Complainant

Respondent

Parties

Teresa Donovan

Treacys Oakwood Hotel

Complainant

Respondent

Anonymised Parties

Teresa Donovan

The Oakwood Hotel

Representatives

Mr. Ferdia Breathnach B.L., instructed by O'Carroll & Company Solicitors

Mr. Thomas Wallace-O’Donnell B.L., instructed by Leahy Reidy Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00022970-001

31/10/2018

The following is a summary of the Complainant’s evidence.

The Complainant states that she is a member of the Travelling Community. She said on 19 June 2018 she contacted the Respondent by telephone in relation to having her wedding reception held in the hotel. She said on the back of a positive telephone conversation she received an email from Ms. A confirming that the Complainant’s preferred date for holding the wedding reception on 16 February 2019 was available. The Complainant said that she responded by email to Ms. A stating that she was very impressed from what she had seen and read about the hotel and asked if she could make an appointment to view the hotel in person. An appointment to meet with Ms. A was agreed for Saturday 23 June 2018.

The Complainant said that she sent an email to Ms. A on 21 June 2018 enquiring whether she could pay a deposit to secure the hotel to which she claims she got a reply stating that it would be delighted to accept a deposit on the 23 June when they met and that in turn would guarantee the date.

The Complainant said that she met with Ms. A and had a tour of the hotel and the ballroom venue as planned. She paid her deposit of €1,000 to book the date, which was confirmed again that day as available. However, the Complainant said that there was a definite change in tone towards her when she introduced her fiancé who accompanied her. It was his evidence that he is also a member of the Travelling Community. He said that he was mainly in the background while the tour was going on but after when they all sat down together, and went to pay the deposit, and were involved in small talk the attitude changed and they were hurried out the door.

The Complainant said on 27 June 2018 she received an email from Ms. A confirming that she had held a meeting with the General Manager of the hotel, and unfortunately construction works were to be carried out in the ballroom at the start of the new year. She was told that this work would take several months and as a result it would be unable to accommodate the date of the wedding as was planned.

The Complainant said that she emailed the Respondent on 3 July and expressed her disappointment but said that she was willing to move her date and asked the hotel for other dates that might be available either before or after the construction started. The Complainant said she received the Respondent’s reply the following day, which said that the construction work would be going on until late summer and therefore they were not taking any bookings for weddings.

The Complainant said that she was extremely disappointed and embarrassed as she had informed family and friends of the date and she had made a number of bookings and paid deposits to secure those bookings. The Complainant said that she is convinced the reason the hotel chose to cancel her wedding booking and not facilitate her with a different date is because she was a member of the Travelling Community.

Preliminary matters

In relation to the preliminary matters raised, the Complainant’s legal team said that the Respondent’s legal points were without merit. This case is correctly before the WRC as this relates to the booking arrangement for a hotel service. It said that it is common place that slight corrections can be made to the full time of the Respondent, when the Respondent is correctly identified and is not prejudiced, which it said was the case here.

The following is a summary of the Respondent’s case.

The Respondent refutes the claim that it discriminated against the Complainant in the provision of services or facilities in its hotel.

Preliminary matters

The Respondent said that it is a licenced premises within the meaning of the Intoxicating Liquor Act 2003. It said that Section 19(2) of the Equal Status Act, 2000 provided that a person who claims that prohibited conduct on or at the point of entry may apply to the District court for redress. Section 19(11)(a) states that the Equal Status Act, 2000 shall cease to apply as of the commencement of S.I. No. 362/2003 – Intoxicating Liquor Act 2003(Commencement) Order 2003 on 18 August 2003.

The Respondent said that the WRC does not have jurisdiction to make a determination on that basis, and relies on ADJ-00005652, where the Adjudicator found that the WRC had no jurisdiction on the basis that the complaint related to a licensed premises.

The Respondent also raised that the hotel named was not the exact legal name of the hotel. It said that the Complainant had a legal representative throughout and the Respondent is prejudiced because of this error.

The Substantive matter

The Respondent said that on 19 June 2018, Ms. A, sales and events manager at the hotel at the time, received a request from the Complainant who was enquiring about the possibility of having her wedding reception in the hotel on 16 February 2019.

Ms. A said that she arranged an appointment for 23 June 2018 and confirmed that the Respondent appeared to be available and that it would be happy to take a deposit on this date.

Ms. A said she recalls meeting the Complainant, her fiancé and her grandmother on the day in question. She said she showed them around the hotel and facilities and that she was happy for them, as they were obviously so excited. She said that she took a deposit of €1,000 in respect of the booking.

Ms. A’s evidence was that she had a meeting with the General Manager, Ms. B, some days later and advised her of the booking for 16 February 2019. She said that Ms. B informed her that the ballroom, where the wedding reception would be held, would be closed in order to conduct necessary works and it was not going to be available.

Ms. A said that she attempted to call the Complainant but was unable to get in contact with her and decided to email her instead, where she apologised and informing her that the deposit would be refunded.

The Respondent said that the starting date and finish date of the construction work was not known at that stage. The work had to be done and it was the hotel owners that had made the call to have it done in the first half of 2019. This was decided without Ms. A’s knowledge and it had no choice but to return the deposit.

The Preliminary matter

Naming the Respondent

I must first decide whether the Respondent named on the complaint referral form can be changed to the correct name as per its legal entity. The Respondent said that the name used is not correct.

The Complainant said this was the name that was used to identify it and in the interactions with her, and there is no prejudice on the parties to correct the forms.

In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation. Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.

I also note in County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

In considering this issue I note that the Respondent attended the hearing with its witnesses and was legally represented at the hearing. The Respondent also provided a submission at the hearing and was well prepared to meet the challenge of the Complainant’s case.

I note that it is the Respondent who has sought to prevent the change of name. In this regard it was not made clear why the Respondent would be prejudiced by correcting the WRC form. I note all the documentation presented by the parties refer to the named Respondent on the WRC form and there is no reference to another name. I note that the WRC forms are not statutory forms and from the case law noted above there is scope to allow for a less stringent procedural approach than that adopted in ordinary litigation. I find, therefore, that neither party to the claim would be prejudiced by allowing the amendment of the name as requested. Therefore, I decide I can amend the name of the Respondent on the complaint referral form to reflect the correct title. Accordingly, I find that I have jurisdiction to investigate the present complaint.

Correct forum for the complaint

The next preliminary issue raised by the Respondent is in relation to the Intoxicating Liquor Act. The Respondent submits that the WRC do not have jurisdiction to hear such claims as they should have been submitted under the Intoxicating Liquor Acts due to the fact that the allegations relate to an incident involving a licensed premises.

The Complainant said that the complaints submitted relate to an allegation that the Complainant was refused access to book her wedding reception at the hotel.

I note that services provided by hotels generally are not precluded from the Equal Status Act. I am satisfied that there are multiple services that a hotel service provider in such situations, including accommodation, food and restaurant services that are ancillary to the that intended to be covered under the Intoxicating Liquor Act. Accordingly, I do not accept the Respondent’s case and I am satisfied that I do have jurisdiction to hear this claim.

The Substantive matter

In making my decision I must consider whether the existence of a prima facie case has been established by the complainant. 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 she can rely in asserting that prohibited conduct has occurred in relation to 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.

Section 38A of the Equal Status Acts (2000 – 2015) states as follows:

 “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.

 This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

This provision clearly puts an onus on the Complainant to provide evidence from which it may be presumed that prohibited conduct has occurred. This concept is commonly referred to as establishing a prima facie case. The requirements placed on a Complainant in this regard were set out by the Labour Court in the case of Mitchell v Southern Health Board [2001] ELR201, where the Court stated as follows:

“A claimant must prove, on the balance of probabilities, the primary facts on which they rely seeking to raise a presumption of unlawful discrimination. It is only if those 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 was no infringement of the principle of equal treatment.”

In establishing a prima facie case of discrimination, the Complainant must, therefore, establish that they are covered by the relevant discriminatory ground and that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.

With regard to the within case, I am satisfied that the Complainant is a member of the Travelling Community and is therefore covered by the relevant discriminatory grounds.

I note the evidence adduced on behalf of the Complainant and agreed by the Respondent, and I am therefore satisfied that, having made an advance booking for her wedding and having met with the Respondent, viewed the hotel and paid a booking deposit, the Respondent some days later informed the Complainant that it no longer could cater for the wedding as it was carrying out works in the hotel’s ballroom. I am also satisfied that the works were not anticipated as far as Ms. A was aware at the time the Complainant are met with her on 23 June 2018.

I note that the Complainant, on learning that there was a problem with the date in February, mentioned her flexibility and sought to book the hotel for a date either in advance of, or post the construction work. I see that the Respondent said it was not taking bookings into the future and sought to return the booking deposit.

The Complainant’s evidence suggests that the parties engaged very well prior to meeting in person. The Complainant’s evidence is that once they did meet the atmosphere changed to a cooler reception particularly when she introduced her fiancé. The Respondent maintains that it was courteous throughout, that it took the booking deposit and would have been happy to host the wedding reception. However, the owners had decided to upgrade the function room and all bookings had to be pulled. Mr. B said it was the owners’ decision to upgrade at that time. The owners did not attend the hearing to give evidence as to why the upgrade was decided at the time. The evidence as to the meeting on the day that the parties met face to face is vital here and there are polar differences in the version of events.

The Complainant listed the substantial financial loss that she incurred having paid the deposit to the hotel and then having made other arrangements, that she could not recover. These included deposits paid for wedding car booking arrangements, a substantial deposit paid to a family friend to bake a wedding cake, a deposit paid for decorations for the church, a deposit paid to a family friend to DJ on the 16 February 2019 and many people were at a loss as they had booked flights to attend the wedding. The Complainant said that she could provide me with the documentary evidence post hearing to corroborate this claim. The evidence was not submitted.

I note Ms. A’s evidence that she dealt with the Complainant on 23 June like she would every other customer. She was the one who brought them around and she got on really well with them and was devastated for them when she heard that the hotel works were required, and the hotel could not host the wedding. I note Ms. A’s evidence that the hotel only held on average 8 to 10 weddings a year and there were limited other events in the ballroom. I also note that the works were to start at end of January/start of February and may go on for up to 6 months due to the replacement of the entire cooling/heating ducting system and would not be accepting bookings until the first or second week of May 2019.

I note the evidence from Ms. B, General Manager, where she said that the hotel had a long-standing arrangement hosting an event with a sport association each summer and they aimed to have the works completed for that event. This is the reason for the works beginning when they were planned.

I have heard significant differences of opinion as to the matter that I can only speculate as to the true version of events that occurred at the meeting on 23 June. However, I have heard what both parties have claimed happened. I do note with interest the emails that exchanged between the parties after that meeting. I note the Respondent’s email cancelling the date in February stating that the date was unavailable, returned the deposit and wishing the Complainant luck looking for another hotel.

It is the Respondent’s evidence that the date for the start of construction was end of January/ start of February, which is not tied down. I note the Complainant’s reply and asked for other dates “either before or after the construction [works] start/finishes”. The Respondents reply was that the “ballroom is fully booked between now and when the construction starts and it’s my understanding that it won’t be completed until late next summer … we are not accepting any bookings”.

I have heard evidence that the ballroom is not overly booked for weddings or other events throughout the year. The Complainant asked for other possible dates on 3 July 2018 for either before or after the construction works, which was proposed to begin some 7 months later. I note that the hotel had no dates to offer, it seemed it did not explore any alternatives, i.e., weekday wedding, possibly last week in January and delay the start of the works to February. Of course, those decisions and that exploration is only in the hotel’s gift. However, I don’t see it engaging with the Complainant to see what could be done.

I find it hard to accept that the hotel ballroom was totally unavailable for some approx. two hundred days prior to the construction starting. I find it hard to accept that a hotel business would turn down the offer of hosting a full wedding, when it only hosts 8-10 per year and would not suggest a date into the summer of 2019, when the work would be well and truly completed. The Complainant asked for a future date from the hotel when it would have the work done. This was not explored at all.

I find it hard to accept that the Sales and Marketing Manager responsible for events is not aware of the future plans of the hotel and its substantial programme of works in the new year. Particularly works primarily aimed at the main resource that she was responsible to market and sell. I find that extraordinary that she would be so far out of the loop in the decision making in relation to her area of responsibility. Finally, I note that the decision to carry out the construction works was made by the owners of the hotel, which is the main defence proffer by the Respondent in this case. I have noted above they did not attend the hearing to give their position.

Consequently, based on the above I find that the Complainant has successfully established a prima facie case and that, as a result, the burden of proof switches to the Respondent. 

Having carefully considered all the evidence adduced, I am satisfied that, on the balance of probabilities, it is most likely that the Complainant was denied the opportunity to use the Respondent’s facilities on the basis of her membership of the Travelling Community.  

Consequently, I find that the Complainant has been discriminated against on the said ground and the Respondent is in breach of the Equal Status Act.

I find that the Complainant was discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Acts 2000 - 2015, by the Respondent on the grounds of her membership of the Travelling Community.

Consequently, I award the Complainant the sum of €3,500 in compensation for the effects of the discrimination involved.

Equal Status Acts - membership of the Travelling Community – discriminated – hotel - compensation