Complainant

Respondent

Anonymised Parties

A Customer

A Hotel

Representatives

  In person

Cathy McGready BL, instructed by Denis O’Mahony GMB 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-00052259-001

15/08/2022

This complaint is that employees of the Respondent harassed and discriminated against the Complainant on grounds of gender, family status, disability and race) during a series of telephone calls between them on 19.4.22.

The Complainant gave evidence by way of Affirmation as follows:

1.       The Complainant went through a document entitled Reconstruction - which set out details of telephone conversations that took place between her and employees of the Respondent on 19.4.22.

2.       On the morning of 19.4.22 she telephoned the Respondent Hotel to book a dinner reservation. The Respondent agent asked if she would like to also stay for the night, but the Complainant said no.

3.       A dinner reservation booking was made and the Respondent then emailed the Complainant, to confirm this booking.

4.       Having considered it further the Complainant telephoned the Respondent again to ask if she could also book a room in the hotel to stay the evening of the dinner.

5.       The Respondent agent responded that no dinner reservation had been made under the reservation number.

6.       When she provided her name to the Respondent agent she was asked if her address was a specified address, which she confirmed it was. The Respondent agent said she would check and hung up.

7.       The Complainant rang the Respondent back. The Respondent agent stated that no dinner reservation had been made. The agent then said that when Complainant had stayed at the hotel in 2016 she had left the hotel, leaving all her belongings in her room which necessitated the Gardai being called.

8.       The Complainant replied that the bill had been paid and no one had been harmed.

9.       The Respondent agent refused to give her name to the Complainant when asked.

10.   The Respondent agent then said that there was no hotel room available, even though during the first telephone call, accommodation in addition to her dinner reservation, had been suggested by the Respondent.

11.   The Complainant asked to speak to the general manager.

12.   The Respondent agent told her to call the general manager herself before hanging up the phone abruptly.

13.   Later the general manager called the Complainant. She told him what had happened. She asked was he aware of the Equal Status Acts which he said that he was. The Complainant said that the Respondent agent was clearly not aware of the legislation.

14.   The general manager asked the Complainant if she wanted to cancel the booking to which the Complainant responded that, in light of how she had been treated, that she wanted to cancel the dinner reservation.

15.   The Respondent emailed the Complainant with an option to cancel the dinner reservation.

16.   The Complainant sent an ES1 form on 28.4.23 outlining the Respondent’s discriminatory conduct.

17.   The Complainant issued a discrimination complaint to the WRC under the Equal Status Acts dated 15.8.22 in which she claimed that she had been discriminated against by the Respondent. She complained that she was harassed and/or treated adversely by the Respondent because she was female, because she was single, because she was not Irish and because she had a disability.

18.   She contends that, by way of comparison, when her former (male) partner had made bookings with the Respondent he had never received such adverse treatment.

19.   She contends that, by way of comparison, when she attended the hotel as part of a married couple, she did not receive this adverse treatment.  

20.   She contends, by way of comparison, that her former partner (who is Irish) had not been harassed or treated adversely but she (a person who is not Irish) was harassed and treated adversely by the Respondent.  

21.   The Complainant did not identify a comparator in respect of her disability ground.

Jurisdiction

The Respondent accepted that the ES1 form was served within time for the purposes of an alleged discriminatory conduct on 19.4.22

Direction Application

Following the Complainant’s evidence, the Respondent applied for a direction that the Complainant had not proven facts from which a finding of discrimination could be made.

The Respondent contends that even taking the Complainant’s complaint at its height and even if her evidence as to the content of the phone calls on 19.4.22 were to be conceded (it being strenuously disputed by the Respondent) there is no evidence that the Respondent harassed or adversely treated the Complainant on any of the four grounds identified within her WRC complaint  (gender, race, family status or disability.)

The evidence of the Complainant instead shows that if the Respondent did treat the Complainant adversely during the telephone call on 19.4.22 (which is denied) this was because of an incident that occurred at the hotel in 2016 in which the Complainant was involved, not because of any ground which is prohibited.  

The Respondent contends that the Complainant’s assertions of discrimination are not supported by evidence which would permit such a finding being made.

The Respondent contends that the onus of proof is upon the Complainant to prove facts upon which it could be found that the Respondent harassed or discriminated against the Complainant, on grounds that are prohibited, as opposed to any other non-prohibited basis.

The Respondent firstly contends that while the Complainant may have felt disrespected by what occurred on 19.4.22, she has not proven that the way she was treated (which is denied) was anything to do with the fact that she was single, not Irish or had a disability, none of which the Respondent was aware of.

The Respondent secondly contends that the only ground that they were aware of was that she was female. And with respect to the gender ground the Respondent contends that what was said by their agent to the Complainant on the phone had nothing to do with her being female and the Complainant had not proven otherwise.

The Respondent submitted that an assertion of discrimination cannot be elevated to a fact and that the complaint is misconceived and should be dismissed under section 22 (1) of the Equal Status Acts 2000 as amended.

Anonymisation of Parties

Applying section 25 (2) of the Equal Status Acts 2000-21 (hereafter referred to as ESA) as amended, I find that special circumstances exist which allow me to determine that this investigation is one which should be held otherwise than in public and that the parties’ identities should be anonymised in this decision.  Evidence was given by the Complainant that she has had psychiatric treatment  which I consider to be a matter that is private to her and, if disclosed to the public, that disclosure could deleteriously impact her well-being and mental health.

Legislation

In respect of this complaint the relevant provisions the ESA are in section 3 and section 22 (1).

Section 3 (1) states:

For the purpose 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..

Section 3 (2) states

As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

(a)    that one is male and the other is female.

(b)    …

(c)     that one has a family status and the other does not or that one has a different family status from the other

(d)    …

(e)    …

(f)      …

(g)    that one is a person with a disability and the other either is not or is a person with a different disability

(h)    that they are of different race, colour, nationality or ethnic or national origins

Burden of Proof in ESA Complaints

In all discrimination complaints the onus of proof lies on the Complainant to prove facts, which (on the balance of probabilities) prove that the Complainant was adversely treated on the basis of grounds, which are prohibited.  It is only if that obligation is discharged that the burden of proof shifts to the Respondent.

In ESA complaints the Complainant must prove facts that show adverse treatment on the basis of grounds, which are prohibited. The Complainant in this adjudication alleges that the adverse treatment (harassment) of her, occurred because that she is;  female and/or single and/or not Irish and/or has a disability.

However even if I accept her evidence that the Complainant was harassed or treated adversely (which is denied by the Respondent) I am not satisfied that the Complainant has proven that this treatment occurred as a result of a prohibited ground.

Disability; Race; Family Status

The Complainant has not proven that on 19.4.22 the Respondent was aware of her (psychiatric) disability, or her race, or her family status. For this reason, I find that the claims of discrimination based on race, family status and disability grounds are incapable of succeeding.

Gender Discrimination

While the Respondent was aware that the Complainant is female, I am satisfied, based on the Complainant’s evidence, that she has not discharged the onus of proving that the Respondent’s alleged harassment occurred because she was female. While this assertion has been made by the Complainant, she has not provided facts which support this complaint and the burden of proof is upon the Complainant to discharge.

The Complainant’s own evidence is that the adverse treatment arose in the context of the Respondent agent identifying an incident at the hotel in 2016 involving Complainant. This is not evidence which supports a finding of gender discrimination.

Conclusion

I am satisfied that the Complainant in this complaint has not discharged this burden of proof namely that the adverse treatment that she alleges she received on 19.4.22 occurred because she was female, non-Irish, single or because she had a disability.

I am satisfied that the Complainant has not met the threshold of proof for this ESA discrimination complaint to succeed.

Section 22 (1) of the Equal Status Act 2000

Under section 22 (1) of the ESA I have the discretion to dismiss this complaint at any stage in the proceedings if I am satisfied that it is legally frivolous, vexatious or misconceived,  which has been construed by the Superior Courts (Farley v. Ireland [1997] IESC 60 and Kelly v The Information Commissioner [2014] IEHC 479) as meaning that a complaint is futile or has no reasonable chance of succeeding.

I consider this complaint to be one which is misconceived. The complaint is based on an assertion that discriminatory conduct occurred as opposed to facts from which discriminatory conduct may  be found.

I accept that the Complainant felt insulted and affronted by what happened on 19. 4.22. I accept that she felt that she was not treated with respect however that is not the complaint that I am obliged to consider.

Applying section 22 (1) of the ESA, I dismiss this complaint because it is misconceived.

I am satisfied that the Complainant has not proven facts upon which a finding of discrimination may be found. Applying section 22 (1) of the ESA I dismiss this complaint because it is misconceived in law.

Equal Status – Misconceived complaint