ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014003

Complaint(s):

Date of Adjudication Hearing: 02/11/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 21 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

On 2 October 2017, the Complainant booked six rooms for a duration of two nights online using Booking.com. The date of arrival for the stay was 11 December 2017. On 11 December 2017 the Complainant alleges that the cancellation was due to discrimination as she is a member of the Traveller Community.

Summary of Complainant’s Case:

On 2 October 2017, the Complainant booked six rooms for a duration of two nights online using Booking.com. The date of arrival for their stay was 11 December 2017.

On 8 December 2017 the Complainant received an email from the hotel stating that they were looking forward to their stay.

On 11 December 2017 the Complainant received a call from the hotel at 17.50 stating that their reservation had been cancelled due to construction within the hotel.

The Complainant stated that she made her way to the hotel and approached the reception desk to enquire further and also seek some alternatives. The Complainant stated that the receptionist walked away from them.

The Deputy Manager (DM) was called and spoke with the Complainant. The Complainant stated that DM’s attitude was not very nice. DM stated that there were improvement works underway within the Hotel.

The Complainant asked why she not notified earlier and stated that DM gave no reason. The Complainant stated that there was another family who were also members of the travelling community who also had their reservation cancelled. The Complainant stated that she had made a separate booking to the other family but that both parties were grouped together and DM stated that neither were staying and that the doors were to be locked.  

The Complainant stated that the other family had made their reservation the day before. The Complainant stated that the Gardaí pulled in when she was about to talk to the Deputy Manager.

The Complainant stated that DM stated that the rooms would not be ready however the Complainant received an email from the hotel 3 days in advance of this stating that they were looking forward to their arrival. The Complainant stated that she asked if there were any other rooms available. The Complainant stated that her children were crying and she went out to the car for a few minutes. The Complainant stated that the guard went over to her car and stated that it was 100% wrong what happened and gave the Complainant the Guards name and a Solicitor’s name.

The Complainant stated that the DM stated that they would not get anywhere else to stay in Killarney either as they have been tipped off. The Complainant stated that they then left the hotel.

The Complainant stated that she was called at 5.50pm while the Respondent stated that they called her at 5pm on to say the room was cancelled due to upgrading.

The Complaint stated that it was clear based on the pictures that the room was not ready and so they should have been advised of this cancellation before the date of arrival.

The Complainant stated that she received a call at 17:50 and outlined that most guests would arrive for check in much earlier than this.

The Complainant stated that no one from her group were shown the 3rd floor but it had been shown to other guests. The Complainant stated that pictures were taken on the day of the incident and they were sent to the Complainant after she sent a letter of complaint.

The Complainants Daughter [CD] gave evidence and stated that she had her wedding dress on and she was the first to arrive at the hotel. CD stated that the Complainant had not arrived by the time she had arrived at the hotel. CD stated that two cars had arrived at the hotel. CD stated that she arrived to the hotel at roughly 6pm. CD stated that her husband and sister’s husband went into the hotel first. CD stated that the DM was at the door with another member of staff awaiting their arrival. CD stated that the DM stated to lock the doors to the other member of staff. CD stated that the booking for both parties was cancelled even though they had not given their names yet. CD stated that the two big doors were locked where the gift shop within the hotel is located. CD stated that she requested to know why they were not notified of the cancellation sooner to which DM stated that there were no rooms available. CD stated that they spoke to other guests who has just arrived and were checking in without any issues. CD stated that she then sat down as her day was ruined.

Summary of Respondent’s Case:

The Respondent stated that they only had the person’s name, email and phone number from the online booking company. The Respondent stated that they did not have the Complainant’s address on the booking. The Respondent stated that the Complainant was to outline this at the hotel on arrival. The Respondent stated that they had no idea that it was a wedding party or that they were members of the Traveller Community prior to their arrival which was after they had cancelled their rooms be phone call.

The DM gave evidence and stated that 50/60 rooms were being refurbished at this time. DM stated that people were still able to book rooms but the refurbishment was not finished and stated that he could not discern from information on Booking.com that the Complainant was a member of the traveller community.

The Respondent stated that it was Booking.com who emailed the Complainant on 8 December. DM stated that he was due to start at 5pm and commenced work at 4.30pm and at this point was told that the hotel had been over booked.

DM stated that another member of staff said that he had cancelled rooms that day and there was a Xmas Cracker Group so he did not move them as they a 4 day stay. These groups were 2 bookings he cancelled. He choose to call B&B’s lowest rates via third party bookings. These bookings were cancelled as per evidence presented. DM stated that this member of staff had called two and left a voicemail for the third. The DM confirmed that the Complainants booking was cancelled by someone else. DM stated that this member of staff called the Complainant at 16.50.

DM stated that he was notified by the member of staff of the issue. He only called one party to cancel the booking.

DM stated that the Complainant’s daughter arrived to the hotel first. DM stated a driver from one of their cars came to reception stating that he had a wedding party and queried where he should park his car. CD stated that the member of staff then went with the driver and said he didn’t have a bridal party booked in. CD stated who she was and that he then spoke to the person in the red dress and advised that he was not expecting a wedding. CD then said that she only had rooms booked.

DM stated that the doors were not locked. DM stated that he did not group both parties together and never mentioned the other party’s name. DM stated that the situation got aggressive at the back area and that he was threatened that he would be slash hooked by members of the party. DM stated that he then called the Gardaí for assistance and stood at the back entrance with them for 20 minutes.

DM stated that he asked a member of staff who was passing the incident to show two of the party members the rooms which were under construction. DM stated that the Gardaí then arrived at the same time as the group at the front desk.

DM denies having said the party wouldn’t get in anywhere else and that other places had been tipped off by him. DM stated that the Complainants group asked lots of people why they were allowed stay in the hotel when this was not the case and they were not allowed.

DM stated that he was not willing to help the Complainant find other accommodation due to their aggressive and threatening behaviour witnessed at the back door.

DM advised that 60 rooms were out of commission on the night in question. DM stated that he only knew the group were members of the travelling community when he met them at the back door of the hotel.

The Group Health and Safety Manager [H&S] gave evidence andstated that there was a wedding booked by a member of the travelling community a few weeks prior to this incident and the wedding went ahead with 120 attendees. H&S stated that the hotel has policies in place referencing Dignity, Equality and Equal Opportunities. H&S stated that the Respondent employs a member of the travelling community. H&S stated that all staff are also trained in Dignity and Respect.  

The Director of the Hotel [DH] gave evidence and stated that 12 rooms had to be cancelled the night of the over booking and stated that it was not good enough to cancel them at short notice.

A member of staff [MS] gave evidence andstated that he started his shift at 2pm and only realised there was an issue with rooms being unavailable at 4pm that day. MS stated that he called the Complainant to cancel her room at 4pm and this was only call he made.MS stated that at 5.30pm he met the Complainant at the back door with this group when he was going on his break. MS stated that the Complainant requested that he show two people from their group the rooms. MS stated that he showed them the rooms and then brought them back to reception and they re-joined their group.MS stated that he does not remember being asked to lock doors and he never knew that they were members of the travelling community.

Findings and Conclusions:

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 38(A) of the Equal Status Act, 2000 and 2004 sets out the burden of proof which applies in a claim of discrimination.    

38A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.  

In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.  

The Complainant has presented evidence through her written and oral submissions which constitute a prima facie case and it is the opinion of this Adjudicator that the Complainant has established the burden of proof in regards to her complaint.

In line with Section 3 (1) and (2) of the Equal Status Act, 2000 and 2004;

(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:

(i)that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Section 5(1) provides that:

A person shall 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.

Section 15(1) of the Act:

For greater certainty, nothing in this Act prohibiting discrimination shall be construed as requiring a person to dispose of goods or premises, or to provide services or accommodation or services and amenities related to accommodation, to another person (“the customer”) in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located.

Decision:

Section 27 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

As per the Acts Section 3(1b)(i) states that discrimination shall be taken to occur where 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. In this case, the Complainant stated that her party were discriminated against when their rooms were cancelled at the last minutes as a result of being members of the traveller community.

Section 3(2i) stated that discrimination shall to taken to occur when one is a member of the Traveller community and the other is not. The Complainant claims to have been discriminated against as she is a member of the travelling community. The Respondent has noted that they were unaware of the status of the Complainant as a member of the Traveller community when the rooms were cancelled last minute.

The Adjudicator finds that there is not substantial evidence to show that the Complainant’s booking was cancelled from the Respondent’s hotel as a result of her membership of the Traveller community.

As outlined in the details of the Complainant’s submission, the Complainant confirmed that she got a call from the hotel at 17:50 stating that their reservation had been cancelled but that she made her way to the hotel anyway to enquire further. The Complainant’s daughter also confirmed by oral evidence that she did not arrive to the hotel until 6pm.

The Adjudicator finds that there was no way for the Respondent to have distinguished the Complainant as a member of the Traveller Community in advance of cancellation of the rooms. This was completed over the phone in in advance of the party arriving to the Respondent’s hotel. The Adjudicator finds therefore that a decision to cancel the reservation was based on over-booking by the hotel based on closing off rooms for health and safety reasons as opposed to cancellation as a result of the party being members of the Traveller Community.

The Complainant in this case has not reached the necessary burden of proof to confirm her claim is well founded therefore here complaint regarding the Equal Status Acts 2000 and 2012 fails.

Dated:   18/01/19

Workplace Relations Commission Adjudication Officer: Caroline McEnery