Complainant

Respondent

Anonymised Parties

A Complainant

A Hotel

Representatives

Jack Nicholas BL instructed by Michael O'Donnell Solicitors

Alan Dwyer BL instructed by Murphy Ramsay Walsh 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-00049404-001

29/03/2022

The Complaint Form was received by the Workplace Relations Commission on 29 March 2021. It is the Complainant’s case that he was discriminated against on the grounds of being a member of the Traveler Community. The complaint of discrimination on the grounds of race was withdrawn at the hearing.

The Complainant swore an Oath. Submissions were received from the Complainant in advance of the hearing.

The Respondent had two witnesses, the Hotel Owner, who swore an Affirmation. The second witness was the Bar Manager, who also swore an Affirmation. No submissions were furnished in advance of the hearing from the Respondent.

The Hotel Owner confirmed the correct name of the company at the outset of the hearing, and it was amended accordingly.

Both parties availed of the opportunity to present their evidence in full and cross examine. CCTV footage was played at the hearing and replied upon by both parties in their evidence.

There was a total of 8 claims heard on the same day against the same Respondent. All 8 arose out of a similar circumstance on 12 February 2021.

It is the Complainant’s case that he was discriminated against on the grounds of being a member of the Traveller Community. His sister made the booking for both him and his partner for the night of 12 February 2021. He confirmed in evidence he did not have a credit card. The Complainant further confirmed he was a member of the Traveller Community.

Upon arrival at the hotel the Complainant, on 12 February 2021, put his passport on the reception desk and was asked for a credit card. He explained to the receptionist that his sister made the booking for him, and he did not have a credit card.

The Complainant was told that without a credit card there is nothing to Respondent could for him. He described feeling very embarrassed and left the hotel.

Under cross examination, the Complainant was asked if he read the booking terms and conditions to which he replied that his sister did not say anything about a credit card. He gave further evidence that he offered a cash payment but was told by the receptionist that she wouldn’t take cash. He accepted that the hotel can “have any policy”. It was put to him that there was no evidence that a settled person would be treated any differently in terms of the Policy.

Upon inquiry, the Complainant was asked about the offer of cash by him as a security deposit, he replied that there was “nothing about [a] security deposit” and the receptionist was “on about a card” but he “did not understand what she was talking about as I never needed one”. He was asked if he had a debit card to which he replied, he didn’t.

Submissions were made at the conclusion of the hearing on behalf of the Complainant with reference to the Ann Stokes -v- Atlantic Troy Limited TIA Charleville Park Hotel & Leisure Club, ADJ-00026051  (“Atlantic Troy” case) and Bridget O'Reilly -v- Atlantic Troy Limited TIA Charleville Park Hotel & Leisure Club, ADJ-00020724 (“O’Reilly” case). Census information related to Travellers: Irish Travellers - Socio-economic Aspects and Housing (December 2021) was submitted in furtherance of its argument of indirect discrimination and the Complainant falls into “a  category of persons who cannot readily access credit facilities due to a lack of income to secure same.”

It was the Respondent’s case that the Policy applies to every booking with a limited exception of regular guests which The Hotel Owner knows himself or guests with a corporate account.

It was The Bar Manager’s evidence that the reason the Credit Card Policy was in place was for security purposes compared to a debit does not provide the same security as a credit card. The Bar Manager gave examples of room service charges from the bar and instances were guests left the room early without checking out and there was damage was caused to the room.

The Bar Manager stated that the Policy applied across the board to everyone not just members of the Traveller Community, with guests being turned away previously. The Policy, he said, was in place for approximately 5 years with the sign placed at the reception desk which is on show for guests.  

The Bar Manager was asked under cross examination if the Complainant’s barrister would be refused entry if he attended without a credit card to which he replied , “yes that’s our Policy”. He continued that the only exception would be if “we know them” and “we don’t ask if they have previously used a credit card” and “unless we built up a relationship over the years”.

The witness was asked if the Complainant and his friends, a total of 8 people (4 rooms) were the only people turned away on that night to which he confirmed that they were the only group that was brought to his attention. It was put to the witness that to turn away 4 rooms would have cost a lot of money to the business because of credit cards. The Bar Manager replied by referencing the terms and conditions which state the Policy on the booking page.

It was put to the witness that members of the Traveller Community were less likely to have credit cards and therefore were the subject of discrimination . It was his evidence that the Policy was introduced in the hotel approximately 5 years ago as there “had been a lot of damage”.

Asked if the hotel rejects a lot of guests and do they get annoyed, The Bar Manager said, “it’s our Policy”. It was put to the witness that where 66% of people have credit cards and the Policy is only affected when a member of Traveller Community sought to stay in the hotel which he denied. It was accepted by the witness that the Complainant was a member of the Traveller Community. 

Upon inquiry the witness was asked if the staff were trained on the Policy, and he confirmed it was part of the training.

The witness was again asked about the reasons for seeking a credit card as opposed to cash. The Bar Manager described an event approximately 5 years ago where there was accidental damage and guests left the hotel, leaving the key in the room without checking out and there was no recourse.

The Hotel Owner , the owner of the hotel, gave evidence that he had 3 managers in the hotel. He confirmed he had no interaction with the Complainant as he was off that night. Asked about the reason for the Policy, The Hotel Owner  explained that 5 or 7 years ago it was decided that a credit card is necessary to secure the room for all. He accepted this resulted in turning away good business and added that 60% of his business is repeat customers as the hotel “is at it so long”. It was his evidence that the hotel has a lot of corporate clients who have a charge account as well as regulars on a Saturday night. It was the Hotel Owner’s evidence that he has been dealing with members of the Traveller Community for 38 or 39 years and he “we have no problem” with Members of the Traveller Community. 

The Hotel Owner gave evidence that he knows a lot of people due to the fact he has been in business so long and would take bookings over the phone if he knew the individual but would have “no problem” turning away business.

Asked about the reason for the Policy , it was the Hotel Owner’s evidence that a lot of people bring food into the hotel which can leave stains on the bed or carpet, and we need a credit card to cover the cost of replacing damaged items. The witnesses stated that the hotel “would prefer to err on the side of caution” where he has been caught financially with drinks not paid for, damage to rooms, repairs to showers, carpets, etc had to be done. The hotel was “caught so many times “ not to take credit cards as security. He added that he has been in business since 1986.

It was the witness’s evidence that he is not involved with the procedures of Booking.com but did give the instruction that everyone must have a credit card. Asked if he turns away a lot of business because of this Policy, the Hotel Owner responded that there were “enough hotels around”.

He confirmed that the receptionist is instructed to call guests before they are due to arrive. The witness was asked with 40% new business to the hotel should have been warned about the Policy, to which he replied that the Complainant was not refused because she was a member of the Traveller Community, stating “we have an open-door Policy”.  He described the Complainants as a “very genuine and honest people”.

The Hotel Owner was asked if the Policy was in the employee handbook or training, and he confirmed it was but did not have a copy at the hearing.

It was accepted that the Complainant was a member of the Traveller Community. There was no dispute as to the fact that the hotel offers a service to the general public. The Complainant gave evidence that it was her sister in law made the booking in the name of the Complainant’s husband as a gift for both of them. No evidence was heard from her sister-in-law. However, I do not believe anything turns on this as the booking was intended for the Complainant and her husband.

It was  accepted by the parties that the Respondent refused to allow her stay in the hotel as she nor her husband did not have a credit card which was contrary to its written Credit Card Policy. The question for this decision is whether the Complainant,  as a member of the Traveller Community, was treated less favourable by the Respondent as a result of its Policy which and places the Complainant at a particular disadvantage compared with other persons. If this is found to be the case, the onus shifts to the Respondent to objectively justify Policy by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Indirect Discrimination

Indirect discrimination is defined in Section 3 of the Equal Status Act 2000 as:-

“(1) For the purposes of this Act discrimination shall be taken to occur -

(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which -

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person -

(i) 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 a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Section 3(2) of the 2000 Act continues:

“(2) As between any two persons, the discriminatory grounds (and the description 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 of the Equal Status Act 2000 prohibits discrimination in the disposal of goods or services:

“5.—(1) 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.”

Neutral Provision

In a claim for indirect discrimination, the Complainant must first identify a “neutral provision”, which includes a policy as per Section 2 of the Act, that forms the basis of the complaint. In this case, it is the Credit Card Policy, and the question is whether that Policy applies to every guest attending the hotel or was it only relied upon when a member of the Traveller Community sought to check in to the Respondent hotel. Section 38A of the Acts provides:

“(1) Where in any proceedings facts are established by or on behalf of a person from which it may be resumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) 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.”

Section 3(1) (c) states:

”where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared to other persons unless the provision is objectively justified by a legitimate aim and the means of achieving that aim is proportionate and necessary”

I am satisfied that the Credit Card Policy employed by the Respondent, where for the purposes of Section 3(1)(c) is concerned, is the “neutral provision” at issue in this case on the evidence the requirement for a credit card and matching ID was clearly set out set 3 times in advance of making the booking on the website Booking.com under the heading of “House Rules” and subheading of “Check In” , “Check-in From 3:00 PM to 11:30 PM Guests are required to show a photo ID and credit card at check-in”. Further down the page under the heading of “The Fine Print” the websites states, The Hotel “has the right to pre-authorize credit cards at the time of booking.” and “Guests are required to show a photo ID and credit card upon check-in.” In her evidence the Complainant accepted her sister-in-law did not make her aware of the terms and conditions of the booking. However, it is noted she had a copy of the booking on her phone which she gave evidence of presenting to the receptionist.  It was noted that the only exception to the Policy was where the guest had a corporate account and/or the guest was a regular who had a credit card on file.

The Complainant also accepted that the receptionist pointed out the framed sign on the wall of the Credit Card Policy . This was pointed out in CCTV footage with a copy of the wording furnished at the hearing.

In conclusion, I accept the Respondent’s evidence on the application of the Policy.

Similarly, it was held that a school’s admission policy was a “neutral provision” and applied to all students who sought to enrol in the school in Supreme Court Judgment by Clarke J in Stokes v Christian Brother’s High School Clonmel [2012] IESC 184 (“Stokes” case)

These facts differ from the quoted decision inAnn Stokes -v- Atlantic Troy Limited TIA Charleville Park Hotel & Leisure Club, ADJ-00026051where there was evidence of an inconsistency in the application of the policy, when asked by the Complainant the Respondent was unable to produce the relevant policy and the terms set out in the booking from were ambiguous. The need to pay for the room with a credit card as opposed to just relying on it for security also differs to the current case.

The circumstances of O’Reilly case, which I understand is under appeal to the High Court, also differs from this case as the claim was one of direct discrimination of a member of the Traveller Community thereby Section 3 (1) (c ) was not applicable.

Particular Disadvantage

Therefore, the second test set out inSection 3(1) (c) is decide whether this “neutral provision”  places a member of the Traveller Community at a “particular disadvantage” compared to other persons, and thereby, discriminatory.

Bolger, Bruton, Kimber; Employment Equality Law , 2nd Ed. 2022 at [para.6.61] discus the phrase “particular disadvantage” which comes from ”art.2(2)(b) of the Race Directive and was considered by the CJEU in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (C-83/14) ECLI in which the Court held:

“The concept of ‘particular disadvantage’ within the meaning of that provision does not refer to serious, obvious or a particularly significant cases of inequality, but denotes that it is particularly persons of a given racial or ethnic origin who are at a disadvantage because of the provision, criterion or practice at issue.”

Applying the Supreme Court Judgment by Clarke J in Stokes case, Bolger, Bruton, Kimber; Employment Equality Law , 2nd Ed. 2022 at [para.6.62] , “focused more on the disadvantage rather than the particular impact on the person in its decision in in applying a similar provision outlawing indirect discrimination on grounds of membership of the Traveller Community in s.3 of the Equal Status Act. Clarke J described the “starting point” in establishing particular disadvantage as, at least “a disadvantage in the first place.”

“That disadvantage must be considered by comparing the differential effect of the relevant measure on the competing categories of persons. In order for a protected category of persons to be said to be at a disadvantage in comparison to an alternative category (in this case members of the Travelling Community and non-Travellers), then it seems to me that it is necessary to attempt to analyse the effect of the measure on both of those categories respectively. Such an exercise necessarily carries with it some degree of statistical analysis …

104. Therefore, it follows that, as a matter of law, the Director, or a Court considering whether particular disadvantage has been established, must carry out a proper analysis of the extent of any disadvantage at which a protected group has been placed by reason of the ostensibly neutral measure in order to determine whether that level of disadvantage is sufficient to meet the particular disadvantage test.”

The Complainant in her submissions stated, “the test is whether a seemingly neutral provision is in fact neutral when applied to members of the Travelling Community versus when it is applied to members of the settled Community.” Thereby, relying on the comparator group as “non-Travellers”. In its final submission the Respondent stated that there was evidence that a settled or non-Traveller person attending the hotel would be refused if they did not have a credit card. It appears this conclusion may have been drawn from the question put to The Hotel Owner by the Complainant’s barrister that if he was to turn up at the hotel and did not produce a credit card as he did not have one, would his booking be honoured. It was The Hotel Owner’s evidence that without a credit card and matching ID his booking would be cancelled. On this basis I find that the comparator group is all non-Travellers as an entire group.

It was submitted on behalf of the Complainant that the Census information related to Travellers: Irish Travellers - Socio-economic Aspects and Housing (December 2021) was applied:-

“The unemployment rate in the Travelling Community is in the region of 80% as attested by the most recent statistical information in 2016. There were 10,653 Travellers in the labour force in 2016 and of these 8,541 were unemployed, giving an unemployment rate of 80.2 per cent. 2,112 persons were at work in 2016.

Almost 1 in 8 (11.3%) Travellers indicated they were unable to work due to a disability,  nearly three times the equivalent rate for the general population (4.3%).

This is compounded by low education standards amongst the Travelling population as opposed to the settled population. Just 13.3 per cent of Traveller females were educated to upper secondary or above compared with 69.1 per cent of the general population, whilst nearly 6 in I 0 Traveller men (57.2%) were educated to at most Primary level in sharp contrast to the general population (13.6%).

Irish Traveller households had a lower home ownership rate than the general population with 1 in 5 (20.0%) households owning their home compared to over two-thirds (67.6%) for the general population.”

Of further relevance is that there are 8 individual complaints before me arising out of the same set of circumstances, on 12 February 2021, involving the same Respondent, where all 8 Complainants identify as members of the Traveller Community.

There was no evidence from the Complainant as to his own his financial, educational or employment status or whether he was in a position to access credit card facilities, as highlighted by the Respondent in its closing submission. This differs to the Atlantic Troy decision where the employment status of each of the individuals was presented and applied to the test.  However, Clarke J in Stokes noted “the proper overall approach to the assessment of the degree of any disadvantage is, in my view, a matter of law, even though the application of that approach to the facts of an individual case may not be.”

It is noted that these statistics were notdisputed by the Respondent other than to state in closing submissions that “just because they have not applied for a credit card” does not mean they do not qualify. Such a generalisation falls significantly short of what is required of the Equal Status legislation. It is also noted no statistical evidence was presented by the Respondent to support its case.

Where the onus is on the Complainant to establish the particular disadvantage. While the statistical information before me is not perfect but it does allow for an appropriate conclusion to be drawn that where 80.2% of members of the Traveller Community are unemployed they are at a particular disadvantage in accessing credit card facilities.

As regards the second limb of the test I find it has been demonstrated by the Complainant that as a member of the Traveller Community , there is a particular disadvantage compared to a non-Traveller as a result of the Credit Card Policy applied by the Respondent. Thereby the Complainant has established, on the balance of probabilities, a prima facie case of discrimination  and “the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

Objective Justification

Section 3(1) (c) again provides:

”where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared to other persons unless the provision is objectively justified by a legitimate aim and the means of achieving that aim is proportionate and necessary” (emphasis added)

Commercial interests have been considered as a legitimate aim by the Equality Tribunal in Jordon v Marsh Ireland Ltd, DEC-S2008-054, Martin v Esplanade Hotel, DEC-S2010-34 and Fitzgerald v Diarygold Co-Operative Society Limited, DEC-S2009-083.

In particular the decision in Jordon v Marsh Ireland Ltd, DEC-S2008-054 is highlighted in Walsh J, Equal Status Acts 2000–2011: Discrimination in the Provision of Goods and Services, 2012, with particular reference to Bilka-Kaufhaus v von Hartz, Case 170/84 where the CJEU set out three criteria a Respondent must satisfy to avail of the objective justification defence; the policy must correspond to a real need on the part of the undertaking, is appropriate with a view a achieving the objective pursued and is necessary to that end.

Applying the real need element of the criteria it is the Respondent’s case that it would prefer to err on the side of caution when it came to protecting the property of the hotel where there had been incidents of damage to the rooms including carpets, bedding, showers, and unpaid bar tabs. It is accepted that the Respondent has a real need to protect the property and ensure that intentional damage to the property is covered by those that caused it.

The second criterion are considered in light of the notable absence of detailed costing of past damage produced by the Respondent, despite being inquired of. In the absence of having a clear understanding of the past cost to the business of the damage it is impossible to ascertain if the need to have a credit card is the only appropriate method of security. This is particularly relevant where  credit cards can have varying credit limits. There are several other methods available to hotels and any other business which have a commercial reason for requesting security from its guests. There is no evidence before me from the Respondent that these alternatives were reasonably considered.

The necessity to have a credit card as the only method of security does not justify the need to have a credit card only policy. There are alternative methods a guest can offer as security, including but not limited to, a sum of cash or a preauthorised amount on a debit card.

It is on the basis that the Respondent’s credit card only security policy has failed to satisfy the test set out in Section 3 (1) (c),  I find that the Respondent is not objective justified in its application of the Credit Card Policy.

I am relying on my discretion to anonymise this decision.

I find that the Complainant was indirectly discriminated against on the grounds of his membership of the Traveller Community. I order an award of compensation in the sum of €500.

It is further ordered that the Respondent revise its Credit Card Policy to allow for alternative methods of reasonable security.

Equal Status- Indirect Discrimination -