ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039380
Parties:
| Complainant | Respondent |
Parties | Mary Jane Sheridan | Labarre Ltd T/A The Savoy Hotel Limerick |
Representatives | Anthony Feeney, Fergus A Feeney Solicitors | Thomas Wallace-O’Donnell BL instructed by Dundon Callanan Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00050632-001 | 16/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00050710-001 WITHDRAWN | 17/05/2022 |
Date of Adjudication Hearing: 29/06/2023
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This case was heard in conjunction with a case bearing a reference number ADJ-00039182 that was referred to the Director General of the WRC by the Complainant’s husband.
A hybrid hearing was facilitated on the request of the Complainants who at the time of the adjudication hearing resided abroad. The Respondent, its representatives and witnesses attended in person. The Complainant, her representative, and her husband attended the hearing remotely via video link.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text and the Respondent’s employees are referred to by their job titles.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
The claim pursuant to the Equal Status Act, 2000 bearing reference numbers CA-00050710-001 was withdrawn at the adjudication hearing.
Background:
The Complainant referred her claim to the Director General of the WRC on 16 May 2022 alleging that on 22 December 2021 she was discriminated against by the Respondent by reason of her membership of the Traveller Community. The ES1 form was sent to the Respondent on 15 February 2022. The Complainant received ES2 response on 23 February 2022.
The Respondent rejects the claim.
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Summary of Complainant’s Case:
The Complainant’s representative submits as follows. The Complainants, Mary Jane Sheridan and Thomas Gammell, are members of the Traveller Community and a married couple. The Respondent, Labarre Limited, is limited company which trades as The Savoy Hotel Limerick INCIDENT: This complaint arises out of an incident which occurred on 22 December 2021 where Mary Jane Sheridan and Thomas Gammell, (the Complainants), attended at the Respondent premises, The Savoy Hotel Limerick for the purpose of an overnight stay on their wedding night. The Complainants had a valid booking which had been made by Patrick Gammell, brother of Thomas Gammell. On arrival at the premises, the Complainants were informed at the reception area that they would be unable to stay should they be unable to produce a credit card. The Complainants offered a security deposit be taken from a debit card but this was declined by an agent for the Respondent and the Complainants were ultimately refused accommodation by the Respondent. The Complainants are of the belief that they were discriminated against by the Respondent as a result of their membership of the Traveller Community. This caused great embarrassment and distress to the Complainants which was compounded by the fact that the incident occurred on their wedding night. LEGAL SUBMISSIONS: The Complainants rely on Equal Status Acts 2000 – 2018 and particularly Section 3(1)(c) and Section (3)(3A) which are set out below: Section 3(1)(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)(3A) In any proceedings statistics are admissible for the purpose of determining whether discrimination has occurred by virtue of subsection (1)(c). It is submitted that the Complainants as members of the Travelling Community are disadvantaged by the Respondent’s Credit Card Policy. A credit card applicant must show a minimum income (Bonkers.ie credit card guidance indicates a minimum income of €16,000.00). As evidenced by Central Statistics Office Census Traveller Community Employment Statistics (exhibited at the adjudication hearing), the members of the Travelling Community with an 80% (approx.) unemployment rate are unable to hold a credit card and thus, S.3(1)(c) applies to their complaint. The Complainants place reliance on precedent decisions made by the WRC set out below: Bridget Power v Atlantic Troy Ltd t/a Charleville Park Hotel ADJ-00026062, Annalise Power v Atlantic Troy Ltd t/a Charleville Park Hotel ADJ-00026060, Ann Stokes Power v Atlantic Troy Ltd t/a Charleville Park Hotel ADJ-00026051. It is submitted that the Complainant’s complaint is on all fours with the aforementioned precedent cases and so, said cases should be followed. The Respondent’s credit card policy is disproportionate and unnecessary in circumstances where alternative means of security deposit could have been provided by the Complainants on the night of the incident. A credit card is not an unlimited credit facility nor does it put a hold on funds to prevent funds being dissipated. Thus, it is submitted a cash deposit or a hold on funds on a debit card provide the same if not greater protection to a service/accommodation provider. At the adjudication hearing, Mr Feeney, solicitor confirmed that the Complainant’s claim was that she was directly and indirectly discriminated against. In his closing remarks, Mr Feeney, solicitor said that the Respondent operated successfully without the Credit Card Policy. Furthermore, the General Manager and the Front House Manager of the Respondent said that some exceptions could be made which shows that the policy was not strictly enforced. Mr Feeney said that there was no evidence provided to show that the policy was objectively justified, that losses were reduced after the policy was introduced. Mr Feeney said that the Complainant is an unemployed member of the Traveller Community and the policy was putting her at a particular disadvantage.
Summary of direct evidence and cross-examination of Ms Sheridan, the Complainant Ms Sheridan said that the night in question was her wedding night, it was a big deal, it was going to be the happiest day of her life. She said that when she walked in through the door, the staff were talking between themselves. Ms Sheridan said that she told her husband that she had a feeling that they would not get in. Her husband told her that they had a booking. Ms Sheridan said that she felt bad and wanted to cry. She felt they were treated this way because they were Travellers. Ms Sheridan stated that she was unemployed and in receipt of the Child Benefit. In cross-examination, it was put to Ms Sheridan that Ms Gammell’s brother did not read the small print. She replied that she did not accept the policy. Summary of direct evidence and cross-examination of Mr Gammell, the Complainant’s husband Mr Gammell said that, as he and his wife approached the hotel, his wife said that they would not get in. He told her that it was paid for, he had confirmation. He said that he told the person in the reception that he had a booking that had already been paid for. He told the staff member that he had a debit card but he was told that it was no good. He then said that he had some cash and could give a deposit. Mr Gammell said that the Respondent would not make an exception on their wedding night. At this stage his wife was upset and was crying, she wanted to go home. Mr Gammell said that they were told that they could not stay. Mr Gammell explained that a wedding night is an important event for members of the Traveller Community. They booked another hotel in the city and had no difficulty checking in there. Mr Gammell said that even now his wife gets upset over the event which was supposed to be a celebration for them. Mr Gammell said that he lives in Germany. He said that he does not have a fixed income, albeit he earns some income from an occasional job of selling items on a market. In cross-examination, Mr Gammell confirmed that the address provided in the WRC complaint form is the address they stay at when back in Ireland. It was put to Mr Gammell that it was the Respondent policy that an ID and a credit card was required to check in. Mr Gammell said that he did not accept that. He said that people stared at them. He said that if it was a normal night, he would just turn around but it was their wedding night. It was put to Mr Gammell that the Respondent’s policy on booking.com is clear that an ID and a credit card are required. Mr Gammell said that he did not accept that, and that the hotel was paid for. He said that he did not believe that he needed a credit card. It was put to Mr Gammell that the email sent by his brother to the Complainant’s solicitor omitted the payment and cancellation policy, that the email confirming the reservation shows the details of credit card requirement but the email forwarded to the Complainant’s solicitor did not. Mr Gammell said that his brother rang the Respondent and he was told that it was OK, it was paid for. Mr Gammell asserted that it was a policy when one was a Traveller but if one was not, a solution would be found. It was put to Mr Gammell that he said that his brother had emailed him the confirmation email. Mr Gammell said that “not specifically”, that his brother confirmed it was booked. Mr Gammell said that his brother sent him a screenshot of the booking. It was put to Mr Gammell that there was nothing in his ES1 form about the screenshot and the staff member on duty on the night, the Manager had no recollection of a screenshot being shown to her. Mr Gammell said that he had no recollection of meeting the Manager. It was put to Mr Gammell that the reason for the policy was to make sure at the check-in that people who order food, drinks would not have to pay as they go. It was put to Mr Gammell that a debit card can be cancelled before a deduction is made by the Respondent and this has nothing to do with being a Traveller. Mr Gammell replied that he would have happily left a deposit. He said that the Respondent’s staff were completely unhelpful and wanted him to leave. It was put to Mr Gammell that the staff member who attended to him and the Complainant on the night in question has a different recollection. She will say that the only reason people were looking at Mr Gammell and his wife was because Ms Sheridan was wearing a tiara and it was clear that they had just got married. She will say that they came up to her, there were pleasantries, she checked them in, and only then she asked for a credit card. The Complainants did not have one and she explained she could not check them in and Mr Gammell and his wife left peacefully. Mr Gammel’s brother rang afterwards and he was abusive on the phone. Mr Gammell replied that Mr Wallace-O’Donnell BL should put himself in his brother’s position. The only job he had as the best man was to book a room and they were thrown out through no fault of their own. He said that Mr Wallace-O’Donnell would be cross as well. It was put to Mr Gammell that the person who “messed up” was his brother. It was put to Mr Gammell that as soon as he walked into the hotel, the Manager knew that they were members of the Traveller Community, yet she proceeded to check them in. Mr Gammell asserted that “she pretended to do something”. He said that he saw two ladies talking between themselves and he knew exactly the stare they gave him. He said that he knew but did not want to make a scene. Mr Gammell confirmed that he sells items on a market but does not have a regular income.
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Summary of Respondent’s Case:
The Respondent submits as follows.
The Savoy Hotel, Limerick is a luxury hotel in Limerick City Centre, employing over 100 people. Credit Card Policy2. Like many hotels in Ireland and throughout the world, the Savoy Hotel operated at the relevant time a credit card policy as part of its terms and conditions. This policy appears on the hotel's website as follows: All guests must present a credit card on check-in and photographic ID will also be required.
Similar wording is used on the Hotel's entry on the booking.com website:
Guests are required to show a photo identification and credit card upon check-in.
The confirmation email to the Complainant stated:
Guests are required to show a photo ID and credit card upon check-in.
3. There are important business reasons for this policy being adopted by hotels. Just as with every business that supplies goods or services on credit, or banks which supply credit directly, the Respondent is exposed to the credit risk of its customers. The basic room charge is only a portion of the final charge, to which must be added meals, room service, mini bar, spa treatments and any other items charged to the room. At the time of registering the guest, it is not known what the final charge will be. It is therefore part of the Respondent's business to provide credit to its guests. 4. Any business providing such credit must have in place a system to ensure and judge the creditworthiness of its customers. The credit card policy operated by the Respondent is the system deployed to ensure the Respondent is not exposed to unreasonable credit risk. First, the Respondent knows that guests with credit cards have had their creditworthiness checked by the bank before the credit card is issued. This is an important check on the creditworthiness of its guests, without the Respondent having to do all the same credit checks that the bank goes through. 5. Secondly, the credit card itself is a significant protection for the Respondent, because the bank takes on the credit risk up to the credit limit of the card. This is very different with a debit card which is only valid for the funds in the guest's account and the credit risk falls upon the Respondent rather than on the bank. 6. 7. Corporate clients who have credit facilities set up do not normally require a credit card, but even in those cases the Respondent is conscious of its credit risk and has a policy that foreign companies must provide a credit card. This applies, for example, to airlines who have flight crew staying at the Respondent hotel. The purpose of the credit card policy is to avoid credit risk, not to exclude on any other ground.
The credit card policy was introduced by the Respondent towards the end of 2019. There was never any intention of the Respondent to create a particular disadvantage for the Traveller Community nor for any other group (and it does not believe it did so). Since it has become aware of the contentiousness of such policies, especially as arising in the several Charleville Park Hotel cases, the respondent has, since February 2022 instructed its receptionists not to apply the policy to any guest who can produce a debit card and appropriate identification, to avoid the risk of any possible allegation of a breach of the Equal Status Acts. Complainants: 22 December 2021
The Complainants' booking was made by Mr Gammell's brother, Patrick Gammell by telephone. The Respondent sent a confirmation email which referred to the credit card requirement for check-in. When the Complainants arrived at the hotel on the evening of 22 December 2021 the Receptionist, Ms Murray, asked for their name, welcomed them to the hotel, and asked them to sign the registration card. Ms Murray then asked for a credit card in accordance with usual hotel policy. Mr Gammell and Ms Sheridan did not have a credit card, so could not be checked in. They said they had cash or debit card but did not have a credit card. They asked to see the manager and Ms Murray explained she was the Front Office Manager that evening. Mr Gammell and Ms Sheridan then left the hotel. Patrick Gammell then telephoned the hotel and spoke to Ms Murray. He was very abusive, shouting and swearing down the phone to such an extent that Ms Murray had to terminate the call. Legal Submissions9. 10. At the time of making its written submission, the Respondent has only seen the Complainants' claim forms and has not received any submissions or documents to be relied upon at hearing by the Complainants. It is difficult to make any legal submission in this vacuum. However, some preliminary points can be made as follows. 11. 12. These claims appear to be very similar to the claims in the Charleville Park Hotel cases, which were seven adjudication decisions arising from two incidents when members of the Traveller Community did not have credit cards and were therefore not able to avail of hotel accommodation, both of these incidents occurring at the Charleville Park Hotel in 2018/2019. The decisions relating to the first of these incidents (the O 'Reilly/O 'Neill cases) were subject to appeal to the Circuit Court sitting at Cork, where Judge James O'Donohoe overturned the Adjudication Decisions and held that the hotel was entitled to have a booking policy with a requirement to have a credit card. That decision represents the current state of the law and is binding. (Note: that Circuit Court decision is subject to a judicial review application currently before the High Court; the cases in the second Charleville Park Hotel incident are awaiting appeal in the Longford Circuit Court.) 13. 14. Quite apart from the wider indirect discrimination issue, the Stokes/Power adjudication decisions rely on Section 3(1)(b) to ground indirect discrimination claims. That is incorrect, because subparagraph 3(1)(b) (ii) provides that Section 3 (1) (b) refers only to section 3 (1) (a) direct discrimination — not to section 3 (1) (c). 15. 16. The test for indirect discrimination is set out by the Supreme Court in Stokes v CBS Clonmel and Equality Authority [2015] ELR 113. In order to make a claim under section 3 (1) (c) the Complainants must first prove a "particular disadvantage" compared to other persons. The evidence and analysis required to prove such a "particular disadvantage" has been set out in Stokes. The Supreme Court held that there must be appropriate analysis of the extent of the disadvantage which is relevant to both proving "particular disadvantage" and also relevant to any "appropriate and necessary" justification [at 132]. The Supreme Court said that "It is clear that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination" [at 135]. 17. For any section 3(1)(c) claim to succeed (if that is what the Complainants are alleging) there would need to be evidence of a particular disadvantage to the Complainants and sufficient statistical evidence to justify a claim of "particular disadvantage" under Section 3 (1) (c). 18. Even if a "particular disadvantage" could be shown, the hotel would have a defence of showing that the credit card policy "is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary". It has already been set out above that the policy was introduced for genuine reasons relating to credit risk.
Mr Wallace-O’Donnell BL in his closing remarks argued that there was absolutely no direct discrimination. He noted that the WRC is bound by the Circuit Court decision. He further said that the evidence regarding Mr Gammell’s income was vague. Mr Wallace-O’Donnell BL said that the Credit Card Policy has a socio-economic aspect and is perhaps unfair that some would not be able to stay because they have no credit card, but it is not related to the membership of Traveller Community. It was further argued that, even if the Adjudication Officer finds that there was indirect discrimination, persuasive evidence was proffered that the policy was objectively justified. The Respondent sustained greater losses without the Credit Card Policy in place. Mr Wallace-O’Donnell BL asserted that there is no requirement to show evidence as to the financial circumstances of the Respondent. Summary of direct evidence and cross-examination of Mr Khan, General Manager Mr Khan outlined his career and experience working in many hotels, including in the UK. Mr Khan said that the first thing one does when checking in is handing in a passport and a credit card. It is the standard around the world. Mr Khan said that the Respondent had previously accepted debit cards but changed the policy as guests come to a 5-star hotel for an experience and do not want the hassle. He also said that if there is no money in a bank account, there is nothing for the hotel to claim from a debit card. Guests can cause damage or remove items from the room from towels to coffee machines. Mr Khan said that the credit card policy was changed again in light of the Charleville cases. Mr Khan compared the reservation confirmation email with the one Mr Gammell’s brother forwarded to the solicitor. He said that the Respondent’s email was generated by the booking system and included all information the guests needed to have. Mr Gammell’s brother’s email had the same confirmation number but was incomplete. Mr Khan said that since the pandemic, everything went digital and it is important that all the information fits and is accessible on a mobile device. Ms Khan said that the Respondent employs a lot of foreign staff and trains its staff on respect for other cultures. Mr Khan said that the Respondent is a diverse, progressive hotel, some 85% of staff are foreigners. Mr Khan said that his motto is that “Procedures save lives”. In cross-examination, Mr Khan said that the credit card policy was introduced in 2019, he said that it did not eliminate the Respondent’s loss but reduced it. He said that it is not the Respondent’s policy only, it is a global policy. He said that there is a system in place that checks that there are funds on the card. It was put to Mr Khan that by changing the policy in February 2022, the Respondent admitted that the policy was discriminatory. Mr Khan said that up to 2019 debit cards were accepted and led to losses. In 2019, the policy was changed to the credit card policy and, while some losses were experienced, these were not as significant. In February 2022 the policy reverted to debit cards and losses are made again. It was put to Mr Khan that the Respondent accepted that the policy was not objectively justified and not proportionate. Mr Khan disagreed. Mr Khan confirmed that he would make an exception if he was concerned about a safety of a person, for example if a female tried to check in late at night and her credit card was declined, he would not want her to be left alone on the street in the middle of the night.
Summary of direct evidence and cross-examination of Ms Murray, Front House Manager Ms Murray said that the Complainant and her husband walked into the lobby. She said that people looked at them but it was because it was obvious that they just got married. Ms Sheridan was beautifully dressed and was wearing a tiara. It was Christmas time. Ms Murray said that she knew that Mr Gammell and Ms Sheridan were Travellers. She said that she asked them did they have a nice day. She then explained the details of the room, etc. Ms Murray said that she was not talking to anyone else. She went through the details on the registration card, they confirmed everything. Then she asked for a credit card. Ms Murray said that she explained that she was sorry but it was the Respondent’s policy to request a credit card. Ms Murray said that Mr Gammell and Ms Sheridan were very nice, mannerly, understanding and respectful. They left the hotel. Ms Murray said that she then received a phone call from Mr Gammell’s brother. She was trying to explain to him what had happened. As he was abusive, she decided to terminate the call. Ms Murray said that the reservation email contains all the information. She said that the General Manager is very procedure oriented. If something goes wrong, first thing he asks is “did you follow procedures?” Ms Murray said that she had given someone the benefit of the doubt once and it backfired. Since then she follows the procedures. Ms Murray said that she is friendly, she talks to people, members of the Traveller Community have checked in before. She said that she was about to get married herself so she empathised but she had to follow procedures. In cross-examination, Ms Murray was asked if she wouldn’t think that she could have made an exception on the wedding night. She said she would not. She said that, in the context of the example of a female turning up in the middle of the night, she would be concerned that this person could get hurt. |
Findings and Conclusions:
The Complainant alleges that she was directly and indirectly discriminated against by the Respondent on the grounds of her membership of the Traveller Community. 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.” Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. In making my decision, I have considered all of the submissions and evidence, written and oral, made to me by the parties to the case. There was no dispute that the Complainant is a member of the Traveller Community. There was also no dispute as to the fact that the hotel offers a service to the general public. It was also not in dispute that Mr Gammell’s brother made the booking, which was intended for the Complainant and her husband. It was accepted by the parties that the Respondent refused to allow the Complainant to stay in the Respondent’s hotel as neither the Complainant nor her husband had a credit card, which was contrary to the Respondent’s Credit Card Policy. The matter for me to decide is whether the Complainant, as a member of the Traveller Community, was directly and/or indirectly discriminated against by the Respondent.
Indirect discrimination Section 3(1)(c) defines indirect discrimination as follows: 3.—(1) For the purposes of this Act discrimination shall be taken to occur— (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. To prove indirect discrimination, the Complainant must identify a provision and demonstrate that the challenged provision places the Complainant, as a member of the Traveller Community, at a "particular disadvantage" vis-a-vis persons who are not members of the Traveller Community. In line with section 38(A)(1), the onus is on the Complainant to prove on the balance of probabilities that the provision identified has that effect. If such disadvantage is established, then discrimination will be found to exist unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. A “provision” as per Section 2 of the Act includes a “policy”. In the within case, the Complainant alleges that the Respondent’s Credit Card Policy is the apparently neutral provision that puts her, as a member of the Traveller Community at a particular disadvantage. The requirement for a credit card and a photo ID is clearly outlined on the email confirming the booking under the heading “Payment” where it states: “All bookings will be charged the day before or on the day of arrival. Please note, the hotel does not accept cash payments. Guests are required to show a photo ID and credit card upon check-in.” Similarly, the requirement for a credit card and matching ID is clearly set out in advance of making the booking on the website Booking.com under the heading of “The fine print” the websites states: “Please note, this hotel does not accept cash payments.” “Guests are required to show a photo identification and credit card upon check-in.” I note that Mr Gammell’s evidence was that his brother rang the hotel and it was confirmed to him that the reservation was in order. However, in the absence of Mr Gammell’s brother’s evidence this assertion is of limited evidential value. It is also noteworthy, particularly in the absence of Mr Gammell’s brother’s evidence that the email purportedly sent by him to the Complainant’s solicitor states: “…this is the original reservation they [the Respondent] sent me”. However, it would appear that the email forwarded to the solicitor was not the “original reservation”. While the reservation number and the booking details remain the same, the email ends where the critical information regarding the stay, payment and cancellation starts. In that regard, I accept the Respondent’s evidence as to the contents of the email confirming the booking and informing of its Credit Card Policy. Particular disadvantage The second test set out in Section 3(1)(c) is whether this “neutral provision” places the Complainant as a member of the Traveller Community at a “particular disadvantage” compared to other persons, and is thereby, discriminatory. Bolger, Bruton, Kimberin Employment Equality Law , 2nd Ed. 2022 at [para.6.61] discus the phrase “particular disadvantage” which derives 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 in Employment Equality Law , 2nd Ed. 2022 at [para.6.62] note that the court “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 … 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.” I note that the Complainant asserted that she was put at a particular disadvantage in the context of the level of impact of the Respondent’s policy relative to the level of impact on the comparator group of other persons i.e., all non-Travellers as an entire group. The evidence in relation to the Complainant’s financial or employment status was that she was unemployed, with no regular income bar the Child Benefit, and that she had no credit card. I note that section 3(3A) of the Act provides that statistics are admissible for the purpose of determining whether discrimination has occurred. In support of the claim, the Complainant’s representative drew attention to the Census of Population 2016 – Profile 8 Irish Travellers, Ethnicity and Religion document on the Central Statistics Office website where under the heading Travellers: Irish Travellers - Socio-economic Aspects and Housing it states: “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. The labour force participation rate among Irish Travellers was 57 per cent compared with 61.4 per cent for the general population. Among females 972 were at work while 2,938 were looking after the home, representing 30.4 per cent of Traveller women aged 15 or over. 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%).” “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. Nearly 6 in 10 Traveller men (57.2%) were educated to at most Primary level in sharp contrast to the general population (13.6%). 167 Irish Travellers held a third level qualification in 2016, albeit up from 89 in 2011.” “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.” The Complainant’s representative also furnished a document from www.bonkers.ie entitled “12 common credit card questions answered” which states as follows: “To receive a credit card, you must:
I note the Respondent’s assertion that the matter relates to socio-economic background rather than the membership of the Traveller Community and that the treatment the Complainant allegedly suffered as a member of the Traveller Community was no different from the disadvantage or treatment which any other person, not a member of the Traveller Community, who could not qualify for a credit card, would likewise suffer. In that regard, I find that that the fact that other persons who do not share the Complainant’s characteristics i.e., are not members of the Traveller Community are also adversely affected by the Respondent’s policy is irrelevant. What is of importance is that the Complainant’s group is disproportionately affected. In that regard, I am guided by Clarke J in the Stokes case:
“Thus, McCarthy J. saw no distinction between John Stokes and another non-Traveller applicant who, for example, did not have a father who attended secondary school. 8.2 I have come to the conclusion that McCarthy J. was mistaken in that approach. The starting point of any analysis must be to note that indirect discrimination only arises where disadvantage can be said to occur in respect of persons by reference to one of the categories specified in s. 3(2) of the 2004 Act. The fact that a provision or measure may place persons generally at a disadvantage vis-à-vis others, does not, of itself, give rise to a sustainable finding of "particular disadvantage" within the meaning of the legislation. The fact that persons generally who did not have a father who went to secondary school would be at a disadvantage in seeking to obtain a place in a school which applied a preferential rule for children whose parents attended the school is neither here nor there. Discrimination between children whose parents went to secondary school and those whose parents did not is not, of itself, discrimination covered by the 2000 Act, for such categories of children are not specified as being protected as a result of the categorisation of protected groups by reference to s. 3(2). The choice of the categories which have the benefit of such protection was, of course, a matter for the Oireachtas. The Oireachtas has chosen to include indirect discrimination against members of the Travelling Community as a type of discrimination which is not permitted. The fact that similar discrimination, or disadvantageous treatment, might also apply to others in an unprotected category does not affect the question of whether that same treatment, applying to members of the Travelling Community, might not, after proper analysis, be properly regarded as giving rise to a finding of indirect discrimination.”
I note the Respondent’s assertion that it does not have a system to record the number of potential patrons who would have been turned away from the hotel by reason of not having a credit card. Even if the Respondent had such a system, the question arises as to how the system would provide means of identifying members of the Traveller Community. In the absence of an easily measurable pool, the wider pool of people that is the population of Ireland and the financial basis for access to credit cards remain the only viable statistical information on which to ground the conclusion whether or not the neutral measure is an obstacle to members of the Traveller Community in obtaining the service provided by the Respondent and/or whether that policy places them at a particular disadvantage compared to others who are not members of the Traveller Community. The statistics provided by the Complainant suggest that at least 80% of the Traveller Community would have difficulty meeting the requirements of reputable financial institution to obtain a credit card based on their employment status. Based on the statistical information on economic and unemployment status of the Traveller Community and the information regarding the basic income requirement in the context of a credit card application provided on behalf of the Complainant, combined with her own economic status, I conclude that the neutral provision would place the Complainant as a member of the Traveller Community at a particular disadvantage compared to other adults in Ireland.
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.” Once the Complainant has established a prima facie case i.e., that she is covered by a discriminatory ground and that the relevant provision puts her at a particular disadvantage as compared with other persons, the onus shifts to Respondent to rebut the inference of discrimination. The Respondent in the within case asserted that its Credit Card Policy was objectively justified. It is the Respondent’s case that the reason for the Credit Card Policy is to help “secure the hotel against credit risk. A credit card is significant protection for the hotel because ethe bank takes on the credit risk up to the credit limit of the card.” 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-S2008-054is 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. In that regard, I accept that the Respondent is entitled to protect itself as much as possible against unpaid bills and damages, and has a real need to protect the property and ensure that any loss or damage to the property is covered by those that caused it. This is a real need and legitimate aim. The next issue is whether the policy applied was appropriate and necessary means of pursuing the legitimate aim. Walsh J. in Equal Status Acts 2000–2011: Discrimination in the Provision of Goods and Services, 2012 clarifies as follows: “The word ‘appropriate’ means that the measure is suitable for achieving the aim in question. Mere generalisations are not sufficient; the service provider must show that the provision in fact advances the aim.” “A provision will be ‘necessary’ where the are no alternative, less discriminatory ways of advancing the respondent’s aim.” Walsh refers to the Labour Court determination in an employment discrimination case National University of Ireland, Maynooth v Buckley [2011] ELR 324 where the Court held that: “This would normally require the Respondent to establish that alternative means of achieving the objective were considered and rejected for cogent reasons.” The Respondent asserted that the purpose of the Credit Card Policy was “to avoid credit risk.” The Respondent asserted that firstly, guests with credit cards would have their creditworthiness checked by the issuer of the card. Secondly, the credit card is a “significant protection for the Hotel, because the bank takes on the credit risk up to the credit limit of the card”. I note the Respondent’s assertion that the losses sustained reduced after the introduction of the Credit Card Policy in 2019. It was further asserted that, following the decision to row back on the Credit Card Policy in February 2022, the Respondent again sustained more losses. Regrettably, no evidence whatsoever as to these asserted losses was proffered by the Respondent. In the absence of having a clear understanding of the past cost to the business in the context of the losses sustained as a result of unavailability of credit cards details it is impossible to ascertain if the need to have a credit card is the only appropriate method of security, particularly given varying credit limits of credit cards. There are also other methods available to businesses which have a commercial reason for requesting security from its customers, including the hospitality industry and hotels in particular. While I accept that credit cards give some level of security to the Respondent, there are alternative methods a guest can offer as security. There was nothing put forward to suggest that the Respondent considered other options such as a preauthorised amount on a debit card or an advance payment of a reasonable deposit cash. There was no evidence before me from the Respondent that these alternatives were reasonably considered. The application of the policy of refusing accommodation based on a failure to present a credit card is not found to be appropriate and necessary. 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 has not objectively justified its application of the Credit Card Policy. I note the nature of the Respondent’s business and its prompt action taken once it was made aware of the potential discriminatory effect of its policy.
Direct discrimination The Complainant claims that she was directly discriminated against by the Respondent on the grounds of her membership of the Traveller Community. The Respondent rejects the claim. I note the Respondent’s reliance on the case of Bridget O'Reilly v Atlantic Troy Limited T/A Charleville Park Hotel ADJ-00020724 and the proposition that this decision was overturned by the Circuit Court and the overturned decision is binding. In line with section 38(A), the onus is on the Complainant to provide evidence from which it may be presumed that prohibited conduct has, on balance of probabilities, occurred. In the well-known case of Mitchell v Southern Health Board [2001] E.L.R. 201, the Labour Court considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out as follows: “[A] claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.It is only if these 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 Hallinan v Moy Valley Resources DEC-S2008-25, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established: 1. The complainant must establish that he or she is covered by the relevant protected ground; 2. That the incident(s) complained of actually occurred; 3. The treatment constitutes less favourable treatment within the meaning of the Act (than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances). There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient in itself to establish a claim of discrimination that the Complainant falls within one of the discriminatory grounds laid down under the Act. Other facts must be adduced from which it may be inferred on the balance of probabilities that an act of discrimination has occurred. It was not disputed that Mr Gammell’s brother made a reservation for a hotel room for the Complainant and her husband at the Respondent’s hotel. There was also no dispute that the Complainant and her husband arrived at the hotel on the night in question and entered the reception area. While Mr Gammell asserted that when they walked in, the Front House Manager “pretended to do something”, on balance I prefer the Front House Manager’s evidence that she proceeded with checking in the Complainant and her husband. Ms Murray gave cogent evidence regarding the reservation card and explaining the room details to the Complainant and her husband. I accept Ms Murray’s evidence that it was not until she asked the Complainants about the credit card and was informed that they did not have one, that she communicated to the Complainant that, as per the Respondent’s Credit Card Policy, she would not be able to check them in. I note that the Complainant has not named a comparator. The Act states clearly that discrimination shall be taken to occur 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… Section 3(2)(i) provides that: “As between any two persons, the discriminatory grounds ... are ... (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”)”. I note that the Respondent’s staff indicated that no exceptions would be made, albeit both witnesses for the Respondent testified that some consideration would be given in circumstances where a person’s safety could be put at risk. In that regard, a particular example was used of a single female checking in at night with a credit card that was declined. This, however, in my view, reinforces the Respondent’s position that the Credit Card Policy applies to every guest attending the hotel and any departure from the Credit Card Policy would be considered only in exceptional circumstances. There was no evidence put before me to show that the Complainant was treated less favourably than someone else was or would have been in a comparable situation. On the balance of probabilities, I am satisfied that the reason for not permitting the Complainant to check in into the Respondent’s hotel was not directly attributable to the Complainant’s membership of the Traveller Community. Based on the merits of the within case and having regard to the evidence adduced, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of her membership of the Traveller Community.
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Decision:
Section 25 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.
I declare that the Complainant was not directly discriminated against on the grounds of her membership of the Traveller Community. I declare that the Complainant was indirectly discriminated against on the grounds of her membership of the Traveller Community. I order an award of compensation in the sum of €1,000. In awarding the compensation, I am cognisant of the embarrassment and inconvenience experienced by the Complainant on her wedding night. I note that the Respondent has suspended its Credit Card Policy. I order that, in the event that the Respondent decides to re-introduce the policy, that the Respondent revise its policy to allow for alternative methods of reasonable security. |
Dated: 02nd November 2023
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Direct-indirect-discrimination-credit card- Traveller Community |