due to the fact that one of them had been intoxicated on the night in question and was seen to be drinking from a plastic pint glass of beer while walking with difficulty towards the door of the hotel.   The respondent stated that this person whom they identified as the complainant Ms. N was behind the other two complainants Ms. E and Ms V as they approached the door of the hotel. The respondent stated that the two security guards observed Ms. N in an intoxicated state leaning against a stone arch for support and appearing to be unable to look after herself while drinking form a pint glass of beer.     This defence was not raised by the respondent prior to the hearing and the complainants were granted a brief adjournment in order to consider this submission before proceeding with the hearing.

The complainants upon resumption of the hearing stated that Ms. N had been drinking prior to the event but stated that she was not intoxicated. The complainants told the hearing that Ms. N had consumed a bottle of beer, either a bottle of Corona or a bottle of Coors light in the car on the way to the concert.   Ms. N told the hearing that she had poured the bottle into a plastic glass in the car and had left the bottle in the boot of the car. Ms. N went on to state that she had brought the plastic glass out of the car with her as she wanted to find a bin to dispose of it as she would not want to litter her sister’s car with a plastic glass.   She went on to state that there was some beer left in the glass as she left the car which she drank while walking towards the hotel entrance.     Ms. N also stated that the reason she left the car with the plastic glass was that she wanted to have “one last sip” before going in.

The complainant Ms. N initially stated that she had brought the plastic glass from the car as she wanted to dump it and later stated that she brought it for ‘one last sip’ before going in to the hotel.  

Witness for the respondent and Head of Security Mr. M advised the hearing that on the night in question he had been standing on the veranda at the top of the steps when he saw three of the complaints approaching the hotel.   He stated that he had not seen the fourth complainant Ms. M on the night in question and had not refused her access to the event.   Ms. M at the hearing confirmed that she had parked the car after the other three complainants had left the car and she stated that she had followed them to the venue but that she was a bit behind them, she also stated that the other three complainants had told her that they were refused entry to the event.    

Witness for the respondent, Mr. M, Head of security told the hearing that he had been standing on the veranda at the top of the steps when he saw three of the complainants approaching the hotel.   He stated that one of the three complainants whom he identified as the complainant Ms. N appeared to be intoxicated as she was behind the other two and drinking from a pint glass of beer and appeared not to be able to walk very well as she leaned against the stone arch for support while the other two complainants Ms. E and Ms. V approached the door of the hotel.       Mr. M stated that he walked down the steps and stopped Ms. E and Ms. V as they approached the door and asked Ms. V to empty her bag so he could check it. He stated that he noticed that Ms. N was at this stage leaning against the stone arch for support and that she had a plastic pint glass about ¾ full of beer in her hand and she appeared to need the support of the arch to help her to stand. Mr. M stated that he then decided that due to Ms. N ‘s intoxicated state he could not allow her into the premises. He stated that he also could not permit her friends (Ms. E and Ms. V) to enter the premises as he decided, ‘whether rightly or wrongly’, that Ms. N could not be left on her own in that state and that Ms. N needed them to look after her and to take her home. Mr. M said his decision had nothing to do with the complainants being members of the Traveller Community and stated that Travellers attend events in the hotel on a regular basis. He stated that this refusal was based on his duty of care to customers and patrons of the hotel and in this case a duty of care to Ms. N to ensure that she was looked after and brought home by her friends.

Head of security Mr. M went on to state that he would have done the same thing had a settled person approached the door in an intoxicated state with her friends. Mr. M went on to state that he had many friends and acquaintances who are members of the Traveller Community and mentioned that he had bought a horse from a member of the Traveller Community some weeks previously.   Other witnesses for the respondent added that they have many customers who are members of the traveller community and went on to state that they employ members of the traveller community in the hotel.

Witness for the respondent, Security Guard, Mr. L corroborated Mr. M’s version of events in respect of the refusal of entry to the complainants.   Mr. L acknowledged that he recognised the complainants as being Travellers and said he had seen them around a neighbouring town where they all live, he stated that they are known to him as members of the Traveller Community. Mr. L went on to state that he was with the Head of Security Mr. M on the night in question at the time the complainants approached the entrance to the hotel. Mr. L stated that he had seen Ms. N leaning against the stone arch drinking a plastic pint glass of beer and seeming to need the arch to support her.   Both Mr. M and Mr. L denied seeing the fourth complainant Ms. M on the night in question and stated that she had not approached the door and had not been refused entry.   Ms. M at the hearing stated that she had parked the car and that she had then proceeded to the boot of the car to move the beer bottle left by Ms. N into a box in the boot of the car.   Ms. M stated that this meant she was a bit behind the others when they approached the entrance. Ms. M seemed a bit unclear as to whether she was personally refused entry by the respondent on the night in question, she stated that the other three complainants had already been refused and were on their way back by the time she caught up to them. Ms. M later stated that all four of them were refused entry and that the security guard had stated that “none of the four of ye are getting in here tonight”.

Witness for the respondent, Security guard Mr. L went on to describe the training he had received when he joined the respondent hotel and stated that training in Equality matters was included in that training and he stated that he was aware of the grounds of discrimination. He stated that he was aware that all customers must be treated equally and that you cannot turn people away due to the fact that they are members of the Travelling Community.   He stated that he had agreed with Mr. M’s decision to refuse the complainants on the night in question due to Ms. N’s intoxicated state.

Witness for the respondent Ms. S who is the respondent’s manager outlined the respondent’s policies and the stated that the respondents Dignity at work policy contains an anti-discrimination policy as applicable to staff, she stated that the policy also sets out that discrimination is not permitted between staff and external customers.     The respondent at the hearing also outlined its guidelines in respect of acceptable and unacceptable behaviour in respect of customers or those seeking entry to the hotel and provided a copy of the hotels ‘Ejection policy’ which outlines what constitutes unacceptable behaviour and which results in patrons being refused admission or being ejected from the premises.     Ms.   S also outlined that training and induction in equality matters is provided to all staff. The respondent also advised the hearing that the matter at issue was whether the respondent had refused the complainants access to the concert due to their membership of the Traveller Community and stated that even if the Commission concludes that Ms. E and Ms. V were refused due to the fact that they were in the company of Ms. N who was intoxicated, their refusal did not relate to their membership of the traveller community but rather to the fact that a member of their party was intoxicated and unable to look after herself.  

A lot of evidence was provided at the hearing by both parties and by witnesses from both sides.   Both parties agree that three of the complainants Ms. E, Ms. V and Ms. N approached the door and were refused entry to the concert venue. The respondent stated that this refusal was due to the fact that a member of the group identified as Ms. N was intoxicated and was seen drinking beer from a plastic pint glass of beer as she approached the door of the venue and according to the respondent she was seen to be leaning against the stone arch for support due to being intoxicated.     Ms. N at the hearing conceded that it may have appeared that she was drunk and that she may have leaned against the arch. She stated however that she was not intoxicated as she had only consumed one drink in the car on the way to the hotel.

The complainants initially stated that none of them had consumed alcohol prior to attending the venue and stated that two of the party Ms. N and Ms. V had intended to have a drink when they went into the event but that no alcohol was had beforehand.   Upon learning of the respondents defence the complainants then admitted that Ms. N had consumed alcohol in the car on the way to the venue and that she had before leaving the car poured a bottle of beer into a plastic pint glass from which she continued to drink as she approached the door of the venue.     This creates a credibility issue in respect of the evidence given by the complainants who initially denied any alcohol consumption but then resiled from that position upon hearing the respondent’s submission in respect of Ms. N being seen drinking beer from a plastic pint glass outside the hotel.  

As there is a conflict of evidence in respect of the version of events provided by the respondent and the version provided by the complainants I must decide which version is most credible.   Given that the complainants at the hearing gave two different versions of the same event the first in which all four complainants denied that any of them had consumed alcohol prior to the event and the second version of events in which all of them submit that Ms. N had drank alcohol in the car on the way to the venue and also continued to drink from a plastic glass upon leaving the car. Given this conflict in the evidence provided by the complainants I find the respondents account of the incident to be more credible and I am satisfied from the totality of the evidence adduced that three of the complainants Ms. E, Ms. N and Ms V were refused access to the venue due to the fact that Ms. N appeared to the respondents Security team to be intoxicated and was seen to be drinking beer from a plastic pint glass as she approached the door of the venue. In addition, the respondents have submitted that Ms. N was seen to be leaning on a stone arch for support leading them to conclude that she was so intoxicated that she could not stand without support and therefore could not be left to look after herself.

I am satisfied from the totality of the evidence adduced and given the circumstances of this case that the refusal of entry of the three complainants Ms. E, Ms. V and Ms. N did not take place due to the fact that they are members of the Traveller Community and I am satisfied that a party of three settled people given the same circumstances would have received the same treatment.

Accordingly, I am satisfied that the three complainants Ms. E, Ms. V and Ms. N were not discriminated against by the respondent on grounds of their membership of the Traveller Community.

As regards the complaint made by the fourth complainant Ms. M that she was refused entry to the premises on grounds that she is a member of the Traveller Community I am satisfied from the totality of the evidence adduced that Ms. M was not personally refused entry to the event in the hotel on the night in question as she did not approach or engage with the security guards but left with her mother and sisters after they were refused entry.       Accordingly, I am satisfied that the complainant Ms. M was not discriminated against by the respondent on grounds of her membership of the Traveller Community.

I am satisfied that the complainant was not discriminated against by the respondent on grounds of her membership of the Traveller Community.