Complainant

Respondent

Anonymised Parties

A Minor

An Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060195-001

23/11/2023

The Complainant alleges he was discriminated against on ground of disability, family status, accommodation, harassment.

The Complainant’s mother, (herein after referred to as Mrs. J) took the affirmation and gave her evidence as follows:

On 02nd August the Complainant arrived at the Respondent Hotel with his father (hereinafter referred to as Mr. J) and three siblings. The Complainant has a diagnosis of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. Mrs. J followed down later that evening.  She was attending a training course with their son’s service dog that day. The dog is called Rachel.  Rachel has a high vis jacket and bandana with the autism logo on it.  All went well that evening. They moved about the Hotel with no issue. The next morning the family and Rachel went for breakfast. They then returned to the room. The staff had been in to clean the room.  The dog’s crate was in the room, so the staff would have seen it. The kids then went for a swim and the dog waited with Mrs. J whilst the rest of the family swam. After lunch they called to reception in relation to an issue with the kettle. Two staff came to the room to resolve the issue and they observed Rachel there. There was no issue. They then were to dinner with the dog and again there was no issue. At approximately 11pm when they were going to bed the dog started to bark because there was a lot of noise on the corridor. Then Mr. JS knocked to the door. The Mr. J explained the dog was a service dog for their son who has autism. He seemed happy with that and left. About 10 minutes later Mr DC came to the door and said no pets were allowed and they would have to leave. He asked for identification documents for dog. They didn’t have it on them. The only thing they had was the service dog provider bandana. He kept referring to the dog as a family pet. He then said they could stay but the dog had to leave. The Mrs. J asked what were they supposed to do with the dog? He stated that they could lock the dog in the car for the night. That was not an option.  He then said they all had to go as the dog could not stay. The Mrs. J asked for a letter setting out they were asked to leave. After that he left. He came back ten minutes later and said we could stay but we had to keep the dog quiet. They couldn’t guarantee Rachel wouldn’t bark again because of the racket on the corridors. The family packed up their belongings and left the Hotel. The following day the Mr. J called the Hotel to see what time Mr. DC would be working as he wanted to get the letter that he had promised them.

Two of the children were very upset about the situation. They are all now are very anxious about the dog coming out with them because they are fearful that they might be asked to leave.

One of the statements uses the name “C….”. The booking was made in the name of name of the Complainant’s mother. Two of the kids have the surname C….  but that wasn’t known at the material time. Therefore, the conclusion can only be the statements were made months after the events when the claims were filed. 

Under cross examination the Mrs. J  stated, that she did not inform reception when she arrived with the dog. When the booking was made in May 2023, they did not have the dog then, so they didn’t seek permission to bring the dog.

The Complainant’s father, Mr. J took the Affirmation and gave his evidence as follows:

When Mr. DC came to the door he, Mr J. offered to stay in another room with the dog. The older two kids were extremely upset about the situation, and he wanted to resolve it as quickly as possible. The dog was wearing her ID in the form of a bandana. On it, it stated “My canine companion autism therapy and services”.  Mr. J  was certain that he offered to go to a different room with Rachel.  The Respondent denied that he ever suggested moving to another room. In any event the Hotel was completely booked out.

Mr. JS - affirmation.

He is the Operations Manager in the Respondent Hotel. He is the most senior in the absence of the Assistant General Manager and the General manager.  He made his statement the following day 4th August. He made reference to Mr. & Mrs. C because that was the name of the email attached to the booking.

On the evening of 03rd August at around 10.30pm he was caused to check room 308 as a complaint had been received from room 310. The guest stated that a dog was barking. They had no record of a dog being in that room.  He knocked on the door. He introduced himself. He explained that he had received a complaint about a dog barking. Mr. J said “can you not see kids running everywhere and making noise, that is why the dog is barking” He explained that he had deployed staff to monitor the corridor. He explained the Hotel is dog friendly, but the Hotel needed to be informed if a dog was coming to the Hotel. He went on to say that the fee for bringing an undeclared dog/pet into the Hotel is €40.00. At that point Mr. J stated that there is no obligation to inform the Hotel about the dog as the dog is a registered service dog. That was the first time the Hotel were informed that the dog was a service dog. Mr.JS came back to reception and informed staff that there was a dog in the room. A few minutes later they got a second call from room 306. Mr. DC and Ms. G went to the room this time. In about 20 minutes Mr. DC came back and stated that the family don’t want to stay they want to leave. Mr. JS didn’t want them to leave so he went up to the room. He asked permission to come into the room and was granted that permission. When inside the room he said, “please stay, do not go”. He said he was only here because guests were complaining. He did ask if the dog could be kept quiet. Mr J. wouldn’t speak to him. The Complainant’s father said that they were going to go. Mr.JS came back to reception and spoke to this colleagues, Mr. DC and Ms. G and explained that the family had decided to leave despite him asking them to stay.  About 10 minutes later Mr. J came to reception and asked to talk to a manager. Mr.JS came out. He said “ I don’t want to talk to you I want to talk to the other manager “ he was aggressive. He then said to Mr. DC  “make sure you save up the footage because I am going to my solicitor”.  He asked for a letter stating that they had been asked to leave. They were never asked to leave so we didn’t write that letter.

In cross examination Mr. JS was asked why his evidence about the kids running / not running in the corridor differs from his statement. He stated that at the time he was there at the room there were no kids running around. He did say they were working on it. 

The booking was made in the name of the Complainant’s mother. Mr. JS stated that he couldn’t remember where the name C….y came from but later clarified that it was on the reservation email sent by the Complainant.  Two of the children in the family have that in their surname However, those names were not declared to the Hotel. Mrs. J asked Mr.JS if he had made his statement months later. He stated that he had written it the next day.

Mr. DC - affirmation.

He was working in the Hotel on 02nd August. He did see them with the dog on the evening of the 2nd. Mr. DC was in the back office at the time the second complaint came in about a dog barking. The dog was undeclared. After talking to the Manager, he went to the room with a copy of the dog policy. He introduced himself as did Ms. G. He explained they had received a second complaint about the dog. Mr J. asked about the kids running up and down the corridors. There were none at that time. When asked Mr. J what the policy said about service dogs, Mr. DC pointed out that the policy does not include service dogs. He handed the policy to him.   Mr. J was asked if he had any documentation in relation to the dog’s status. He said he didn’t. He asked if someone coming in a wheelchair would have to declare themselves, Mr. DC replied “yes they would so that accommodations could be made for them”. Mr. DC then suggested that perhaps the dog could spend the night in the car. Mrs. J asked Mr DC for a letter stating that they had been requested to leave the room. He went back to reception and told Mr. JS that they were leaving. He then left and went up to them to persuade them to stay. Mr. J then came down to reception. He was aggressive. He wouldn’t talk to Mr JS. Mr. DC spoke to him. He asked Mr. DC for the letter and the CCTV.

Asked under cross examination was the dog barking, he said it was not, but it was whining. When the door was closed, and they were all outside on the corridor he could not hear the dog. 

In his statement he stated “the dog could not stay in the room”. He didn’t make any other suggestions. Mr. DC  stated that when he suggested the dog spend the night in the car they decided to go home.

Mr.DC  stated that he felt intimidated by the Complainant’s father when he saw him at the Hotel the next day. He was informed that he had called and asked what time Mr. DC was starting work at. He stated that he found that unsettling as Mr J had been very aggressive the previous night.

In re-examination Mr. DC was asked if had asked the family to “leave the Hotel”. He categorically denied that he asked them to leave.

 Mr. W – Affirmation

On the night of 03rd of August he arrived on duty at 11pm. He was given his handover by Mr.JS. At around 11.05pm he informed him that there was a situation with room 308. He stated that a dog was in the room. Mr.DC was up at the room at that time. The Complainant’s father came to reception and asked him about the CCTV and he asked how long it was kept for. Mr. W went into the back to check but when he came back, Mr. J was gone. He came back to reception about 20 minutes later, 11.45pm and said that he wanted to talk to the Manager he had spoken to earlier. He was informed that they had gone home and were off duty. He got aggressive and said that Mr. W was lying and that they were in the back office hiding from him. He asked for the letter. Mr. W couldn’t provide it to him. He got more aggressive and accused Mr. W of being aggressive.  He then slammed his room keys onto the counter and left.  Ms. J asked why the Gardai were not called if he was so aggressive. Mr. W replied that they do not call the Gardai every time someone gets aggressive or shouts.

Mr. BE took the affirmation and gave his evidence as follows:

He is the General Manager. He became aware that there was issue with the Complainant’s family and they had left the Hotel when he came in the following day. He waited until they came on duty later that day. That afternoon Mr. J came into the Hotel. Mr. BE came down to talk to him. He was upset. He was looking for a letter from Mr DC. Mr. BE told him that Mr.DC didn’t have the authority to give him such a letter. He was loud and upset so he was asked to move to a different area. He agreed to move. It was explained to him that the Hotel did not know the dog was a service dog. The dog was barking, and they have a duty to all their guests. If they had known, they were coming with a service dog they would have been put in a different room in a quieter part of the Hotel. That is what caused the confusion. The Hotel have had issues in the past with guests sneaking in dogs to avoid paying the €40.00. If they had been informed the dog was a service dog none of this would have happened. 

The email with the booking request was in a certain surname. That is why there is now confusion about what the family surname is.

The Respondent received an email from Mrs. J about the issue. Mr. BE replied and in doing so explained how the confusion arose.  That email was forwarded onto the team.

In cross examination Mr. BE did admit that at the time he wasn’t fully up to speed with the differences in the law in relation to Service Dogs and Guide Dogs. He is now.

It is admitted that the dog was in the Hotel for 24 hrs before the issue on the night of the 4th August. What the staff didn’t know that night was that the dog was a service dog and that she was in room 308.

The Respondent relies on the case of EDA 1822. The Court dealt with the area of constructive knowledge. The fact is that at the time of the issue with the dog the Hotel staff did not know the dog was a service dog. The family did not inform the Hotel that they had a service dog with them. They say they have no obligation to do so however were unable to demonstrate why they have no obligation to so.

I find that this decision is one that should be anonymised due to the personal medical information that was discussed in evidence in relation to the Complainant and due to the age of the Complainant.

The Complainant is alleging that he was discriminated against on the grounds of disability and family status, accommodation and harassment.  The Complainant, his parents and his three siblings were staying in the Respondent Hotel. They had with them a service dog called Rachel. The Complainant’s parents did not inform the Hotel they were bring a dog with them nor did they inform the Hotel the dog was a registered service dog. The Hotel is a dog friendly Hotel so it would not be unusual to see dogs with their owners moving about the Hotel.  However, all dogs who stay at the Hotel, save for registered service dogs, must pay a €40.00 fee. There is also a designated area in the Hotel for dogs.  When the dog started barking late into the evening confusion arose as to the status of the dog. The Complainant’s mother conceded that they did not tell the Hotel the dog was coming with  them for their stay or that the dog was a service dog. She also admitted that she did not have papers for the dog to show the Hotel.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...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. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“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 fact from 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 provide that there was no infringement of the principle of equal treatment.

Disability

The definition of disability contained in the Equality Status Acts is set out in a list of broad categories as follows:

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour”.

In this jurisdiction disability has been interpreted in an extremely broad way. In An Employee v. Bus Eireann [2003] ELR 351 it was held that heart conditions amount to a disability for the purposes of the Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability. Further, as was suggested in A Government Department v. A Worker EDA094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability.

I am satisfied that the Complainant does have a disability within the meaning of Act.

Having found that the Complainant has a disability within the meaning of the act I must now establish if Complainant has established a prima facia case of discrimination on the ground of claim, disability and family status, accommodation and harassment.

No evidence was adduced in relation to the alleged discrimination on the family status, accommodation or harassment ground. Therefore, I find that the Complainant has not established a prima facia case of discrimination on those grounds.

In relation to the disability claim, I find based on the evidence of the both the Complainant’s parents and the Respondent’s witnesses that at the time the Hotel were dealing with the complaints that a dog was barking in room 308 they did not know either that Rachel was a registered service dog or that any of the children staying in that room had a disability. The Complainant’s parents did not provide any documentary evidence to the Hotel or during the hearing that the dog was a registered service dog.  The Complainant’s parents both gave evidence that they were not obliged to inform the Hotel that they had a service dog with them. They were unable to provide evidence or provide me with any policy or statement from the relevant governing authority which stated that someone does not have to inform a Hotel that a service dog will be staying at the Hotel. The Hotel has a duty to all of its guests, those with disabilities and those without. It cannot make accommodations for individuals who need them if they do not know that person has a disability. During the various discussion with the staff of the Hotel on the night of the 4th August both Mr.J and Mrs J. did tell them that Rachel was a registered service dog but they could not provide any evidence of that. The Hotel did try to come up with some solutions to deal with the complaints that had come from the rooms either side of room 308 about the dog barking. When those suggestions were rejected by the Complainant’s parents, they did request that the family stay. They specifically asked them not to go.  They left anyway stating that they could not guarantee that the dog would not bark again.

The entire situation could have been avoided had the Complainant’s parents informed the Hotel that they intended to bring their child’s service dog with them. If they had done that, they would have been given an appropriate room for both them and the dog and this very unfortunately event could have been avoided.

On the basis that no documentary evidence was adduced  to the Respondent at the material time or to me during the hearing that Rachel is in fact a registered service dog and based on the Complainant’s parent’s evidence that they did not inform the Hotel at any time prior to the complaints being made about barking from room 308 that their dog was service dog and that they were encourage to stay when they had decided to leave, I find that the Respondent its servants and/or agents had no actual or constructive knowledge of the facts necessary for the Complainant to establish that they discriminated against him on grounds of disability. Therefore, I find that the Complainant has failed to established a prima facia case of discrimination therefore the complaint fails.

The Complaint fails.

Disability. Service dog. Evidence. Actual Knowledge. Constructive Knowledge.  Burden of Proof.