Complainant

Respondent

Parties

Donald  Moran

Four Seasons Hotel Carlingford

Representatives

Emer Moran (Daughter)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054590-001

16/01/2023

The Complainant alleges that he was discriminated against by the Respondent on grounds of disability during the course of a stay in the Respondent Hotel in September 2022.  The Respondent contests the allegation.

The Complainant and his family arrived at the Respondent hotel in the afternoon of the 4th September. He went into his room, room 116. That was the room he had stayed in when he was last there with his late wife. It was a specially adapted room.

The Complainant was recently diagnosed with neuropathy. That was in May 2023.

On the 5th September 2022 the Complainant went down to the pool. He found it difficult. He went into the kids pool up to his waist. He couldn’t go any further. He had to use the wall to steady himself. There was nobody there to help him. He made his way back to the changing room and put on his shoes and headed back to his room. He did not seek assistance from anyone at the pool at the time.  The Complainant accepts that he did not let anyone know he was going down to the pool and he didn’t tell anyone in the hotel after the incident either. There is a check- in sheet at reception that he should have signed. The Complainant stated under cross examination that did sign that. He didn’t read it though. It says on it that you have to be abled bodied to use the facilities because there is no lifeguard on duty. There is also a sign above reception stating that. He stated that he just signed it and headed off for his swim.  

The last time he was in the hotel it was his wife who required the special assistance room. The complaint was her career. That is probably why the Hotel gave him the same room as they would have had it on their system from his previous stay.

The Complainant had booked in for four nights. He stayed the five nights having extended his stay.

When the Complainant asked if he could stay on a 5th night he was told that he could but that the room he was in wasn’t available. He was moved to room 104. When he arrived at that room the card for the door didn’t work. A lady went to reception to get the card fixed for him. He then went into the room and had a sleep. Someone came into the room when he was resting. They left as soon as she saw him resting in the bed. He also needed a stool for the shower. A lady called Diane got it for him. He had to ask for it. It wasn’t provided for him when he moved to that room.

 Ms. Moran, the Complainants daughter after affirming gave her evidence as follows:

 She went down to the leisure centre before her father. She wanted to take a video of her dad swimming. She couldn’t find him. She asked if anyone had seen him. The man at reception said he had seen him, he remembered him because he had one swimming sock.  The receptionist said she should ask the lifeguard if he had seen him or knew of his whereabouts.  He said he might have been in the sauna. She said there was no way he would be in the sauna. The man who was identified to her as the lifeguard told Ms Moran that he had seen her dad and thought that he was unsteady on his feet. She panicked then because she couldn’t find him. She went up to his room, but he wasn’t there. Eventually he came to her room. He was very down in himself. Ms Moran didn’t tell him what  the lifeguard had stated about being unsteady on his feet. She didn’t want to upset him.  

Mr. Redmond following the affirmation stated:

When the Respondent got confirmation from the WRC about the matter, they were unclear about how a discrimination alleged could have taken place.  The Respondent after hearing the Complainant’s evidence is still unclear has to how they could be liable.  

Ciaran Clarke and PJ Malone were on duty that day. We know that Mr Moran checked into a disabled room. We don’t know whether he requested that room because it was the room he had stated in with his late wife or whether he needed the room due to a disability.

In the leisure centre, there was a form to sign at reception. All guests are required to sign the form. The Complaint did sign the form. The form states that one has to be able-bodied to use the facilities.  There is also a sign stating that there is no lifeguard on duty. The staff in the leisure centre do keep an eye on the pool but they also clean the changing rooms and the gym etc. The Respondent, its servants and agents were completely unaware of the incident until they received the complaint form.

There was no incident report for the day and there is nothing in the book about the incident with Mr. Moran.  The Complainant accepts that he didn’t seek assistance or tell anybody that he might need assistance. The Complainant did not notify the Respondent of the difficulty he experienced while using the pool.

The Complainant alleges that he was discriminated against on grounds of disability during his stay at the Respondent Hotel in September 2022.

3(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,

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

It is well-established law that the Complainant is required to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person, is, has been, or would be treated on the basis of one or more of the nine discriminatory grounds cited.  In Southern Healthboard v Mitchell the Labour Court stated:

“  The first requirement is that the Complainant must establish facts from which it may

    be presumed that the principle of equal treatment has not been applied to them. This

    indicates that a Complainant 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 those primary factors establish 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 is no

    infringement of the principle of equal treatment.”

 In the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts will vary from case to case and there is no closed categories of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”

The Complainant stated that he ran into difficulties while attempting to get into the swimming pool on the 5th September. He accepts that he did not look for assistance. He accepts that he did not tell anyone that he may need some assistance getting in and out of the pool prior to his swim. He also accepts that he did not tell anyone about the incident. The first the Respondent knew about it was when they received notification from the WRC. The Complainant in September 2022 had no medically confirmed diagnosis in relation to his disability. He wasn’t diagnoses until May 2023.  No evidence was adduced to link the difficulties he experienced on the 5th September with his recent diagnosis. No evidence was adduced in relation to his actual diagnosis. However, I have no reason to doubt the Complainant. He came across as an honest, straight forward gentleman, who has had a difficult time in his personal life over the last few years.

The onus is on the Complainant to establish facts from which discrimination can be inferred. In circumstances where the Complainant had no diagnosis at the material time, did not produce any medical evidence to show a nexus between the incident and his recent diagnosis, did not tell the Respondent at any stage that he needed or might need assistance and did not report the matter to anyone until he filed his claim with the WRC, I find that he has failed to establish a prima facia case of discrimination on grounds of disability.

The Complaint fails.

The Complaint fails.

Discrimination. Disability. Notice. Prima Facia case. Knowledge. Burden of Proof.