John O'Donoghue & Michael Flynn (represented by Michael B. O'Donnell Solicitor) V The Woodlands House Hotel, Limerick (represented by Patrick Mann & Co. Solicitors)
1.1 This dispute concerns a complaint by John O'Donoghue & Michael Flynn that they were discriminated against, contrary to the Equal Status Act 2000, by the Woodlands House Hotel, Limerick The complainants maintain that they were discriminated against on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) ofthe Act.
2. Summary of the Complainant's Case
2.1 The complainants state that they went into the Woodlands House Hotel on the afternoon of 1 January 2001 to have a meal and a drink. They say that they were refused service shortly after arriving, abused by the manager and told to leave. The complainants believe that service was refused because they were recognised as Travellers.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against Travellers. They maintain that a very large group of people arrived at the hotel and that they were extremely loud and boisterous resulting in other customers complaining. The group were asked to quieten down but, when they did not, the Manager felt he had no option but to ask them to leave.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated these complaints to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5.1 Background Note
These two complaints were originally assigned to another Equality Officer, Mr Anthony Cummins who has since left the Equality Tribunal. Mr Cummins initially scheduled a joint Hearing of these two complaints for 29 June 2001. At the Hearing on 29 June 2001, Mr Cummins was informed by the complainants' representative, Mr Purtill, that Mr Flynn was unable to attend because his wife was sick in Germany and he was unable to travel. He supplied a copy of a flight itinerary and a hospital note to support this. He asked that Mr Flynn's case be adjourned and that Mr O'Donoghue's proceed on the day, as he had travelled from abroad to attend the Hearing. Ms Lally, the respondents' representative, indicated that the respondent would prefer if the case was adjourned as she felt that it was necessary, for a proper defence to be employed, for Mr Flynn to be there so that he could also be questioned. On that occasion, Mr Cummins decided that he would proceed with Mr O'Donoghue's case on the day and that he would write to Mr Flynn stating that his case was "parked" until he could indicate when he was available to attend a revised hearing. Mr Cummins then proceeded to take evidence from Mr O'Donoghue and from the respondents and their witnesses. Mr Cummins was unable to convene a Hearing of Mr Flynn's case prior to his departure from this Office and did not issue a decision in either case. Following Mr Cummin's departure from the Equality Tribunal in 2002, the two complaints were assigned to myself, Brian O'Byrne, to conclude the investigation. In considering the status of the two complainants in this case, I was conscious of the fact that one of thecomplainants, John O'Donoghue, had given his evidence before another Equality Officer and I felt that, in the interests of natural justice and fair procedures, that the proper course of action to take was to rehear the evidence of all concerned at a reconvened hearing. By so doing, all parties would be afforded the opportunity to hear and challenge each other's evidence in front of the Equality Officer conducting the investigation. Following consultation with both sides, a second Hearing was fixed for 19 March 2003 with a view to bringing the investigation of both complainants' cases to a conclusion. At the Hearing on 19 March 2003, only one of the complainants, Michael Flynn, was in attendance. Mr Flynn explained that that he and his wife were currently living and working in Portugal, from where they had travelled for the Hearing. He said that the other complainant, Mr O'Donoghue (who had already given his evidence at the Hearing in 2001) was also currently employed abroad but was unexpectedly unable to return for the Hearing on 19 March 2003.
The Hearing proceeded with the taking of Mr Flynn's evidence, his witnesses' evidence and a repeat of the evidence provided by the respondents and their witnesses at the first Hearing
5.2 Evidence of Complainants - Mr Michael Flynn (at Hearing on 19 March 2003)
- Michael Flynn, his wife and family decided to "have a day out" on New Years Day with two other Traveller families from Rathkeale
- The three families consisted of Mr Flynn, his wife Christina and their two children, Mr John O'Donoghue, his wife and three children and Mr Michael Hegarty, his wife and two children.
- Mr Flynn collected the group (6 adults and 7 young children) from their homes in Rathkeale in his jeep.
- On considering where to go for lunch, the Woodlands House Hotel in Adare was suggested.
- The group arrived in the Hotel around 2 pm and went into the lounge. The lounge was reasonably busy at the time with a number of groups seated around the place. The three men went separately to the bar to order drinks while the women and children sat down
- Mr Flynn went to the bar and ordered a drink for himself and his wife which he was served. Mr Hegarty also went to the bar but returned saying that he had been refused service as it was a "private function"
- The group then decided to go to the Hotel Bistro to get something to eat.
- The Bistro was very busy at the time but the group managed to find two tables in the centre of the room. John O'Donoghue and his family sat at one table while the other two families sat at the other.
- John O'Donohue went to the self service area and came back with some food for himself and his wife.
- Michael Hegarty ordered two drinks from the bar. He paid for the drinks but before he could take them away, the barmaid announced that the "bar was closed" and took the drinks back. She refunded him his money.
- The group had been in the Bistro for less than 15 minutes at this time. The children were quiet and playing amongst themselves
- Suddenly, Mr Fitzgerald appeared behind the counter, announced that the "Kitchen was closed" and then roared directly at the three families "Get out of this place, you dirty animals". Mr Fitzgerald also directed that they leave by the back door.
- Mr Flynn likened Mr Fitzgerald to " an asylum case" on account of the way he behaved
- In light of what had happened, Mr Flynn decided to call the Gardai himself.
- The Gardai arrived after 30 minutes and Mr Flynn told him what had happened and asked them to take the names of some of the customers who had witnessed the incident. The Garda told him "There is no need. Once you reported it, I have it". Mr Flynn did not get the Garda's name.
- The Garda stayed on the premises while the three families were leaving.
Evidence of Mr Michael Hegarty
- Mr Hegarty confirmed Mr Flynn's description of the events of 1 January 2001.
- He recalls seeing Mr Flynn getting served a pint in the lounge. However, when he himself sought service he was told that it was a "private function"
- He said that he later went to the bar in the Bistro and was particularly embarrassed when the barmaid took back his drinks and announced that the bar was closed.
- He got the clear impression from the staff that his group were not wanted
- He said that nothing had happened beforehand to prompt such action. No staff member had spoken to any of the group prior to Mr Fitzgerald's outburst.
Evidence of Mrs Christina Flynn
- There were no signs in the hotel on her arrival indicating that the lounge was reserved for a private function
- There was a diverse crowd spread around the lounge. Most were well dressed but there was no obvious signs (wedding dresses, clothes etc) that they were together as part of a wedding group
- Mrs Flynn said that she dressed up that day, as it was New Years Day, and wore a suit and some jewelry.
- She was embarrassed when they were told that a "private function" was on as she could see no evidence that the people in the lounge were all part of the same group.
- The three families sat at two tables beside each other in the Bistro. There were many other children on the premises at the time.
- No member of staff approached them prior to Mr Fitzgerald telling them to get out. No one cautioned them about being noisy or about controlling the children.
- She remembers Mr Fitzgerald suddenly roaring "Get out you animals" at them from behind the counter
- No reason was given as to why they were being asked to leave.
5.3 Respondents' Evidence Mr Richard Fitzgerald, Hotel Owner
- The Woodlands House Hotel has been under Mr Fitzgerald's control for almost 20 years
- The hotel's trade would be middle-of-the-road with a combination of local and passing trade
- The hotel is happy to serve anyone who behaves and does not discriminate
- The Bistro is open every day from 12.30 pm
- There has only been one major incident in the hotel over the years and that involved a local settled family
- None of the complainants' group, adults or children, were known to hotel staff prior to 1 January 2001
- The hotel had a wedding reception booked for 4.30 pm on the afternoon of 1 January 2001. The wedding group arrived about 2.30 pm
- The wedding group had asked for the lounge to be reserved from 2.30 pm and this had been done. Notices stating "Private function" were displayed at the lounge entrance.
- Details of wedding bookings and arrangements are maintained in a diary. Mr Fitzgerald agreed to supply copies of extracts for 1 January 2001 and surrounding dates.
- The Hotel would not have expected many ordinary customers to visit the lounge that afternoon. There was, however, a large crowd in the Bistro around 2.30 pm, where drinks were also available.
- Mr Fitzgerald accepted that it was possible that some non-wedding customers may have gained entrance to the lounge that afternoon
- He believes that the three Traveller families arrived after the wedding group
- Mr Fitzgerald was on duty in the Hotel reception area and in the lounge that afternoon. He does not recall seeing the group in the lounge himself
- The families first came to his attention when a customer came to him in the lobby complaining that "You should be in the Bistro" . Mr Fitzgerald did not ask the customer what he meant.
- Five minutes later, Mr Pat Dwyer, the Bistro Manager, came to him and said "there's going to be trouble inside"
- Mr Fitzgerald went into the Bistro to monitor the situation
- He noticed a group of 25/26 people in the centre of the Bistro who were shouting loudly. There were 12/15 adults in the group
- He went over to the group and asked them to "behave themselves". They did not quieten down but instead got louder and started "skitting" at him
- They then asked him for more drink despite having full drinks in front of them
- At no time did he think they were Travellers
- He then went inside the counter and announced that he was closing the bar.
- One of the group said that he would "piss on the floor" if the bar was closed, to which Mr Fitzgerald replied that "only an animal would do that"
- Mr Fitzgerald immediately rang for the Gardai. When they arrived, he told them exactly what had happened and they escorted the group off the premises
- Mr Fitzgerald described the event as a "terrifying experience"
- In responce to questions from the complainants' representative, Mr Fitzgerald acknowledged that, in spite of being terrified, he did not seek to prosecute anyone afterwards
- In responce to another question, Mr Fitzgerald maintained that he would have difficulty distinguishing a Traveller from a non-Traveller. He did, however, acknowledge that Traveller women are often identified by their jewelry
- In responce to a remark from the respondents representative that 50% of the Rathkeale population have a Traveller background, Mr Fitzgerald said that the question as to whether customers were Travellers never influenced his decisions with regard to service
- Mr Fitzgerald acknowledged that he had not considered installing a CCTV camera after the incident on 1 January 2001 despite being terrified by the events
- Mr Fitzgerald acknowledged that he recalls seeing people arrive in "vans" outside the hotel but says that he would never automatically assume that they were Travellers
Evidence of Mr Pat Dwyer, Bistro Manager
- He was employed by the Woodlands House Hotel for 8 years prior to the incident
- He recalls that the Bistro was very busy that New Years Day with about 80 customers
- He recalls the complainants' group coming in at 3 pm and having some difficulty finding tables together initially
- He recalls that there was up to 22 in the group of which 12 to 14 were adults and that they were taking up about 6 tables
- Mr Dwyer recalls that practically all of them had food. He got a lot of business from the group and most of the adults had drink in front of them
- Mr Dwyer did not identify the group as Travellers at any stage
- A customer remarked to him that the group were very loud and that he felt threatened by their presence
- After 45 minutes the group became very noisy and the children were not being kept under control. The situation became increasingly more noisy and chaotic as time went on
- The Bistro was very full at that point and other people were having trouble finding tables
- Mr Dwyer considered at that point that the group had got "too loud". He then went to Mr Fitzgerald in the lobby and said that their was a "problem inside". He did not describe the "problem" to Mr Fitzgerald but left it for him to see for himself.
- Mr Dwyer did not consider approaching the group himself with a request that they quieten down
- Mr Dwyer then went in to Mrs Fitzgerald in the kitchen area and described the situation to her as the Bistro was her area of responsibility.
- She immediately instructed him to close the Bistro which he did.
- At about the same time, Mr Fitzgerald decided to close the bar
- Mr Dwyer never received specific training on discrimination issues while employed by the Woodlands Hotel
Evidence of Respondent's witnesses, Mr Denis Holmes and Mr Pakie Deere
- Mr Holmes arrived in the hotel with Mr Deere between 1.30 pm and 2 pm on 1 January 2001
- Around 2.30 they decided to go to the Bistro for a meal.
- When they entered there was a large queue for the food so they decided to have a drink first
- Within 15 minutes, they noticed that the place had gotten very loud and noisy and that there were a lot of children running around. They thought that the noise was coming particularly from a group at a set of tables in the centre who were very boisterous.
- Mr Holmes said that he cannot remember any of the individuals involved and could not say whether the complainants were the people in the group
- Mr Deere said that he did not recall any member of staff asking the group to quieten down
- They waited for 15 minutes before deciding that they did not feel comfortable in the surroundings. As a result, they decided not to eat in the Bistro that afternoon and left.
- On the way out, Mr Deere complained to the receptionist about the atmosphere in the Bistro
- They only heard about what happened after they had left, when Mr Pat Dwyer contacted them subsequently to ask if they would attend a Hearing. Evidence of Ms Mary Ann Whooley, Duty Manager
- Ms Whooley was not employed by the hotel at the time of the incident. She took over as Duty Manager in 2002
- The Hotel now has a staff manual dealing with issues such as customer service and discrimination. She can provide a copy of same if required.
- On becoming employed by the Hotel, no specific training on equality matters was offered to Ms Whooley. She was, however, aware of the legislation from her previous job.
- Ms Whooley confirmed that the hotel maintained an Incident Report Book and undertookto produce a copy of any report contained therein relating to 1 January 2001
5.4 Note At the Hearing, both parties made reference to the fact that the Gardai had been called to deal with the situation that had arisen. The Garda in question had not, however, been called as a witness by either party. In light of the Garda's involvement on the day, I decided that a written statement and/or a copy of any notes taken by the Gardai would be of benefit in deliberating on the case before me and I made a request to the local Garda Superintendent for a copy of same. Shortly afterwards, Garda Tom Keane, who was the Garda involved, supplied me with a written statement and a copy of his notes taken on 1 January 2001. The statement and notes read as follows:
" In relation to your enquiry, please find enclosed a copy of the notes which I took on the day in question. On my arrival at the hotel, I met with Mr Dick Fitzgerald. He escorted me to Timmy Mac's bar/restaurant. Both the lounge and Timmy Macs were full with patrons. I met the group of Travellers. It was quite obvious that there had been a major difference of opinion between both parties before my arrival. Both sides were quite agitated. Due to the large number of patrons present, I was not in a position to take statements from everyone there and then. I did, however, invite both parties to make a statement to me at Adare Garda station the following day or indeed if they so wished to do so at any Garda station. No statement of complaint has ever been made by either party concerning this incident. The group of Travellers may have had some alcohol consumed but did not give the appearance that they were out of control due to alcohol consumption. Following my conversation with them, they stated that they were leaving and duly left peacefully."
" Monday 1/1/01 4.20pm
12 Dick Fitzgerald complained that a group of Travellers were unruly and noisy in Timmy Macs. He stated that he had asked them to leave but they refused. I spoke with Michael Flynn who complained that he and the company he was with were refused service at the hotel. Michael Flynn & his wife, Christina and children John and Frederick, John O'Donoghue, his wife Jean and 3 children, Marcella, John and Nora, Michael Hegarty, his wife Annie and children Gerry and Catriona. Michael Flynn claimed that Dick Fitzgerald had called them animals. Dick Fitzgerald claimed that the Travellers said they would shit on the floor if they were not served. After speaking with the Travellers, they left the hotel voluntarily "
5.5 On receipt of Garda Keane's statement and notes, copies were passed to both parties for any observations they may have. Neither side offered any comments on them. Also, subsequent to the second Hearing, the respondents submitted a copy of an extract from their wedding receptions booking diary for 1 January 2001 and their staff handbook, which were passed to the complainants for information. The respondents also indicated that they had checked the incident report forms for 1 January 2001 but found that nothing had been recorded in relation to the incident involving the complainants.
6 Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(i) of the Act specifies the Traveller community ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they were discriminated against on the grounds of their membership of the Traveller community contrary to Sections 3(1), 3(2)(i) and 5(1) of the Equal Status Act, 2000 in being asked to leave the Woodlands House Hotel on 1 January 2001.
6.2 In cases such as this, the burden of proof lies with the complainants who are required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the Traveller community ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
7.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
7.3 With regard to (a) above, the complainants have satisfied me that they are members of the Traveller community. In relation to (b), the respondents accept that the complainants were refused service on 1 January 2001. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainants on 1 January 2001 was less favourable than the treatment non-Travellers would have received, in similar circumstances.
7.4 In this case, there is a sharp contrast in the evidence given by both sides. On the one hand, the complainants state that there were only three families involved and that they acted in a peaceful and orderly manner while in the hotel. On the other hand, the respondents state that a group of up to 26 Travellers were involved and that they were extremely loud and boisterous. As I have no totally impartial witnesses to rely on with regard to what happened in the hotel, I must decide which side's description of events is the more credible, based on the evidence and facts before me. In this regard, I consider the following points to be the most important and persuasive:
- The respondents produced two witnesses who testified that the Bistro had gotten very loud and noisy and that there were a lot of children running around. While they have said that the noise was coming from a particular set of tables, they were unable, at the Hearing, to confirm whether the complainants were the people sitting at those tables. Also, as these two witnesses have stated that they left before the bar was closed by Mr Fitzgerald, they were unable to provide evidence as to what followed between Mr Fitzgerald and the complainants.
- There is a serious conflict over the number in the group that were allegedly causing trouble. The complainants state that there were 6 adults and seven children while the respondents have claimed that 25/ 26 people including up to 15 adults were involved. In this regard I note that Garda Keane's notes only make reference to the six adults and seven children identified by the complainants.
- The respondents totally deny that they knew the group to be Travellers. The complainants, however, reject this claim as they say that 50% of the population of Rathkeale have a Traveller background and the hotel would be aware of this. The complainants also state that it would have been evident from Mrs Flynn's jewelry that she was a Traveller.
- Throughout the Hearing on 19 March 2003, the respondents were very keen to emphasise the seriousness of the situation that had developed on 1 January 2001 and how terrifying it was for the staff. The evidence before me shows, however, that the hotel did not record any details of the incident in its incident report book. I also note that the hotel did notpursue any prosecutions in the matter despite Mr Fitzgerald stating that it had been a terrifying experience.
- While the hotel insist that the lounge had been reserved for a wedding party on the day, the weddings booking diary for that day, which goes into great detail about arrangements for the reception, does not appear to contain any reference to the lounge being reserved for the wedding party.
- While the complainants state that only some of them managed to be served a drink, the respondents maintain that the group had a lot of drink taken and were seeking more drink from Mr Fitzgerald when they already had had full drinks on the table. The only independent evidence I have of the complainants' condition is from Garda Keane's statement which states that "The group of Travellers may have had some alcohol consumed but did not give the appearance that were out of control due to alcohol consumption".
- Both sides have made reference to inappropriate remarks that were allegedly made by the other side. It would seem, however, that these remarks were only made after the complainants had been informed of the decision not to provide them with further service. It, therefore, appears that the remarks were made after the alleged act of discrimination (the refusal of service) had taken place. For this reason, and because I do not have any independent witnesses to testify as to what was actually said, I do not propose to make any decision as to the veracity of the alleged remarks.
7.5 On considering the above points, I find it difficult to accept the respondents' claim that they had sufficient justification for asking the complainants to leave. Instead, I consider that the complainants were recognised as Travellers on their arrival resulting in attentionbeing focused on them, more so than on other customers, when they congregated together in the centre of the Bistro. Overall, I consider that the respondents have grossly exaggerated the numbers, activity and demeanour of the complainants' group on the day and I consider, on the balance of probabilities, that it was the complainants' Traveller identity that lead to them being singled out and receiving less favourable treatment than other customers on 1 January 2001. Accordingly, I find that the complainants' group were recognised as Travellers on 1 January 2001 and that this recognition brought about an "over-reaction" on the respondents' part leading to the group being asked to leave the premises. I, therefore, find, that a prima facie case of discrimination on the Traveller community ground has been established and that the respondents have failed to rebut the allegation.
7.6 As mentioned earlier, in considering the status of the two complainants in this case, I felt that, in the interests of natural justice and fair procedures, that the proper course of action to take was to rehear the evidence of all concerned at a reconvened hearing, to enable all parties the opportunity to hear and challenge each others evidence in front of the Equality Officer conducting the investigation. For this purpose, all parties were invited to the reconvened Hearing on 19 March 2003 Due to the unfortunate unavailability of Mr O'Donoghue at the last minute on 19 March 2003, it was not possible to proceed as planned, as I was unable to hear the evidence of Mr O'Donoghue himself at first hand nor were the respondents afforded the opportunity to cross-examine him in my presence, as they are entitled to do in accordance with natural justice. In view of this, I feel that it would be inappropriate of me to find in favour of someone who has not provided first-hand evidence before me. I, therefore, consider that I have little option but to find that John O'Donoghue has not established a prima facie case of discrimination in this instance.
7.7 Based on the evidence before me, I find that Michael Flynn has established a prima facie case of discrimination on the Traveller community ground and that the respondents have failed to rebut the allegation.
8.1 I find that a prima facie case of discrimination has been made by Michael Flynn in establishing that he was discriminated against, contrary to Sections 3(1) and 3(2)(i) of the Equal Status Act 2000, on the grounds of his membership of the Traveller community, in not being provided with a service which is generally available to the public, contrary to Section 5(1) of the Act. I also find that the respondents have failed to rebut the allegation (DEC-S2003-070). With regard to the other complainant, John O'Donoghue, I find that, in not being available to provide evidence at the Hearing on 19 March 2003, he has failed to establish a prima facie case of discrimination in his own right (DEC-S2003-069).
8.2 I order that the respondents pay Michael Flynn the sum of €1000 for the humiliation, loss of amenity and distress suffered by him on 1 January 2001.
8 August 2003