Complainant

Respondent

Parties

James Connors

Woodlands Hotel & Leisure Centre

Representatives

Purcell & Kennedy Solicitors

M.W. Keller & Son Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00031752-001

17/10/2019

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

CA-00032383-001

21/11/2019

The Complainant claims that he was subjected to discrimination by the Respondent on the grounds of his membership of the Traveller community in terms of sections 3(1) and 3(2)(i) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in relation to the cancellation of a contract which had been agreed between the parties to accommodate his daughter’s wedding at the Respondent’s hotel. The Respondent disputes the claim of discrimination contrary to the Equal Status Acts.

The Complainant is a member of the Traveller community. The Complainant claims that the Respondent entered into a contract with him in January, 2019 to accommodate his daughter’s wedding which was scheduled to take place on 12 June, 2019. The Complainant submits that he paid a deposit to the hotel in relation to the booking, but the Respondent subsequently cancelled the arrangements for the wedding after it became aware that he was a member of the Traveller community.

The Complainant conteds that because he is a member of the Traveller community, when the Respondent discovered this, it made every excuse to say the wedding could not take place at the hotel resulting in the wedding having to take place at a different venue on the 12 June, 2019. The Complainant claims that this treatment by the Respondent amounts to discrimination on the grounds of his membership of the Traveller community contrary to Section 5 of the Equal Status Acts.

The Respondent operates a hotel and submits that it received a booking in relation to a wedding from Ms. A (the Complainant’s daughter in law) on 7 January, 2019. The Respondent submits that a deposit was paid in respect of the booking and the requested date for the reservation was 12 June, 2019. The Respondent submits that the internal file was passed to Ms. B whose role included, inter alia, completing and managing wedding contracts. The Respondent contends, however, that Ms. B queried why the bride and groom were not present when the booking was made in circumstances where this is a policy of the hotel for such contracts. Ms. B was informed the bride and groom were in America and were due to return shortly before the wedding.

The Respondent submits that Ms. B telephoned Ms. A later that day on 7 January, 2019 but she refused a request to discuss the details of the reservation. Ms. B explained to Ms. A that she was the person that dealt with the contracts and that she needed further details in relation to the reservation. Ms. A confirmed the names of the bride and groom and stated that she had been informed that the mother of the bride could sign the contract, but Ms. B confirmed to her that this was incorrect. On 8 January, 2019, Ms. B spoke to Ms. A on the telephone and informed her that proof of address was required for the Bride and Groom. Ms. A then put the Complainant on the phone because he was the father of the bride. Ms. B informed the Complainant that the Respondent would require a passport as proof of identity and a proof of address by Friday, 11 January 2019.

The Respondent submits that the Complainant was informed by Ms. B on 9 January, 2019 that there was no issue with the wedding but the contract could not be confirmed until the contract was finalised which required proof of identity and the address for the Bride and Groom. The Complainant queried if the issue could wait until the couple returned from America in a couple of weeks but was told that the date could not be held.

On 11 January, 2019, the Respondent received an e-mail with photos of the Bride and Groom but the names on the passports did not match those on the booking. Ms. B called the Complainant and explained the difference in names and those given by Ms. A when the deposit was paid. It was also noted that there was no proof of address. Ms. B explained that she would have to cancel the booking due to being misled in respect of information that was required. The Complainant then suggested that this amounted to racism. Ms. B said this was not the case and explained her reasoning again for cancelling the booking and that she would arrange to refund the deposit.

The Respondent submits that the Complainant asked Ms. B if she would think about it until Monday 14 January, 2019 but Ms. B indicated that she would not and confirmed that the deposit would be available on that date. On 14 January, 2019, Ms. B telephoned the Complainant who asked had she softened her view at all to which she replied no. The deposit was then left at reception of the Respondent’s hotel for the Complainant. The Respondent contacted the Complainant by telephone on a number of occasions over the following few weeks to request him to collect the deposit, but the Complainant failed to do so.

On 11 February, 2020, the Complainant telephoned the Respondent and spoke with Ms. B and informed her that his wife had attended a solicitor and he was advised to ask if she was willing to change her mind regarding the wedding. The Complainant informed Ms. B that his solicitor had told him that he had been discriminated against and not to take the deposit back. The Complainant attempted to get into the substance of the booking again, but Ms. B refused to do so and informed him that she would send out a cheque for the deposit. The Respondent submits that the Complainant indicated during the course of this conversation with Ms. B that the wedding had been moved to another venue.

In summary, the Respondent denies that the reason for the cancellation of the booking in respect of the Complainant’s daughter’s wedding was in any way connected to the fact of their membership of the Traveller community. The Respondent submits that the reason for the cancellation was directly attributable to the fact that the hotel had been misled in respect of information that was required to finalise the contract to accommodate the wedding.

Jurisdictional Issue

The issue of jurisdiction which I must consider in the instant case relates to the question of whether or not the Complainant has complied with the relevant notification requirements as set out in Section 21 of the Equal Status Acts.

Section 21 of the Acts make provision for the relevant time limits for the notification and referral of complaints by a person who intends to seek redress under the Acts in relation to an alleged incident(s) of prohibited conduct. Section 21(2)(a) of the Acts provides that before seeking redress under the Acts, a Complainant shall “…within 2 months after the prohibited conduct 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 the nature of the allegations and of the Complainant’s intention, if not satisfied with the response, to seek redress under the Acts. Section 21(3)(a) provides that the two-month notification period may be extended for reasonable cause up to a period of four months or exceptionally, the notification requirement may be dispensed with where fair and reasonable.

In considering this issue, the first question that I must decide relates to the issue concerning the date on which the alleged incident of discrimination actually occurred, or if there was more than one incident of discrimination, the date of the most recent occurrence. It was not in dispute between the parties that the Complainant had made a booking with the Respondent’s hotel to accommodate his daughter’s wedding which was due to take place on 12 June, 2019 and that this booking was subsequently cancelled by the Respondent. However, there was a dispute between the parties in relation to the date on which the booking was actually cancelled and whether or not the alleged discrimination was ongoing until the actual date of the wedding.

The Complainant, on the one hand, claims that the first act of discrimination occurred on 11 January, 2019 when the booking was initially cancelled and that the act of discrimination was ongoing until the date the wedding was due to take place on 12 June, 2019. The Complainant contends that 12 June, 2019 was the most recent occurrence of the alleged discrimination and therefore, the notification which was sent to the Respondent on 12 September, 2019 was within the extended time limit of four months as provided for within Section 21(3)(a)(i) of the Acts.

The Respondent, on the other hand, claims that the Complainant was initially informed about the cancellation on 11 January, 2019 and that there was further interaction between the parties in relation to the return of the Complainants deposit for a period thereafter until 11 February, 2019. The Respondent claims that the Complainant requested the hotel to reconsider the decision to cancel the booking during a conversation on 11 February, 2019 but the Respondent refused to do so. In essence, the Respondent claims that the latest date on which any act of discrimination could have occurred (which is denied) was on 11 February, 2019. The Respondent disputes the Complainant’s contention that the alleged discrimination could be construed as an ongoing act which culminated on the actual date that the wedding was due to take place i.e. 12 June, 2019. The Respondent submits that the notification which the Complainant sent on 12 September, 2019 in relation to the alleged discrimination was therefore, not received within either the two month time limit set out in Section 21(2)(a) and/or the extended period of four months set out in Section 21(3)(a)(i) of the Acts.

In considering this issue, it is clear that the provisions of Section 21(2)(a) the Acts envisages a single act of discrimination or a chain of two or more similar acts of discrimination. In this regard, it should be noted that Section 21(11) of the Acts provides that “For the purposes of this section prohibited conduct occurs – (a) if the act constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout the period.” This provision of the Acts provides clarity regarding the manner in which the date of discrimination should be interpreted in the case of an act, contractual term, policy or provision which continued in force over a period of time.

I note that it was not in dispute that the Respondent initially accepted a booking in relation to the wedding on 7 January, 2019 and this booking was subsequently cancelled on 11 January, 2019. It is clear that there was further communication between the parties for a period of time thereafter which concluded on 11 February, 2019 when the Respondent reconfirmed the decision to cancel the booking and refused the Complainant’s request to reconsider the matter. It was also common case that there was no further interaction or communication between the parties until the Complainant sent the ES.1 Form (Notification Form) to the Respondent on 12 September, 2019. Having carefully considered the relevant documentation and submissions of both parties on this matter, I find that the latest date on which the alleged discrimination could have occurred (i.e. the most recent occurrence) was 11 February, 2019, this being the date on which the Respondent reiterated its decision to cancel the wedding booking and indicated its refusal to reconsider this decision. I cannot accept the Complainant’s contention that the alleged discrimination in the instant case was ongoing or constituted a continuing act of discrimination within the meaning of Section 21(11) of the Acts from 11 February, 2019 until the date that the wedding was scheduled to take place on 12 June, 2019.

Accordingly, I find that the Complainant failed to notify the Respondent of the alleged prohibited conduct within either the two-month period provided for in Section 21(2)(a) or the extended period of four months provided for in Section 21(3)(a) of the Acts.

In such circumstances, the only recourse open to the Complainant is to avail of a direction that the notification requirements should be dispensed with in accordance with the provisions of Section 21(3)(a)(ii) of the Acts. This provision provides that the Director General may “exceptionally, where satisfied that it is fair and reasonable in the circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complainant”. In order to grant a direction under this provision, I must be satisfied that the case is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts.

Having regard to the totality of the evidence adduced, I find that I cannot justify dispensing with the notification requirement in the circumstances of the instant case. I am satisfied that the Complainant has not established that there were exceptional circumstances that both justify and explain the delay in notifying the Respondent of the alleged discrimination. I am satisfied that the circumstances surrounding the serving of notification on the Respondent do not amount to ”exceptional” circumstances. I am, therefore, not empowered under the Acts to dispense with the notification requirement. Furthermore, I am satisfied that the notification requirements set out in Section 21(2) of the Acts, were not complied with, and accordingly, I find that I do not have jurisdiction to investigate the within complaint.

CA-00032383-001

I find that I do not have jurisdiction to investigate the instant complaint under the Equal Status Acts.

Equal Status Acts, 2000 to 2015 – Section 5 – Discrimination – Traveller Community Ground -   Notification Requirements – Section 21 – No Jurisdiction