Complainant

Respondent

Parties

Thomas  Casey

The Merrymen Management Ltd

Representatives

John M. Spencer Solicitors

Pat Barriscale BL instructed by Clohessy & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057297-001

22/06/2023

The Complainant, a member of the Traveller community, alleged he was discriminated against when the Respondent, who operates a Hotel, cancelled a booking he had made for a celebration of his daughters communion one day before the event was due to be held. The Complainant alleged this was solely due to him being a member of the Traveller community. The Respondent denied the claim and stated the sole reason was due to a leak in the Hotel roof which was leaking water into the function room booked and made the room unsafe for use.

The Complainant is a member of the Traveller community.

The Complainant booked a room for 30 guests in the Hotel for Friday 5th May, 2023 for the occasion of his daughter's Holy Communion. The booking was made and accepted by the Hotel on March 7th 2023 and the Complainant paid a deposit of 525 Euros.

The Complainant heard nothing more about his booking until the evening before the communion when he was contacted by phone and advised that his reservation had been cancelled.

The Complainant attended at the Hotel and was shown a room that was fully set and ready for guests and the Hotel management indicated the Hotel roof had sprung a leak and the room in which the Complainants party was to be held was closed for repairs.

The Complainant indicated that he would be satisfied to relocate his function to an alternative room at the Hotel but he was advised that there was no other alternative room available. The Complainant alleged that his booking was cancelled because the Hotel discovered he was a member of the Travelling Community and as a result of this he was treated less favourably than other customers. As a result of this discrimination a very important milestone in the life of the Complainants daughter was ruined and much distress was caused to the family by this last minute cancellation.

The Complainant, having read the reply to the Equal Status notification, wished to state that the Hotel had many available rooms that were not affected by any water ingress. Furthermore, when the Complainant was shown the dining room, he believed that any water ingress was of a minor nature and no flooding or visible damage from flooding was apparent to him. The Complainant formed the impression that the Hotel authorities chose to cancel the booking rather than to use the available dining room or an alternative. The Complainant is aware that many citizens from the Settled Community were accommodated the following day, but his function and his guest members of the Travelling Community were cancelled.

The Complainant stated that when he entered the Hotel premises he had an awareness that something was amiss and he observed two middle aged men who seemed like Managers lurking at reception. The Complainant was confronted by a Manager. The Manager asked the Complainant if he had a party booked. At that stage the Complainant went to the gentleman's convenience without confirming that he had a booking. When he emerged from the gentleman's convenience he went towards the room that should have been the function room he would have attended the following day. The Complainant was again challenged by the Manager, who again questioned him as to whether he had a booking for the venue. The Complainant confirmed he had. The Manager informed the Complainant then that the party had been cancelled because of a leak in the function room. The Complainant stated he then went past the Manager into the function room and the Manager went to stop him physically by pulling around at his shoulder to stop him entering the room. The Complainant had entered the room and had begun recording. The Manager attempted to pull the phone out of his hand and a brief scuffle occurred before the recorded moments went past 5 seconds on the phone. Whilst in the function room the Complainant examined buckets and there was some water in the buckets but no evidence of water or any drip from any ceiling and nothing was noticed that would of itself stop a function from being held in the room. The Complainant stated he was told he was trespassing and the Hotel would be phoning the Gardai. The Complainant stated that prior to the entrance into the function room the Manager uttered words to him to say "you can't go in there, we are not having your type (kind) in here". The Complainant became upset on hearing discriminatory words. The Complainant wished to make clear that the Hotel premises is a very extensive one and which has 4  to 5 function rooms in which groups can be given hospitality. The Complainant would have been quite satisfied to avail of any alternative room rather than the room he had been shown around, but nothing was offered. The Complainant also made the following additional points:-

He had booked a Decorator to come in and decorate the room, place balloons and children's decorations for which he paid a deposit of €400.00 which he completely lost.

Arrangements for photographer, cake stands etc. cost the Complainant another €200.00

In addition to this the Complainant had paid a substantial deposit to the Hotel on taking the booking - €525.00. The disappointment and heartbreak caused to the Complainant's family was enormous. The Complainant had booked a horse drawn carriage and a vintage car to bring his daughters to the Hotel on the best days of their lives. As a member of the Travelling Community the Complainant is not aware of any Traveller function ever having been held at the Respondents Hotel.

The Complainant gave sworn evidence to the Hearing. He advised he booked the Hotel on March 27th 2023 and paid a 525 Euros deposit. He hired the room for 30 people with finger food and tea to be supplied. He advised he wanted to do something special for his daughters communion. He advised he wanted to put some decorations in the room and had a horse drawn carriage booked for the occasion. He advised he brought a special cake to the Hotel the day before for it to be stored in a fridge. On attending the Hotel the day before the booked event he went to the Hotel and was met by a man he claimed was very agitated. He was told his booking was cancelled and he felt something was wrong. He was told there was a leak into the room he had booked and he asked was there any other room available as he knew the Hotel had other meeting rooms. He alleged the Hotel Manager said he “was not having it”.  The Complainant said he wanted to see the room and the Manager pulled on his shoulder. The Complainant said he went into the room booked and it looked lovely. He tried to video the room but was told not to by the Hotel Manager and that the Complainant was trespassing. The Complainant said he got very upset and there was tears in his eyes. The Hotel Manager told the Complainant he was ringing the Guards.. The Complainant stated the carpets were dry and he saw no leaks from the ceiling and there was no water on the floor or carpet. The Complainant then went back to Reception and was met by someone with an envelope in their hands giving him back his deposit but the Complainant refused to take back the deposit, The Complainant stated he got stressed and left of his own free will. The Complainant went home and was contacted by the Garda and told there was not going to be a party in the Hotel. The Complainant stated he was at the loss of the Hotel booking (525 Euros), 1000 Euros for the horse drawn carriage and 1700 Euros for decorations.  (He advised he had paid 800 Euros of the decorations amount).  The Complainant advised his Representative that he had taken stills on his phone of Mr. O Nelll before he went into the room to show he was being told to leave the Hotel. The Complainant stated two staff tried to block him enter the room, He advised he never felt so low the way he was treated and had to go home and try explain the situation to his family. He advised there were lots of rooms in the Hotel and he felt shoddy the way he was treated. The Complainant was cross examined by the Respondent Representative and asked was he billed for and had a booking for 50 people not 30 people and that the booking was for 50 people by 10.50 Euros each equalling 525 Euros. The Complainant disputed this. The Complainant was asked that he did not get a phone call from the Hotel in advance of the event and he said he was busy at the time and it went to voice mail. It was put to the Complainant that he came to the Hotel at 5.30pm the day before the planned event knowing the event had been cancelled. The Complainant contested that he got a phone call. The Complainant was asked to agree that when he arrived at the Hotel he was asked by the Manager could they speak privately and to confirm that he told the Manager the booking was going ahead and was told that the ballroom was not in use and not to enter it. The Complainant stated he wanted to see the room for himself. The Complainant was asked to confirm he saw five buckets holding water in the ballroom (photos were supplied to the Hearing by the Respondent) and the Complainant stated he could not feel any water on the carpet. The Complainant was asked to agree that would it not have been an extreme danger to leave anyone into the room and that doing so would be dangerous to them. The Complainant repeated he saw no water on the floor.. The Complainant was asked to confirm that the Respondent did their best to speak with him calmly but that the Complainant got aggressive and that’s why the Respondent had to call the Guards. The Complainant denied getting aggressive in any way and using foul language but accepted he “got upset but not aggressive”. The Complainant was asked why he did not wait for the Guards (the Respondent was informed they were on the way and would arrive in 10 minutes and they informed the Complainant of same) and the Complainant replied he got so disgusted he left of his own free will. It was put to the Complainant that when he refused the return of his deposit he stated “Il sue you and get 10 times that amount and you will be hearing from my solicitor”. The Complainant denied saying this and stated no amount of money would compensate him for the distress caused. With regard to the use of the horse drawn carriage it was put to the Complainant that it was used on the day of the communion and the Complainant agreed it was used from the house to the Church but his claim was not about the loss of the cost. It was put to the Complainant when did he become aware that he had to pay 1700 Euros for decorations to a person called “Stevie” and the Complainant stated he had paid 800 Euros as a deposit 6 weeks before the event and was questioned why he had told his Representative he paid 400 Euros deposit and why he did not put in his WRC complaint form that he had paid 1700 Euros to “Stevie” and it was put to the Complainant that 1700 Euros was not paid to “Stevie” . The Complainant stated that “Stevie” wanted full payment as he lost the day of the event and could not do an event elsewhere.

The Respondent stated it would rely on its reply to the Equal Status Form 1 and appendices and verbal evidence of two Witnesses. In their reply to the Equal Status ES1 form they stated they had a leak in the ballroom and they attempted to contact the Complainant on a number of occasions to confirm this to him and to unfortunately cancel his booking due to the state of the ballroom. After attempting to contact the Complainant directly a number of times a voicemail was left on the Complainants phone to this effect. The Complainant, without any notification, attended the Hotel on the 4th May 2023 and got verbally abusive and physically threatening to the staff using foul and abusive language in connection with the cancellation of his booking. Once again, the reason for the cancellation was explained to the Complainant but he did not accept the explanation. The Complainant refused to leave the Hotel and it was necessary to call An Garda Síochána about his behaviour. The Complainant left the Hotel prior to the arrival of An Garda Síochána. The Respondent advised that reasons for when a booking for whatever reason must be cancelled, it is the normal practise to contact the client at the earliest possible time to advise of the cancellation and to confirm that the booking fee would be refunded.

Ms. Leanne Rafferty Food and Beverage Manager and Mr. Brian O'Neill, General Manager gave evidence to the Hearing.

Ms. Rafferty advised she has worked in the Hotel for 6 years and that there was heavy rain in the days before the planned event. She advised the roof is old and causes leaks and is an ongoing problem. She advised the areas affected were some bedrooms on the second floor, the kitchen, the ballroom, the back bar and the coffee dock. She was advised by the Events Manager that room bookings had to be cancelled on the basis of the last bookings received and people were generally understanding when told their rooms had to be cancelled. She advised there were 5 to 6 leaks in the ballroom on both sides of the room and that all other function rooms were booked for the following day, it being a busy communion time. She advised that she had a duty of care to staff and customers not to let them into a wet floor area. She advised the room was prepared for the function and ready to go until 2.30pm on the Thursday before the planned event when it was decided the room was not safe to use and the room was sealed off by Maintenance. She advised they then looked at the implications for functions and Hotel bookings and they rang the Complainant to advise him of the situation. She advised she kept ringing every 20 minutes but the call was not accepted by the Complainant. The Witness stated the Events Manager emailed the Complainant on the Thursday and sometime later the Complainant arrived at the Hotel and there were Hotel guests in the lobby. She advised Mr. O Neill tried to explain the situation to the Complainant but he started shouting and getting aggressive. She advised the Complainant shouted at two colleagues and stated he was going to do what he wanted. She advised she felt the situation was unsafe for herself and her colleagues and contacted the Garda. She advised the Complainant pushed past Mr. O Neill towards the Ballroom. She advised the situation lasted a few minutes and when the Complainant returned to the Lobby she gave Mr. O Neill the Complainants deposit in an envelope but he refused to accept it. She advised when the Garda arrived she was asked did she want to make a complaint and was there a physical threat of violence and the Witness stated she did not want to make a complaint. The Witness advised the deposit was left in Reception for two months but was never collected by the Complainant. The Witness was cross examined by the Complainant Representative about where she was located and she advised she was in the Lobby. She was asked did she see the Complainant enter the Ballroom and she advised she saw Mr. O Neill put his hand up to stop him but she did not see the Complainant enter the Ballroom. She advised the Complainant had to open the ballroom doors and was told not to enter for health and safety reasons. She advised the Complainant brushed past Mr. O Neill. The Witness advised leaks were a regular occurrence and a new galvanised roof was being installed. She advised she recalled four or fives times before she saw leaks in the Ballroom. She was queried why the Maintenance person could not have fixed the leaks over time and she advised there was an issue with the skylight also and repairing the roof was not something she was familiar with. She was told that the Complainant saw someone in the Ballroom (a young man with a white shirt) and the Witness stated there could not have been someone in there. The Witness was asked how could the Complainant not see any visible drops of rain and the Witness said she had seen drops of rain. It was put to the Witness that the cancellation email was sent to the wrong email address and the Witness did not accept this. The Witness stated she did not accept abuse and left a prior job because of abuse.

Mr. O Neill also gave evidence to the Hearing for the Respondent. He advised he commenced working for the Respondent in April 2022. He advised he was notified by Mr. Cleary of the difficulties with the Ballroom. He advised single bedrooms were cancelled and shared rooms were not. He advised he had a duty of care to customers and staff. He advised a decision had to be taken to cancel the event as no other rooms were available for functions and that the Complainant had to be contacted. The Witness advised he had never meet the Complainant before and was informed he was in the Hotel. He stated he met the Complainant and asked could they talk privately. He informed the Complainant the Ballroom was unsafe and the Complainant replied he was having the event there the next day. The Witness advised he was still trying to find an alternative and the Complainant started to record the Witness and the Witness informed him that he did not have his permission to record him.  The Witness advised that up to that time he never knew the Complainant was a member of the Traveller community. He advised the Complainant gave the Witness a shoulder and the Witness felt threatened and felt the situation could become violent. He advised the Complainant was walking around like crazy and he was concerned the Complainant might slip. He advised the Complainant told him he was going straight up to the Ballroom himself.  The Witness was cross examined by the Complainant Representative. It was put to the Witness that the Ballroom was recently renovated. The Witness stated it was redecorated. It was put to the Witness that the Complainant did not see any water on the floor or carpet wet. The Witness replied there was no great water on the floor as it was collected in buckets.  It was put to the Witness would it not have been easier to just let the Complainant into and see the Ballroom and the Witness stated there was a health and Safety issue in doing that. The Witness advised that it was difficult to organise another place for that number of guests. It was put to the Witness did he have any understanding of the loss and trauma to the family the cancellation caused and the Witness stated he had a mutual obligation to customers and staff. The Witness advised there was no other solution on the day but to cancel the event. He advised he as very apologetic to the Complainant up to the time the Complainant became aggressive. The Witness advised he had no objection to members of the Traveller community and recalled a Traveller community wedding being held in the Hotel with around 140 guests in June 2022, had Traveller community guests stay in the Hotel for months and had a Roma community wedding in April 2023. The Complainant Representative put it to the Witness that recently there was an event in the Hotel where 400 people attended and while members of the Traveller community attended the event they were not allowed admission to the internal Bar afterwards. The Witness replied that a number of people were refused entry as the Bar could not hold that number of people and was already full.

In the Respondents Equal Status reply it included a number of other employee statements regarding the leaks and the events of the day prior to the planned event. While these employees were not called as witnesses, I have included portions of their statements in this section for completeness.

Incident Report Date 4/5/2O23 ; Leak in pipes and into Ballroom Roof ; Paul O Meara

On Thursday 4th May I was alerted to a leak on the second floor and in the ballroom, there had been heavy rain, and this has triggered this leak. We have had these issues in the past on many occasions. It was not the only place to leak in the Hotel, it also happened in the bar back kitchen and the skylight on the top of the stairs. For as long as I have worked here the leaks have been an on going issue for the past 7 years. I spoke with Leanne as she had been asking me about the leaks and for the health and safety of both customers and staff  I couldn’t guarantee we were going to be able to stop the leak. The decision was made to seal off the ballroom for health and safety reason’s by Management.

lncident Report 4th May 2023 Duty Manager:- Vincent Cleary

I arrived into Work for my evening Duty Manager shift at 3pm on the 4th May 2023. I was notified by our Food and Beverage Manager Leanne Rafferty that we were experiencing water leaks throughout the Hotel. The water was leaking down into our ballroom which had been set up for a function the following day. We distributed buckets around the ballroom to catch as much water to avoid extensive damage in the ballroom. For safety reasons we cordoned off the ballroom to stop any access. Whilst I was closing the ballroom off, I noticed a gentleman open a door to the ballroom and when I called over to him and went towards the door he was at, he quickly closed the door. I followed in the direction where he went and he entered the gents toilets. ! went and notified our General Manager Brian O'Neill and F&B Manager Leanne that I had seen this gent trying to look into the ballroom.. Myself and Mr O'Neill walked back towards the gents toilets and the gentleman came out and walk towards the ballroom corridor. Mr O'Neill called out to the man and asked if he was ok and could he help him with anything. The gentleman stopped and said that he was due to have a function in our ballroom on the following day and identified himself as Thomas Casey. At this point Thomas Casey asked to speak to Mr O'Neill in private and they both went into the orangery. I did not hear what was said while they were in the room. When they came out of the orangery Mr Casey was very aggressive, loud and swearing. He asked to enter the ballroom but we advised for the safety reasons we could not allow him into the ballroom. At this point Mr Casey made a lunge towards the ballroom door over the cordon and barging Mr O'Neill, knocking him against the wall. We tried to pull him back but he had the door open and entered the ballroom. Mr O'Neill asked me to call the guards and as I went to our reception our F&B Manager was already on the phone to the guards. I returned to the ballroom and Mr Casey had his mobile phone in his hand and was recording, both myself and Mr O'Neill advised him that he did not have our permission to record us. We eventually managed to get him leave the ballroom and he made his way out to the reception area.

The Complainant alleged that he was discriminated against by the Respondent on the grounds of his 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.

The matter for decision is whether the Complainant, as a member of the Traveller Community, was discriminated against by the Respondent. While I totally accept that the cancellation of the event was a very difficult situation for the Complainant and his family on an important day, this is not fundamental to my decision making.

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. There was no dispute that the Complainant was denied the opportunity to avail of the service booked..

I accept that the Complainant has made a prima facie case that discrimination can be “inferred” and the onus shifted to the Respondent to rebut the inference of discrimination raised.

The core question for the Adjudicator is are the grounds put forward by the Respondent reasonable and believable as to why the event was cancelled or was there some form of deliberate action to deny the Complainant, as a member of the Traveller Community, access to the room booked. In my investigation I addressed this very question to Mr. O Neill and am satisfied from his evidence and responses given above that there was an unplanned leak into the Ballroom (and other parts of the Hotel) and that there was no ulterior discriminatory motive to deny the Complainant the use of the room. I had photographic sight of the buckets holding the water leaking from the roof and am satisfied with the evidence given by Mr. O Neill, on affirmation and being advised of there being serious penalties for perjury, that the buckets were collecting water leaking from the roof and were not placed in the ballroom by a member of staff to create a reason to cancel the function.  Mr. O Neill cited two prior events were members of the Traveller and Roma community had use of the Hotel room facilities for celebrations thus showing no bias towards members of those communities. I also put significant weight to the other statements and evidence of staff members who all stated the roof was leaking into the Ballroom. I am also conscious of the Respondents obligations to people to ensure that their rooms are a safe zone and allowing access to the Complainant and members of the public to an area that was leaking water could have serious consequences if an accident or slip occurred. Overall, I am satisfied with the evidence of the Respondent that an unfortunate leak occurred in the Ballroom (and other areas) justifying the cancellation of the planned event, that no alternative options were available on the day and that no planned discriminatory action took place to deny the Complainant access to the event booked.

I find that the Complainant was not discriminated against, and the complaint is not well founded.

Refusal of Service