Complainant

Respondent

Parties

Margaret  Avanzo

M J Sheehan Limited t/a Devon Inn Hotel (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

James Kane BL instructed by FLAC - Free Legal Advice Centre

Jack Nicolas BL instructed by PG McMahon Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064499-001

02/07/2024

The Complainant, a Palliative Care Worker and member of the Traveller Community gave her evidence an affirmation. It was the Complainants complaint that she was discriminated on the grounds of race and membership of the Traveller Community by the Respondent on 24 March 2024.

Mrs Mary Sheehan. Gave evidence on affirmation. As a witness for the Respondent.

Both parties were legally represented at the hearing with written submissions received in advance. It may be helpful to the parties to note there is no requirement to include the Complaint Forms and acknowledgment correspondence from the Workplace Relations Commission, including notice of hearing dates, in the submission bundle. All this documentation is fully available to the Adjudication Officer.

The Complainant’s ES.1 was dated 22 April 2024 with a response received from the Respondent on the 13 June 2024. The Complaint Form was received by the Workplace Relations Commission on 2 July 2024.

The complaint was heard along with ADJ-00052746 and ADJ-00052741.

It was the Complainant's evidence that on 24 March 2024, she was with her sisters. The Complainant identified as a member of the Traveller Community. They were returning from a shopping trip in Limerick and were on their way home when they stopped at the Respondent’s hotel for lunch.

Upon entering the hotel, she was met by a person whom she now believes was Mrs. Mary Sheehan at approximately 2:30pm She was advised that there would be an approximate wait of 15 minutes for a table, which she had no issue with.

It was her evidence that Mrs. Sheehan then changed her mind about offering them a table. She described Mrs. Sheehan as becoming quite aggressive and saying, "Your kind is not wanted around here."

She further explained that two men and a lady, whom Mrs. Sheehan appeared to know by name, walked straight past them into the bar area.

When her sister Kathleen pointed out the free tables in the bar area, the Complainant described feeling very bad and walked out.

It was the Complainant’s evidence that she then went back into the hotel and asked the lady for her name. In response, she stated that Mrs. Sheehan became aggressive and told her she did not have to give her anything, covering her name badge. The Complainant stated that she was then told to leave. In response, she stated that she said she was leaving to speak to her “legal team”.

The Complainant gave further evidence that she later confirmed it was Mary Sheehan whom she had spoken to the day after the incident. She did so by googling images of the hotel and confirming with the receptionist that Mrs. Sheehan was present on 24 March 2024.

It was put to the Complainant by her counsel that the Respondent’s case was that the individuals who walked into the bar area while she and her sisters were present were part of a separate group. In response, the Complainant stated that she did not know if they were part of a group, as they walked straight into the bar area, and she could no longer see them due to a door blocking her view.

It was also put to her that the Respondent’s case was that approximately 40 people were in the lobby area at the time. The Complainant denied this and instead gave evidence that she saw between five to six people in the lobby, noting that she would have noticed if there had been that many people.

She was asked whether she was told that the restaurant was busy. It was her evidence that if the restaurant was indeed too busy, then Mrs. Sheehan should have said so. She questioned why Mrs. Sheehan had initially given them the option to wait if there was no availability. She further stated that Mrs. Sheehan had explicitly said, "She didn’t want our kind in the hotel", and that the issue was not related to the waiting staff or kitchen staff.

Upon cross-examination, it was put to the Complainant that there was a birthday party in the upstairs area and that at the time of her arrival, approximately 30 to 40 people were in the lobby waiting to go upstairs. The Complainant denied seeing that many people and stated that she only recalled around ten people in the lobby.

The Complainant was asked whether she had heard the chef shouting, as it would be the Respondent’s evidence that the kitchen staff could be heard in the hotel lobby due to the high level of demand that day. It was further put to her that a party was due to start at 3pm and that the Respondent needed to prepare the room and ensure that staff received their breaks after a busy day. In response, the Complainant stated that if there were issues with the party or staff breaks, Mrs. Sheehan should have simply explained that. She described Mrs. Sheehan as being "so rude" and stated that she and her two sisters were not the only ones refused service that day, it was approximately 10 people, due to the demand for service and the need for staff breaks. However, she maintained that Mrs. Sheehan had said, "Your kind is not wanted here". She added that she would have understood if Mrs. Sheehan had explained that needed their staff breaks.

It was put to the Complainant that Mrs. Sheehan accepted she had said, "I can't look after you", but that this was due to the restaurant being too busy. In response, the Complainant questioned why, if that was the case, she felt the need to go back into the hotel after leaving to request Mrs. Sheehan’s name in order to make a complaint.

It was also put to her that Mrs. Sheehan emphatically denied making any reference to "your kind." The Respondent’s case was that Mrs. Sheehan may have been short with the Complainant but that this was due to being under pressure. In response, the Complainant asked, "Then why did she ask me to get out?"

The Complainant accepted that the whole interaction was over in a very short period of time. She described it as “abrupt and aggressive” on the part of the Respondent.

It was the Complainant's evidence that she contacted FLAC and accepted that the first letter sent to the Respondent was on 26 April 2024, requesting that the CCTV footage be preserved.

It was put to her that the CCTV footage was not available as the letter was sent too late. Additionally, the letter did not make any reference to an act of discrimination.

In response, the Complainant stated that she did not know the retention period for the CCTV footage.

Counsel for the Complainant made closing submissions, asserting that the burden of proof had been discharged.

It was noted that several aspects of the evidence were uncontested, including:

·       The Complainant was refused service.

·       The Complainant is a member of the Traveller community.

·       The Complainant was initially told to wait, and she would be served, but this later changed to been refused service.

Counsel also highlighted new evidence introduced at the hearing that had not been outlined in previous correspondence specifically, regarding the chefs and the pressures in the kitchen. However, no additional witnesses were called to support this claim.

Regarding the CCTV footage, it was submitted that it was not sufficient for Mrs. Sheehan to simply state that she "did not know anything about it." This was particularly concerning given that the footage had been requested at the earliest opportunity from the Respondent.

Mrs. Mary Sheehan, the hotel manager, gave evidence on behalf of the Respondent. She confirmed that she met the Complainant and her sisters on 24 March 2024.

Mrs. Sheehan described that some days were particularly busy, with the period between 12pm and 3pm on 24 March 2024 being especially hectic. She stated that a birthday party was booked in the upstairs area that day. Additionally, the senior football team was scheduled to have dinner later, alongside several walk-in customers and pre-arranged bookings. She clarified that while the hotel does not take bookings on the day, it does accept reservations in advance.

She described her role as seating guests, providing menus if a table was available, and generally managing operations on the day.

When asked about her interaction with the Complainant on 24 March 2024, Mrs. Sheehan stated that around 3pm, three ladies entered the hotel. She explained that they were extremely busy and did not expect to have a table available, but the ladies agreed to wait.

At the time, she noted that guests for the birthday party were arriving, and she was also aware that staff break time was approaching. She described how the kitchen door opened onto the lobby and that she could hear the chefs becoming increasingly loud. Concerned about the pressure on the kitchen staff, she made the decision that she could not stretch them any further. She then informed the Complainant and her sisters that she was very sorry but that they were fully booked and needed to prepare for the party upstairs.

She stated that she spoke primarily to the Complainant when explaining that they could not be accommodated. She described how the Complainant, and her sisters then began pointing at available tables and accused her of refusing service because they were members of the Traveller Community.

Mrs. Sheehan gave evidence that she felt quite intimidated when the Complainant asked for her name, as she felt the Complainant and her sisters were unwilling to accept her reasoning for refusing them service.

She acknowledged that there was a reference to a solicitor and that she understood the Complainant worked for a solicitor or legal team, though she accepted that she may have misheard.

Mrs. Sheehan outlined the ongoing difficulties in recruiting full-time staff since the COVID-19 pandemic. She explained the additional challenge of staffing on Sundays, as many part-time student employees returned to college early, which created further strain despite the large party scheduled in the upstairs area.

During cross-examination, Mrs. Sheehan was questioned about the alleged use of the words "your kind" or "your crowd." She firmly denied using those words and insisted that she did not discriminate.

She accepted that she had initially told the Complainant and her sisters that they could wait but later changed her mind and informed them that they could not be accommodated. She explained that this decision was made after she realized the kitchen staff were under significant pressure, which she could hear as the swinging kitchen door opened and closed.

Mrs. Sheehan acknowledged that it was her mistake to initially allow them to wait, as she later realized she could not accommodate them. She stated that she was pushing herself and her staff under too much pressure that day.

Mrs. Sheehan accepted that she had advance notice of both the party booking and the senior football team’s reservation. She also acknowledged that the hotel was short-staffed, stating, "Every day of the week, we're always short-staffed."

When questioned further about staffing issues, she explained that while she employed a number of full-time staff, the majority were part-time. To properly manage the party in the upstairs area, she ideally needed more experienced staff. However, many student staff members left between 2:30pm and 3pm on Sundays.

Mrs. Sheehan agreed that the restaurant area was not full at the time the Complainant sought a table and explained that lunch service was winding down. She stated that the restaurant needed to be reset for the senior football team, who were scheduled to arrive at 5:15pm. Additionally, staff needed their break before preparations for the evening meal, which began at 4:30pm.

It was put to her again that she had advance notice of these large bookings. In response, Mrs. Sheehan stated that there had been a 75% increase in lunch service that Sunday.

When asked how many people she had turned away that afternoon, Mrs. Sheehan estimated it was between 10 and 15. She stated that between 3pm and 4:30pm, no one was admitted into the restaurant, and from 3:30pm to 4:45pm, staff were assisting with food service upstairs.

She accepted that there were available tables when the Complainant arrived at the hotel but explained that the issue was the timing of their arrival and the pressure on staff.

Mrs. Sheehan emphasized that the decision was not related to the bar staff but rather to the restaurant staff's shift schedules and need for a break. She maintained that if she had allowed one more table to be served, it "could have tipped them over the edge" as they had not yet received their break. She stated that she had tried to explain the knock-on effect of the staff’s workload.

Mrs. Sheehan confirmed that the hotel does not use an electronic booking system and that all reservations are recorded manually in a diary.

When asked if she had till receipts to verify her claim that restaurant bookings had increased by 75% that Sunday, she stated that she had heard this figure from the head chef rather than from financial records.

Mrs. Sheehan was cross-examined regarding the Respondent’s CCTV policy, particularly in relation to a request for footage made by the Complainant, which received no response. She stated that her husband, a director of the hotel, handled all CCTV matters, saying: "I don’t know anything about CCTV—that’s my husband's area."

When asked why the Respondent only retains CCTV footage for two weeks, she stated that she could not answer that question.

The Respondent’s witness was also questioned about whether the hotel operated as a licensed premises. The Council confirmed that there was no jurisdictional issue before the WRC.

On behalf of the Respondent, it was submitted that, due to the serious and sensitive nature of the allegations, they preferred that the decision in this matter be anonymised.

In his closing submissions, Counsel for the Respondent argued that a prima facie case had not been established, as there was no stateable case.

He acknowledged that there were many uncontested facts between the parties, as noted by the Complainant’s Counsel. However, with respect to the contested matters, he submitted that the evidence did not align.

Regarding Ms. Avanzo, identified as the lead witness, Counsel noted that she was emphatic in her claim that there was no reference to the hotel being busy. However, when cross-examined, she doubled down on her denial, despite both Ms. O'Brien and Ms. Dooley recalling that the hotel was, in fact, very busy.

The Respondent’s defence had been clearly outlined in previous correspondence, describing:

·       A large party booking in the upstairs area.

·       A senior football team reservation in the early evening

·       A particularly busy Sunday lunch trade.

These factors, according to Counsel, clearly demonstrated the pressure placed on the kitchen staff.

The issue arose when Mrs. Sheehan changed her mind after initially telling the Complainant that she could wait. While the Complainant took this personally, Counsel emphasised that other customers were also refused service for the same reason.

Mrs. Sheehan made a business decision not to accept any more tables due to operational constraints. She accepted responsibility for initially telling the Complainant to wait, accepted she was under pressure and did not discriminate.

Furthermore, Mrs. Sheehan denied using the words “your kind” or any similar phrase in her conversation with the Complainant.

As regards the CCTV, it was submitted that Mrs Sheehan gave evidence within her knowledge of the events of the day in question.

The Complainant alleges that she was discriminated against by the Respondent on the grounds of her race and membership of the Traveller Community.

Section 1 of the Equal Status Act 2000 (as amended) defines “prohibited conduct” means discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of, a person in contravention of this Act

Discrimination is defined in Section 3 of the Equal Status Act 2000 (as amended) 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 Act identifies race and membership of the Traveller Community as discriminatory grounds:-

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

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

Section 5 of the Act 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 Act sets out the burden of proof which applies to a claim of discrimination under the Equal Status legislation. It 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.

It is noted that the Complainant correctly complied with the requirement to notify the Respondent of the allegation. Equally, the Respondent’s detailed reply has been noted.

As submitted in their respective closing statements, both parties agree that there are several uncontested matters in this complaint.

Having carefully considered the evidence before me, I accept that the hotel was busy on the afternoon of 24 March 2024 due to various group bookings and the usual lunch service. It is also accepted that the interaction in question occurred later in the afternoon, between 2:30pm and 3pm. Based on the evidence of Ms. Dooley, Ms. O’Brien, and Mrs. Sheehan, as well as the booking diary for that date, it is established that it was a busy afternoon. All four witnesses agreed that the Complainant was initially welcomed into the hotel and advised to wait, which appears to have been standard practice. It is further accepted that the Respondent later returned and refused the Complainant a table.

Therefore, I will focus on the contested matter: Did the Respondent refuse to serve the Complainant lunch because she was a member of the Traveller Community and due to her race, or was the refusal based on operational reasons, which would have applied regardless of her membership or race?

As the three complaints were heard together, with each Complainant presenting their evidence first, followed by the Respondent’s reply, the Complainants’ evidence is considered in its entirety.

It is necessary to examine the absence of CCTV footage. There is no doubt that the Complainant’s solicitor acted diligently in seeking the footage at the earliest opportunity, by letter dated 26 April 2024. I find the Respondent’s retention period of only two weeks to be, at the very least, curious. However, I conclude that the CCTV footage is not material to the key issue—whether the alleged discriminatory words were spoken—unless an accompanying audio recording existed. This conclusion also takes into account the evidence from both parties that, after the Complainant was told she would not be seated, a heated exchange ensued, with one of the Complainant’s party gesturing toward the empty tables.

It is further noted that the correspondence between the parties referred to a data access request under the Data Protection Act 2018 rather than a request for information under Section 26 of the Equal Status Act 2000 (as amended). As a result, there is no jurisdiction to determine whether inferences can be drawn from the Respondent’s failure to provide the CCTV footage of the interaction.

Having carefully considered the evidence, I accept that the Respondent was under pressure due to the time of day, the imminent sit-down meal for the birthday party of 40 people, the large football team booking scheduled for the early evening, and, most importantly, the need to break service to allow staff to take their legally required breaks or finish their shifts on time. It is accepted that the General Manager changed her decision regarding serving the Complainant—not due to her race or membership of the Traveller Community, but because she simply could not accommodate serving them amidst these operational constraints. Both Ms. O’Brien and Ms. Dooley stated that Mrs. Sheehan did mention the hotel was busy during the conversation.

On the balance of probabilities, I find that the General Manager was less hospitable than a patron might reasonably expect, given the operational pressures at that moment. This, in turn, led the Complainant to perceive the refusal of service as being due to her race and membership of the Traveller Community. Her perception was reinforced by the presence of empty tables within view and the arrival of other patrons who were allowed to enter the bar—patrons who, it is accepted, were attending the party.

It is entirely understandable that the Complainant and her sisters wished to continue their outing by dining together before returning home. It is also understandable that this was the only venue offering food in the area. Given these factors, it is reasonable that they questioned the decision, particularly as they were initially told to wait but were later refused service in what they perceived to be an abrupt manner. However, it is accepted that the availability of tables was not the only consideration for the Respondent that day; staffing levels and the kitchen’s capacity to prepare and serve food were also significant factors.

Having reviewed all the evidence, I find that there is insufficient evidence to displace the Respondent’s explanation or to support the allegation that the Complainant was treated less favourable due to her race or membership of the Traveller Community.

Allegations of discrimination are serious, and the evidence must meet a threshold demonstrating that, on the balance of probabilities, the Complainant was treated less favourable because of her race and Traveller identity.

I find that the evidence presented does not meet this threshold. The Respondent has provided a reasonable and credible explanation for its actions on 24 March 2024. Consequently, I find that the Complainant has not established a prima facie case of discrimination.

Application for Anonymisation

In response to the Respondent’s application for the complaint to be anonymised, I have considered the following: -

Section 25 (2) of the Act provides: -

“An investigation under this section shall be held in public unless the Director General of the Workplace Relations Commission, of his or her own motion or upon the application by or on behalf of any party, determines that, due to the existence of special circumstances, the investigation (or part thereof) should be held otherwise than in public.”

The Complainant did not seek to anonymise the decision. The Respondent’s submission that an allegation of discrimination is a very serious matter is agreed. However, the particular circumstance of this complaint cannot be described as “very sensitive”. No further special circumstances were put forward as to the reason to depart from the requirement set out in Section 25(2). On this basis, the application is refused.

I find that the Complainant was not discriminated against, and the Respondent did not engage in prohibited conduct.

Equal Status – Membership of the Traveller Community - Race