Complainant

Respondent

Anonymised Parties

A Member of the Travelling Community

A Hotel

Representatives

Oliver Roche, Roche McBride Solicitors

Peter Nolan BL instructed by Brian McMullin Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 25 of the Equal Status Acts.  

CA-00057521-001

03/07/2023

This is a complaint brought under the Equal Status Acts (ESA.) The Complainant alleges that the Respondent refused to allow him to make a restaurant reservation because he is a member of the Travelling Community.

The Respondent accepts that it refused the Complainant’s request but contends that the refusal was not because he was a member of the Travelling Community but because he was involved in a serious physical altercation with his brother in the premises four years earlier and since then he was barred.

No “special circumstances” application was made for this Adjudication to be heard other than in public or for the parties’ identities to be anonymised in the published decision. However having heard the Complainant’s evidence, I have heard that he wishes that his children are not discriminated against because their father is a member of the Travelling Community although his wife is not. As publication of the Complainant’s identity in this decision could impact upon the Complainant’s wife and children, who are not party to this complaint I am satisfied that this is a good reason to anonymise the parties identities in this decision.

The Complainant gave evidencein chief under oath as follows:

The Complainant is a member of the Travelling Community.

On the 10th of March 2023 the Complainant, his wife, his son and their two daughters attended the Respondent Hotel to make a dining reservation on Saint Patrick’s Day, which was then a week later.

At the Reception Desk of the hotel the Complainant was told that no reservation could be made.

The Complainant asked to speak to a manager. The manager came to the desk and told the Complainant that he was barred from the premises. When Complainant asked why he was barred,  he was told it was because he had been involved in a fight on the premises on the night of 22nd of December 2018 for which the Gardai had to be called.

The Complainant told the manager that he had been defending himself that night and that the fight was not his fault. The manager said that that was not relevant and that he would not be permitted to make a table reservation.

The Complainant then outlined to the Adjudication the circumstances and what had happened on the 22nd of December 2018.

He had booked in to stay in the hotel on the evening of 22 December 2018. Having checked into his bedroom, he went down to the bar.

Other members of his family arrived, and they started drinking. The Complainant said that the craic was good and that everyone was having fun. Later that night, out of nowhere, the Complainant’s brother hit him twice and was about to hit him a third time when the Complainant by way of self-defence hit him back. At that point Respondent staff intervened with other family members and he and his brother were removed from the premises. The gardai were called and both he and his brother were arrested on the street for public order offences and criminal damage. A prosecution was not proceeded with.

The Complainant said that he visited the hotel once between the December 2018 incident and March 2023 and was served without any problem. About a year and a half or two years after the 2018 incident, he met his cousin there. They stayed for between an hour and an hour and a half. No one asked him to leave. On that occasion he left at his own free will. That was the only time he was back in the hotel since the 2018 incident.

When asked by his solicitor why in his view, had he been refused restaurant service on the 10th of March 2023 he said that he believed it was because he was a member of the Travelling Community. He believes that if a settled person attended the hotel on 10 March 2023 to make a restaurant booking that they would have been allowed.

The Complainant was cross examined and gave the following evidence.

He could not remember the date that he re-attended the hotel but said that it was between one and a half and two years after the 2018 incident, but he does not remember the exact date.

He accepts that no discrimination language was used in relation to him by Respondent staff on 10 March 2023.

He accepts that he booked in to stay in the hotel on the 22nd of December 2018 and that there was no problem with him booking the room. To the question did this not prove that the Respondent provides service to members of the Travelling Community, just not those who get into fights, he said he does not accept that the reason he was refused service was because of the 2018 fight. It is his firm belief that it is because he’s a member of the Travelling Community.

When asked (which the Respondent denies) but if it is true that he attended the premises with his cousin after 2018 (both being Travellers) was that not also evidence that members of the Travelling Community are welcome at the hotel, the Complainant did not answer.

When asked, did he accept that the Respondent accepts custom from everybody whether they are a member of the Travelling Community or not. He said he did not know but said that he was refused entry on 10 March 2023. When it was put to him that his own parents (who are Travellers) are regular customers at the hotel, he did not reply.

With respect to the incident on the 22nd of December 2018 he said that he booked into the hotel at about 6 or 7 pm. He accepts that he had no problem either booking the room or checking in and that no issue was raised about his Traveller status.   He accepts that there was no issue with him being served drinks in the bar. He said that he started drinking with members of his family (who are also Travellers) and there was no problem with that. He said that he was drinking Guinness and that before the fight with his brother occurred after he had consumed between 10 to 12 pints of Guinness.

He does not recall being told by Respondent staff that their group was too loud.

When the Respondent’s version of events of the night of 22 December 2028 was put to him by the Respondent representative, he said that this was all untrue.

He said that he can’t remember who was standing or who was seated when the punches were first thrown but he does recall that his brother punched him first, out of nowhere.

He accepts that the tables and the chairs were up ended and that the drinks went everywhere.

He said that he cannot recall patrons being frightened but he said that nobody was hurt arising out of the incident.

He accepts that the Gardai were called.

He said that he recalls being separated from his brother by staff and that staff and another brother and his wife brought him outside the premises.

He did not accept that the fight was violent. When it was put to him that for him violence is acceptable and normal, he did not agree. He accepts that he was arrested but that his brother did not provide a statement against him to the Gardai and that he did not provide a statement against his brother. He stated his view that no brother would normally press charges against another. He was told that the prosecution did not proceed.

He said that he was not aware that he was barred because of the fight until he was told this on the 10th of March 2023 by the manager. He said that does not recall being barred on the 22nd of December 2018.

He accepted that a staff member who had witnessed and intervened in the fight on December 2018 was present when he attended the hotel on the 10th of March 2018

When he was told on 10 March 2018 that he was barred the Complainant said ‘but I have been back here since 2018.’ When the manager said he was barred because of the fighting on the 22nd of December 2018 the Complainant objected to that because it was self-defence.

The Complainant said that when he and his family were refused service on the 10th of March 2023 given that he was with my family and that a lot of time had passed since 2018 he felt that the real reason for the refusal was because he was a member of the Travelling Community.

end of cross-examination

No evidence was tendered on behalf of the Respondent.

Following the Complainant’s evidence the Respondent’ representative requested that the complaint be dismissed because the Complainant has failed to prove a prima facie case of discrimination based on a protected characteristic, namely his membership of the Traveller Community.

Jurisdiction

1.       I am satisfied that the complaint was issued within time

2.       I am satisfied that an ES1 form, or a satisfactory version thereof, was served by the Respondent within the statutory two-month period.

3.       With respect to whether the jurisdiction of this complaint lies in the WRC or District Court, I find as follows:

Legislative background

Prior to 2003, complaints of discrimination under the Equal Status Acts [ESA] that occurred ‘on or at the point of entry to licensed premises’ were dealt with by the Equality Tribunal (whose functions were taken over by the WRC in 2015.) However, section 19 Intoxicating Liquor Act (ILA) 2003 transferred jurisdiction from the Equality Tribunal to the District Court in cases of ‘prohibited conduct’ at the point of entry to a licensed premises, except in relation to discrimination in the provision of accommodation or any services or amenities related to accommodation, or ceasing to provide accommodation or any such services or amenities, which remained within the remit of the ESA and the Equality Tribunal (now WRC), as opposed to the ILA 2003.

This complaint is that the Complainant with his wife and children entered the Respondent’s hotel premises on 10 March 2023 and requested to make a table reservation for a family dinner in the hotel restaurant the following week, on the afternoon of St. Patricks Day and were refused on the ground as alleged by the Complainant, that he is a member of the Travelling Community.

The Respondent premises is a hotel. The services that it provides are inter alia; accommodation, events and providing hospitality in the form of a bar and a restaurant.  As is entirely normal this premise is both a licenced premises and a hotel. It is agreed by the parties that the alleged discrimination did not occur “on or at the point of entry to a licensed premises” but rather within the reception area of the hotel.

Based on this together with the Respondent’s position -  that they are not seeking to rely on section 19 of the ILA -  I am satisfied that the alleged discrimination was the refusal of a service, namely the making of a dining reservation in the restaurant of the hotel which comes within the definition of “service” in section 2 (1) of the ESA (“access to and the use of any place.”)  

I am satisfied that the complaint is not impacted by section 19 of the ILA and I find that the complaint therefore remains within the jurisdiction of the WRC to investigate. 

Equal Status Acts 2000 [ESA]

The ESA prohibits discrimination in the provision of a service.

Discrimination under the ESA is prohibited on ten specific grounds. Membership of the Travelling Community is one of the prohibited grounds.

Discrimination for membership of the Traveller Community occurs when a person is treated less favourably, in comparison to another, because one person is a member of the Traveller community and the other is not.

To prove discrimination the Complainant is required to prove prima facie evidence that

(a)    He is a member of the Travelling Community

(b)    He was refused a service and

(c)     That the refusal was (on the balance of probabilities) because of his membership of the Travelling Community

The parties are in agreement that the Complainant has proven both (a) and (b) above however he is also required to prove a causal nexus between the refusal of the service and his Travelling Community membership.

A casual nexus can be proven if discriminatory language is used by a Respondent when the refusal of a service occurs. Alternatively,  and more usually (because typically people tend not to admit to discriminatory conduct) it is proven by use of a comparator, to show that the Complainant was treated in one way whereas a person without the protected characteristic was treated in a different and better way.

In previous successful cases the evidence to prove prima facie discrimination has been for example that Traveller man when using his real surname was refused hotel accommodation on grounds that the accommodation was full but when he tried again using an alternative surname, he was told that accommodation was available. Or where accommodation is available to the wife of a Traveller when using her maiden name but was not available 5 minutes earlier when her husband attempted to book a room using his name and was told the hotel was full.

In each successful case proven facts, as opposed to a belief has allowed an Adjudicator find that evidence proves (on the balance of probabilities) the refusal of the service was due to a protected ground.

Unless this causal nexus is made, a belief that discrimination has occurred, remains only that, a belief or assertion.  

In accordance with the ESA, if prima facie evidence of discrimination is not proven, which is upon the Complainant to discharge, the burden of proof does not shift to a Respondent.

Unsubstantiated beliefs or assertions that discrimination has occurred are not sufficient to establish a prima facie case. In Melbury Developments Ltd v. Valpeters EDA [2010] ELR 64, even though it is an employment equality as opposed to an equal status case (the test being the same) the Labour Court stated as follows:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they 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.”

Application of Law to the facts

Proof of a protected characteristic and refusal of a service alone do not of themselves evidentially meet the prima facie test.

The Complainant does not contend that discriminatory language was used when the service was refused to him and his family on 10 March 2023.

By not providing comparator evidence what has been proven is (a) that the Complainant is a Traveller and (b) that the Complainant was refused a service but not (c) that the reason that he was refused a service was because he was a Traveller.

I am satisfied that the obligation to prove a causal connection between his membership of the Travelling Community and the refusal of the service, has not been discharged by the Complainant.

I am not required to go further with this investigation or to consider additionally if there were non-discriminatory reasons why the Complainant was refused a service. As I have found that no prima facie discrimination has been proven, my statutory obligation to further investigate and make findings with respect to this complaint, ends.

However, it is relevant because the Complainant has admitted facts which could provide a reasonable explanation for his exclusion from the premises, this makes the requirement for comparator evidence (or other evidence which proves that it was his Traveller status alone as opposed to any other reason) to be even greater. 

Conclusion

I find that the Complainant has not discharged the burden of proof in this complaint. The ESA does not require the Respondent to give evidence where no prima facie evidence of discrimination exists. I am not satisfied that the Complainant has provided evidence which would allow a finding that the Respondent’s refusal to provide him with a table reservation on 10 March 2023 was because he is a member of the Travelling Community.

With no evidence to support the causal nexus in this complaint, the Complainant’s assertion that discrimination occurred on that day remains an assertion only and falls short of proven facts which would permit a finding that discrimination took place.

As the Complainant has not discharged the burden of proving a prima facie case of discrimination, I find that this complaint is not well founded.

I find this complaint is not well founded.

ESA – Discrimination – Membership of the Travelling Community