Complainant

Respondent

Parties

Martin  McDonagh

Mulroy Woods Hotel

Representatives

Niamh Quinn BL instructed by Garrett J. Fortune & Co. Solicitors

No appearance by, or on behalf of, the Respondent at the hearing

Act

Complaint Reference No.

Date of Receipt

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

CA-00060466-001

11/12/2023

The Complainant contends that he was refused accommodation in the Mulroy Woods Hotel due to his membership of the Traveller community.

On 18 August 2023, the Complainant used the hotel booking platform Booking.com to book several rooms for himself and his family members for the night of 20 August 2023 in the Mulroy Woods Hotel. The Complainant used his own name on the booking which was confirmed via the Booking.com website. At around 12.40pm on 19 August 2023, the Complainant received a telephone call from the Mulroy Woods Hotel to say that they would need to cancel his booking as they had no availability on 20 August 2023 and that it had been through a glitch on the Booking.com website that the booking was confirmed.

At around 3.30pm on 19 August 2023, the Complainant attempted again to book a hotel room at the Mulroy Woods Hotel, this time using the surname Fitzgerald. This booking was accepted and at around 3.40pm, the Complainant telephoned the Mulroy Woods Hotel to confirm the booking and ask that a cot be added to the booking.  There was no difficulty raised nor did the hotel mention any issues with overbooking of rooms.

At 4.30pm on 19 August 2023, the Complainant completed a booking for another family member under that family member’s own maiden name, which again was confirmed without any issue. A further booking was made under another family member’s name, which was also confirmed without issue.

The Complainant attended the hotel on 20 August 2023 and spoke to the staff member on reception who confirmed his booking.  When the Complainant queried why he had been told that there was no availability, he did not receive an answer.  The Complainant did not stay in the hotel on the night of 20 August 2023 as he felt too uncomfortable to do so. 

The Complainant submits that he was discriminated against by the Mulroy Woods Hotel based on his surname and membership of the Traveller Community.  The Complainant submits that there was no glitch with the Booking.com website.  The Complainant submits that the Mulroy Woods Hotel used this as an excuse to legitimise their discrimination against the Complainant based on his membership of the Traveller community. The Complainant was able to book the rooms he sought using other, non-Traveller surnames without any issue. Further, when these rooms were booked the Complainant was able to telephone the hotel to confirm and seek the addition of a cot to the booking without any issue regarding room availability being raised.

The Respondent did not attend the hearing into this complaint.  I am satisfied that the Respondent was on notice of the date, time, and location of the hearing.

On the morning of the hearing, the WRC staff member who was hosting the remote hearing twice attempted to call the Respondent using the telephone number which had been provided by the Respondent. The WRC staff member did not receive a response to either of her phone calls.

In making my decision I must consider whether the presumption of discrimination has been established by the Complainant. Section 38A of the Equal Status Act 2000, as amended (the Act), sets out the burden of proof which applies in a claim of discrimination. The Act requires a complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is only where such a presumption of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

Section 38A of the Act states as follows:

“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.

 This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

This provision clearly puts an onus on a complainant to provide evidence from which it may be presumed that prohibited conduct has occurred. The requirements placed on a complainant in this regard were set out by the Labour Court in the case of Mitchell v Southern Health Board [2001] ELR201, where the Court stated as follows:

“A claimant must prove, on the balance of probabilities, the primary facts on which they rely seeking to raise a presumption of unlawful discrimination. It is only if those 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 prove that there was no infringement of the principle of equal treatment.”

In establishing a presumption of discrimination, a complainant must, therefore, establish that they are covered by the relevant discriminatory ground and that there was specific treatment by the Respondent which could reasonably give rise to the presumption that less favourable treatment had occurred.

With regard to the this, I am satisfied that the Complainant is a member of the Traveller community and is, therefore, covered by the relevant discriminatory ground.

The Complainant alleges that he suffered discrimination when an offer of accommodation was withdrawn by the Respondent. 

In considering this matter, I am conscious of the decisions of the Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 confirming the position that discrimination can be conscious or sub-conscious and can, therefore, be difficult to prove.

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility ofunconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

Offer of accommodation

The Complainant, who has surname which is often identified as common surname within the Traveller community, booked a stay in the Respondent’s hotel for himself and some family members for the night 20 August 2023 using the online booking platform, Booking.com.  The Complainant’s booking was accepted by Booking.com.  However, the Respondent subsequently contacted the Complainant to say that due to technical issues, it was not able to honour the Complainant’s booking.

The Complainant then rebooked his stay with the Respondent using an alternative surname which was not readily identifiable as a common surname within the Traveller community.  This booking was accepted by Booking.com and was honoured by the Respondent.  The Complainant and family booked additional accommodation with Respondent for the same night again using non-common Traveller surnames.  These bookings were accepted by Booking.com and honoured by the Respondent.

I note that on 19 August 2023, the Complainant contacted the Respondent to request that a cot be added to his booking.  No issue regarding the availability of accommodation was raised and the amendment to the booking was accepted.   

From the uncontested evidence put before me by the Complainant, I find that the Complainant has successfully established a presumption of discrimination and that, as a result, the burden of proof switches to the Respondent.

As the Respondent did not attend that hearing, I have been deprived of the opportunity to hear its views on this complainant.

Having carefully considered the uncontested evidence of the Complainant and bearing in mind the findings of the Labour Court referred to above, I am satisfied that, on the balance of probabilities, it is most likely that the Complainant was denied the opportunity to use the Respondent’s facilities because of his membership of the Traveller community.

Consequently, I find that the Complainant has been discriminated against on the Traveller community ground and the Respondent is in breach of the Act.

Based on the uncontested evidence of the Complainant, I find that the Complainant was discriminated against by the Respondent contrary to sections 3(1) and 3(2)(i) of the Act on the grounds of his membership of the Traveller Community.

I award the Complainant the sum of €5,000 in compensation for the effects of the discrimination.

Membership of the Traveller community – Hotel accommodation