Complainant

Respondent

Parties

James Casey

Killarney Oaks Limited

Representatives

Patrick Barrett BL

Michael Vallely BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00058174-001

09/08/2023

When I commenced writing the decision on this complaint, I discovered that s.19 of the Intoxicating Liquor Act 2003 (“the 2003 Act”) has a bearing on the jurisdiction of an adjudication officer to investigate a complaint of discrimination alleged to have occurred on a licensed premises.

Section 19(2) of the 2003 Act provides as follows:

(2) A person who claims that prohibited conduct has been directed against him or her on, or at the point of entry to, licensed premises may apply to the District Court for redress.

In relation to Mr Casey’s complaint of discrimination on the Traveller community ground, s.19(1) defines “prohibited conduct” as, 

discrimination against…a person in contravention of Part II (Discrimination and Related Activities) of the Act of 2000 on, or at the point of entry to, licensed premises.

The “Act of 2000” means the Equal Status Act 2000.

In this section, and, for the purpose of the 2003 Act, “discrimination” is defined as,

…discrimination within the meaning of the Act of 2000, but does not include discrimination in relation to –

(a) the provision of accommodation or any services or amenities related to accommodation, or

(b) ceasing to provide accommodation or any such services or amenities[.]

It would appear from this definition that complaints of discrimination regarding accommodation are to be heard under the Act of 2000 and are specifically excluded from the remit of the Intoxicating Liquor Act 2003.

Section 19(11)(a) of the 2003 Act provides as follows:

(a) The Act of 2000 shall cease to apply in relation to prohibited conduct occurring on, or at the point of entry to, licensed premises on or after the commencement of this section.

Subsection (b) of s.19(11) relates to complaints submitted before the 2003 Act was enacted and is not relevant to this complaint.

It is apparent from subsection (a) above that jurisdiction in cases of discrimination on or at the point of entry to a licensed premises transferred to the District Court on the passing of the Intoxicating Liquor Act 2003.  There are some precedents confirming this position, for example, ADJ-00045069, a complaint by Patrick Flanagan against Wynn’s Hotel, issued on November 22nd 2023.

On February 26th 2024, I wrote to the solicitors representing both parties, and asked them for their views on the operation of s.19(2) of the Intoxicating Liquor Act in relation to Mr Casey’s complaint.  On March 1st 2024, on behalf of the respondent, Mr Pat O’Connor replied and stated his position that jurisdiction in cases of allegations of discrimination on or at the point of entry to a licensed premises transferred to the District Court on the passing of the 2003 Act.

On March 11th, representing the complainant, Mr Barrett wrote and set out his views on the operation of the 2003 Act in relation to ss.1 and 3 of the Hotel Proprietor’s Act 1963.  He submitted that the identity of a hotel is predicated on its offering accommodation and / or food and, unless it provides accommodation and food, it cannot be a hotel.  A hotel does not require any special licence to sell food.  Mr Barrett referred to the provision at s.19 of the 2003 Act which states that services and amenities related to accommodation fall outside the remit of the Act and given that the services of food and drink are requisites of a hotel, in accordance with the Hotel Proprietors Act, they are also “related to” the running of accommodation services and thus fall outside the provisions of the Intoxicating Liquor Act 2003.  The logical outcome, according to Mr Barrett, is that any allegation of discrimination in relation to the provision of food and drink in a hotel falls within the remit of the Equal Status Act 2000.

Having considered this matter, I have decided to accept the position set out by Mr Barrett, that “accommodation or any services or amenities related to accommodation” relate to the services provided by a hotel.  As Mr Casey was seeking to have lunch with his family at the Killarney Oaks Hotel, I am satisfied that his claim falls within the remit of s.21 of the Equal Status Act 2000.

Around 3.30pm, on Sunday, March 12th 2023, the complainant went to the Killarney Oaks Hotel with his mother and his wife and their two children, intending to have lunch.  He claims that he was discriminated against when other people who arrived after him and his family were seated in the restaurant.

On Tuesday, March 14th 2023, on behalf of the complainant, Lees Solicitors wrote to the manager of the hotel, alleging a breach of s.5 of the Equal Status Act 2000, concerning discrimination against their client with regard to the provision of a service at the hotel.  O’Connor O’Donoghue Solicitors replied on April 5th 2023, setting out their client’s position that the complainant had not been discriminated against.  The response of O’Connor O’Donoghue to the complaint of discrimination may be summarized as follows:

§  Sundays are generally busy in the hotel.

§  There was a Six Nations Rugby match on the TV in the hotel bar and it was very busy.  Customers were not vacating their tables when they had finished their lunch.

§  A supervisor informed Mr Casey that the bar was busy and that it might be an hour before a table became free.

§  There had been a wedding in the hotel the previous day and the front restaurant of the hotel was booked for a private function for the wedding guests.

§  A coach tour with American tourists was also being accommodated in the hotel and the American guests were expected back in the afternoon. 

On July 7th 2023, on behalf of the complainant, Ms Enright replied to O’Connor O’Donoghue Solicitors.  She claimed that her clients observed several couples and their families being brought to a table when they arrived in the restaurant.  She said that Mr Casey was asked to leave and that he was refused a second drink and that the duty manager was apologetic, but said that the decision was “over her head.”  Ms Enright informed O’Connor O’Donoghue Solicitors that she would submit a complaint of discrimination to the WRC.

Opening the case for the complainant, Mr Barrett said that on Sunday, March 12th, Mr Casey and his family waited for a table in the hotel lobby for 30 minutes, while others came and went.  Other customers were seated in the bar while the complainant and his family waited and were not brought to a table.  Mr Casey claims that he was treated in this way because he is a member of the Traveller community. 

Evidence of the Complainant, Mr James Casey

Mr Casey said that on Sunday, March 12th 2023, he went to the Killarney Oaks Hotel with his wife and their two children and his mother.  He said that his mother had a brain aneurism two years ago and that she becomes agitated if she has to queue.  For this reason, Mr Casey said that he phoned the hotel to book a table.  He said that he was informed that there was no need to make a reservation because the hotel wasn’t busy. 

As he and his family approached the “host desk” at the entrance to the bar, Mr Casey said that a staff member who we know to be Ms Anna Macieszk, who had been at the host desk, walked into the bar.  He said that he observed her having a discussion with the bar staff, and that they looked out the door at him and his family.  Ms Macieszk returned to the host desk and Mr Casey said that he was looking for a table for five people.  He was informed that it would be about an hour before a table came free.  Mr Casey said that he asked his wife if they should have a drink and wait.  When his wife agreed, he said that Ms Macieszk looked startled, but she took their drink order and brought them their drinks. 

As they were sitting in the lobby, Mr Casey said that he noticed people approaching the host desk and being seated.  At 16.01, he said that a party of three went to the host desk and were seated and that a party of two were seated at 16.03.  At 16.05, a party of five in hiking boots were seated and at 16.08, another party of three were seated.  Mr Casey said that he was recording the people at the host desk on his mobile phone.

Mr Casey said that he was two thirds of the way through his pint of Guinness and he asked his wife if she wanted another drink, which she declined.  He said that he ordered a pint from Ms Macieszk and that she replied, “no” and told him that the lobby was reserved.  Mr Casey said that he asked Ms Macieszk how long more they would have to wait and that she replied, “four or five hours.”  Mr Casey said that Ms Macieszk then said, “I can’t serve you today.”  Mr Casey said that he told Ms Macieszk that he would contact his solicitor.  Mr Casey said that Ms Macieszk asked if he would like to speak to a manager.  Ms Tara Casey came along and Mr Casey said that he told Ms Casey that he had taken video recordings of people being seated in the bar while he remained waiting in the lobby.  Mr Casey said that Ms Casey was very sympathetic but she said that there was nothing she could do.  Mr Casey said that he asked Ms Casey if she thought that this was right, and that she shook her head.  Ms Casey informed Mr Casey that there was no manager more senior to her on duty in the hotel.  He said that he and his family left the hotel at that point, leaving their drinks unfinished.

Describing how he felt about what happened, Mr Casey said, “I’m not going to say I haven’t experienced discrimination before,” but he said that he felt worthless.  He said that he was more upset about his son, who was asking, “why are all those people going in?”  He said that his son was asking the same question for two or three days, which didn’t feel good.

Cross-examining of Mr Casey

In response to questions from Mr Vallely, Mr Casey agreed that his grandfather had been a regular customer in the hotel.  He disagreed that his mother was a customer, explaining that she had a brain injury, and that she needs to be brought to and from places.  Mr Vallely asked Mr Casey if he had been a customer in the hotel before Sunday, March 12th 2023 and he said he made a reservation the previous time. 

Asked what the basis of his claim is about, Mr Casey said that he was refused a second drink and that he saw others coming in after him and being seated in the restaurant.  Mr Vallelly asked Mr Casey if he thought it was appropriate to record his conversations with Anna and Tara.  Mr Casey replied that he turned off the video recording when he was asked to do so.  Mr Casey said that there was no other logical reason for not being seated in the restaurant, but that his family are Travellers.

Mr Casey said that he decided to make a complaint about the hotel when Anna (Macieszk) informed him that the manager had a right to refuse admission.

Mr Vallely suggested to Mr Casey that, by being seated in the hotel lobby, he was given favourable treatment, because the lobby is generally reserved for hotel residents.  Mr Casey said that there was a group of ladies having coffee at an adjacent table in the lobby and that they got up and went into the bar when they finished their coffee.

Mr Casey said that he was discriminated against when he wasn’t served a second drink.  

Mr Vallely said that a busload of American tourists was due in the hotel that afternoon.  Mr Casey said that he doesn’t remember seeing a bus or a group of Americans.  He said he wasn’t told either about the “afters party” of a wedding which had taken place in the hotel the previous day.  He said that Ms Macieszk was hostile and rude and that Ms Casey was very nice.

Mr Vallely said that Ms Casey will give evidence that she explained to Mr Casey that the restaurant was booked for the afters party of a wedding, the bar was busy because of a rugby match and that she told him that the lobby was reserved for the American tour.  Mr Casey replied that he can’t comment on what anyone says after the fact.  He said that he wasn’t informed about the wedding or the American tourists and he thinks the hotel is making this up to explain their behaviour.  He said that for the length of time he was in the lobby, everyone who approached the host desk was served.

Me Vallely said that the owner of the hotel will give evidence that he was friendly with Mr Casey’s grandfather and that he was a regular customer in the hotel.  Mr Casey replied that his grandfather was well known as a jarvey in Killarney and that he died 18 years ago.  He said that he can’t comment about whether he was a customer in the hotel.  He agreed that he was served in the hotel himself on a previous occasion, when he made a reservation.

In response to questions from me, Mr Casey described the position of the host desk in front of a double door at the entrance to the bar in the hotel.  He said that, when he arrived with his family, Ms Macieszk went into the bar and could be seen speaking to four or five of the bar staff.  He said that, in his view, the bar wasn’t packed.  He didn’t notice the rugby match being shown on the television.  He said that he would have been happy to sit in the bar or the restaurant.  He said that he couldn’t see into the restaurant.

I asked Mr Casey how anyone would know he is a Traveller, and he replied that perhaps speaking to him, a person wouldn’t know, but by his appearance, it would be obvious.      

In his letter of April 5th 2023, on behalf of the hotel, Mr O’Connor of O’Connor O’Donoghue Solicitors informed Ms Enright that the complainant and his family were served drinks in the hotel lobby, which is normally reserved for hotel residents.  He said that a duty manager spoke to Mr Casey and he complained that he had not been seated after half an hour.  Mr O’Connor said that Mr Casey observed some members of the wedding party and the American tourists going to tables for their meals and that he wrongfully assumed that these customers were given priority over him.  The wedding guests were accommodated in the front restaurant and the American tourists were seated in the hotel lobby.  Mr O’Connor said that the complainant was not refused a second drink and he was not asked to leave.

Evidence of the Hotel Receptionist, Ms Kornelija Narkeviciute

Ms N said that she was on duty on Sunday, March 12th 2023.  She said that she couldn’t recall a telephone call from Mr Casey in which he asked to book a table for lunch that day.  Cross-examined by Mr Barrett, Ms Narkeviciute said that she handled a few calls that day and that she couldn’t say if Mr Casey phoned.

Evidence of the Food and Beverage Manager, Ms Sandra Starosiene

Ms Starosiene said that she has been working in the respondent’s hotel for 18 years.  She said that Sunday, March 12th was a busy day and that she met Mr Casey as he came in.  She said that she asked Mr Casey to wait, telling him that the bar supervisor, Ms Macieszk, would be back.  Ms Starosiene said that she is from Lithuania and that she didn’t know that Mr Casey is a member of the Traveller community.

Cross-examined by Mr Barrett, Ms Starosiene said that she didn’t see Mr Casey’s family when he came towards the host desk in the bar, and she thought that he was by himself.

Evidence of the Supervisor, Ms Anna Macieszk

Ms Macieszk said that Sundays are always busy but that the hotel was extremely busy on Sunday, March 12th 2023.  She said that she wasn’t standing at the host desk when Mr Casey arrived and that Ms Starosiene told her that he was looking for a table.  When she came back to the desk, Mr Casey was approaching with his family.  Ms Macieszk said that she told Mr Casey that she had tables for two, but he was looking for a table for five people.  She said that Mr Casey told her that they weren’t that hungry and that they would wait.  Ms Macieszk said that she told him that she didn’t know how long it would be before a table came free.  Mr Casey asked Ms Macieszk if they could get a drink and she took his order, went to the bar and brought the drinks to a table in the lobby.  Ms Macieszk said that Mr Casey didn’t say that he was waiting for a table to have lunch. 

Ms Macieszk said that they don’t usually serve drinks to non-residents in the hotel lobby, but the bar was full because of the rugby match.  There had been a wedding the previous day in the hotel, attended by 300 guests and the restaurant was booked on Sunday by the wedding party.  While he and his family were sitting in the lobby, Ms Macieszk said that others approached the host desk and she told them that the bar was busy but that they were welcome to wait.  She said that they didn’t wait, but left the hotel.

Ms Macieszk said that the ladies to whom Mr Casey referred who were sitting in the lobby having coffee were with the wedding party.

When he had been waiting for a while, Ms Macieszk said that Mr Casey called her over and introduced himself and said that he was a member of the Traveller community.  She said that he took out his mobile phone and said that he was recording his conversation with her to bring to his solicitor.  She said that he told her that he has two or three legal cases going on.  He asked Ms Macieszk how long they would have to wait.  Ms Macieszk replied that Mr Casey had told her that they weren’t hungry and not looking for a table for food.  She said that Mr Casey asked her why other people and the three ladies who were having coffee were going into the restaurant.

Ms Macieszk said that Mr Casey asked her, “if I ask for another drink, you’ll refuse me?”  She said that she replied, “no.”  She said that the family’s drinks were still nearly full and Mr Casey’s pint was half full.  Ms Macieszk said that she offered Mr Casey the opportunity to speak to a manager.  She said that she tried to explain that the hotel was full because of the wedding and the bar was full because of the rugby match.  She said that there was no issue with Mr Casey waiting for a table.  She said that “he had told me he wasn’t hungry and would just have a drink.”  She said that she felt stressed by what he was saying and that it was unacceptable for him to record their conversation on his phone.  Ms Macieszk said that she called the duty manager, Ms Casey who was in the office.

Mr Vallely asked Ms Macieszk to respond to Mr Casey’s claim that she was rude.  She replied that if she was rude, she wouldn’t be encouraging business to the hotel and she wouldn’t be kept in her job.  She said that she did not ask the Casey family to leave the hotel.

Mr Vallely asked Ms Macieszk how a customer would know that there was a wedding going on in the hotel.  She replied that she believed that Mr Casey saw the wedding couple at the reception in the hotel.

Asked why Mr Casey’s family were not accommodated in the hotel, Ms Macieszk said that when the family arrived, “we were not able to accommodate them, but he could have waited for a table to become available.”  She said that Mr Casey told her that they weren’t that hungry and she thought they were just staying for drinks.  She said that it is not usual to serve people in the hotel lobby, but she felt that it was the right thing to do.

Mr Vallelly asked Ms Macieszk if she told Mr Casey that the hotel has the right to refuse to serve customers.  Ms Macieszk replied that this is the first time she has heard that phrase.  She said that she doesn’t fully understand what it means.  Mr Vallely asked Ms Macieszk about the five people that Mr Casey observed in hiking boots being seated in the bar.  Ms Macieszk said that she doesn’t take any notice of the appearance of guests.

Cross-examining of Ms Macieszk

Ms Macieszk said that she has worked in the hotel for more than a year.  She is responsible for the host desk and she sometimes works in the bar.  She has served members of the Traveller community.  She said, “We serve everyone who comes in.  My job is to serve.  I don’t classify or recognize.”

Mr Barrett reminded Ms Macieszk of Mr Casey’s evidence that he and his family were dressed flamboyantly, in a way that is particular to the Traveller community.  Ms Macieszk said that she didn’t take any notice of how the family were dressed.  She said that the hotel was busy and she was focused on serving customers.  She said that she is a foreigner, although she has been in Ireland for 18 years.

Ms Macieszk said the Mr Casey’s first contact with a staff member was with the food and beverage manager, Ms Starosiene.  When she herself approached Mr Casey, she said that she told him that “at the moment, we’re full.”  She said that she was not able to say how long they would have to wait.  The match was half-over. 

Ms Macieszk said that the lobby is generally used for residents of the hotel to have a drink.  She said that if people are waiting for a table in the restaurant, they wouldn’t usually be served in the lobby.  As part of the package for the American tour bus, pre-dinner drinks were being served in the lobby.  Ms Macieszk agreed with Mr Barrett, that she put reserved signs on the tables in the lobby.  She said that Mr Casey could see the people from the bus coming into the hotel and taking seats in the lobby.  She said that the tour guide was in the middle of the lobby and had guided the passengers from the bus to the reserved tables.

Mr Barrett suggested to Ms Macieszk that her attitude changed when she spoke to someone and she then told Mr Casey that he would have to wait for a long time, perhaps for several hours.  Ms Macieszk denied this and she also said that she didn’t ask Mr Casey to leave.  She said that the guests came into the lobby and sat at other tables.  She said that Mr Casey didn’t ask for another drink.  He told Ms Macieszk, “if I ask for another drink, your answer will be “no.’”  Ms Macieszk said that she cleared the table when the family left and that a half pint of Guinness was left.

Ms Macieszk repeated that she told Mr Casey that she only had tables for two people and that he replied that they weren’t that hungry and would just have a drink.  She agreed with Mr Barrett that it wasn’t possible for Mr Casey to see through the bar to the restaurant, although he could have looked in the window as he was leaving.  Concluding her evidence, Ms Macieszk said that she recognized Mr Casey from having been in the hotel previously.

Evidence of the Duty Manager, Ms Tara Casey

Ms Casey said that she is the duty manager and the wedding coordinator in the hotel.  On Sunday, March 12th, she was meeting the bride and groom in her office and Ms Macieszk came in and asked her to come into the lobby.  Ms Casey said that she went out to the lobby and Mr Casey was recording on his phone and she said that she was uncomfortable about being recorded.  Mr Casey then put his phone away.  Mr Casey said that he was waiting for a table and Ms Casey said that she explained that the hotel was busy with the wedding and the American tourists.  He asked her about the reserved signs on the tables in the lobby and Ms Casey said that she explained about the tour having pre-dinner drinks.  Mr Casey asked Ms Casey if the hotel has something against Travellers.  She said that he told her that he was a Traveller.  She said that she wouldn’t have known.

Mr Vallely reminded Ms Casey of Mr Casey’s evidence, in which he said that she apologized and said that there was nothing she could do.  Ms Casey replied that she was in the middle of a conversation with Mr Casey when he said, “we’re leaving.”

Asked by Mr Vallely why the Casey family were not served, Ms Casey said, “we were very busy.  We had a table for two.  We just didn’t have a table.”  Ms Casey said that, at the time, the restaurant wasn’t packed, because the bride and groom didn’t know how many people were coming for lunch.  She said that the restaurant had “all wedding people.”  Ms Casey said that Mr Casey might not have seen the bride and groom.  While she was speaking to Mr Casey, Ms Casey said that the bus with the Americans arrived at the hotel.  She said that she was very surprised at Mr Casey’s statement that Ms Macieszk was rude.  She said that this is the first complaint about the hotel not serving a member of the Traveller community.

Cross-examining of Ms Casey

Ms Casey said that she was the most senior manager on duty in the hotel that Sunday, March 12th.  Another manager was due to come on duty in the evening.  When she went to meet Mr Casey, Ms Casey said that the family were chatting.  She said that she didn’t notice that they were Travellers.

Evidence of Mr Éamonn Courtney

Mr Courtney said that, with his wife, he is a 50% shareholder in the hotel.  He has been 35 years in the hotel business and the Killarney Oaks has been open for 25 years.  Mr Courtney described the layout of the lobby and the position of the host desk at the door of the bar.  To get to the restaurant, customers have to go through the bar.  Mr Courtney said that the restaurant was pre-booked by the wedding party.  He said that the restaurant has six long windows and the interior is visible from outside.

In the main bar, Mr Courtney said there are 18 tables.  On the Sunday in question, there was a rugby match on the television.  An American tour group was booked in and part of the deal with the tour operator, Colette Vacations, included a pre-dinner drink.

Mr Courtney said that it might have taken an hour for a table for five people to become free.

Mr Courtney said that customers of the hotel are from many ethnic groups, as are the employees.  He said that Mr Casey’s mother and his extended family are regular customers.  Since March 12th 2023, he said that the family has frequented the hotel numerous times.

Mr Courtney said that his practice since the Covid-19 pandemic is that he takes Sundays off, so he wasn’t in the hotel on Sunday, March 12th.  He said that the hotel staff treat everyone the same and that everyone is welcome.  He said, “every single Sunday, they will see Travellers in our bar and a lot of other days.”  He said that the hotel has an open door policy and has never discriminated against anyone.  Mr Courtney said that he knows that Ms Macieszk did not tell Mr Casey that he would have to wait for hours for a table.  Mr Courtney said that Mr Casey’s comments about the hotel’s staff are outrageous.  He said, “we’re here to make money and everyone is welcome.” 

Mr Courtney said that on Sundays, people have to wait for a table.  The bar is the main entrance for the restaurant and the only people who went in to the restaurant were people from the wedding.  He said that they don’t assign staff to work in the lobby, but he was delighted at the way Ms Macieszk looked after the guests.

Cross-examining of Mr Courtney

Repeating that he was at home on Sunday, March 12th, Mr Courtney said that he has cameras installed in his house and he can observe what’s going on in the hotel.  He said that one person works at the host desk and sometimes a second person is rostered to bring people to their tables.  On a busy day, the host takes names and the number of people in each party.  Mr Courtney said that they don’t take reservations for Sunday lunch.

Mr Barrett said that Mr Casey’s evidence is that he phoned the hotel and was told that they weren’t busy.  Mr Courtney said that if Mr Casey phoned in the morning, the bar might not have been busy.

The Legal Framework

Discrimination is defined at section 3 of the Equal Status Act (“the Act”) as follows:

(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. 

Subsection (2) sets out the discriminatory grounds, one of which, at subsection (2)(i) is;  

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).

In accordance with the objectives of the Act, the public has a right to access the services of a hotel without being discriminated against on any ground.  Section 5(1) addresses this right:

A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.

My task here is to consider the complainant’s case that, because he is a member of the Traveller community, he and his family were not offered a table in the bar or restaurant of the hotel on the afternoon of Sunday, March 12th 2023.  In the first instance, I must decide if, on the basic facts, a presumption of discrimination can be shown.

The Basic Facts

From the evidence of both parties at the hearing of this complaint, the undisputed facts are as follows:

§  On Sunday, March 12th 2023, the complainant and his family were served drinks in the lobby of the respondent’s hotel. 

§  The hotel does not take bookings for Sunday lunch.

§  As they waited for a table to become free in the bar, the complainant observed that people who arrived at the “host desk” after him were brought to a table.

§  While they were sitting in the lobby, the host desk manager put reserved signs on the tables in the lobby.

§  The hotel restaurant was booked for the afters party of a wedding.

§  The hotel bar was busy with people watching a rugby match.

§  The lobby area was being used to serve drinks to a group of American tourists who were booked in for dinner.

§  The complainant and his family left when they were not offered a table after waiting between 30 and 45 minutes.  Their first round of drinks was left behind, unfinished.

Findings

From these facts, it is apparent that the hotel did not refuse to provide a service to the complainant and his family, because they were served drinks in the hotel lobby.  This is not the conduct of a service provider who seeks to discriminate.  I accept the evidence of Ms Macieszk that she replied “no” when the complainant asked her if she would refuse to serve him if he ordered another drink.  I also accept the evidence of Mr Courtney who said that he is in business to make money and that he has never refused service to anyone, and that the complainant’s family are regular customers in the hotel.  In his evidence, the complainant said that, on a previous occasion when he made a reservation, he was served food in the hotel. 

From the evidence of the respondent’s witnesses, it is apparent that Sunday, March 12th 2023 was a very busy day in the hotel, with the afters of the wedding, the rugby match being shown in the bar and the American tour group in the lobby.  After he arrived to have lunch with his family, the complainant observed a couple, group of three and a group of five in hiking boots, all being shown into the bar.  I accept the evidence of the respondent’s witnesses that the restaurant was closed to the public, as it was fully booked for the wedding guests.  The entrance to the restaurant is through the bar and the people going into the bar were guests from the wedding. 

Having considered the facts, it is my view that, having observed people going into the bar to get to the restaurant, the complainant formed the view that he and his family were being ignored and left to wait.  I can understand how he may have formed this impression because he said that, when he arrived, he observed Ms Macieszk speaking to the bar staff and looking in his direction.  It is my experience that this is a common occurrence when entering a restaurant, where a staff member or a manager might “look over” the party of customers, perhaps to determine the composition of adults and children and to see where they could be seated.  I find that there was no negative intention in this, although it may have caused the complainant to feel self-conscious.  It may also be the case that the complainant and his family felt crowded out by the bus load of Americans who arrived in the lobby, although, in his evidence, the complainant said that he didn’t see any American tourists.  It is difficult to understand how he might not have noticed them.

Conclusion

Section 38A(1) of the Act of 2000 provides as follows:

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

From my assessment of the evidence presented by both parties at the hearing, I am satisfied that the complainant was left waiting for a table simply because the hotel was busy and that the delay was not connected to the fact that he and his family are members of the Traveller community.  No evidence has been presented to show that the complainant was refused a service in the hotel.

I find therefore, that the complainant has not established grounds from which it may be presumed that discrimination has occurred.  For this reason, the burden of proving the contrary does not shift to the respondent.

Based on the facts and the evidence presented by both parties at the hearing, I have decided that this complaint is not well founded.

Discrimination, Traveller community ground