Complainant

Respondent

Anonymised Parties

A member of the travelling community.

A Hotel

Representatives

Sinéad Lucey, Free Legal Advice Centres

Andrew Tarrant, Solicitor.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023076-001

07/11/2018

The Complainant is a member of the traveller community and alleges that she and two of her children have been discriminated against on this basis.

This complaint was received by the Workplace Relations Commission on 7th November 2018.

The Complainant has made complaints on her own behalf and on behalf of her two children who are both minors. It is for this reason that I have anonymised the decision in this complaint.

Details of the Claim under the Equal Status Act 2000-2015

It is submitted that the Complainant has been treated less favourably than others on the grounds of membership of the Traveller Community by the fact that the Respondent cancelled a booking made by the complainants for use of the Respondent’s hotel function room.

It is the Complainants’ position that they were treated differently due to their membership of the Traveller community.  

It is submitted that the Respondent directly discriminated against the Complainants by cancelling their booking.

Factual Background

In early January 2018, Mrs JM rang the Respondent. She spoke to a man who she understood to be Events Manager for the Respondent. She outlined that she wanted to book a function room on 19 May 2018 for the purposes of celebrating the First Holy Communion of her two children. She outlined that 15 to 20 children and around 20 adults would attend the function. Her booking of the function room and food for the event was noted by the said gentleman.

In the days that followed, the Complainant and her husband, attended on the Respondent’s premises for the purposes of paying a €100 deposit in respect of the booking.

While at the hotel to pay the deposit, the Complainant made arrangements with the above mentioned gentleman for the decoration of the function room on the morning of the event. They also finalised the details of the food which they were ordering for the event. They observed that the gentleman was noting the requested details in a diary. The Complainant enquired as to whether there would be access to the function room from a rear lane as she wanted to avoid children having to use the main entrance on the street. Willie indicated that there would be access from the lane.

In the following weeks, the Complainant booked a clown and DJ for entertainment at the event. She also purchased a cake and bought banners and decorations for use at the event. She invited her family members to attend the event including family travelling from the UK.

On 16 May 2018, just three days before the function, while in Dublin to collect her daughter’s Communion dress, the Complainant received a call from a man who identified himself as a manager at the Respondent hotel. He informed her that he was cancelling her booking for 19 May 2018. He advised her that the function room had been double-booked. The Complainant was shocked, and immediately raised her concerns that it would be extremely difficult to make alternative arrangements at such late notice and the gentleman indicated that they could have a table in the hotel lounge instead but that they could not bring a cake, entertainment or decorations. The Complainant did not accept this offer. She became very upset on the phone and indicated that she had family members travelling from the UK to attend the event and she was being put in a terrible situation.

The Complainant attended at the Respondent’s premises that evening and was met by a staff member she had not dealt with before. She was told that the manager she had spoken with earlier that day on the telephone had gone home for the day. The gentleman she met in person on the evening of 16th May apologised to the Complainant and said there had been a mistake with the bookings and that there was nothing that could be done about it. The Respondent returned her Deposit of €100.

The Complainant ultimately found an alternative venue for the celebration. However, this venue could not accommodate the number of guests originally intended to attend the occasion nor could it facilitate the entertainment that the Complainant had organised for the event.

Arguments in Support of the Complainant’s Complaint

1.       It is the complainants’ case that the members of the Respondent’s staff who they dealt with were aware that they are members of the Traveller community. The Complainants’ surname is common among Traveller families in the Wicklow area and they are easily identifiable as members of the Traveller community.

2.       It is the Complainants’ case that their booking was cancelled on the basis of their membership of the Traveller community. The Respondent has not provided with any credible alternative explanation for the cancellation. The Complainant will give evidence of her booking being noted both over the phone and in person by representatives of the respondent. She will also give evidence of her liaising with the hotel staff as to the details of the event after she made the booking. She does not accept as credible that the Respondent hotel could only have become aware of a double booking on 16 May 2018, some five months after the booking was made. Nor does she accept that the Respondent could only have realised that the room had been booked by someone else before her on 16 May 2018.

3.       The Complainant will give evidence of negative publicity in local newspapers surrounding members of the Traveller community who were passing through the local area in and around the time of the cancellation.

4.       The Complainant will also give evidence of members of the Traveller community, unrelated to her, parking caravans in a car park connected with the Respondent hotel in or around the time of the cancellation. She will also give evidence of negative posts on social media surrounding this in and around the time of the cancellation. It is the Complainants belief that the Respondent believed she and her family were associated her with those other members of the Traveller community, and so decided to cancel the booking.

5.       It is the Complainants’ case that the Respondent discriminated against them on the grounds of membership of the Traveller community as provided for under section 3(2)(i) of the Equal Status Acts.

Legal Submissions

The Complainants rely on the definition of “discrimination” as set out in section 3(1)(a) of the Equal Status Acts and on the Traveller Community ground as provided for under section 3(2)(i) of the Equal Status Acts.

Discrimination in the provision of services

Section 5(1) of the Equal Status Acts provides that a “personshall 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.”

None of exceptions to Section 5(1) as set out in section 5(2) apply in the circumstances of this incident.

Prima Facia Case

The burden of proof in complaints made under the Equal Status Acts is set out in section 38A which provides that:

38A.— (1) 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.

In relation to the burden of proof and pursuant to section 38A of the Equal Status Acts, the Complainant is required to establish a prima facia case which requires the Complainant to demonstrate (i) that she is covered by the relevant discriminatory grounds, (ii) that there was specific treatment by the Respondent and (iii) that the Complainant was treated less favourably then would have been afforded to another person. Once the prima facie case has been established the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

It is respectfully submitted that on the basis of the evidence that will be presented at the hearing of the action that a prima facia case has been made out.

Notification pursuant to section 21(2) of the Equal Status Acts

Section 21(2) of the Equal Status Acts provides that:

(2) Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act…

The Complainant served a Form ES1 on the Respondent in respect of the within complaints by post on 22 May 2018.

Although the Form ES1 did not name her children as complainants, it was clear from the information provided that the complaint related to the booking in respect of the celebration of their Holy Communion. It is submitted that there is no necessity under section 21 of the Equal Status Acts to serve a separate notification in respect of the same incident where there are a number of potential complainants, and it was apparent from the Form ES 1 that the Complainant was making the notification on her own behalf and on behalf of her two children. It is submitted that it would create a level of artificiality and constitute an undue procedural hurdle for potential complainants under the Equal Status Acts to be obliged to serve a separate and distinct notification in respect of each complainant, even though the notification is in all other respects identical.

The Free Legal Advice Centres, instructed by the Complainant, wrote to the Respondent on 17 September 2018 to clarify that the above-mentioned notification was also served on behalf of the complainant’s two children as the function that was booked for 19 May 2018 related to the celebration of their Holy Communion. The letter afforded the Respondent an extension of time wherein a response to the Notification would be accepted by the Complainants and further information was sought.

The three complaints all arise from the same set of facts, the respondent was in no way prejudiced in responding to the complaints of the children and the clarification of 17 September 2019 was provided without prejudice to the requirements of section 21.

The Respondent had not replied to the complainant prior to 17 September 2018 and no response has been issued since 17 September 2018.

It is the complainants’ case that the notification requirements set out in section 21(2) of the Equal Status Acts have been met in respect of each of the three within complaints.

Conclusion

On the basis of the foregoing and arguments and evidence which will be presented at the hearing of this matter; it is submitted that the Respondent has discriminated against the Complainants and in that regard has treated them less favourably than a person who is not a member of the Traveller community.

The Complainants were refused a service on account of their membership of the Traveller Community, and their membership of the Traveller Community was the sole reason for this.

It is submitted that the Respondent has breached the terms of the Equal Status Acts and the Complainants seek appropriate remedies as provided by the terms of the Equal Status Acts.

It is submitted that the actions of the Respondent were upsetting to all three complainants and in particular was a huge stress and inconvenience to the mother in having to find a new venue. Overall the celebration that had been planned over several months had to be scaled down to such an extent that it bore no relation to the event that was originally envisaged by the mother, the Complainant and her two children.

The Complainants seek compensation for the effects of the prohibited conduct they were subjected to pursuant to section 27 of the Equal Status Acts.

The Complainants reserve the right to make further submissions at or before the hearing of the action.

In evidence the Respondent informed the hearing that he had been 25 years in the licensed trade and 12 of those years at the present establishment. The Respondent went on to say that he would not allow any staff member act in a discriminatory manner and that all are welcome to his premises. He also informed the hearing that he is not always present on the premises and leaves a lot of the day to day running of the establishment to staff members.

The Respondent was very apologetic about the circumstances of the cancellation.

It was the Respondent’s view that a terrible mistake had been made and when the mistake was discovered an alternative location on the premises had been offered to the Complainant and her family, there appears to be a level of confusion over the exact location of this alternative location.

It was also stated by the Respondent that the Complainant had been offered a table in another section of the bar that is often used for parties, this was at the back right hand side of the bar and not at the front just inside the door as claimed by the Complainant.

The manager who accepted the booking also gave evidence and explained that two bookings for the same date had been accepted. When the first booking (not the Complainant’s) had been made there was no diary available for bookings, the details for the first booking had been written into the ‘Forward Planner’ section of the 2017 diary. When the Complainant made the booking the 2018 diary was available and the Complainant’s booking was entered on the page for 19th May 2018, this was before the first booking details had been transferred from one diary to another.

It was the managers evidence that the mistake was only discovered on the 16th May when the first party bookers had arrived to pay for their function, the Complainant was contacted immediately. This manager had no information into the content of that phone call.

In an attempt to be helpful a call was made to another premises close by who may have been in a position to cater for the event. This third party contacted the Complainant to discuss the requirements for the party, nothing materialised from this phone call.

On 16th May the Complainant was contacted and informed by telephone that the function that she had booked to celebrate the Holy Communion of her children was cancelled due to the venue being double booked.

The Complainants rely on the definition of “discrimination” as set out in section 3(1)(a) of the Equal Status Acts and on the Traveller Community ground as provided for under section 3(2)(i) of the Equal Status Acts.

Section 5(1) of the Equal Status Acts provides that a “personshall 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.”

None of exceptions to Section 5(1) as set out in section 5(2) apply in the circumstances of this incident.

The Respondent did not reply to the ES1 notification sent by the Complainant as detailed in section 21 (2) of the Equal Status Act of 2000. Whilst there is no statutory requirement to reply, as the Adjudication Officer, I can draw whatever inferences that may be appropriate into this.

The Complainant made the booking for the function in January 2018, the function date was 19th May 2018. A booking deposit was accepted and the Complainant was informed that this was all that was required and payment in full could be made on the day of the function.

The Respondent’s premises are substantial and as stated at hearing is the venue of choice for many people in the geographic locality for parties and functions of all types. The Respondent book of evidence shows this to be the case. It appears rather incredible that such a substantial venue can be managed through a diary containing hand written notes.

I have carefully considered the evidence presented by both the Complainant and the Respondent and find that the evidence presented by the Respondent lacks a level of credibility.

I find in favour of the Complainant and for the effects of discrimination on the basis of being a member of the traveller community I now order the Respondent to pay a sum of €3,000 in compensation to the Complainant within 42 days from the date of this decision.

As outlined above.

Equal Status; Membership of the traveller community.